This article is being re-posted from the National College of DUI Defense
Friends and Colleagues, it’s the last Friday in February, and I wanted to make today’s submission a little extra. A little “Year of the Fire Horse” worthy, if you’re into that kind of thing. So buckle up, buckaroos – It’s Fourth Amendment Friday, and we are taking a look at the DUI Exception to the Constitution.
Unwritten, of course, but no less real, the DUI exception exists. Scalia called it out in his scathing dissent in Navarette, which I discussed before, and will address momentarily. The Fourth Amendment doesn’t contain an offense-specific exception, certainly not for DUIs, yet DUIs are routinely given softer scrutiny by courts. This distortion is classified under general public safety concerns, announced with furrowed brows by learned, wizened men and women of the law, extolling the “terrible toll” that DUIs take “on our nation’s highways.”
I once heard about a publication, when I was speaking at a seminar in Minnesota, where the statistics showed that pregnant women are more likely to get into accidents than people who use cannabis, but we don’t talk about the terrible toll of the third trimester on anyone’s highways, byways, or driveways.
I digress. Courts treat DUIs as sui generis and then deny doing so. We see it in sentencing, where the courts treat DUIs as a chance to sentence people based on things that might have happened, but did not in fact happen, (or, even if speculative conduct isn’t part of the basis for the sentence, it can certainly give rise to a long lecture about how the accused “could have killed someone,” and “aren’t we all glad this isn’t a lot worse?”). We see it in plea negotiations, where the prosecutors act personally offended that our clients are parked legally and have a BAC that barely tops a .15, just because they have a prior from 15 years ago. (“Guess someone didn’t learn their lesson, Michelle.”) (“Guess not, Vinny, let’s go to trial again.”).
And while we shouldn’t see it there, we absolutely shouldn’t see it in the Fourth Amendment application of probable cause, reasonable suspicion, and what it takes to get a warrant. The neutrality principle of constitutional thresholds shouldn’t fluctuate based on the “social sleazy” of the alleged offense. The standards are constant; just ask the Supremes.
In Delaware v. Prouse, we learned that general crime control doesn’t justify suspicionless seizures. Reid v. Georgia gives us the adage that anything which would subject a large number of innocent travelers to virtually suspicionless seizures is unconstitutional. And even if the stop is legal, Rodriguez v. US says the police can only detain you long enough to complete the designated mission; anything else is unconstitutional without further cause.
But Navarette – which wasn’t even a DUI case – opened the door wide to the sui generis stable and let the suspicionless stop stallions run free. In that case, there was an anonymous tip of erratic driving on a California highway. Officers find the car in the area where the caller said it would likely be and follow it for about five minutes. Which, in highway time, is a long time.
They observed nothing. Nary a weave, not a drift, not a hint of a thought of a possibility of an illegal or unsafe lane change.
And certainly there was no speeding. Perish the thought.
But, for the majority, that wasn’t enough to dispel the caller’s claim of erratic driving. Justice Thomas determined, apropos of nothing, that the perfect driving observed by the officers was all a ruse. Obviously, he wrote, as everyone knows, DUI drivers will just automatically adjust their driving behaviors to absolute perfection when they see the police behind them. No, no, the unsubstantiated claim of a singular instance of erratic driving, followed by perfect driving, was clearly enough for a stop to investigate DUI.
Couldn’t disagree more, Scalia seethed. We have a single reported instance of careless driving and five miles or more of good driving? How many single instances of bad, reckless, or careless driving turn out to be DUIs? He advances a statistic of .1%, which he then admits he has no basis for, but challenges the majority to say he is wrong.
Scalia called the court’s opinion a “freedom-destroying cocktail.” He warned against the DUI exception to the Fourth Amendment, criticized the Court’s willingness to take the caller’s allegations of erratic driving at face value because of the “dangerous nature” of DUIs, and noted that the gravity of the offense is not something that we consider when we evaluate Fourth Amendment questions. He accused the majority of watering down Fourth Amendment protections simply because it was a DUI:
“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference,” he wrote. “To prevent and detect murder, we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either.”
The takeaway was clear: If danger justifies lower reliability thresholds, neutrality is gone.
The DUI exception to the Constitution shows up in every area of the Fourth Amendment. In reasonable suspicion, we see it when innocuous driving behavior is aggregated into suspicion. I cannot be the only one who has had a prosecutor try and spin speeding into a driving cue. The police will also use indications of mere alcohol ingestion, such as an odor, with nothing more, to detain for a DUI investigation, suggesting that somehow innocent activity, in a DUI, is the same as reasonable suspicion of criminal activity.
In probable cause, the officers’ training and experience becomes code for, “Forget the Fourth, I do what I want.” Officers testify about field sobriety performance as if it is conclusive, a totality analysis becomes a cherry-picked curated selection of evidence that fits the government’s narrative, and any attempt to bring science into the courtroom to debunk this bunk is met with an eyeroll and a muttered, “nerd alert.”
But DUIs are just the perfect vehicle for such Fourth Amendment erosion, aren’t they? It is a politically untouchable enforcement category. No one is going to mourn or pity the poor drunken driver. Social condemnation reduces judicial scrutiny, in my opinion, on the police action, and “low sympathy” defendants invite relaxed analysis. Because DUI is one of the most commonly committed crimes in the country, courts that hear such cases have a high-volume docket, and the pressure to move the cases is equally as high. Questions posed to defense counsel like, “Don’t you have a plea?” Well, yes, Your Honor, but I would like to see the evidence as well, if I may. Loud sigh. A very stern look at me, followed by a telepathic exchange with the prosecutor:
“Can you believe this?”
“She is insisting on due process! In a DUI of all things!
“Ugh. Threaten to revoke the plea if they don’t take it in the next ten seconds.”
Forget about being DUI lawyers for a second. I know, I know, but it will only hurt for a second. What if we weren’t fighting that good fight? Imagine where this goes. First, it’s DUIs. And because the doctrine doesn’t collapse all at once, because the Fourth Amendment doesn’t crawl off into a forgotten corner of the Archives and cry itself to sleep right away, it first begins to erode in high-condemnation cases. Sex crimes, certainly. Any crimes against children. Anywhere where the “just in this case” type of reasoning could make an officer think, “Oh, look, an open door,” before kicking it in. And before you know it, just like that, we have no neutrality.
When Constitutional neutrality is compromised, then every “dangerous” offense is evaluated on a sliding scale, and the Fourth Amendment becomes offense specific. Probable cause means different things for different crimes, and protection against government power shrinks, shrivels, withers, sputters, and finally goes dark.
And so, as we bring this month to a close, my friends and colleagues, we remind ourselves that we do not concede the premise. We do not allow the “just a DUI” to become code for the “Fourth Amendment Lite (now Gluten-Free).” Neutrality is not optional; the Fourth Amendment doesn’t bend for unpopular defendants, high-volume dockets, furrow-browed statistics on the purported highway carnage, be it from beer drinkers or baby-on-boarders. It means the same thing, every time, in every case, or it means nothing at all.
So saddle up – be the inconvenient lawyer. Be the one who causes the prosecutors to roll their eyes when they see your name as “Attorney for Defendant.” Insist on that threshold. I will join you there.
Because the Fire Horse doesn’t graze quietly at the edge of the pasture – it runs straight and hard right into battle, principled, and unyielding.
Have a great weekend.
Your Friend,
Shelley Behan
Matthew Ruff is a Torrance DUI Lawyer with 30 years experience. Matthew is known as the “Master of DUI Defense” by his colleagues and peers.
