Fifth Amendment: 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.
The Fifth Amendment of the U.S. Constitution protects individuals from being compelled to be witnesses against themselves in criminal cases. This has specific implications in DUI cases. Most states allow a motorist's refusal to undergo blood alcohol concentration (BAC) testing to be used as evidence against them in a subsequent criminal prosecution. This is facilitated by implied-consent laws adopted by all 50 states, which require motorists to consent to BAC testing if they are arrested or detained on suspicion of a drunk-driving offense. If a motorist withdraws consent, significant consequences typically follow, such as immediate suspension or revocation of the driver's license. United States v. Sugiyama, 113 F. Supp. 3d 784.
However, the Fifth Amendment only protects against compelled testimonial evidence, not against compulsion that makes a suspect the source of real or physical evidence, such as a blood or breathalyzer test. Bailey v. Henry Cnty., 2021 U.S. Dist. LEXIS 261442. This was established in the case of Schmerber v. California, where the court held that the Fifth Amendment did not bar evidence of a blood test during a DUI investigation. Schmerber v. Cal., 384 U.S. 757. Similarly, in Pennsylvania v. Muniz, the court held the same for a breathalyzer exam. Bailey v. Henry Cnty., 2021 U.S. Dist. LEXIS 261442.
It's also important to note that a DUI suspect does not have a right to consult with counsel prior to the administration of breath, blood, or urine testing. This is because the Fifth Amendment privilege permits a person to refuse to answer questions where the answers might be used to incriminate them in future criminal proceedings. United States v. Butler, 59 F. Supp. 3d 648. However, this privilege does not extend to noncommunicative acts, such as undergoing a blood test Schmerber v. Cal., 384 U.S. 757.
ADDITIONAL RESOURCES
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