Perhaps no moment was more exciting for me as a brand-new Public Defender, only weeks out of law school, than when my first Driving Under the Influence (DUI) case landed on my desk. Highlighter in hand, I tore into the police reports like a kid on Christmas morning. Aha! No probable cause for the traffic stop! No Miranda rights! No preservation of the evidence! Confident that I was about to teach the local police force a valuable lesson in criminal procedure, I filed a motion to suppress evidence, based on my belief that the stop and arrest violated numerous provisions of the U.S. and state Constitution, and smugly sat back to await the day of reckoning. Luckily for me, one of the more experienced attorneys in my office got wind of my grand scheme and saved me from a lifetime worth of embarrassment at the hands of the prosecutor’s office. It came as a shock to me, as it probably does to many Americans, that many of our most cherished Constitutional rights don’t apply to DUI arrests.

     Take, for example, the Fourth Amendment, which guarantees the right of the people to be free from unreasonable search and seizure.  Normally, the Fourth Amendment protects Americans from being stopped by law enforcement without a warrant or probable cause to believe that a crime has been committed. However, in Michigan Department of Sate Police v. Sitz (1990), the United States Supreme Court held that while DUI roadblocks constituted a “seziure” by law enforcement within the meaning of the Fourth Amendment, there was an exception when the roadblock was put in place for the purpose of seeking out drunken drivers. Applying a balancing test, the Court stated, “The balance of the State’s interest in preventing drunken driving . . . and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the State program.”

 

    Following the Court’s ruling in Sitz, the Michigan Supreme Court held that DUI roadblocks were impermissible under the Michigan State Constitution. Even so, roadblocks established for no purpose other than to search for those driving under the influence remain permissible today in 46 states.

     On par with the right to be free of unreasonable search and seizure is the right to remain silent upon arrest, courtesy of the self-incrimination clause of the Fifth Amendment.  Consequently, decades of case law also establish that it is not permissible for a prosecutor to comment upon a criminal defendant’s invocation of his right to remain silent. Yet in South Dakota v. Neville (1983), the U.S.  Supreme Court found that it was no improper for a prosecutor in a DUI case to comment to the jury on the defendant’s failure to take a breathalyzer test and that it was not a violation of the defendant’s due process rights for the jury to infer that the defendant’s failure to take the breath test was evidence of his guilt. 

     While the rulings in Sitz  and Neville may be the most surprising to ordinary Americans, they are far from the only “DUI exception” cases handed down by the U.S. Supreme Court. In Birkemer v. McCarty (1984), the Supreme Court held that, while police officers are bound to read drivers their Miranda rights upon arrest for DUI, they do not have to give Miranda warnings prior to asking drivers questions about how much alcohol they’ve consumed or prior to offering them to take a breath test. In Blanton v. North Las Vegas (1989), the Supreme Court stated that there is no right to a jury trial in a DUI case when the DUI is not punishable by more than six months in jail. In California v. Trombetta (1984), the Supreme Court ruled that due process did not require police to preserve breath samples of suspected drunk drivers in order for the results of a breath test to be admissible in court.

     Finally, most Americans would probably be surprised to learn that DUI is the only criminal charge for which a driver can be punished solely for exercising his constitutional rights. Today, 41 states automatically suspend a driver’s license for the refusal to take a chemical (blood or breath) test. In 36 states, the refusal to take a breath or blood test upon being stopped by the police results in a greater penalty than if a driver takes a breathalyzer test and fails.  This is true because, in the 36 states mentioned, the period of suspension of a driver’s license is longer when a driver refuses to take a chemical test than when he takes the test and fails. In addition, nine states currently suspend a driver’s license for the refusal to take field sobriety tests.

     While a few states have exercised the right to afford their citizens greater protection under their state constitutions, the majority of states have embraced the Supreme Court’s permission to curtail constitutional rights when it comes to DUI arrests. While one hopes that safety alone would be enough to discourage drivers from drinking before getting behind the while, knowledge of the lack of constitutional protections afforded those who are arrested for DUI should serve as an additional deterrant.