FL: Blowing off DUI test may lead to jail

A Coral Springs lawmaker is pushing a bill he hopes will end easy outs of DUI convictions by forcing offenders to submit to a breath, blood or urine test or spend a year in jail.

Miami Herald
April 5, 2006

TALLAHASSEE - It's the not-so-secret way to avoid a DUI record: Refuse to submit to a breath test. You'll lose your license for a year but won't face criminal charges.

The state Legislature looks poised to change that with a bill that would make it a crime -- punishable by one year in jail -- for drunken-driving suspects to refuse a breath, blood or urine test.

''The word is around: If you're drinking, refuse to blow,'' state Rep. Irv Slosberg, a Boca Raton Democrat, said Tuesday at the House Justice Council, a group of lawmakers that deals with criminal justice issues.

``The problem is too many people are refusing to blow, and more and more DUI offenders are on the streets.''

The bill, which has been met with unanimous approval from four House committees, is sponsored by Rep. Ari Porth, a Coral Springs Democrat and Broward prosecutor.

[Shannon, could a Texas prosecutor also be a state rep?]

Rob and I were just discussing that article, and that particular aspect of it, yesterday.

John, not only can prosecutors not serve as legislators, but there is a move afoot at the Capitol to restrict the ability of elected local officials to work on legislation -- at all.

So, not only can you not be a legislator, but some people would prevent you from even working to help the Legislature craft proper laws.

Of course, there is no similar restriction on our good friends at the other counsel table.

Makes perfect sense, doesn't it?

Could an elected official be a state rep without pay? And, how could the Leg prevent an elected official from expressing an opinion and performing core democratic activities without being in violation of the First Amendment's right to free speech and association?

Good point, John -- I'm sure your friends at the ACLU will be happy to represent you pro bono in court on your First Amendment claim.



As for your first question, see AG Op. JC-0430, which determined that a legislator cannot also serve as an Asst. CA based on the last sentence of Article XVI, Section 40 of the Texas Constitution:

"No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law."

[This message was edited by Shannon Edmonds on 04-07-06 at .]

[This message was edited by Shannon Edmonds on 04-07-06 at .]

The Supreme Court, in Clements v. Fashing, has observed that article 16, section 40 of the Texas Constitution does not violate the First Amendment or the equal protection clause of the Fourteenth Amendment. But the notion of restricting public officials from having input into legislative issues is a different matter. For one thing, the association clause of the First Amendment protects association for the purpose of expressive activity explicitly encompassed by the First Amendment, specifically including the rights to speech and to petition for a redress of grievances. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996). More broadly, and perhaps more importantly, content-based restrictions on speech tend to fare poorly in federal courts. But a content-neutral restriction still must satisfy the reasonable time, place and manner rubric to survive. One of the tenets of that doctrine is that adequate alternative avenues of communication must be left open. It seems to me that completely closing the door between public officials and the Legislature is difficult to square with that concept.

Addendum:

Interestingly, today the AG released AG Op. GA-0421, holding that "[a] city council member whose current term of office ... is uncompensated in accordance with ordinance is eligible for election to the Texas Legislature under article III, section 19 of the Texas Constitution."

Note that the underlying position, the council seat, is uncompensated. Other than all you uber rich prosecutors out there, few could afford to do their daily work au gratis just to spend a few weeks in Austin every so often.