Hawaii’s Supreme Court struck down a law that may result in dismissal of over 3000 DUI cases. The Court held that a law that criminalizes refusal of a blood or breath test violates a driver’s Fourth Amendment protection against unreasonable search and seizure. A 2011 law made it a crime, punishable by up to 30 days of jail and a $1000 fine, for a driver to refuse chemical testing. The Court determined that this law was coercive because people might decline a blood or breath test were it not a crime to do so. Hawaii law enforcement will have to change it’s consent form in order to comply with the ruling.
As a result of this decision, thousands of DUI cases that have illegally collected blood and breath tests may be dismissed. The Court did not require dismissal, but because the Court decided the tests were completed in violation of the Fourth Amendment, the test results cannot be used as evidence. The prosecution may analyze each case to determine whether there is sufficient evidence to proceed without the test results.
Colorado does not have a law that criminalizes refusing a chemical test, but there are more serious consequences for refusing. At DMV, if a person agrees to a test and the results show the person is over the legal limit, the driver will lose his or her license for 30 days and then be eligible for early reinstatement. For a refusal, the driver loses his or her license for 60 days. Colorado’s express consent law requires drivers to submit to chemical testing when an officer has probable cause to believe a driver is under the influence. So far, Colorado’s courts have not found that the DMV consequences are so coercive that the law is violative of the Fourth Amendment. In part, this could be because officers are not required to give drivers information about DMV consequences. It may also be due to the fact that DMV actions are considered civil rather than criminal and the criminal aspect of refusing is what is deemed too coercive.
Much like in Hawaii, the more severe consequences for refusing in Colorado are an attempt to persuade people to take a test. Often times the test is inculpatory, not exculpatory, but it is not unusual for prosecutors to offer a straight plea to DUI rather than offering a plea to a reduced charge when a driver refuses. To DA’s this is rational because they are either unwilling to “reward” a refusal or because they believe the driver was drunk and knew it, which is the reason he or she refused.