A DWI Exception to the Constitution? Exploring The 5th Amendment

The Bill of Rights of our Constitution provides certain protections that apply to all Americans. Many of these protections are particularly relevant when one has been accused by the government of committing a crime. Why? For starters, let us never forget that our Founding Fathers were criminals. That’s right, they defied the laws of their time and place and were sympathetic to the idea that sometimes individuals are justified in standing up to the law. But beyond that, they wanted to insure that the country they created would be a just society where law rules, rather than the whims of judges and political leaders.

So where does that leave us? We have, among others, a 4th Amendment right to be free from unreasonable searches and seizures, a 5th Amendment right to be free from testifying against ourselves, and an 8th Amendment right to be free from cruel and unusual punishment. Today let’s take a closer look at the 5th Amendment and see how today’s DWI Laws are completely contrary to the goals of the 5th Amendment.

This is an observation that defense attorneys have realized for a long time. In fact, the topic is discussed at length in “Strategies for Defending DWI Cases In Texas,” co-wrriten by our very own Douglas Wilder. The 5th Amendment guarantees that the failure to testify cannot be used against the defendant at trial. Defendants may not testify for a variety of reasons. They may have a rough past which, if brought up, could prejudice their case. They may not be mentally strong enough to handle the questioning of a prosecutor and accidentally implicate themselves. Or they may simply not have anything to add to the case that is not already supported by other more reliable evidence. These same ideas apply to when a person is arrested. If the police aggressively question a subject, the subject may end manipulating the subject into confessing to something they didn’t do.

But DWI investigations are different. If someone refuses a breath test after being stopped for suspicion of DWI, that refusal CAN be used against you at trial. Consider this, if a police officer asks to search your home and you say no, they cannot go to a judge and say, “He didn’t let me in, he must be hiding something. Sign this warrant.” This is because our society recognizes a right to be unmolested by police officers in our home. Yet, for some reason the refusal to let a police officer violate our bodily integrity by taking our blood is evidence that we are guilty. This is absolutely contrary to the purpose of the 5th Amendment.

Not every legal system has protections like those guaranteed by the 5th Amendment. Our legal system is adversarial, meaning two parties present their case before an impartial and unbiased fact finder (a judge or jury) who decides guilt. In other words the investigator and the decision maker are separate. The inquisitorial system on the other hand, which is practiced in various forms in countries such as France and Scotland, places the investigative power in the same hands as the decision maker. In this system, the judge or other official questions an accused and can draw whatever decisions they want from a subject’s failure to answer a question. Be grateful that we do not have such a system because it places way too much power in one party. A corrupt judge can essentially do whatever they want, as opposed to our system where corruption must go through two layers, the prosecuting party and fact finder, to affect the outcome of a trial. Remember the concept of Separation of Powers from your 5th grade Social Studies class?

No one wants drunk drivers on our roads. That’s why we’ve passed such strict laws all over the country. But before we pass laws that infringe on our liberties we need to stop and think about what rights we are giving up and what these rights are for. That certainly wasn’t widely considered when our legislature created a DWI exception to the Constitution.