A law proposed by Senator Simmons in the Florida Legislature completely changes Florida’s DUI law and takes away the concept of “innocent until proven guilty,” at least in DUI cases.
Here’s what the new law would do, if enacted:
- Make a first refusal of a breathlyzer, urine test, or blood test a crime;
- Make the punishment for a first refusal almost as bad as a DUI conviction; and
- Make anyone convicted of a second refusal subject to an interlock device on their car.
If you haven’t guessed already, this is a bad law on a number of levels.
Why is making a first refusal a crime so bad?
For one, I believe it goes against what the Supreme Court ruled in Missouri v. McNeely: that invasive tests like a blood draw in a DUI case require a warrant. Sen. Simmon’s law would make refusal of a blood test a crime in an of itself, warrant or no warrant. Let’s apply this kind of logic to some other police encounters:
Police: (knock on door) Ma’am we’re looking for an escaped prisoner in your neighborhood. Do you mind if we look inside your house.
Homeowner: I haven’t seen anyone, but I don’t want you coming in my house.
Police: You’re under arrest for REFUSIN’ MY AUTHORITAAAAYYYY!
Police: (stops man on sidewalk) Sir you’re aware you’re walking on a sidewalk in a high crime area?
Man: Yes. What of it?
Police: Since you’re a pedestrian in a high crime area I would like to perform a complete search of your person. Would you empty your pockets please?
Man: Ummmm no.
Police: Your under arrest for REFUSIN’ MY AUTHORITAAAAYYYY!
You can see the problem this creates.
The new law would make the punishment for a first refusal almost as bad as a DUI conviction:
Under this law, the penalty for a first refusal would be:
- A fine of at least $500, but no more than $1,000 (read: $1,000);
- 6 months probation; and
- 4 points assessed on the person’s driver’s license.
Add these to the penalties that most people face when charged with a DUI, even before they go to court:
- Six month driver’s license suspension;
- Level I DUI school ( a condition of getting a hardship permit so they can drive during the license suspension).
The only thing really missing from a DUI conviction is 50 hours of community service.
This creates a “damned if you do, damned if you don’t” scenario for people suspected of a DUI. There are a host of reasons people could appear to be under the influence of alcohol to a hyper-vigilant police officer: lack of sleep, allergies, being nervous or scared of the police, having a physical disability, etc. If these people want to refuse an invasive search they’re charged with a crime.
Why would you refuse a breathlyzer if you aren’t drunk?
Ah yes. The pertinent question.
First, because nobody is really sure the breathlyzer is entirely accurate. We live in world now where our electronic devices can lie to us, or even lie to the government. And who’s to say the breathlyzer the cops want to use for you has been tested, re-tested, and isn’t error-proof?
Second, because different people have different physiologies. Person A who weighs 220 lbs can have 3 drinks and not be “impaired” while Person B weighs 110 lbs and only needs one drink to get loopy. Both Person A and Person B could blow a .09, above the legal limit, and feel completely different.
Third, because our lawmakers are trying to give the police and the government more and more windows into our privacy. Mandatory searches, backdoors into our computers to “fight terrorists,” recording our phone calls to “fight terrorists,” and so on. It needs to stop.
Let’s hope this bill doesn’t become law. It does away with the concept of “innocent until proven guilty” in DUI cases, and continues the trend of the government getting more and more power to search our persons, homes, and possessions.