Does the Constitution Protect the OWI Suspect?

No. I am willing to argue that no other crime has caused lawmakers and courts of this land to bend the Constitution more than drunk driving. The traditional ideals we have in criminal law of a defendant’s Constitutional protections, such as your right to be free from illegal stop, search, or seizure; your right to fully cross examine your accuser; your right to present a defense; and your right to due process, have been slowly eroded away over the years to the extent that many of these defenses and rights are extinct.

The problem traces its way back to the legislature’s constant bogeyman, the need to protect the public, an important and serious role. Drunk driving has been a danger to society in the United States since there has been alcohol (I would guess long before 1776) and modern automobile transportation (let’s just go back to 1908 and the Model T). Safe to say, it has been a while. What we may think of as the modern attitudes and laws about drunk driving really only stretch back 30 years. In this vein, let’s take a modern look at drunk driving law and policy as it stands today.  

One of the many traditions in the United States is that you are free to go about your day as long as nothing you do rises to the level of probable cause, which would allow the police to stop and detain you and even arrest you if it was related to criminal activity. Most people living today do not appreciate how important this right is in a free society and, in a very blasé way, take it for granted. If you are someone who enjoys a couple of glasses of wine with dinner before getting in your car to drive home with your spouse, watch out.

The fact of the matter is that if you so much as take your eye off the road for a second and happen to cross a fog line on the road, and you are unlucky enough to have an officer of the law tailing you, you can be stopped and investigated for drunk driving. Most likely, given the primitive methods of analysis for impairment, you will be arrested on suspicion of operating while under the influence. The tools the officers use to diagnose impairment, the Standardized Field Sobriety Tests, were developed with government money by a contractor who no longer can testify in several states due to the lack of scientific reliability associated with the tests.

After you are arrested, you will then most likely be asked to blow into a machine that has a “presumption of reliability” that a jury can use to convict you. If you elect not the blow into the machine, the officers will then, without a valid warrant, be able to use “reasonable means” (which today includes tying you to a gurney and sticking you with a needle against your will) to extract a blood sample from you. Never mind the Constitutional protections of the presumption of innocence, or the right to remain silent, or the right to be free from seizure without a valid warrant.

If you want to challenge the result of that machine, which is essentially your accuser, you run into the issue that by law you cannot get access to the source code to determine if the machine works properly. Even more insulting is that in several states in the union, once the source code was obtained through Constitutional challenge, it was shown to be faulty in several significant ways. So much for the right to cross examine your accuser.

This makes presenting a defense rather difficult. If the State is entitled to the presumption of accuracy of the machine, and the defense cannot even cross examine the technique for arriving at the result, it severely compromises the ability of the defendant to present a defense. I would liken this to the faulty presumption that fingerprint evidence is accurate unless you can prove it otherwise. We know that it is ultimately the jury’s decision whether a particular scientific method yields the professed result, yet the legislature has taken the matter away from the jury and handed the issue to the State.

Why does this matter to the rest of us? Very simply because these various compromises to the integrity of our system have been done by the legislature to try and increase convictions for drunk driving, save money getting those convictions, and make it easier for the State to obtain the convictions. Fundamental Constitutional fairness has been curtailed substantially. All this being said, I am not one to advocate that if one has too much to drink one should just hop in the car and careen through city streets in a desperate attempt to get home. But if we are going to lock someone up in jail and take away their privilege to operate their vehicle, we had better be certain that the due process that every American is entitled to is not compromised by an interest in the State getting easier convictions.

It is a slippery slope we walk down when trying to protect the public. Policies that are popular are not always right. Getting drunk drivers off the road and prosecuting them fairly is essential to the public safety. There are fair and effective, albeit more costly and burdensome, ways of prosecuting drunk drivers that would be consistent with American Constitutional principles. That is a topic for another day. To continue to erode Constitutional rights and liberty in the interest of public safety, which seems to be the trend we are following, is a very scary proposition for a free country.

This Post Has 2 Comments

  1. Mary T. Wagner

    As a prosecutor who deals with drunk driving cases on a weekly basis both in court and on appeal, I’d like to argue pretty much every paragraph in this post. But . . . it’s New Year’s Eve. No doubt there will be a fresh crop of drunk drivers collected over the weekend. So I’m going to enjoy the weekend and then deal with it when the courthouse is open.

    And so the constitutional food for thought I’ll leave you with here is simply that the collection of evidence of drunk driving, including warrantless blood draws, fall well within the “exigent circumstances” exception to the Fourth Amendment’s warrant requirement and are reasonable given that this is one of the only crimes I can think of where evidence continues to dissipate literally as the arresting officer is standing next to the suspect. Time is of the essence in these cases in order to determine whether or not the person who has already given law enforcement probable cause to believe that he or she has been driving under the influence has in fact done so beyond a reasonable doubt. Or not.

    And last, remember that driving itself is not a constitutional right. You can have your driver’s license pulled for any number of reasons, including not paying your municipal fines for littering. So statutes such as Wisconsin’s “implied consent law” are reasonable when balanced with the privilege of directing a machine weighing several thousand pounds on our streets and highways and staying sober.

  2. Nick Zales

    Interesting comments from TJ and Mary Wagner. No rational person favors drunk driving. Yet drunk driving is an integral part of Wisconsin culture. It is promoted on a daily basis in every part of the state. I have never been to any event, public or private, where alcohol was not served. In many Wisconsin towns, there is a bar on every corner. It’s everywhere.

    Likewise, where in the Constitution does it say that exceptions to the 4th Amendment, or any Amendment for that matter, are allowed? Nowhere. Usurping power from “We the people,” judges have decided they know better than the founding fathers. There were “exigent” circumstances in 1776 and 1787 just as there are today.

    Lastly, it is claimed that driving is not a constitutional right. Who says so? The government. The same government that creates dozens of exceptions to the 4th Amendment that should be barred by a strict reading of the Constitution. Was riding a horse or buggy a constitutional right in 1787? Yes it was.

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