The DUI Exception to the Constitution
Lawrence Taylor

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Continued from Page 7...

Q. And he too could be seeking the truth if, if the line of questioning the prosecutor wants to pursue is a that a, a defendant uh, asserted his right against self-incrimination, that would be truth, you know and the jury might want to hear it. But going to jail because he pursues a line of questioning the judge won't allow.

A. Where the prosecutor gets in trouble is where he's violating the constitutional rights by commenting on, for example, Fifth Amendment. Where the defense attorney got in trouble was trying to tell the truth. It had nothing to do with the constitution. It was simply a scientific fact that he was trying to bring forth.

Q. Well, any line of questioning that the judge says is out of bounds is. If he's so inclined, he'll throw you in jail for...

A. That's not true, but, yes he certainly has the option if you over-step your boundaries. With the partition ratio it has become fairly well understood. If you mention it. Pardon me?

Q. Can't hear the question.

A. Would you like to repeat it.

Q. Well let me go on to the second time since we're running out of time.

We still can't hear you.

Okay. Okay. Well the second point was...

A. He said what—basically, "Why can a prosecutor not comment on, for example, the exercise of the Fifth Amendment? Because he may be held in contempt, which probably would not happen, but a defense attorney—I find that unusual-but he can be held in contempt for mentioning the partition ratio." And the answer is that the prosecutor is dealing with constitutionally inadmissible or unpermissible conduct, whereas the att- the defense attorney is not dealing with the constitution, he is simply trying to set forth fact. He is doing it contrary to a Supreme Court decision. Yes and it's taking one hell of a risk and would be probably pretty foolish to do so. Okay one more. Yeah.

Q. Hi. You said earlier that the one law you would go along with and I assume you mean a government law, would be thou shalt not drive under the influence of alcohol.

A. Yes.

Q. But if you give the government the power to make that one law, what would stop the government from starting to issue other kinds of laws like thou shalt not drive when under the influence of the flu and thou shalt not drive under the influence of fatigue and other conditions which make the risk of driving carelessly greater?

A. If they wish to do that and there is a justifiable grounds for doing that, for example, there were studies recently—very recently—you probably heard the same thing I did. They're finding that the incidence of injuries from people who fall asleep is actually greater than the incidence from drunk drivers. So, do you want to pass a law against that? Possibly. I don't know how you prove it. I mean it'd be pretty difficult. You'd have problems of proof, but if they see a social ill and a way constitutionally to outlaw it and deal with that problem, I have no objections to that.

Q. I want to ask you if there's any cases where somebody who hasn't been drinking is convicted of drinking? I mean really has not been...

A. Oh, yes. Certainly that happens. Yeah. You produce...There are lots of reasons why you may not do well, for example, in a field sobriety test. You may be 63 years old, arthritis in your joints, it's out on the side of a freeway with a sloped graveled surface. The only lighting at 2:00 in the morning is a flashing red-and-blue light on top of the car, police car, setting up a strobe effect—with cars zipping by at 60 miles an hour, hitting you with wind waves, high beams. The cop is using a flashlight. I can go on. The point is, very few people are going to be able to do this perfectly under those conditions. So yes, people do get convicted all the time for driving under the influence. Is there alcohol on their breath? There may be from one glass or there may be none, but you're emitting ketones on your breath or acetones because you're a diabetic or because you're on a severe diet or any number of other things that can give the false indication of alcohol on the breath. Thank you very much.

MC: We're going to have a break right now, but if you want to come up and talk to Larry, he'll stick around and entertain your questions. Back in 15 minutes.