Due Process
You will want to talk to a lawyer about the Due process laws in Az. dealing with fundamental fairness. This is an article i have found that might be helpful.
By Robert W. Chestney, Regent.
Virtually every state has an Implied Consent statute which "requires" a driver suspected of being under the influence of alcohol or drugs to submit to a
state-administered chemical test, under penalty of a license suspension for refusing. Some states have even criminalized such a refusal. There is a
universal due process obligation on the part of the police to advise the suspect of his or her rights and the consequences of agreeing to or refusing the test
or tests. A few states, such as Georgia [OCGA § 40-5-67.1(b)], have even codified the exact language to be used at the time of arrest.
It is not uncommon for the police officer to fail to advise, or to misadvise the suspected driver of these important rights. Often the officer confuses the
driver with extraneous advise in his own "lay terms."
This article will discuss how the "fundamental fairness " doctrine of the Due Process Clause applies to such situations.
"The Due Process Clause of the [U.S.] Constitution prohibits deprivations of life, liberty, or property without ‘fundamental fairness’ through governmental
conduct that offends the community’s sense of justice, decency and fair play." Moran v. Burbine, 475 U.S. 412, 432-34, 106 S.Ct. 1135, 1146-48 (1986).
This is based upon the premise that, "[D]ue process of law is a summarized constitutional guarantee of respect for those personal immunities which . . . are
‘so rooted in the traditions and conscience of our people so as to be ranked as fundamental." Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205 (1952).
As driving privileges have been recognized to be a protected interest, the action of the government, regarding that interest, must not violate due process or
principles of "fundamental fairness". Quiller v. Bowman, 262 Ga. 769, 771 (1993), quoting Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589 (1971).
In order to determine whether state action violates the due process rights of a motorist, the court should consider: "(1) the private interest that will be
affected by the government’s action; (2) the risk of an erroneous deprivation of such an interest through the existing procedure and the probable utility of
additional or substitute procedural safeguards, and (3) the government’s interest in adhering to the existing procedure, including the fiscal and administrative
burdens that additional procedures might entail." Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903 (1976).
In State v. Stade, 683 A.2d 164, 166 (Me. 1996), the Maine Supreme Court held that the police officer’s failure to read the implied consent, coupled with
assurances that the motorist would be able to obtain a work permit, was "fundamentally unfair," where the license suspension was mandatory and the
issuance of a work permit was not guaranteed. There, the facts showed that the Appellee, Mr. Stade, was pulled over for DUI by a police officer with
whom he was acquainted. Stade told the officer that he could not afford to lose his license, to which the officer responded with an assurance that he would
be able to procure a temporary permit. Stade subsequently submitted to a blood-alcohol test, which revealed a bac of 0.15g. Based on the inaccurate
assurances given him, Stade filed a motion to suppress the results of the blood-alcohol test, which the trial court granted, and the Supreme Court of Maine
affirmed the ruling.
The Court applied the three part test of Moran in determining whether the procedure, as applied to Stade, was fundamentally fair. First, the court
acknowledged that the loss of a driver’s license is a property interest "worthy of due process protection." Secondly, the court held that "there is a strong
due process justification for requiring law enforcement officials to inform drivers of implied consent information and to refrain from giving drivers
assurances that minimize the seriousness of a subsequent loss of license privileges." Finally, the court concluded that while the State has a strong interest in
preventing drivers from operating automobiles while drunk, "the State has no legitimate interest in allowing its law enforcement officers both to ignore the
statutory requirements of the implied consent law and to affirmatively mislead citizens about the consequences of taking or failing to take a blood-alcohol
test." Id., at 166.
The premise of Stade is similar to the current state of the law in Georgia, where this writer practices. Our statute, OCGA § 40-5-67.1, requires that a
driver suspected of driving under the influence of alcohol be read specific "Implied Consent Advice." This requirement was extended further in Richards v.
State, Ga.App. (1997 WL 139404), which clarified that "the specific language of OCGA §40-5-67.1(b) is mandatory" and the failure to read the exact
warning required should result in the suppression of evidence. However, a "fundamental fairness" argument should be asserted in cases where the officer
has offered advice or made extraneous statements, outside the statutory language, such that would "present a substantial risk of an erroneous deprivation
of a protected due process interest." Stade., at 166.
© 1996-1999 National College for DUI Defense, Inc.
