The DUI Exception to the Constitution is Real!
Criminal defense attorneys have for years joked that it seemed that there was a DUI exception to the Constitution when laws and procedures that would be clearly unconstitutional in other contexts are upheld by courts when applied to driving under the influence. Now, the Chief Justice of the United States Supreme Court has recognized that such an exception does indeed exist.
Justice Roberts, in a dissent joined by Justice Scalia, wrote to protest that the U.S. Supreme Court had denied review of a case where the Virginia Supreme Court had overturned a DUI conviction because the police had pulled over a driver based on an anonymous tip. Virginia v. Harris, 558 U.S. ____ (2009). The Virginia Supreme Court felt that the U.S. Constitution and previous U.S. Supreme Court decisions prevented the police from acting on uncorroborated anonymous information. Most states, including California, have ruled that the police may stop drivers suspected of driving under the influence based solely on anonymous information, and even without any specific evidence of impaired driving, but merely that the driver is “drunk.” See People v. Wells, 38 Cal.4th 1078 (2006). Other states, including now Virginia, have ruled that the police must have some corroboration of anonymous information before detaining a person. Roberts seemed to disagree, writing “I am not sure that the Fourth Amendment requires independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.” [Emphasis added]. Roberts was especially concerned about the 13,000 allegedly DUI related deaths each year. He went on to note that “this court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.” [Emphasis added]. There it is, in writing. Drunk driving warrants exceptions to the Constitution. At least they have finally come out and said so.
While nobody argues that driving under the influence can be dangerous, it might help to put the 13,000 deaths a year in some context. According to the latest data available from the Centers for Disease Control and Prevention, heart disease is our greatest killer, taking over 630,000 of us each year. (Deaths: Final Data for 2006, National Vital Statistics Reports, Vol. 57, no. 14, April 17, 2009). That’s over 48 times more deaths than DUI. Maybe the police should be able to stop you for a quick cholesterol and blood pressure check. It would save far more lives. Cancer takes another 560,000 each year, and strokes another 137,000. Id. DUI related deaths wouldn’t make it even in the top 15 causes of deaths. Firearms accounted for over 30,000 deaths, which included 54.6% homicides and 41.4% suicides. Id. In fact, there were 18,573 homicides in 2006, which is 30% more than the DUI related deaths. Id. If an anonymous tip of a well described person carrying a gun at a bus stop is insufficient probable cause to justify a stop (see Florida v. J.L., 529 U.S. 266 (2000), given the prevalence of gun related violence just noted, then how can the court justify stopping drivers on similarly uncorroborated tips, just because alcohol might be involved. It is not illegal to drink and drive. It is illegal to drive when the driver is impaired by alcohol. The police should have to have some evidence of impairment before they can stop a driver. In the balancing of freedom versus safety, Virginia made the right decision.