The DUI Exception to the Constitution

Lawrence Taylor

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... been a law professor. He specializes in drunk driving as an attorney. Welcome Larry.

Thank you, Gene. Thank you. Thank for the invitation to speak and to appear and take part in this really exciting gathering. I’ve been looking forward to this for quite a time. Particularly, I’ve been looking forward to coming and listening to my — one of my personal heroes, Charles Murray, speak. And I did listen to him this morning and I was certainly not disappointed — well, maybe a little disappointed. After 27 years of being an attorney and finding out I have absolutely no social value is disappointing, but then I guess Abraham Lincoln would have been disappointed too. We can all just hope and pray very strongly that Mr. Murray is never arrested by a police officer, wrongly or otherwise and forced to confront the powers, overwhelming resources of the state in front of a jury of his peers. Or if he does, let us hope and pray that he knows a very good physician or accountant to defend him.

I hope to convin — is this working? It doesn’t sound like it—I’m getting any—I hope to convince you in the next hour, some of you, convince some of you, in the next hour that the greatest single threat to our freedoms, the freedoms set forth in our Bill of Rights to our constitution. The single greatest threat is not from China. I don’t think it’s from Choostan. I don’t think it’s from the extremists of the Muslim world. The threat as it has always been throughout history is internal. It is from within. I do not think it is from the American Communist party or extremists on the right. I hope to convince a few of you the greatest single threat to our freedoms today is a group of American housewives. They call themselves the Mothers Against Drunk Driving, MADD.

I am fully aware that some of you belong to MADD. And I am certainly not here to make fun. Many of you who are in MADD are — have had tragic losses at the hands of drunk drivers. Others of you here do not belong to MADD, but you have contributed to MADD and many more of you here, perhaps most of you here, are in complete sympathy with their goals and their activities. But I hope to convince you after one hour that you might want to reassess your view of that particular organization.

And I do not take them lightly in terms of their intentions. But we know that throughout history it is the well-intentioned zealots — those who believe strongly in the rightness of their cause — that are most willing to impose those ideas upon others. I do not, by the way, for a moment suggest that we should legalize drunk driving. I'm going to make that clear at the outset. But it is the true believer who is the greatest threat. And I should at the outset acknowledge my tremendous debt to Mr. Eric Hoffer who wrote that book, The True Believer. He was a longshoreman when I was going to school at Berkeley in the 60’s. Did not have a high school education, but he was teaching Philosophy at the University of California Berkeley and wrote this tremendous little jewel of a book that has been terribly influential in my own thinking.

I would like you to imagine for a moment that you’ve gone to a friend’s house for dinner. In the course of a very good dinner you’ve had a couple of glasses of a good Petit Serah and it is now time to drive home. I would like you to imagine that you are on your way home — and, I will tell you parenthetically, by the way, that two glasses of wine will not, in any state, put you under the influence of alcohol or over the legal limit of .08, or .10 depending on your home state. As you are driving along the highway, you see ahead of you some flashing lights and barricades and police cars accordioned across the highway, with flashing lights directing you into an increasingly small channel. And, as you go in, you are stopped and two police officers approach you and stick a flashlight in your face and say, "Breath on me. Have you been drinking tonight? Please step out of the car."

Some of you say, "Well that can’t happen in the United States. We have the Fourth Amendment to the constitution, which says, 'police officers have to have probable cause to stop you. They have to have a reason to believe you’ve done something criminal before they can stop and detain you.'" And so said the Michigan Supreme Court in the case of Sitz vs. Michigan. The Supreme Court of Michigan said, "The Fourth Amendment does not permit these types of roadblocks." And reversed the DUI conviction. They went up to the United States Supreme Court, unfortunately and that august body decided 5 to 4 that somewhere in the constitution there is something called a DUI Exception. And in a 5 to 4 vote sent it back to Michigan saying there is no violation here. What’s interesting is the Michigan Supreme Court, bless them, for there are fewer and fewer of them, said, "Well, if you will not protect our citizens in the state of Michigan from this kind of police conduct, we will. And we again reverse the conviction and this time we rely upon our own state constitution." (Applause)

The state of Washington and three other states have followed suit. In 46 states today it is legal to stop you for absolutely no reason other than the fact that you are driving a car. But only to check you out for drunk driving.

You have been stopped, you have been taken out of the car and you have been handcuffed. You are placed in a police vehicle and you are on your way back to the police station. About this time you’re probably wondering — I’ve seen this TV show somewhere — they’re supposed to read me something aren’t they? Something called Miranda? Aren’t I supposed to have a right for an attorney? A right to remain silent? Because, as you’re driving, the officer's asking you all kinds of questions. Like, "Where have you been?" "Where are you coming from?" "How much have you had to drink?" "How long ago was it?" "When was the last drink?" "Do you feel the effects?" "Where are you now?" "What time is it?"

Well, again, a state Supreme Court said, "Hey, this person’s handcuffed under arrest, you’ve got to advise him of his constitutional rights under Miranda." And again, it went to the United States Supreme Court in the case of Birkemer vs. McCarty in 1984. The Michigan vs. Sitz case was 1990, by the way. In Birkemer vs. McCarty, the [United] States Supreme Court fooled around for about 20 or 30 pages of opinion and finally concluded that there was a DUI exception to the constitution. And that, "Well, we really can’t tell you when you’re supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations." So, U.S. Supreme Court has told us we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later.

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