去郭轩

I think more than one people have been told by me that, usually in US, the police officer is not allowed to make you breath to an alcohol detector unless you did something dangerous or offensive or something like that, or the officer will take a big risk of being sued, because of the fifth amendment of Constitution.

However, this is just not the truth. I do not remember where I got this idea. Maybe from some very very old case, maybe from a paper with minority thought. Nevertheless, I was wrong.

The fifth amendment states as following:

No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

Yes, the self-incrimination is definitely barred. However, this privilege protects only testimonial or communicative evidence and not real or physical evidence. Technically, if you are asked by the police officer, “did you drink any kind of alcohol tonight?” You can just take the fifth, and denied to answer. However, if you are asked to do some field sobriety test (I have been asked to watch a penlight, and move my eyes left and right following the light), or you are asked to breath to an detector, or to offer some blood for test, you are not protected by this amendment.

But not protected by this amendment does not mean it is legal per se. Then, what’s the legitimate behind that? I believe that it is a doctrine of implied-consent-in-law. When you are asked to do some tests to see whether you are drunk, of course you have the right to consent or not to. However, this doctrine has been adopted by all the states of US, that you are consent to be stopped by a police officer and make that kind of test, as long as you drive on a state owed or federal owed road.

I’m so curious of this issue because of the trend of severe punishment of Driving With Intoxicated charges in China. The punishment for DWI is very severe in every state of US. Mostly, people driving drunk will face a big amount of fine, possible imprisonment, suspension of driving license up to life, months of abstinence of alcohol program and many hours of community labor. Just in practical level, I believe that more severe the possible punishment will be, more restrictions and procedures there should be. This is a normal way to guard against arbitrarily, and it is usually effective. So I wrongful believed that there were many proceeding restrictions for a DWI charge.

However, do not be fooled by me. The truth is not like that. The truth is: privilege against self-incriminination is not applied to the breath alcohol test; the Miranda warnings are not required until the drunk status has already been proved and took custody, and even not required after the custody because the police officer does not need any of your answers; the right to counsel is also not applied until taking custody in most states; and at last, the plea bargain normally will not be considered by the prosecutor either because they rarely lose this kind of case. As a result, most constitutional restrictions designed for criminal charge are or not applied, or useless in the DWI charge, whose punishment maybe severe.

Many people are asking for more severe punishments for DWI charge in China these days. Every time when I heard, read this kind of comments, I’m concerning that if severe punishments are imposed to a charge which can be convicted so easily, will there be more unjustly, falsely or wrongly charged people? Will this charge become another source of the police officer’s income? I’m not sure. Severe punishments definitely will be more effective for controlling the drunk driving issue, which is one of the most dangerous to human life. I just don’t want it to become a tool of some person.

The truth shows that there is not many restricts for the conviction of this charge in US either, and I cannot find any evidence that it leads to some unfair, arbitrary, or improper privilege.

But I don’t think this can lead to any conclusion. The US legal system, the way the government works, is very different from China. I have no idea of what will happen what we clone the charges and punishments without the legal system. The attitude of the Supreme Court of China is more and more clear. We cannot and maybe should not stop this trend. I hope it can work out in China. But I have no confidence.

dlzm 法学相关