One of the most “common” crimes is driving while under the influence of alcohol/drugs.  Maybe you’ve been stopped or at least know a friend or family member who has been arrested lately.  Particularly in the last 15 years, the penalties have gotten worse and law enforcement has gotten tougher.  But there’s a fundamental legal problem at the heart of this crime—it’s about your right to privacy.

The U.S. Constitution in the 4th Amendment prohibits law enforcement from conducting “unreasonable search and seizures” in the areas we consider private—including our own bodies!  Of course, law enforcement wants to search because they’re looking for evidence of the crime to use against you in court.  For instance, if police come to your house and find a dead body, they’ll want to search your house for evidence of the killing: a gun, knife, etc.

In a DUI case, the police search when they take a breath sample or a blood test.  These tests reveal the presence of alcohol/drugs in your blood stream—which is evidence of your guilt about the crime.

So, how can the police do this legally?  Don’t we all have the right to privacy guaranteed in the Constitution?

In criminal cases, the general rule is the police must get a search warrant signed by a judge before they can legally search us.  There are exceptions, however to the requirement for a warrant.  For instance, one of them allows police to pat search suspects for “the safety of the officer.”  If they feel something suspicious, like a hidden gun, they are allowed to search further and remove the gun—which can now be used as incriminating evidence in court against the person even if that wasn’t the original reason the police stopped the suspect.

Back to DUI and your right to privacy.  The breath test will definitely give police evidence to prove you’re driving under the influence.  Why don’t the police have to get a search warrant before forcing the driver to take the breath test?  (In Minnesota where I practice law, if you refuse to give the breath test, that is also a crime!!)  How can they pry into you life and privacy?

Many challenges to this warrantless search have been raised in the courts, arguing that as in other criminal cases the police should be required to get a warrant before you give a breath test.

Even though jail can be the penalty for DUI, your right to privacy is shoved to the side.  The courts have always treated DUI crimes differently than other crimes.  The underlying difference is that possessing a driver’s license is a privilege not a right.  Therefore, the constitutional safeguards that protect our right to privacy, don’t always apply to DUI crimes as they do to other crimes.

What do you think?  Is this fair?