In part 2 of their series on the implications of Missouri v. McNeely, which has the potential to affect DUI laws across the nation, Criminal Defense attorneys Stacy Kaye and Geoffrey R. Saltzstein discuss the role of the Constitution plays in deciphering the ruling. If you want to learn more about the decision in Missouri v. McNeely, check out their first post on the subject.
The best place to start our discussion of the issues surrounding this whole McNeely frenzy is identifying the fundamental constitutional protections that all of us enjoy, as enshrined in the Bill of Rights, and how these rights are implicated by a DWI arrest. Which of these rights are implicated throughout a DWI arrest, and how the courts have decided the rights are or are not protected in these situations, will give us a good foundation to navigate exactly what McNeely means for DWI law in Minnesota.
The first ten amendments to the United States Constitution, known as the Bill or Rights, were designed to protect individual liberties and freedoms from governmental intrusion. Keep in mind that the tyrannical rule of Great Britain was fresh in the minds of the authors of the Constitution, and that during the debates over adopting the Constitution, the fear of tyranny from one’s own government was a very real concern. To alleviate the fears of governmental abuses of power that many of the framers of the Constitution harbored, the Bill of Rights, designed to limit the power of the government to intrude on the rights of its citizens, was ratified shortly after the Constitution itself.
Government intrusion is generally either in the form of actions by government agents – most often law enforcement; or by political action through the legislative branch – Congress, and the executive branch – the President. Both branches are elected offices designed to advance the will of the people at a given time, and the founders were quite rightly fearful of vesting too much power in any source, knowing full well how majorities have a tendency to get swept up in political fervor at the expense of minority rights. Therefore, the Constitution structured the United States government with the goal of balancing and separating authority into three separate branches – legislative, executive and judicial – to provide a system of checks and balances. The judicial branch, i.e. the courts, is supposed to be immune to political pressure, and was therefore assigned the task of safeguarding individual rights from the whims of the public, out of the concern that majorities, if unchecked, would adopt legislation that while popular, would undermine the rights of others.
The Growth of Individual Freedoms
The preference for individual freedom over government intrusion in criminal investigations and prosecutions is known in modern times as Blackstone’s Ratio. Written in 1765 by the famous English legal scholar William Blackstone, the principle that it is “Better that ten guilty persons escape that that one innocent suffer,” actually dates back to the ancient Greeks and the Bible. Evidence appears in the writings of ancient Greek and Roman philosophers, specifically Aristotle is said to have written that, “It is a serious matter to decide in the case of a slave that he is free; but it is much more serious to condemn a free man as a slave.” (Problems – though Aristotle’s authorship of Problems has been disputed). The idea also appears in the Bible’s opening pages, when The Lord told Abraham that “He would not destroy [the righteous] for ten’s sake” (Genesis 18:23-32).
The notion weaves its way through time, appearing in early English law and during the Salem Witch Trials of 1692, when Increase Mather, an early rabble-rouser in the American Colonies, wrote while decrying the injustice of the prosecutions that, “One would much rather that twenty guilty persons should escape, than the Innocent Person should be Condemned.” (Salem Story: Reading the Witch Trials of 1692). Most importantly to American Constitutional history, though, Benjamin Franklin claimed in a letter to a colleague that the maxim, “has been long and generally approved; never, that I know, controverted.” (Benjamin Franklin to Benjamin Vaughan). Furthermore, John Adams invoked the principle when defending British Soldiers from charges stemming from the Boston Massacre, arguing that, “there never was a system of laws in the world, in which this rule did not prevail.” (Trial of British Soldiers)
Blackstone’s Ratio is the basis for what is known in American law as the Exclusionary Rule, which is intended to deter government misconduct by preventing the state from using evidence that it obtained through a violation of a person’s Constitutional rights to prosecute that individual. The basis for this rule, again, is that while society does not like to see offenders go unpunished, it is a far greater evil to allow the government to violate our rights at will.
Protecting Our Rights
Chemical testing for blood-alcohol, which is used as the basis for arresting, detaining, prosecuting, convicting and sentencing offenders, implicates a number of fundamental rights granted by the Bill of Rights. Most notably, chemical tests implicate the right against unlawful searches and seizures – the 4th Amendment, the right against self-incrimination – the 5th Amendment, and the right to due process – the 5th and 14th Amendments.
The framers of the Constitution believed that individuals had an inherent right to be free from unwarranted searches and seizures. As a general rule, police cannot arrest or detain a person, or search their person, their belongings or their homes, without the explicit approval of a Judge signing off on a warrant. It should be noted that although law enforcement and judges are often thought of as working together, law enforcement is actually an arm of the executive branch, whereby judges obviously belong to the judicial branch, and are thus charged against protecting individual rights against intrusions by the other branches of government. Judges are therefore given the important role of being the first line of defense in the protection of the Bill of Rights in that they are charged with neutrally reviewing law enforcement requests for search warrants and arrest warrants to ensure that probable cause exists to justify the requested intrusion.
In addition, the framers of the Constitution firmly believed that a person should not be compelled by the government to provide incriminating evidence, as formalized in the Fifth Amendment. Self-incrimination can take many different forms; the police may attempt to question a person who is their custody, but before doing so they must inform that person that they have Constitutional protections, one being the right against self-incrimination, or more popularly known as a person’s Miranda rights (a reference to the landmark United States Supreme Court case, Arizona v. Miranda.)
Self-incrimination can also be found in courtroom testimony; witnesses and defendants are protected against providing evidence against themselves when answering questions that may tend prove their own guilt. A person is allowed to invoke their right against self-incrimination, or “plead the Fifth [Amendment],” which guarantees that person will be required to answer any incriminating questions and that the state cannot comment on that person’s silence to a jury. Self-incrimination can also take more subtle forms, as when suspects are compelled to provide evidence other than verbal testimony that can be used against them. For instance, DWI suspects are asked to submit to field-sobriety tests, a battery of physical or mental tests that will provide evidence of impairment, evidence that is intended to be used in prosecuting that suspect.
Necessity of Due Process
The framers of the Constitution also believed that due process, and fundamental fairness, were essential elements of a just, free society and legal system. Criminal penalties for impaired driving are significant, including incarceration, fines, and the stigma of having a permanent criminal record. Impaired drivers are also subject to severe civil penalties, including the loss of their driving privileges, which for many affects their livelihood and ability to attend to the needs of themselves and their families, and can also include the forfeiture of their license plates and vehicles. Given the high stakes of being charged with, and potentially adjudicated guilty of, an impaired driving offense, courts have recognized that certain due process protections must apply to both the criminal and civil sides of an impaired driving case.
Over the next several weeks, Stacy and I will delve deeper into the specific aspects of each of the Constitutional rights implicated, where the Courts have drawn lines in the sand – or not; and talk about how the ruling in Missouri v. McNeely has affected the laws concerning these fundamental protections.
Related Sources: http://www2.law.ucla.edu/volokh/guilty.htm