Wednesday, February 10, 2010

Driving a stake into the 5th Amendment

Upset that motorists suspected of driving while intoxicated weren't cooperating with police and providing incriminating evidence (i.e. blowing into the state's breath test machine), Summit County (OH) Prosecutor Sherri Walsh authored a bill making a crime for a motorist to refuse the breath test.

Vitaly Simin became the first person prosecuted for and convicted of tampering with evidence because he refused to blow. He was sentenced to three years in prison for that and his sixth DWI conviction.

Ms. Walsh was, understandably, elated after gaining a conviction based on a law that makes the Fifth Amendment a joke in Ohio.
"The law is now clear that drunk drivers cannot refuse to take a breath test. It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn't pay to refuse to cooperate. It will increase your sentence." -- Sherri Walsh, Summit County (OH) prosecutor
Refusing a breath test is not tampering with evidence. The evidence of Mr. Simin's intoxication consists of the officer's observation of Mr. Simin's driving, the smell of alcohol on his breath, his admission to drinking, any other observations that might be consistent with intoxication and how he did on any police coordination exercises that were administered. Mr. Simin's alcohol concentration is only evidence if he a breath or blood sample is taken and tested -- if there was no test, there is no evidence of his alcohol concentration. If there is no evidence, there is nothing with which to tamper.

This is just another example of the extremes to which prosecutors and legislatures will go to strip the constitutional rights of motorists. Prosecutors know that DWI cases can be hard to prove and they are willing to go to any length to force a defendant to incriminate himself.

I've said it before, and I will say it again, a motorist pulled over on suspicion of DWI has fewer rights than any other individual in this country.

See also:

4 comments:

Mark W. Altman M.I.S. said...

Paul,

I do not want folks Constitutional rights violated, but if you drive impaired by alcohol I want you PROSECUTED and thrown in jail for as long as the law can possibly put you in jail. If it were up to me, if you drive drunk a second time, it would be your last, one way or another.

Houston DWI Attorney Paul B. Kennedy, said...

Mark, thanks for the comment.

I, too, want to keep drunk drivers off the road. However, I'm not willing to sacrifice our constitutional rights to do so.

If we continue to allow our rights to be stripped away in the name of public safety and security -- one day we will wake up and wonder where they went.

Mark W. Altman M.I.S. said...

You can be compelled to provide DNA and other evidence and the court has long held it is a balancing act between invasion of our person and the interest of the state. In this case, the state's interest is in keeping our roads safe and providing justice to the victims' families when a selfish, uncaring, irresponsible person takes the life of another after night of drinking.

Houston DWI Attorney Paul B. Kennedy, said...

Yes you can -- upon the presentation of a valid warrant or court order. That's what you see in sexual assault and murder cases -- serious felonies.

But driving while intoxicated is a misdemeanor offense; just one step above a traffic ticket.

There is no "balancing test" used in the states' decisions to compel motorists to submit to breath tests or face a suspension of their driving privileges. It was done by legislative fiat.