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I am a criminal defense lawyer practicing in Rhode Island.  I handle all types of criminal cases, including, DUI, domestic violence cases, drug case, sex cases just to name a view. 

Wednesday, December 30, 2015

United States Supreme Court to review if a refusal to take a breath or blood test can constitutes a crime under the constitution.

Questioning the Constitutionality of Treating a DUI Refusal as a Crime


I often wonder how it could be considered a crime to refuse to take a breath test.  Under Rhode Island law, if a person refuses a breath or blood test twice in a matter of 5 years it is considered a crime.  This legislation seems to contradict the 5th amendment to the United States constitution as well as the Article 13 of the Rhode Island constitution.  

The Fifth Amendment protects criminal defendants from having to give statements if said statement may incriminate themselves. This ability to remain silent is a bedrock principle that the Framers of the Constitution believed in when they penned the Fifth Amendment.  Furthermore, the Rhode Island Constitution, Under Article 1, Section 13,  in its declaration of rights section also protects a person from giving self incriminating evidence.  

“Section 13. Self-crimination. -- No person in a court of common law shall be compelled to give self-criminating evidence.”  

Clearly,  the Rhode island Constitution in addition to the US Constitution protect the rights of defendants from giving self-criminating evidence.  

So why is it in Rhode Island that a person is told they have a right to remain silent but if they do they can be charged with a crime?  The Rhode Island state legislature as well as the court has turned it’s back on the principle that one has a right to remain silent under the Federal constitution as well as a right not to give self-incriminating evidence under the State constitution.  The law as it stands now, stands for the proposition that if you do not help the State gain evidence against you in a DUI investigation,  then you have committed a crime.  This likely was not the intent of the framers.  We all know DUI’s are dangerous, and that they need to be stopped, but at what expense?  The State can still prove a DUI case without a breath reading. Is it necessary to rip up the State and Federal Constitution to help the law enforcement? Is the next step to say if you don’t let the police search your house you can be charged with a crime, or if you do not give a statement in a criminal drug case you can be charged as well?  

Thirteen states, including Rhode Island  make it a crime to refuse blood alcohol tests. The United States Supreme Court agreed Friday to hear cases coming from  two of those states. Specifically, the US Supreme Court will hear cases from Minnesota and North Dakota in which the Court will decide if a defendant's refusal to take breath tests can be the basis for a criminal charge.

The court has previously ruled that blood tests are searches and that a warrant in many cases will be usually needed in order to obtain the blood test. The whole intent of the of the refusal law is to establish a civil penalty to convince the defendant to take a breath test.  It is my belief that the 13 states that have made it a crime to refuse blood alcohol tests a crime have gone too far in making the act of not incriminating one’s self a crime.

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