Over the legal limit
Get-tough laws in Massachusetts and nationwide
are cracking down on drunk drivers. Are they also eroding our
constitutional rights?
By Mark Schone | March
19, 2006
FOR YEARS, CALIFORNIA defense lawyer Lawrence Taylor, who
specializes in drunken driving cases, has traveled the country
telling anyone who will listen that the decades-long, nationwide
crackdown on drunk drivers has posed a significant threat to the
Bill of Rights-what he calls a dangerous ''DUI exception to the
Constitution."
Whenever he steps outside the echo chamber of his fellow defense
attorneys, however, he doesn't get a very warm reception. ''I've
pretty much stopped doing radio," Taylor said recently. ''Most
of the time it's a setup. They assure me I'll be the only one on the
show, and then they surprise me with a woman from Mothers Against
Drunk Driving whose daughter was killed by a drunk driver."
Taylor has learned to expect little sympathy for his clients and
his cause-from the public or their elected representatives. As much
as 90 percent of the US population supports get-tough measures like
highway roadblocks and license revocation for drivers who refuse
blood-alcohol tests, and lawmakers are respecting their wishes. Last
fall, the Massachusetts Legislature approved the
anti-drunken-driving package called Melanie's Law, and Rhode
Island's governor will sign an even tougher bill by June. Rhode
Island's version will make refusing a breath test a criminal
offense, and will empower police to force motorists to provide blood
samples.
The next step in the crackdown will be letting the police take
the blood samples themselves-something Texas and Utah are already
trying. ''Would you want a police officer to stick a hypodermic in
you?" asks Taylor.
But the point of his crusade, Taylor says, is not saving drunk
drivers from a clumsy jab with a needle. It's not really about drunk
drivers at all. Taylor believes that a series of Supreme Court
decisions upholding harsh drunken driving laws means that
authorities can now abridge civil liberties almost at will, as long
as they invoke public safety. The decisions affect the defendant's
right to a jury trial, to examine evidence, to confront an accuser,
and, perhaps most notably, to be free from self-incrimination and
unreasonable search and seizure.
Taylor thinks the implications extend far beyond cases of driving
under the influence to all areas of criminal law, including murder
trials, and even to the measures taken by the Bush administration in
the war on terror. Taylor likes to close his stump speech with a
humorous paraphrase of Martin Niemoeller's famous warning about
creeping fascism-"First they came for the drunks, but I was not
a drunk, so I did not speak up"-but he's quite serious. ''Law
is based on precedent," he warned. ''When you start dismantling
constitutional protections, you're setting precedents. I don't think
people understand what we're doing constitutionally."
. . .
In May 1980, Candy Lightner of Fair Oaks, Calif., founded MADD
after a drunk driver killed her teenage daughter. The group quickly
became a political powerhouse, with a gift for channeling public
emotion. Within four years MADD had persuaded Congress to raise the
national drinking age to 21 and to link federal highway funds to a
state's willingness to pass specific drunken driving laws. A quarter
century later, MADD has transformed the way the nation deals with
drunken driving. It can claim credit for the 0.08 blood alcohol
standard, ignition interlock devices that prevent a car from
starting if the driver fails a breath test, immediate seizure and
suspension of licenses, and far tougher penalties for just about all
alcohol-related traffic offenses.
Taylor thinks these measures have led to a Bill of Rights with a
few asterisks for those who are accused of driving under the
influence. But at the federal level at least, the battle over
constitutionality, like the battle for public opinion, is mostly
over. Most of the anti-drunken-driving measures that MADD has
championed have been vetted by the Supreme Court and survived the
ordeal.
''This is settled law," says Stephen Talpins, MADD's
national director of public policy. ''It's like Roe v. Wade. There
are people who will tell you there is no constitutional right to
choose, but it is settled law, whatever your opinion of it might
be."
