Constitutional DUI Limitations
YOUR CONSTITUTIONAL RIGHTS DO NOT APPLY FOR A DUI
Our Declaration of Independence begins “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Our Constitution does not reserve or limit any of our rights due to
a specific criminal charge. That means that someone accused of murder
is entitled to the same rights as someone accused of writing a bad
check. These rights apply to YOU as a citizen, not to a
specific charge. This is the way it is ‘supposed to be’, but in the real world, IT IS NOT
Our courts have continuously found ways to limit the Constitution and limit the rights of the people accused of DUI/APC. You will find the following statments difficut to believe, but they are true:
- if you are arrested for DUI/APC, the officer will IMMEDIATELY seize your driver’s license and will not return it. This is a form of punishment and you have not even had an opportunity to talk with a lawyer, see a judge or post bail. You ARE PRESUMED GUILTY when our Constitution guarantees that you are to be presumed innocent unless proven otherwise - A DUI LIMITATION.
- if you are arrested, the Officer will rarely read your Miranda rights to you even though he will continue to question you. You have watched TV and know this is wrong---Not for DUI’s. The court again has found A DUI LIMITATION.
- if you are arrested and taken to jail for DUI, you should feel confident that you will be allowed to talk with an attorney prior to questioning or being asked to give incriminating evidence against yourself. This is true in all crimes except DUI, again – A DUI LIMITATION.
- if you are arrested and refuse to take a breath test, our state law says that refusal can be admitted to a jury and a presumption of guilt attached. But--- What about the 5th Amendment saying I have the right to remain silent and it cannot be used against me? - A DUI LIMITATION.
- if you are driving and are stopped at a roadblock, then questioned about drinking- you easily think “wait, you have to have a reason to stop me, this is not legal”. This would be true if they were looking for drugs, or any other crime, but if it is a DUI stop — A DUI LIMITATION.
- in most cases, if the government knowingly destroys evidence, that evidence cannot be used against you. In a DUI case, you are asked to take a breath test. The machine is capable of preserving the sample of your breath for additional testing. The Government, for monetary reasons and knowing there will be no punishment for destroying that evidence, has chosen not to maintain the sample, yet they are allowed to introduce their evidence — A DUI LIMITATION.
- if you have a couple of quick drinks and are stopped within 5-10 minutes of leaving your house or a meeting, you may not be affected by the alcohol yet—still you will be requested to take a breath test and as long as it is taken within 2 hours of your arrest, that is close enough for Government work. It can be used against you and show you with a much higher alcohol level than what you had while you were actually driving. In effect you will be guilty of being capable of committiing a crime even though you were not intoxicated when stopped — A DUI LIMITATION.
- a man’s home is his castle! We have heard this many times and you know the Constitution says the government must have a search warrant to enter your home, even for a murder investigation. A recent California case allowed the police to enter a home for a misdmeanor DUI investigation without a warrant. This was based on a neighbors tip; that is the police did not even see the person driving, they just entered the home without a warant. Surely this would not be allowed. Sorry — A DUI LIMITATION.
- the constituion requires a warrant before evidence can be forcefully taken. In a nearby state, if you are stopped, asked to submit to a breath test and refuse (remember the 5th Amendment and your right not to incriminate yourself)—A’Batmobile’ will be called to the scene, you will be strapped down and a police officer will take your blood on the spot. Yes, this is happening in Amercia because we have another — DUI LIMITATION.
- you can be convicted of DUI even if your driving was not impaired. The law has what we call a ‘per se’ provision. That means if the machine says you are .08 or more, you are presumed guilty even if your driving was not affected. The government will not have to show your driving was impaired, just that a machine gave a certain number. You just thought you had a right to be presumed INNOCENT — A DUI LIMITATION.
- the Constitution guarantees an accused the right to face their accuser in court before a jury. This is the Right of Confrontation. In DUI cases, the accuser is most often a machine that makes mathematical conversions to reach a number. This mathematical conversion is secret because the manufacturer considers it‘proprietary’. Math is generally considered to be an absolute and no one owns it, but in DUI cases you will not know the method used to compute your number because it is proprietary to the manufacturer. — A DUI LIMITATION.
- actual innocence is “irrelevant”. In August 2006 the Michigan Supreme Court said actual innocence of ‘impaired’ driving was IRRELEVANT! You read that correctly…. actual innocence of ‘impaired’ driving was IRRELEVANT! The Court convicted the defendants even though the court acknowledged the drivers were not impaired. They had apparently ingested marijuana at some point in the prior 3-4 weeks. The testimony was clear and the Court accepted the fact that they were not under the influence of the substance at the time they were driving. Still, they were convicted of DUI.— A DUI LIMITATION.
You get the idea. DUI has become a social crime and no politician
will speak against the charges or means of applying penalties if they
wish to remain in office. We also continue to move away from the
problem—intoxicated drivers. The limits are lower and you can be
convicted for a number that has no realtionship to your driving
abilites. None of this addresses the repeat offenders who are heavily
intoxicated but it does move towards a new form of prohibition in our
country. One state has lowered the number to .04 for repeat offenders
and it is easy to invision a nationwide move to lower the number to .04
for all drivers. In addition, DUI’s are the ‘cash cow’ for our court
system. Court cost for a first time DUI are higher than for a felony
drug possession. There are numerous reasons your case is being placed
on a ‘fast track’. There are many powereful forces striving to increase
the number of DUI convictions throughout our nation — all the more
reason you need an experienced OKLAHOMA DUI ATTORNEY.
Bruce Edge, Tulsa DUI Lawyer
Board Certified in DUI Defense under ABA guidelines
Let us relieve this stressful time