DUI Breath Tests and the Right Against Self-Incrimination
Why isn’t being forced to provide a breath sample a violation of the Fifth Amendment right against self-incrimination?
It is in Georgia… last year, in Olevik v. State, the Georgia Supreme Court held that compelling a person to blow into a breathalyzer is a self-incriminating act that violates Georgia’s State Constitution.
This week, in Elliott v. State, Georgia’s Supreme Court revisited the issue and affirmed their holding in Olevik. This time, they found that allowing the State to use a refusal against a defendant at trial also violates the Georgia Constitution’s protection against self-incrimination.
How could the act of providing a breath sample – the state’s strongest evidence against a person in most cases – not be self-incriminating?
The US Supreme Court has held that forcing a person to breathe into a machine is not a violation of the right against self-incrimination found in the Fifth Amendment of the US Constitution, although a forced blood draw without a warrant is unconstitutional.
South Carolina also permits law enforcement to coerce suspects to provide breath samples and to use a defendant’s refusal against them in court – should we?
If the federal courts will not enforce the most basic protections in the Bill of Rights, maybe it is time for the states to step in and protect the rights of their citizens?
Do I Have to Take the Breath Test in SC?
You have the right to refuse the breathalyzer in South Carolina.
If you exercise your constitutional right against self-incrimination and refuse, though, SC’s implied consent laws punish you for it…
Well, the law doesn’t call it punishment. Did you know that the reason implied consent proceedings are classified as “administrative” and are heard in the administrative court instead of the criminal court is precisely to get around the protections of the US and SC Constitutions?
That’s what you call a legal loophole…
If you are punished for exercising a constitutional right, that could not stand. If the punishment is called an “administrative procedure,” though, no constitutional violation and no problem.
What are the Consequences if I Don’t Take the Breath Test in SC?
The law considers driving to be a “privilege” and not a “right.” Under SC’s implied consent laws, you “impliedly consent” to give a breath sample in exchange for the privilege, granted to you by the State of South Carolina, to operate a motor vehicle.
If you then refuse to provide that breath sample upon request by a police officer, your license is immediately suspended, and you are required to complete the ADSAP (Alcohol and Drug Safety Action Program) before you can drive again.
If you do take the breath test, however, and the result is greater than .15, your license is still suspended, and you will still have to enroll in ADSAP.
When you receive an implied consent suspension in SC, you have 30 days to request an administrative hearing where, hopefully, your DUI defense lawyer will be able to get your license reinstated.
What is the Right Against Self-Incrimination?
The Fifth Amendment to the US Constitution protects all citizens from being compelled to provide evidence against themselves:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
What does it mean?
It means, simply, that you cannot be forced to testify or to provide evidence that would incriminate yourself.
It doesn’t prevent the government from taking evidence from you pursuant to a search warrant or an exception to the search warrant requirement like “search incident to arrest.” It prevents the government from forcing you to give them evidence through some act – like testifying, providing a password, or providing a handwriting sample.
Or like… breathing continuously into a mouthpiece on a machine whose sole purpose is to provide evidence that will be used against you.
Why Doesn’t the Right Against Self-Incrimination Apply to Breath Tests?
It clearly should.
There is one reason it does not, and that is because the courts say it does not. Are the courts right? Not on this point. Justices are human, and they are swayed by public opinion and the facts of cases.
Like the infamous US Supreme Court decision in the Dredd Scott case, affirming that African Americans do not have constitutional rights, the Court’s legal acrobatics that somehow allow them to come to the conclusion that giving incriminating evidence to the government is not self-incrimination are simply wrong.
Birchfield v. North Dakota
There is a reason defense attorneys talk about the “DUI exception to the Constitution,” a concept that is enshrined in Birchfield v. North Dakota.
When an appellate opinion begins with a line like:
Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year…
You know it’s not going to be good for the defendant. The Court in Birchfield held that police do not need a search warrant before taking a breath sample, although they do need a search warrant before sticking a needle in a suspect’s arm and forcibly removing a sample of their blood.
- Driving a motor vehicle is a privilege and not a right;
- Implied consent suspensions are administrative, not punitive;
- Forcing a person to provide an incriminating breath sample is not as invasive as forcing a person to provide an incriminating blood sample; and
- It’s permitted by the doctrine of “search incident to arrest.”
Oh yeah, and DUI is bad. Hence, the DUI exception to the Constitution.
The Lesson – Rely on State Constitutional Protections
The US Supreme Court, at least currently, will not enforce the Fifth Amendment protection against self-incrimination when it comes to breath samples.
What does that mean?
The US Constitution is the “baseline,” or the “floor” of the minimum protections every citizen should receive. The Constitutions of each state can, and often do, provide additional protections for their citizens and each state’s courts are free to interpret their own state’s constitutional provisions as they see fit – even if they are identical to the federal provisions and even if the federal courts have denied protection.
In every case that involves a breathalyzer result and in every case where the government uses the fact of a defendant’s refusal against them at trial, motions should be made to suppress the results or the defendant’s refusal on state constitutional grounds as well as federal constitutional grounds.
Although I do not expect SC’s appellate courts to find that providing incriminating evidence against yourself (a breath sample) violates the privilege against self-incrimination in a DUI case, they won’t have the opportunity to do it if the issue – including the state’s constitutional grounds – is not preserved for appeal in the DUI cases that come before them.
SC DUI Defense Lawyer in Charleston, SC
Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense in the Charleston, Georgetown, and Myrtle Beach areas of SC.
If you have been charged with DUI, DUAC, or felony DUI in the Charleston, SC area, call SC DUI defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to set up a free initial consultation today.