We Won't Take 'No' for an Answer: The Validity of Louisiana's No-Refusal Policy

Author:Katherine L. Cicardo
Pages:253-294
SUMMARY

Alcohol—your best friend and your worst enemy. Throughout history, society has acknowledged alcohol’s dual role as both friend and foe. But with the advent of the motor vehicle came the realization of alcohol’s true potential as a grave threat to human safety. Today, alcohol-impaired driving is still one of the most common crimes both globally and in the United States.

 
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We Won’t Take “No” for an Answer: The Validity of
Louisiana’s No-Refusal Policy
“The increasing slaughter on our highways, most of which
should be avoidable, now reaches the astounding figures only
heard of on the battlefield.”1
I. INTRODUCTION: THE BATTLE AGAINST DRINKING AND DRIVING
Alcohol—your best friend and your worst enemy. Throughout
history, society has acknowledged alcohol’s dual role as both
friend and foe.2 But with the advent of the motor vehicle came the
realization of alcohol’s true potential as a grave threat to human
safety.3 Today, alcohol-impaired driving is still one of the most
common crimes both globally and in the United States.4
Early in the battle against intoxicated driving, states enacted
implied consent statutes to deter motorists from drinking and
driving.5 Implied consent rests on the notion that in exchange for the
privilege to drive on state highways, every motorist implicitly
consents to a future blood-alcohol test (BAT) upon an officer’s
request.6 Under most statutes, however, the arrestee has an
alternative: refuse the BAT and face specific consequences, unless a
statutory exception bars refusal.7 In theory, these laws have great
potential for deterring motorists from driving while intoxicated
(DWI) because they aid the State i n gathering intoxication evidence
Copyright 2012, by KATHERINE L. CICARD O.
1. Breithaupt v. Abram, 352 U.S. 432, 439 (1957).
2. Dennis R. Cook, Ouch! Blood Search Warrants After Beeman v. State:
An End-Run Around the Texas Legislature Resulting in Judicially Sanctioned
Batteries, 42 TEX. TECH. L. REV. 91, 92 (2009). See also Daphne D. Newaz, The
Impaired Dual System Framework of United States Drunk-Driving Law: How
International Perspectives Yield More Sober Results, 28 HOUS. J. INTL L. 531,
532 (2006).
3. Cook, supra note 2, at 92.
4. Newaz, supra note 2, at 532–33. See also Kelsey P. Black, Undue
Protection Versus Undue Punishment: Examining the Drinking and Driving
Problem Across the United States, 40 SUFFOLK U. L. REV. 463, 463 (2007).
5. See generally Vitauts M. Gulbis, Annotation, Admissibil ity in Criminal
Case of Blood-Alcohol Test Where Blood Was Taken Despite Defendant’s
Objection or Refusal to Submit to Test, 14 A.L.R. 4TH 690 (1982 & Supp. 2005)
(assembling multiple post-Schmerber state court decisions upholding the
constitutionality of warrantless blood extraction); Tina Wescott Cafaro, Fixing
the Fatal Flaws in OUI Implied Consent Laws, 34 J. LEGIS. 99, 100 (2008).
6. Holly Hinte, Drunk Drivers and Vampire Cops: The “Gold Standard,”
37 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 159, 161 (2011). See also, e.g.,
LA. REV. STAT. ANN. §§ 32:661–70 (2002 & Supp. 2012).
7. See, e.g., LA. REV. STAT. ANN. § 32:666 (Westlaw 2012).
254 LOUISIANA LAW REVIEW [Vol. 73
and provide penalties for chemical test refusal.8 But in practice,
implied consent laws have proven ineffective.9
Overall, statistics indicate a universal failure on the part of
state governments to eradicate alcohol-impaired driving.10 Mothers
Against Drunk Driving estimates that one out of every three people
will be involved in an alcohol-related traffic accident during his or
her lifetime.11 National reports reveal that drinking-and-driving
accidents accounted for 31% of fatal crashes in 2010,12 which
translates into one alcohol-related traffic fatality nearly every 50
minutes.13 In light of these numbers, scholars, law enforcement
officials, and members of the public have recognized the need for
more stringent action against DWI offenders.14 Even the United
States Supreme Court has acknowledged this nationwide dilemma:
The situation . . . of the drunk driver . . . occurs with tragic
frequency on our Nation’s highways. The carnage caus ed by
drunk drivers is well documented [;] . . . This Court,
8. See Cafaro, supra note 5, at 100, 113.
9. Id.
10. See Black, supra note 4, at 463–64.
11. Mothers Against Drunk Driving, Campaign to Eliminate Drunk Driving,
MADD.ORG, http://www.madd.org/drunk-driving/campaign/ (last visited Aug. 29,
2011).
12. Nat’l Highway Traffic Safety Admin., Fatal Crashes and Percent
Alcohol-Impaired Driving, by Time of Day and Crash Type, FATALITY ANALYSIS
