'Implied Consent' versus 'Explicit Dissent': The DUI problem

American law comes down on the side of less government power. You have certain rights that you are allowed to exercise. Photo: AP

WASHINGTON, August 21, 2013 ― American law historically tends to come down on the side of less government power, rather than more. You have certain rights that you are allowed to exercise. You can refuse an officer’s request to search your car, or you can refuse to answer questions that may incriminate you. That is why implied consent laws are counter-intuitive for many Americans, more so because no efforts are made to educate Americans about their existence.

Implied consent is a legal doctrine that allows your consent to be inferred by the police without your knowledge or, ironically, consent. Most notably, this applies to breathalyzer tests. Everyone who gets into a car and drives is presumed to have given irrevocable consent to have their blood alcohol levels tested if a police officer suspects that they have consumed alcohol.

There is a difference between a roadside test and the one in the station, however. In Michigan, refusing a roadside preliminary breath test is only worth a civil infraction. The full weight of implied consent laws kicks in only if you are taken to a police station for a test.  

Refusing the breathalyzer test once you are taken to the station, or even refusing to give a blood sample, is no minor infraction. The minimum consequence for invoking your Fifth Amendment rights at a police station is a 12-month driver’s license suspension.

In Alaska, Minnesota, and Nebraska, you get jail time for exercising your constitutionally guaranteed right against self-incrimination.

If your experience is typical, you were never, in the process of getting a driver’s license, given a form to sign or told that you were surrendering your constitutional rights every time you got on the road. The concept of implied consent rebels against common sense.

If refusing to consent to a breathalyzer test is punishable, then consent is a meaningless legal fiction to begin with. The driver is never given the option to make an informed decision about whether or not to give up constitutional rights in order to drive a car. Once you is confronted with the situation, dissent is a crime.

Even if you were informed, the Bill of Rights is not something you should ever be asked to surrender. If the government can assume consent because your refusal to do so is inconvenient to them, do you really have rights?

Somehow, consent inferred by the police stands as legally binding in the face of a flat refusal to give consent on the part of the victim. This means two things. First, the state gives itself the power to coerce consent from a citizen. That this has nothing whatever to do with consent is obvious to anyone. Second, the citizen’s refusal to consent to that fundamental violation is a crime that has mandatory legal consequences.

There are justifications, of course. Among them is that this is the only way to keep the streets safe from irresponsible drivers. But that’s absurd. The same breathalyzer technology that made implied consent laws useful could have been used for ignition interlock devices for decades, if the industry were willing to do it.

If that is what it takes to stop drunk driving without trimming down the Bill of Rights, then there should be no question. The current system is incredibly ineffective. There were 112 million incidents of drunk driving in 2010. This violation of our rights is clearly not solving America’s drunk driving problem.

How many lives could be saved if every car in America simply didn’t start unless the driver had a low BAC? And this without the state getting involved in the private affairs of citizens and violating their basic rights.

The financial costs of the devices is dwarfed by the $114 billion in annual damages caused by drunk drivers, not to mention the immense cost of law enforcement in this area. Equipping every car with ignition interlock devices would probably save money along with lives in the long run.

This isn’t a priority, though, so we get a weird judicial workaround that allows the government to punish dissent in blatant violation of basic constitutional safeguards.

Safety matters to the politicians about as much as the constitution does. It’s not even part of the equation. So don’t drink and drive, and if you get pulled over, remember, exercising your rights is a crime in America.

Tyler Knapp enjoys reading about the law and our rights and is especially interested in government overreach and fostering debate about our rights.He writes on behalf of Grabel & Associates, a law firm specializing in driver’s license law.


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Tyler Knapp

Tyler Knapp enjoys reading about the law and our rights and is especially interested in government overreach and fostering debate about our rights. He writes on behalf of Grabel & Associates, a law firm specializing in driver’s license law.

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