The DUI Exception to the Constitution

“But I thought I had a right against self-incrimination,” the very bright college student said to me as we were discussing his arrest for DUI (now called OVI).  “Why do I have to take a chemical test if I know it will incriminate me?” “Well,”  I said, “the Fifth Amendment does not apply to DUIs.” The look of disbelief still firmly in place he pulls a copy of the constitution given to him at orientation and reads the plain language from the Bill of Rights. “How can they get around that?”  The answer can be found at South Dakota v. Neville 459 U.S. 553 (1983), wherein the court held “the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend his Fifth Amendment right against self-incrimination. A refusal to take such a test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination. The offer of taking the test is clearly legitimate and becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Pp. 558-564.  It would not be fundamentally unfair in violation of due process to use respondent’s refusal to take the blood-alcohol test as evidence of guilt, even though the police failed to warn him that the refusal could be used against him at trial.  Such failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly “trick” respondent if the evidence were later offered against him at trial. Pp. 564-566.” (from syllabus)

This is just one of many cases treating DUI differently than other criminal cases.  One of the main purposes of this blog is to ask the over-arching question “IS THIS FAIR?”  My answer is no, and that is one reason that I practice DUI law.