Sadly, we no longer can intelligently discuss or debate liberty interests vs. security and safety. Under that banner of “increasing safety,” law enforcement has continued to overstep its bounds, even as we have seen even local police morph into a quasi-military establishment, with M-16s and armored vehicles at their disposal.
This is a slippery slope to a police state. Even though that conversation gripped our founding fathers and helped usher in a post-enlightenment democratic society here in the U.S., in recent times, we mostly have abandoned the discussion. Since 9/11, popular politics driven by fear has significantly shifted the balance of power to security and public safety.
This is evident in every sphere of society even though a quote attributed to Benjamin Franklin should make up reconsider: “They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Currently, drivers arrested for DUI in Florida still have the option to refuse, so long as you have never been charged before with a prior refusal. (Otherwise you face an additional misdemeanor.) So on a first offense DUI, you may lose your driver’s license for a period of time as an administrative penalty—and with the Waiver Review option, perhaps suffering no hard suspension at all.
Will this mean that we may see more refusals? Perhaps yes, but generally speaking, the a person doesn’t get educated on their rights and options until after they meet with their DUI lawyer, and by then, the decision has already been made.
However, in some states we are starting to see a push to give law enforcement and prosecutors more advantages in DUIs and other criminal cases as well. For example, in 2013, the State of Tennessee started making plans to create an impaired driving enforcement campaign that would focus on summer holidays and weekends.
Under the banner of “increasing safety,” their highway patrol adopted a tactic called “No Refusal” enforcement. “No Refusal.” Clearly, this was thought up by someone who doesn’t understand the U.S. Constitution’s Fifth Amendment protections against self-incrimination, but rather adheres to an ends justifies the means approach to the administration of justice.
So in analyzing this purported “No Refusal” approach to DUI cases; law enforcement believing it is legal to force people at a DUI checkpoint to submit to not only breath testing, but blood tests as well to determine whether or not they have a certain concentration level of alcohol or other drugs in their system. But one catch, the law requires a search warrant to draw blood.
No problem, because they have a Judge “on call” that will do an “express search warrant.” Makes us wonder who are these supposedly impartial and unbiased judges, who are so willing to facilitate and effectuate the prosecution of those asserting their constitutional right to not assist police in a criminal investigation.
At this point in time, Florida isn’t actively trying to follow states like Tennessee. While some counties are especially punitive in sentencing, the procedural aspects of the DUI are generally the same across the State. The U.S. Supreme Court decision in Missouri v. McNeely helped put some constraints on law enforcement. Now they cannot take blood or breath involuntarily from a suspect without “exigent circumstances,” which for our purposes, normally means that the DUI must first qualify as a felony. Therefore, first offense and misdemeanor DUIs should be in the clear…. for now.
If you need help with a criminal or DUI issue, give Lupella & Rehr a call – the initial evaluation of your issue is free.