Why Is Refusing A DUI Blood Test Still A Federal Crime?
Sept. 4, 2015 (Mimesis Law) — The woman is screaming and trembling, but that doesn’t stop the man. He places a hood over her head, maybe to calm her, maybe to keep her from accurately describing what happened later. As a stand-by nurse penetrates her with the needle, she shakes violently. The syringe slips, and blood spatters the ground. The officer insists that the nurse try again because, for all the woman’s protests, a judge signed a search warrant (a bit of a foregone conclusion at a “no refusal roadblock”). When she continues to shake, the officer chokes her until she goes limp.
This is the procedure that the United States Supreme Court held is “so safe, painless, and commonplace” that “the State could legitimately compel the suspect, against his will, to accede to the test.” Not only that, but for half a century, an officer could force it upon any citizen based on nothing more than his claim of “bloodshot, glassy eyes” and “an odor of an alcoholic beverage.”
Without admitting that it was changing course, the Court held in 2013 that officers would occasionally need a warrant to take a citizen’s blood. So if citizens have a right to refuse to be strapped down, pierced, and potentially injured, then why is that refusal still a federal crime?
If you are stopped in a federal park and suspected of drunk driving, the following will be read:
If you refuse to submit to a test, or fail to complete a test, you will be charged with an additional offense for refusing the test, which carries a maximum penalty of 6 months in jail and/or a $5,000 fine. This charge is in addition to the DUI charge.
Or, in shorthand, “if you don’t let us jab you with a needle, you’re a criminal. And oh, by the way, we set the maximum punishment at six months, long enough to ruin your life but not long enough to get you a jury trial.”
Now, of course, the government often punishes people for asserting their rights. But it prefers to be sneaky about it. There’s no such thing as a “trial tax,” but there is a benefit for “taking responsibility.” If you demand a speedy trial, you can safely expect a grumpy judge. But this law is distinctive—it makes it a crime to insist on a warrant even when you are constitutionally entitled to do so.
Outside of a park, your refusal likely won’t be a crime. The government won’t punish you for not consenting. Instead it will simply withdraw some of your privileges.
Unfortunately, in the expanded world of government intervention, it is amazing just how few things aren’t privileges. Driving is a privilege. Working is a privilege (unless you’re a government employee). Living where you want is a privilege, if the government really wants your land. Pretty much the only thing that isn’t a privilege is not being in jail, and even that can be stripped away as long as the government is just doing it for your own good.
Of course, that’s just half the issue. Let’s say you consent, and later you want to point out that the government only got your consent by threatening you. In fact, one or more armed men who could probably get away with shooting you told you that if you didn’t give them the blood, breath, or urine they were asking for, a whole parade of horribles would come marching by your doorstep. Pretty decent argument, right?
Nope. The 8th Circuit Court of Appeals says that while that “straightforward coercion argument has some appeal,” the government needs to be able to punish you to get your consent. I’ve never seen this argument tried in a rape trial (“but your Honor, my client is too ugly to get meaningful consent!”). Presumably, it wouldn’t go over as well with your average jury as it does a federal appellate court.
Ultimately, courts throughout the country are not approving of implied consent laws because they make constitutional sense. They accept an unsightly compromise to avoid “[t]he carnage caused by drunk drivers” and the “tragic frequency” with which drunk drivers appear “on our Nation’s highways.” And it’s true, all these constitutional compromises have a noble goal: to keep families safe on the road from a group of pretty unsympathetic people.
But our constitutional rights were not enacted in a time of perfect tranquility and peace. They weren’t put in a glass case that said “break open in case of Utopia.” They were themselves a set of compromises, a balancing of interests that said it was generally better to be free than safe.
For the record, Caroline Gallaway, that woman who was hooded, choked, and penetrated? She was acquitted in April.