REPORTING SYSTEM ENCY CLOPEDIA, http://www-fars.nhtsa.dot.gov/Crashes/
CrashesAlcohol.aspx (last visited Sept. 13, 2011).
13. The Century Counci l, Drunk Driving Research, CENTURYCOUNCIL.ORG,
http://www.centurycouncil.org/drunk-driving/drunk-driving-statistics (last visited
Sept. 18, 2012).
14. See, e.g., Newaz, supra note 2, at 535 (“Drunk drivers create a very
serious social and international pro blem that needs to be corrected. However, the
United States’ use of poor investigatory tools to establish proof, ineffectual
sanctions for refusal to submit to a breath test, and convictions that are obtained
haphazardly and improperly is not acceptable.”); Jim Shannon, Some in Legal
Community Have Issues with “No Refusal,” WAFB.COM (Sept. 7, 2010, 5:14
AM), http://www.wafb.com/story/13086102/some-in-legal-community-have-
issues-with-no-refual?redirected=true (interviewing Jefferson Parish District
Attorney Norma Broussard, along with defense attorney and former state trooper,
Glynn Deslatte; “[I]n order to deter people from drinking and driving the best
thing to do is prosecute them to the fullest extent and getting a conviction.”); John
LeBlanc, Officials Working on New Tactic to Strengthen DWI Prosecutions (June
21, 2010), available at
http://lahighwaysafety.org/pdf/OP%20Ed%20no%20refusal%20June%2021.pdf
(“The effort to rid Louisiana roads of drunk d rivers involves multiple levels of
cooperation that range from educating motorists to enforcing the tough DWI laws
already on the books to prosecuting offenders.”).
2012] COMMENT 255
although not having the daily contact with the problem that
the state courts have, has repeatedly lamented the tragedy.15
Statistics are even more alarming in Louisiana. According to
the Louisiana Highway Safety Commission (LHSC), impaired-
driving crashes led to approximately 400 deaths and 6,000 injuries
in 2009.16 From 2010 to 2012, 42 to 43% of fatal crashes were
alcohol-related, making alcohol a leading cause of traffic deaths in
Louisiana.17 Adding insult to injury, a 2007 survey ranked
Louisiana as having the fourth highest DWI refusal rate in the
country at 39%.18 This trend of stubbornly high refusal rates
continued in 2008, when nearly one-third of those arrested for
drinking and driving (about 8,000 out of 24,736 DWI arrestees)
refused to submit to a BAT.19 As refusal rates continue to increase,
the effectiveness of implied consent laws—and in turn, the State’s
ability to deter DWI—will continue to decrease.20
To counteract the rise of BAT refusal rates, the LHSC, parish
law enforcement agencies, and local judges joined forces to
implement no-refusal programs.21 No refusal refers to a law
enforcement policy authorizing police officers to obtain search
warrants after suspected DWI offenders decline a BAT.22
15. South Dakota v. Neville, 459 U.S. 553, 558 (1983).
16. Raymond Legendre, No Refusal Weekend for Those Suspected of DWI
Has Critics, Supporters, WWLTV.COM (Sept. 4, 2010, 5:55 PM), http://www.
wwltv.com/news/local/No-Refusal-weekend-for-those-suspected-of-DWI-case-
critics-supporters-102228604.html.
17 . LSU Highway Sa fety Research Grp., 2010 Alcohol-Related Crashes by
Severity, http://datareports.lsu.edu/Reports/TrafficReports/2010/A/A5.asp (last
visited Oct. 2, 2012); 2011 Alcohol-Related Crashes by Severity, http://
datareports.lsu.edu/Reports/TrafficReports/2011/A/A5.asp?p=ci&sec=A&yr=201
2 (last visited Oct. 2, 2012); 2012 Alcohol-Related Crashes by Severity,
http://datareports.lsu.edu/Reports/TrafficReports/2012/A/A5.asp?p=ci&sec=A&yr
=2012 (last visited Oct. 2, 2012).
18. Amy Berning e t al., Breath Test Refusals, NATL HIGHWAY TRAFFIC
SAFETY ADMIN., 2 (Nov. 2007), available at http://www.nhtsa.gov/DOT/NHTS A/
Traffic%20Injury%20Control/Articles/Associated%20Files/810871.pdf.
19. LeBlanc, supra note 14.
20. See id. Motorists who refuse blood-alcohol content (BAC) tests are
often the most inclined to drive under the influence of alcohol. They understand
that penalties for refusal are less severe than the penalties for DWI conviction.
They also understand the high likelihood of DWI conviction when a chemical
test shows positive signs of alcohol. Thus, they consciously choose to refuse the
test and face license suspension to avoid the alternatively harsher consequences
of DWI conviction. See id.
21. See id.
22. Id. Upon refusal, an officer will noti fy a judge, who is waiting on
standby. Id. If the officer demonstrates sufficient probable cause of the suspect’s
intoxication, then the judge will issue a warrant authorizing the withdrawal of
the suspect’s blood. Id. See also Shannon, supra note 14.

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