Louisiana's Drunk Driving "No Refusal" Initiative Is Problematic

Nearly everyone agrees that drinking and driving is dangerous behavior that should not be tolerated under any circumstances. It’s no surprise to find steady pressure on politicians and law enforcement alike to crack down on offenders and stiffen punishments.

One of the newest weapons at the disposal of law enforcement is the so-called “No Refusal” initiative. The No Refusal campaigns, which typical are run on holiday weekends, target drivers who are stopped under a suspicion of drunk driving, but refuse to provide a breath sample. A press release from State Police Troop D announcing the program during this year’s July Fourth holiday summarizes the plan:

“If a trooper stops a motorist who is obviously impaired, and the motorist refuses to submit to a test for intoxication, this information will be submitted to a judge and reviewed. If he or she determines probable cause exists, a search warrant will be signed by the judge and provided to the trooper. The motorist will then get another opportunity to voluntarily submit a sample. If the motorist still refuses, he or she will be transported to a predetermined location and a body fluid sample will be taken by a qualified medical professional.”

By all accounts, the Labor Day No Refusal initiative achieved one of its intended goals, reducing the number of traffic fatalities due to drunk driving. The ultimate goal of the campaign, however, is to make prosecuting DWIs easier.

The ACLU, and similar groups of their ilk, are concerned about the procedure used when a DWI suspects blood is drawn, and what is done with the sample after the DWI prosecution is complete. Although I think that poses interesting questions about one’s inherent privacy rights, and the right to refuse the state’s intrusion into your body with a needle, I have a more immediate concern.

The problem with No Refusal plan, as I appreciate it, is that it (naturally) denies drivers suspected of drunk driving certain rights granted by the Louisiana law. In my view, Louisiana law allows drivers the right to refuse to a chemical test when accused of a DWI, including the breathalyzer. As currently enacted, all drivers who use Louisiana’s public highways and byways are deemed to have given their consent to submit to chemical tests. However, the same statute that provides for the “implied consent” also provides a penalty for refusal to submit. If you refuse, your license is suspended. In fact, the penalties are nearly identical to those for a DWI conviction.

The availability of refusal is constitutionally significant. In a 1991 due process challenge to the implied consent law, Louisiana’s Fourth Circuit Court of Appeals upheld the statute primarily because the law allowed motorists to withdraw consent subject to specified sanctions which were explained through use of “rights form” which was read at time chemical test was requested. Price v. Dept. of Pub. Safety In and For State of La., 580 So. 2d 503 (La. App. 4th Cir. 1991)

It’s possible that the legislature could take away the right to refuse by amending the law to require a chemical test in all instances of suspected DWI. That change would be significant and would lead to a new round of constitutional challenges. But allowing the police to change the law simply to suit their goals, almost certainly denies individuals alleged to be driving under the influence certain rights that at least one Louisiana appellate has deemed constitutionally mandatory.