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NCJ Number: 77220 Find in a Library
Title: Driving While Intoxicated and the Right to Counsel - The Case Against Implied Consent
Journal: Texas Law Review  Volume:58  Issue:5  Dated:(May 1980)  Pages:935-960
Author(s): P T Bruns
Date Published: 1980
Page Count: 26
Format: Article
Language: English
Country: United States of America
Annotation: This note reviews the constitutional issues and other factors that contributed to the universal adoption of the implied consent statute and makes recommendations regarding its continuance.
Abstract: All 50 States and the District of Columbia employ implied consent statutes to govern the administration of chemical tests for intoxication to persons arrested for driving while intoxicated. A driver may refuse to submit to such a test, but if he does so his license may be revoked or suspended. Although the States constitutionally could compel drivers to submit to intoxication tests in the absence of implied consent statutes, they have elected to give drivers the refusal option to avoid the potential for police abuse that might accompany physical compulsion. Thus, the statute encourages submission by exacting a penalty for refusal. Prior to implied consent, most States had statutes making chemical evidence admissible at trial. Regardless of the historical reasons for adoption of implied consent, the current consensus explains the statute as a means of avoiding physical abuse in administration of the tests. It is suggested herein that requiring a driver to make the decision to submit to a chemical test without the aid of an attorney violates the sixth amendment. However, allowing arrested drivers meaningful assistance of counsel would undermine the objectives of obtaining chemical evidence and enforcing drunk driving laws. It is concluded that because extending the right of counsel to suspected drivers would entail substantial administrative costs, and because implied consent is both an inefficient and inappropriate method of avoiding abuse of drivers by police, the States should abandon implied consent, compel chemical tests for intoxication, and adopt alternative means for preventing police abuse in administering the tests. The note includes 181 footnotes.
Index Term(s): Abuse of authority; Alcohol consumption analysis; Driving Under the Influence (DUI); Drunk offender implied consent; Judicial decisions; Law reform; Laws and Statutes; Right to counsel
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