Involuntary Consent

Minnesota's drunk driving laws - like those of mot of the United States - are an abomination; draconian to the casual drinker who catches the wrong cop's eye on the wrong night, with a blind eye turned to the habitual drunk who routinely drives at over .10 blood alcohol content (BAC) and cause the vast majority of the drunk driving accidents.

Mothers Against Drunk Driving, beneficiary of a gauzy soft-focus media image, is responsible for lobbying the legislature for an unconscionable departure from the Constitution. One wonders where all the lefties who became instant libertarians when John Ashcroft was confirmed as Attorney General are on this one...

...but I digress. Joe Bollettieri and Chuck Ramsay' comment in this morning's Strib about one of the more noxious DUI laws in Minnesota:

The arrest last week of a Minneapolis cop on suspicion of drunken driving is cause for concern for obvious reasons. But this case may also serve to bring attention to another issue: the overreaching, unconstitutional Minnesota law that makes it a crime to refuse to submit to an alcohol test.

As the Star Tribune reported, the officer in question "refused all tests to determine his sobriety." Though the item also stated that the cop had yet to be charged, presumably he will be, and those charges should, absent preferential treatment, include a charge for refusing such testing. In and of itself, refusal creates the slam dunk of all slam-dunk cases, as Minnesota statutes state that a person who refuses to submit to an alcohol test is guilty of third-degree driving while impaired.

In other words, literally, damned if you do and damned if you don't.

"Good", say the anti-drunk driving zealots (is there such a thing as a drunk-driving proponent? Especially with Hunter S. Thompson dead?)

"Bad" say those with a longer view:

Such an approach plainly violates the Fourth Amendment, yet it was passed and survives due to the combination of a heavily lobbied Legislature and an elected judiciary that cannot risk the label of "soft on crime."

This is the problem with so much law designed to deal with crises (or "crises"): it's rammed through by the perpetually concerned, via legislators who want to look like they're "doing something" about the crisis even if they don't entirely understand the problem.

It's a given that most legislators don't understand the Constitution, especially in Minnesota, where the DFL has always felt the end justified the means:

It is well established that the administration of a blood, breath or urine test is a "search," thereby triggering the protections provided under the U.S. Constitution and the Minnesota Constitution...In American jurisprudence generally, and Minnesota case law specifically, in order to be deemed voluntary consent must be given, not extracted. The statutes on the books currently, however, explicitly allow such impermissible extraction. That is, when asking for the necessary consent to conduct a test, Minnesota law requires officers to inform suspects that all refusals to consent to testing are a crime. The message, then, to the suspect is clear -- you are damned if you do (perhaps), and damned if you don't (definitely). This is the epitome of the coerced, involuntary "consent" that the Fourth Amendment is designed to protect against.

This constitutional mess will be cleared up right about the time the wave of "drunk drivers" (swollen by ranks of people snared in the .08BAC witchhunt) stop coughing up tens of millions of dollars in fines. In other words...

Posted by Mitch at January 11, 2006 06:50 AM | TrackBack