Dr. Strangelove

Wow, an admonishment that he is altering/destroying by refusing? WITH EVERY BREATH THE GUY/GAL TAKES, He or she is metabolizing the alcohol, so conceivably he is altering/destroying by 'living' during the investigation, beginning at the moment of the traffic stop. This whole line is a big stretch. But, it is a fun one to discuss, and it's spawned many conversations between me and fellow criminal lawyers.

All of this legal archeology is born from the frustration created by the complicated legislative structure imposed on DWI investigations. In no other crime has the legislature placed such a burden on law enforcement or given as powerful a tool for resistance to the defendant. The defense then uses that burden and tool to criticize the state's absence of physical evidence at trial.

Perhaps then it is time to expose these weaknesses, press into activity new legal theories and move toward the real goal: collection of physical evidence that, like DNA, ends the unnecessary debate over guilt and innocence.

Meanwhile, thanks, Beck, for jumping into the fray. You raise some good counter-attacks.

Yes, he's metabolizing the whole time, but that doesn't prevent us from analyzing a specimen taken quite some time after his actual driving and inferring that he was drunk as a skunk at the time. In other words, the unavoidable fact that BAC probably changes from one minute to the next is not a barrier to using it at all; it just requires a little more explanation for the jury.

So yes, once he's been warned and refuses, from that point on he's fair game - assuming this charge passes muster in the first place.

John's right, this is all absurd on some level; but then so is a three-day trial with intoxilyzers and chemists and videotapes and bartenders and multiple officers, all to show someone was impaired. It's a simple enough conclusion to draw, and any layman can probably do as good a job as the best-trained police officer if given a few minutes to observe the suspect. But citizens are loathe to take the word of the officer at the scene, even though he WAS trained and sees more drunks in a weekend than the rest of us do in a year. So we have expensive and reliable machinery to determine a suspect's BAC - which his buddies or parents (or lawyers) tell him to refuse to provide, when asked. Meanwhile our legislature thinks that ALR proceedings are some kind of legitimate incentive to ensure compliance with implied consent law?!?

So yes, it's funny (and sad) that it's come to this idea, but only because the road that got us here is even more comical.

The fact that people know they will be better off waiting to provide a sample also shows that they know what's going on in their system. Could you or would you need to ask them why they are refusing to give a BT sample? To show knowledge? Don't know if I've ever seen anyone refuse when they've had nothing to drink. Even the stoners aren't afraid to give BT if they haven't been drinking with their toking. Ask for blood and you get a different response.

Make it a crime to refuse.

Even without that, if it's DWI 1st, make them eligible for Def. Adj., But only if they provide breath/blood sample and so long as it can be used for enhancement purposes for 3rds, along the lines of ABI/Fam.Viol cases.

Curious as to how would a defense attorney advise a client/potential client, if that was the law?

So, you are saying that if the suspect fails to cooperate in a breath test, and you don't get a warrant for a blood draw (as you well can), then he is intentionally destroying evidence in a DWI, possibly a felony, by the involuntary natural body process of metabolization.

If he didn't want to be charged with the felony, would it be appropriate to kill himself for you so the metabolization process stops? You still have a lot of problems with this line of thought, but it is still a great argument.

A system can be set up where the defendant is read the DIC warning roadside or in the car (you know, where you have a video or at least a tape recorder for the event), and you may immediately know whether he'll blow. If no blow, call your command, give facts for an affdvt., have another officer present the affdvt/search warrant to judge by hand, fax, email, etc... Judge signs (presumably) while you are enroute to the hospital. No time lost.

Judges are elected, and do not have the luxury of saying 'dont call after 5'. Make your plan the smarter plan. Your tampering plan will span massive litigation, and if you don't have an appellate department, sharpen your pencils because you are going to work hard. Further, the tampering plan will cost more hearing days, and more time lost at trial. It is really a matter of not wasting what precious resources you have.

If I were DA (now everyone laugh), I would set up the blood draw system with the judges who were willing to do this. The unwilling might have to fight harder for their seat. Give them and the blood draws great publicity, and sooner or later it will sink in to criminals, were either going to the station for a breath sample, or driving straight to hospital for a blood draw. Maybe we'd get more breath samples.

Oh, heck, that was a long two cents worth.

Juries will accept many things in the pursuit of legitimate criminal investigation and prosecution. It would be difficult to argue for a 3rd degree felony on the back of a B misdemeanor.

True, as Budweiser drinkers say. But, how many suspected drunk drivers will want to take that gamble?

Don't you imagine it would increase the percentage of drunks providing a sample? Or, if they refuse, don't you imagine most of those charged with Tampering would rather resolve their case by accepting responsibility for the DWI rather than risk a felony conviction?

Final question: would adding a warning regarding the possibility of prosecution for Tampering become itself a legal issue if the defendant decided to provide a sample because of the warning? Would courts consider the question "coercive" rather than "informative"?

John, are you suggesting Rochin would come into play? The blood sample is not a confession to which the Fifth Amendment applies, so why be concerned with Palko or Escobedo. From a constitutional standpoint, as said in Martinez-Salazar, 528 U.S. at 315: "A hard choice is not the same as no choice." Unfortunately, if the proposed warning secured a sample, it would have been gathered contrary to 724.013 and Erdman-Woehst and thus of no use. Why does there need to be any warning? The person is simply arrested for tampering, and if there is a sudden change of mind as a result, then the tampering charge can be withdrawn. Or you simply file tampering later. Word of the result would still get around and cause some re-thinking by future intoxicated drivers.

[This message was edited by Martin Peterson on 07-31-05 at .]

Sterling Hayden as Gen. Jack D. Ripper in the immortal Dr. Strangelove, or How I Stopped Worrying and Learned to Love the Bomb. Absolutely one of my all time favorite flicks!

Which particular fluid was it that Gen. Ripper believed contained "the life essence?"

Dr. Strangelove