The best-known Supreme Court ruling on a drunken driving measure
came about when a motorist named Rick Sitz filed suit to stop the
Michigan state police from using ''sobriety checkpoints." But
in Michigan v. Sitz (1990) and again in Indianapolis v. Edmond a
year later, the Supreme Court ruled that antialcohol roadblocks were
justified, because preventing impaired motorists from causing
accidents is part of a small category of public-safety ''special
needs" exceptions to the Fourth Amendment's ban on unreasonable
search and seizure.
Once stopped, a motorist can then be compelled to provide
evidence against himself. The government has been allowed to coerce
the timely production of blood evidence in a DUI case-by warrant and
by physical force-since Schmerber v. California (1966). But if the
arresting officer doesn't want to wrestle a recalcitrant suspect to
the ground, in most states the prosecutor can simply use the
defendant's refusal to take the test as evidence at trial. In South
Dakota v. Neville (2000), the court ruled that introducing the
refusal as evidence does not violate the Fifth Amendment, because it
is not oral testimony and thus not self-incriminating.
The accused, meanwhile, has only a limited right to examine the
evidence against him. Though it's possible to preserve breathalyzer
evidence, California v. Trombetta (1984) endorsed the routine police
practice of disposing of it immediately. The defendant also has no
Sixth Amendment right to a jury trial, provided the criminal
penalties do not exceed six months in jail, a standard retrieved
from British common law in Blanton v. North Las Vegas (1989).
Defense attorney John Wesley Hall, who maintains a website on
search and seizure law called Fourthamendment.com from his office in
Little Rock, Ark., believes these rulings have eroded civil
liberties not just for drunk drivers, but for all Americans. He
claims that police continue to push the envelope to see what kind of
roadblocks and mass searches they can get away with. He is
particularly concerned with the potential impact of South Dakota v.
Neville. ''Thank God, so far it hasn't been used as precedent,"
he says. ''If a person's refusal to take a blood test can be used
against them, then the next logical step is asserting that refusing any
search can be used against them."
As might be expected, MADD's Talpins doesn't believe the raft of
Supreme Court decisions has created a slippery slope in other areas
of criminal law. ''This does not represent an expansion of police
powers," he said. ''It's a situation where lives are at stake.
It represents protecting the public."
. . .
Law professors fall somewhere in between MADD and the defense
bar. They tend to be skeptical that a so-called DUI exception to the
Constitution exists. ''It's really more of an automobile
exception," University of Alabama law professor Dan Filler
notes. ''Historically, courts have treated anything that happens in
a car differently and less protected constitutionally," often
for reasons of public safety. In and of itself, he added, ''Drunk
driving is not that potent an agent of change."
Yet, when it comes to the Fourth Amendment in particular, some
constitutional law experts, Filler included, do recognize a
troubling trend. He has noted that in the past quarter century, once
laws like the one upheld in Sitz have passed, the justices have
tended to honor the popular will and uphold them. ''The court has
begun to systematically give more room to the police," said
Filler. ''Sitz reflects that."
Law enforcement, meanwhile, rarely declines any tools it's given,
observes Boston University professor and Fourth Amendment scholar
Tracey Maclin. ''Law enforcement will take whatever they can get
from the courts, and they will run with it until the courts say they
can't run any further," she said. And given the current
administration's priorities, NYU law professor Stephen Schulhofer
believes there is a real danger that the concept of special needs
searches will be invoked when the government needs to find legal
footing for its actions in the war on terror.
In fact, it's already happened. The White House's argument for
warrantless wiretapping rests on a claim of sweeping wartime powers
for the president, supported by everything from Article 2 of the
Constitution to the Federalist Papers. But the administration has
also invoked the Sitz decision again and again. As former deputy
attorney general John Yoo told the House Intelligence Committee in
2003, ''The court has found warrantless searches such as...drunk
driving checkpoints...to be consistent with the Fourth
Amendment." After news of the NSA's warrantless wiretapping
program broke, the Department of Justice wielded the Sitz decision
to defend the practice, in a white paper published this January.
Perhaps Lawrence Taylor, for years preaching to the converted,
may yet find a new audience for his speeches-if not out of
compassion for intoxicated motorists, then out of fear of those who
might become intoxicated by power.
