Refusing the Breath Test: Second Time is a Crime
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The next time you have your driver license out take a look at it. At the bottom of the front side has in very small print "Operation of a motor vehicle constitutes consent to any sobriety test required by law." It use to be that this "consent" was able to be withdrawn when you refused to take a breath test after being accused of drunk driving. I'm sure that the Fifth Amendment (to the United States Constitution) phrase "nor shall be compelled in any criminal case to be a witness against himself" helped defer to the idea that allowed for this withdrawal of consent.
WELL THINK THAT NO MORE. If you refuse to provide evidence that can be used to convict you of a crime - guess what? - you've just committed another crime.
Today in Florida if you refuse to submit to a breath test for a second time you will be charged with the crime of Second Refusal under section 316.1939, Florida Statutes. This is a first degree misdemeanor and is punishable by up to a year in jail and a $1,000 fine and license suspension.
Drunk Driving and Your Eroding Rights
Some people will argue that taking away a person's Rights is a good trade off if it means we have safer streets in our communities. I say if you take away a person's Rights you can forget about communities - we will all be living in camps named after a game show. Once it becomes easy to carelessly excuse the act of stripping a person of even a single Right it will soon become common place to strip away everyone's Rights. This is unacceptable.
Now we are compelled, under threat of taking away our liberty and property, to become a witness against ourselves in a criminal case. They will take your breath, pass it through a gizmo-contraption, it will spit out a number and wallah! - that number will be told to the jury and explained as "proof" that you were intoxicated. Without your breath, your evidence, your compulsion to give it to the state - they would have nothing.
The problem with a compelled breath test is that the breath test itself is suspect. This machine is supposed to be able to determine "Blood" alcohol level by sampling your breath. It does not matter whether you are 6' 10" and weigh 320 lbs or 5' 2" and weight 90 lbs - those factors are not adjusted for with the breath test. So compelling a person to submit to it is (1) unconstitutional and (2) requires a person to submit evidence that can be considered incriminating even though the results are inaccurate.
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