You Can't Beat a DUI ... Bill [LAW'D]

Glad to hear of the support.

Here's a quick explanation of the bill just the same:

If implemented the law would punish someone found to have a) been lawfully arrested (i.e. with probable cause) for DUI, b) been properly requested to submit to chemical testing after appropriate warning of the rights and consequences of refusal pursuant to regional law, and c) refuses chemical testing, shall be guilty of an offense with penalties equivalent to the region's DUI statute.

The reasons for this are obvious. It is not by any means a legal "right" to refuse chemical testing after lawful arrest for DUI. But the penalties are generally much lighter than a DUI conviction so "experienced" drunks will frequently refuse breath testing after arrest (knowing damn well they're over the limit) as the penalties for refusing are worth the increased odds of beating/plea bargaining a DUI charge--particularly for repeat offenders. This makes them no less dangerous on the road to everyone else, of course, not to mention being a major cause of docket congestion in most misdemeanor-level courts in the country.

There is no constitutional issue here as courts have long held that refusal to take a breath test, and evidence of such refusal, is not protected under the constitutional right against self-incrimination. This applies not only to civil penalties such as license forfeiture/suspension, but criminal penalties as well.

Most (all?) states make refusing chemical testing after operation of a commercial vehicle a criminal offense, for example. As the ratio of CDL holders alone---let alone all drivers--who get a DUI behind the wheel of their private vehicle vs. those found DUI behind the wheel of a commercial vehicle is literally over 1000 to 1, the vast majority of drunk drivers on the road are unaffected by current laws. Therefore, a balancing test would easily show a reasonable and rational basis for such laws and thus pass constitutional scrutiny.

Section 3 regarding calculation of prior offenses is designed to keep impaired drivers from gaming the system by trying to "balance" convictions under this statute vs. DUI convictions. Say an impaired driver with 3 DUI convictions is pulled over and considers refusing the test so he might wind up with a "first" refusal conviction vs. a fourth DUI. Under section 3 a conviction for either is a prior conviction, period. The threat to life and limb in my example is facing a "fourth" offense regardless of whether he's convicted of DUI or refusing the breath test. Or both, though pursuant to Section 4 the Defendant would still only get a single fourth offense sentence out of both charges, but it allows the prosecution 2 reasonable alternative legal theories under which to convict the defendant.

Finally, it should be noted that these charges must still be proven beyond a reasonable doubt to a judge or jury. In the rare exception to the rule where someone is innocent, a jury can still acquit that defendant (e.g. an asthmatic defendant who can't produce enough air for a breath test and the officer doesn't even request a blood or urine sample as an alternative, and the defendant arguably wasn't DUI either). But the courts and other drivers would gladly have to deal with these one in a hundred exceptions rather than the constant stream of impaired drivers trying to duck justice by refusing chemical testing--a refusal to which they have no legal "right" to begin with.

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