Why is a compelled breath test not violative of the 5th amendment?

Question

My notes say that the prohibition of compulsion of the 5th amendment right against self-incriminating statements does not stop revoking ones license for failure to take breath test.

is a breath test the type of "testimonial" evidence the 5th seeks to protect? I guess I am confused as to why the state can force breath test:

Is it legal because it is not testimonial?

or

Is it legal because the threat of losing ones license is not considered "compelling" under the 5th?

Answer 1

Seems there is a New York state case on point “People v. Suchocki, 57 Misc. 2d 26”. Basically, the defendant was observed driving erratically. He was taken to the police station and administered a breathalyzer test (without the officer advising him of his Miranda rights). He sought to suppress based on the 5th amendment.

The court held that the 5th amendment protected the defendant only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. The court concluded that requiring defendant to take the physical and breathalyzer tests did not involve compulsion of a type protected by the privilege.

Note that this is a separate constitutional basis in addition to signing those rights away on your driver's license

Answer 2

This is a very complex issue. I'll try to simplify it as best I can.

First, you have no rights under the Constitution. You are not a party to it unless you are a direct descendant of one of the signers. It is a private social compact. The Constitution does bear on all office holders as they take an oath of office. So a police officer is bound by the Constitution to not force you to incriminate yourself.

Second, understand that all states and the federal government are incorporated. They are businesses in every sense of the word. The courts deal in commercial law, not constitutional law. Bring up the constitution and you may be held in contempt of court.

When you apply for a driver's license, you are contracting with the state and are agreeing to abide by their laws. Also note that "driving" is a privilege. A license is permission to do that which would otherwise be illegal. That's because the word driver has a commercial connotation to it. It is using the public highways for profit.

Travel is a right. You don't need a license, but you are lead to believe you are a driver and therefore need a driver's license. Over the years, words and their meanings have been obfuscated.

Now, when you title a motor vehicle, you are giving the state a paramount interest in your car. They own it! Note that you receive a certificate of title which is only evidence that a title exists. True title belongs to the state. You are driving their vehicle.

So the state has every right to compel you to take a breathalyzer test, and every right to revoke your driving privileges because the state needs to protect its interests. That's also why auto insurance is mandatory.

Answer 3

Because you have consented to it in advance.

In those states that allow 'compelled' tests - either blood or breath - the drivers license laws have been written so that a person applying for a license consents to give a sample when asked. If you don't consent, you don't get a license.

In those States that don't allow compelled tests, the drivers license law is written to authorize the DMV to revoke the license of anyone who chooses to decline a test.

Richard

Answer 4

Because when you sign the back of your license (or the front) you agree to the conditions listed by the issuing state. Driving is a privilege not a right! When you sign your license you agree to submit to chemical testing to check for sobriety. So quite simply 1) you waive your rights (non existent as they are) when you sign your license. 2) As previously stated "driving is a privilege" not a "right" and therefore is not covered by the Constitution. In Florida they have started issuing graduated licenses to teens and if you flunk out or drop out of school you lose your driving privilege until you reach legal age, 18.

Answer 5

The person who said that you don't have any rights under the constitution unless you are a direct decendant of a signer is a crazy person and does not know what he is talking about.

Answer 6

well the law is that you can refuse the breath test. The reason that nobody does is because you'll lose your licence anyway if you refuse. I have been told my may cops I've known to refuse because at least you won't ge the DWI on you record.

Answer 7

Don't know exactly, but I've often wondered about that myself. Doesn't seem constitutional, does it?