Tuesday, December 8, 2015

Can you Criminalize the Right to Refuse a Breath Test?

Driving under the influence is a crime in every State of the union. And for good reason. Drunk driving can lead to horrifying car accidents, injuries, and death. Thousands of people are killed each year because of drunk driving.
The earliest effort to curb drunk driving in the islands started in 1949, when the territorial legislature outlawed driving under the influence. The DUI statute has been amended several times since.
Another aspect of drunk driving prosecution that has come a really long way is the way the police detect alcohol. Alcohol is detected through machines regulated by the Department of Health and kept in most police stations. The machine takes the air within your lungs and determines just how much alcohol is in your blood stream.
          For decades in Hawaii, that’s how it’s been: a person gets arrested under suspicion of drunk driving and is taken to the police station. Once there, the driver has the choice of a breath test or a blood test for alcohol detection.
          Can a driver refuse? Sure. Refuse all you want, but if you do, you would still be subjected to losing your license and you can still get charged with being under the influence.
          But in 2010 the Legislature passed a new law making it a crime to say no. Refusing to take a test was a petty misdemeanor meaning you could go to jail and be fined for refusing to take a test. Folks working in criminal justice felt that a challenge was on its way.
          Sure enough, a year after the new law passed, Yong Shik Won got pulled over late one night in Honolulu for speeding. He was ultimately arrested for drunk driving and cops took him to the station. There, they had him choose between a breath test, blood test, both, or no test at all. He opted for the breath test and the results were more than twice the legal limit.
          When he got to court, Won argued that the breath test results were obtained in violation of his constitutional right to be free from searches and seizures of his person and that the police needed a warrant. The trial court denied it and he took it up to the Hawaii Supreme Court.
          The high court’s decision came out the day before Thanksgiving and has impacted courts all over the State. The Fourth Amendment protects people from governmental intrusions into the home, person, and other private spaces. It is one of the big protections enshrined in our federal and later our State constitution.
The Court examined the nature of the breath test. The test requires the production of deep lung breath and so the Court considered it a “search” into a person’s body. In doing so, this implicated the constitutional protections a person has over his or her body.
Relying on older Hawaii cases, the Court stated that “the integrity of one’s person—including the right to be free of arbitrary probing by government officials is at least as significant in terms of human dignity as the right to be free from externally imposed confinement.”
And so the Court held that because the breath test is a “search,” there must be a warrant to search one’s lungs before it can be done. Unless, of course, the driver consented to the search.
That’s exactly what the government argued to the Court: Won consented when he chose the breath test. After all, he could have refused. The Court disagreed. The form signed by Won stated that if he did not consent, he would be subject to the crime of refusing to take a test, which could lead to jail for up to 30 days or a $1,000 fine. This, according to the Court, is a form of coercion and Won’s consent was not reliable. Won won his case.
The case has had ripple effects throughout the islands. Police forces are exploring their options at this point. One thing is clear: they are not backing down from DUI enforcement; they may have to just get warrants for every case. You should still expect highly-trained and vigilant officers on the lookout for drunk driving. Arrests will still be made and prosecutors will seek convictions for those arrests.
Most folks agree that the constitutional right to be free from government intrusion into their bodies is a good thing. At the same time, drunk driving needs to stop. Truth is, the two are not mutually exclusive. You can be a proponent of bodily integrity and support efforts to protect the public. Maintaining that balance is hard to do, but that is one of the hallmarks of a police force working within the framework of a constitutional democracy. And just about everyone is in favor of that.

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