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[Questions from the audience]
Q. And that they didn't have—you mentioned that they didn't have to offer urine or blood. They offer them to... well, would an arrested person have the right to refuse the Breathalyzer and request a blood test? That's the question one. Question two. Would, even if they took the Breathalyzer, would they then be, uh, allowed to request a confirmation test by blood?
A. To answer the first question. Did everybody hear it? Did anybody not hear the question? To answer the first question. If they are told they must take the breath test and they refuse, it is a refusal. Secondly and this was referring to the Trombetta case. The Trombetta case or the Trombetta Advisement, excuse me, after the Trombetta case where they said "you didn't have to save breath." After that, in California and in a number of other States, they said, "Well, since the police don't have to save the breath, we should advise the suspect that he has a right to a second test, at his cost, of course, of a blood or urine, which can be saved and tested." Your cost—go to a hospital, whatever, provide a urine sample right here and now. You're supposed to advise them of that. The Trombetta advisement. It is often, perhaps usually, not given.
Q. Could you request it?
A. You can request all day long.
Q. If they would refuse you, would that be an aid in your defense at a later time?
A. If the officer were to admit that the suspect demanded a blood or urine as a second test and it was refused, then you could, theoretically, advise a breath test. In my experience, I have never had a police officer admit that.
Q. If you had a chance to overhaul the legal system regarding DUI, do you have any alternatives that would give reasonable protection to the other drivers on the road from people that are really drunk driving?
A. The same protection I would give against rapists and murderers. Thou shalt not drive under the influence of alcohol. And if you as a prosecutor or a police or as the State have evidentiary problems with it, it's the same problems you've got convicting O.J. or anybody else, I guess, you're going to have problems. But the benefit from maintaining our constitutional safeguards is I think worth the few people who may be guilty who'll get off as a result.
Q. Yeah, on the question of the uh, decline in the statistics of people convicted of DUI, I wonder where there's a number phenomena at work here which is that when you raise the, the threshold on some of these laws to very Draconian positions, my observation is that oftentimes the police become a safety valve; where they simply won't charge people under these laws. What I mean, for example, some years ago in New York State they had the death penalty for drug dealing. And drug dealing arrests went way down because the police simply charged these people with other crimes rather than the one that had the severest penalty. And I was wondering whether some of this may be going on in this area?
A. Yeah. That's a good question. In my experience in my local jurisdiction and in states I have spoken in, that is not happening. The police are pretty rigidly enforcing. Excuse me, in most cases, they're rigidly enforcing the DUI laws because it is becoming serious. It's now a full-blooded darn serious misdemeanor and sometimes a felony. They didn't enforce it before because it was a glorified infraction, perhaps, I don't know. But I do know enforcement has been stepped up and there are for example now extensive roadblock programs all over where there were never before.
Q. In the list of cases that you went over, what weight do you ascribe to the fact that the activity engaged in while "under the influence" is a licensed activity in terms of the uh...
A. Years ago, yeah, years ago the argument was, "We can do anything we want because driving is a privilege, not a right." You must have heard that over and over again. "Driving is a privilege, not a right." A decision in the Warren court years ago said, "Wrong; it is a right." Or to put it another way, "You have no right to it, but you have to give due process before you take it away." In that sense, it is a right, not a privilege. Nevertheless, that is the thinking, the mentality of a lot of courts in the United States today.
Q. How do you explain the numerous exceptions to the Bill of Rights, in your opinion, after experiencing it for so many years?
A. I'll say it again. The single greatest threat. . . .
Q. I'd like to take issue with your statement that it's the single greatest threat because I think you've given a couple examples that are misleading. You mentioned that a defense attorney can be jailed for contempt if he pursues a line of questioning about the partition ratio. But isn't that a general principal if a prosecutor wants to purs- uh, pursue the line of questioning that the judge isn't going to allow, he can get jailed for contempt too?
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