By Graham Milldrum West Hawaii Today

KAILUA-KONA — The struggle over a breath of air into a plastic tube has reached the U.S. Supreme Court, marking another milestone in the attempt to curb drunken driving.

The argument focuses on a breath test taken at the scene during an arrest without a warrant in both North Dakota and Minnesota. It is a criminal offense to refuse in many states, and was one in Hawaii until a recent state Supreme Court hearing changed that.

The November 2015 ruling said that requiring a breath test without a warrant violated the state Constitution’s guarantee of privacy. It notably did not, however, eliminate the administrative revocation of a license as an option for refusal, said Kailua-Kona defense attorney Robert Kim.

And Hawaii’s rule hasn’t gone unnoticed around the country.

“It can’t get better for defendants in Hawaii than it already is,” said Lenny Stamm, a Maryland DUI defense attorney who wrote a brief for the court and attended Wednesday’s oral arguments in Washington, D.C. in the case involving the North Dakota and Minnesota drivers.

It remains illegal in Hawaii to refuse to take a blood alcohol content (BAC) test after an accident involving injury or death, if police have probable cause to require one.

Without requiring a test, the roads can become more dangerous, according to the advocacy group, Mothers Against Drunk Driving, because people who would previously have been convicted of a DUI could now avoid one of the most powerful tools available.

“Already, one in five suspected drunk drivers refuses a BAC test, because it’s no secret that prosecution becomes more difficult without them,” said Adam Vanek, MADD’s general counsel, in a press release. “Barring states from establishing penalties for refusals will encourage more refusals and handcuff law enforcement efforts to protect our roadways.”

If the state cannot rely on a test showing a BAC over the legal limit, which is 0.08 in Hawaii, it has to rely on other, more circumstantial evidence, said Stamm. That includes the driver’s physical condition, how the vehicle was operated and any scent of alcohol.

Both sides in the court dispute acknowledge the deadly effects of drunken driving, often using data produced by the National Highway Transit Safety Authority.

The authority counted 9,967 people killed by drunken drivers in 2014, about one every 53 minutes.

In Hawaii, 484 people were killed in a crash involving a drunken driver on public ways between 2003-12, out of the 119,100 people killed nationwide. There are 3.8 deaths on public roadways per 100,000 people in the state, according to the CDC, compared with the national rate of 3.3.

The authority wrote that “alcohol-impaired motor vehicle crashes cost more than an estimated $37 billion annually.”

Scales of justice

These costs were considered against the protections afforded by the state and federal constitutions.

The federal and state governments hold that driving is not a right. Instead, it is a privilege and can be more strictly regulated.

“One way of looking at what (North Dakota) is doing is not to criminalize the assertion of a constitutional right, but to criminalize reneging on a bargain. And the bargain was, we give you a license to drive, and in exchange for that you consent to a blood-alcohol test under certain circumstances,” said U.S. Supreme Court Justice Samuel Alito during Wednesday’s Supreme Court argument.

“For victims of drunk driving, the thought of a drunk driver attempting to evade prosecution by refusing a test is sickening,” said MADD National President Colleen Sheehey-Church in a press release. Her 18-year-old son, Dustin, was killed in a drunken driving crash. “The five minutes it takes for these tests could mean the difference between life and death. Only drunk drivers and their defense attorneys stand to benefit from a ruling against consequences for refusing BAC tests.”

That is not the way that Stamm sees it. Stamm submitted a brief in support of the plaintiffs.

“Everybody benefits when the court reaffirms we have a Fourth Amendment that defends everybody’s privacy,” he told West Hawaii Today.

Kim had a similar thought.

“(MADD) sees through only one lens. They don’t see how this applies to every situation across the board,” he said.

For Hawaii residents, that means the state Supreme Court values the privacy provision, he said.

Options remain

But roadside breath testing may regain some teeth, an option developed on Kauai, possible on the Big Island and explored by the U.S. Supreme Court.

Called “telephonic warrants,” it’s when a law enforcement officer calls a judge, explains the situation and requests a warrant.

“The judge decides, not the cop,” Stamm said.

On Kauai, such a call requires the officer to submit the recording and a transcript with their other reports.

This is similar to Maryland, where Stamm receives a CD with every case, allowing him to hear how the officer laid out the reasoning.

Attorneys for the governments pointed out these decisions can take up to two hours to render in some jurisdictions, not the 15 minutes that served as a base-line during the hearing.

In Hawaii, police have three hours from the alleged incident to get a sample.

“(States) don’t want the administrative expense of calling a magistrate or setting up a system to get a warrant, but it is a very powerful alternative,” U.S. Supreme Court Justice Sonia Sotomayor said during the high court oral argument.

Crossing constitutional lines

The Fourth Amendment’s protections against unreasonable searches is not invulnerable, and can be overridden by a warrant.

In some cases, that right may be overridden by the circumstances of the case, although law enforcement has to prove the search qualifies.

One of these circumstances argued Wednesday is the search related to the arrest.

To this point, the court has drawn the line of an unwarranted search of the human body, Stamm said. If the U.S. Supreme Court finds in favor of the states, this would be the first time law enforcement has been able to take a sample from a person’s body without judicial oversight, he said.

That would be a dangerous transition, he said.

The intrusiveness of the breath test was also called into question. Previously, the court found that a blood test without a warrant was too invasive.

The U.S. Supreme Court justices highlighted the wide difference of how invasive and risky the tests are.

“You blow hard into a little straw-like thing that’s connected with what looks like a cellphone,” U.S. Supreme Court Justice Brennan Breyer said.

He blew into his microphone to mimic the action.

“You’re inserting a tube into a person’s mouth to expel something from deep inside their body so that it can be tested by the government,” said Charles Rothfeld, attorney for the plaintiffs, in an attempt to connect breath with blood.

“They’re going inside your body, and that’s pretty much the line,” said Stamm.

Attempts to seek comment from the Hawaii County Office of the Prosecuting Attorney over a several-day period was unsuccessful as of Friday.

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