[MissoulaGov] Dave's proposal is to make it a criminal offenseto refuse the test punishable with a $300 fine

[Jed Taylor]

Finally someone who gets it.   This ordinance makes refusal - before an
arrest based on probable cause has been made and without a search warrant
properly executed - a criminal as opposed to civil offense.  If it passes as
is, hopefully it will be challenged as a warrantless search and perhaps also
an effective violation of the 5th's guarantee against being required to be a
witness against one's self.

 

The marginal benefits, such as they may be, never justify giving up civil
liberties guaranteed by the US Constitution, and, as others have observed,
perhaps the Montana Constitution as well.

 

There are plenty of alternatives that can achieve the same goals without
attacking our civil liberties.  These are what our Council should be
exploring.

 

 

 

From: missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] On Behalf Of Colleen M. Dowdall
Sent: Friday, February 19, 2010 16:58
To: Ethel MacDonald; Carole
Cc: missoulagov at cmslists.com
Subject: Re: [MissoulaGov] Dave's proposal is to make it a criminal
offenseto refuse the test punishable with a $300 fine

 

The Constitution protects individuals against self incrimination.  That is
the "right to remain silent" part of Miranda.  Losing your license is a
civil penalty tied to your obligations under a driver's license, the use of
which is a privilege.  So if you don't blow a breathalyzer you have a civil
penalty imposed - you lose your license.

 

The ordinance will make it against the law to not blow into the
breathalyzer.  If you refuse to incriminate yourself, you will be charged
with a separate offense and receive a fine.  That is the constitutional
challenge.  The goal is laudable.  But the slope is slippery.  

 

Other states and cities are better at DUI enforcement than we are.  We need
to explore all avenues for enforcement, without throwing the constitution
away.  

 

Colleen M. Dowdall

WORDEN THANE P.C.

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