Expanding Miranda: The Duty of Police to Advise Motorists Arrested for Driving under the Influence of Their Right to an Independent Blood Alcohol Test
![handle is hein.journals/nejccc16 and id is 215 raw text is: Expanding Miranda: The Duty of Police to
Advise Motorists Arrested for Driving Under
the Influence of Their Right to an
Independent Blood Alcohol Test
Louis M. Holscher J.D., P.D. *
I. INTRODUCTION
Over the past decade there has been mounting national concern
regarding motorists who drive while intoxicated. A number of citizen
groups have emerged in the United States that portray intoxicated
drivers as the enemy. These groups have been able to influence both
law enforcement agencies and politicians, who have responded with
new strategies to detect and arrest intoxicated drivers (e.g., road
blocks and a lowering of the blood-alcohol concentration at which a
person is considered legally intoxicated). Many states have also
passed legislation which increases the penalties for driving under the
influence (DUI). Arrests for this offense rose over 225% between
1972 and 1986, and in 1986 alone nearly 1.5 million motorists were
arrested for DUI.1 There is no indication that the tougher societal
* Associate Professor, Administration of Justice Department, San Jose State University.
The author would like to thank the Honorable D.L. Greer (retired) for the opportunity to
clerk on the Arizona Court of Appeals, 1986-1987.
1. United States Department of Justice, SOURCEBOOK OF CRIMINAL JUSTICE
STATISTICS Table 4.23 (1987).
A continued rise in DUI arrests is likely, at least into the near future. California, for
example, has recently lowered the blood-alcohol content required for conviction to .08, and
beefed up its forfeiture statute. CAL. VEH. CODE § 23152, 23198 (West 1982). Recently,
the California Highway Patrol reported 2,366 arrests for DUI over the 1989/90 New
Year's weekend, up approximately 25% from the same period the previous year. San Jose
Mercury News, Jan. 9, 1990, at 8D, col. 1.
The penalties for a DUI conviction have increased dramatically in recent years. For
example, in New Jersey a first offender automatically loses his license for six months to one
year if a breath-analyzer records a .10 percent alcohol content in the blood, or merely if he
refuses to take the test. In addition, his insurance payments are increased by $1,000 per
year for three years. The penalties increase for each offense, and the penalties are
mandatory, with no hardship or commuter licenses. N.J. STAT. ANN. § 39:4-50 (West
Supp. 1987-88). In Arizona, a third or subsequent violation within sixty months is a class
five felony, and even a first conviction requires 24 hours incarceration. ARuz. REv. STAT.
ANN. § 28-692.01. (West Supp. 1987-88). For a list of each state's penalties, see 4 R.
ERwN, DEFENSE OF DRUNK DRIVING CASES, statutory app. (3d ed. 1989) [hereinafter
ERWIN].](ViewImageLocal?handle=hein.journals/nejccc16&div=16&collection=&method=preview&ext=.png&size=3)
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