Are DUI Laws Unconstitutional? Local Attorney Argues Breathalyzers Break Fourth Amendment

Jordan Redavid, a New York native, was a top student at the University of Miami School of Law, graduating in 2013. He became a Miami-Dade public defender and then moved into private practice, cofounding a criminal law firm based in Brickell. He's won numerous accolades, and his firm bio lists him as "one of the best criminal lawyers in Miami." 

But recently Redavid has also assumed a bigger legal quest: to upend the way DUI law works in Florida — and maybe even the whole country.

"It's an issue that's ripe for review... by our nation's highest court," Redavid tells New Times. "And, in my humble opinion, long overdue."  

The way Redavid sees it, the big problem with the current law — which makes it a crime to drive a vehicle with .08 or higher blood alcohol level — comes from the way the state prosecutes cases. "Stated another way," Redavid says, "what evidence do they usually have, and how do they get it?"

They get it, Redavid goes on, almost always "by employing unconstitutional practices."

At issue is Florida's reliance on the idea of "implied consent law," which says that anyone driving a car in the state is "deemed to have given his or her consent" to Breathalyzer or other alcohol-level tests if he or she is arrested while driving. (If you're pulled over and refuse a Breathalyzer, your license can be suspended, and the refusal to submit can also be used against you in court.) 

But the Fourth Amendment of the United States also declares that "searches and seizures" by law enforcement of private citizens must be legal — which has almost always been interpreted to mean that a warrant is first required.

When a cop pulls someone over on the road and, relying on implied consent, orders her to submit to a Breathalyzer — effectively a search, Redavid argues — the cop has done so without first obtaining a warrant. Redavid points out that there are a few exceptions laid out in the Fourth Amendment, like exigency and noncriminal special needs. "Guess what?" he says. "[The DUI searches] don't fit into any of them."

Another exception laid out in the Fourth Amendment is actually consent itself, and courts have maintained that the "implied consent' law thereby provides compatibility with the Fourth Amendment. Redavid argues that it doesn't. The constitution doesn't mention anything about the idea, and there's no U.S. Supreme Court precedent, he says, to justify the DUI law. 

These days, Redavid frequently represents private DUI clients, but he first became aware of the glaring legal contradiction while serving as a public defender, when he grew disenchanted that his public clients weren't given a fair shot under the law. He began arguing against implied consent, much to the frustration of attorneys and judges, who viewed him as a troublemaker trying to disrupt a status quo that's been in place for decades.

That's not to say that courts have been receptive to the idea: "When I started filing these, my cases were getting dismissed left and right," he says. 

But Redavid was determined. Finally one judge, stuck between the lawyer's logic and thousands of cases of DUI law precedent, finally ordered the State of Florida to issue a written argument actually defending implied consent, which gave way to extended hearings.

"Ultimately, she denied our motions, but she expressed grave concerns about her own reasoning on the record," he says. 

In other words, the door had been opened. And Redavid had provided momentum to an already-burgeoning national movement to test DUI law in higher courts. "People should know," he says, "about this obviously unconstitutional principle." 

Despite the building momentum, so far the U.S. Supreme Court hasn't shown any inclination toward upending DUI laws, although the court has touched on evidence collection: As ThinkProgress notes, the court has ruled that blood can be forcibly drawn from drivers only in extreme cases, like fatal crashes, and that drivers can't challenge the science behind Breathalyzers in court
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Trevor Bach