The DUI Exception to the Constitution
Lawrence Taylor

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Well, about this time you arrive at the police station and the officer takes you into a room and there is this little metal box about the size of an IBM typewriter. Some of you may remember those. And he says breathe in here. And you say, "Wait a minute, I have a right to an attorney. Can I make a phone call?" "No". And he’s right. Only in DUI cases. He’s right. You’re about to give the most incriminating evidence it is possible to give in a DUI case and you have no right to seek the advice of an attorney as to whether to breath into that machine or to attempt a urine or a blood test in the alternative.

And I’m only touching on a few of the problems. In California, for example and in many other states, the law says you have a right to choose between breath, blood and urine. Your choice. We have discovered in California, through our own Supreme Court that when the officer doesn’t give you that choice—just makes you breathe into that little black box—that’s okay. They’re not supposed to do it, but there’s no remedy. There’s nothing that can be done about it. You can’t suppress the evidence. Police are not stupid, so now about half of them simply don’t give you that choice, since nothing’s going to happen if they don’t. So you find out that you have no right to consult with an attorney.

Your next thought is, "I don’t know if I trust that little machine. Maybe I should refuse to breath into it. I think I’m okay because, becase as I remember, there’s a Fifth Amendment right in the United States constitution that I don’t have to incriminate myself and, not only that, but if it goes to trial, the prosecutor cannot even refer to the fact that I’ve exercised my Fifth Amendment right."

The South Dakota Supreme Court, in Neville vs. South Dakota agreed a few years ago and they said, "This gentleman refused to incriminate himself by breathing into that machine and it was reversible error for the prosecutor to comment upon that to the jury and tell them that he refused, because he knew he was guilty." Now you’re probably ahead of them. It went to the United States Supreme Court. The United States Supreme Court, in South Dakota vs. Neville in 1983 said, "There’s a DUI exception to the Fifth Amendment. There is no right to refuse and the prosecution can comment freely in trial upon that refusal." And they sent it back to South Dakota. And South Dakota said "If you in Washington will not protect our citizens, we will rely upon our own state constitution," and they reversed it again based upon the South Dakota constitution’s provisions against self-incrimination. That’s the last story I have of the State Supreme Court exercising protections of its own citizens.

So, you decide you’re going to breathe into that machine. And you do. You breathe into one end and out the other end comes a piece of paper that says your blood-alcohol concentration is .13. Now, at this point, in most states, the police are supposed to give you a choice as to whether you want a urine or a blood saved as well, so that you have something for your defense attorney to examine with an independent analyst rather than [rely] upon a crime lab of that very same law enforcement agency.

This is called the Trombetta Advisement. They don’t give it usually. They’re supposed to, but if they don’t, no harm, no foul and so it rarely isn’t done. It’s called the Trombetta Advisement because a few years ago, in 1984, a defendant in California said, "Wait a minute, that machine captured my breath and minutes after analyzing it, just purged it into the room air. It could have saved the breath. (Very easy to do. Costs about $1.50 for a special kit to just preserve it.) It could have saved the breath and then my attorney could have had it analyzed by a separate laboratory. You have destroyed evidence that I could have analyzed and may have been exculpatory." This went to the United States Supreme Court and in Trombetta vs. California, the Supreme Court found yet another DUI exception to the constitution and said "Well, it would be nice if they saved the breath, but there’s no obligation to do so. And destruction of that evidence, unless you can prove that it would have been exculpatory, has no impact." So, today it is alright to destroy the evidence after you get your own results and make sure the defense doesn’t get a-hold of it.

Finally, you’re rather outraged because you know you’re not under the influence. You know you’re not over .08, which is the California standard and the standard in about a third of the states today. And in 10 years will be the standard in all of your states because the federal government is telling you that’s what it’s going to be. And the Mothers Against Drunk Driving are ensuring that happens. You decide to go find one of these people completely without any social value and ask them to represent you in trial. You want to tell a jury of 12 of your peers what happened. You want to give your version. So you tell your attorney, "I want a jury trial." Your attorney says, "I am really sorry, but you can’t have one. You see we don’t have jury trials for DUI cases in this state, because in 1989 the United States Supreme Court in Blanton vs. North Las Vegas, a DUI case, said, "There is no constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail."

So, in four states today, obviously including Nevada, you have no right to a jury trial. And the Mothers Against Drunk Driving and a few other organizations are doing everything they can to make sure there are no jury trial rights in other states as well.

All right, we’ve taken a look at what happens to you as you go through the process in terms of any constitutional rights you thought you had. And if you’d been charged with burglary, murder, rape, you would have had those rights. At least for now.

Now, let’s take a look at what the crime itself is. What is the offense you just committed? I will tell you, that when I have clients come in the door, almost none of them know what the crime is and probably half of them don’t know if they’re guilty or not.

In the beginning there was a law. That law said thou shalt not drive under the influence of alcohol. Period. It was a good law. We need it. It addressed the problem. It was fair. Unfortunately, there were some defendants being acquitted. And so an inventor came along and said, "Well, I’ve got this super neat little gizmo here. I call it the Breathomatic. It’s a box and if you breath in this end, out the other end comes this piece of paper and it’ll tell you exactly how much alcohol is in the person’s blood, which is going to the brain."