In Mississippi when an individual is stopped for suspicion of DUI, Miss. Code Section 63-11-5 often rears its ugly head. The law is known as IMPLIED CONSENT. The idea is simple – if you operate a vehicle on a public road in MS, you have consented to allowing testing of your breath (or urine/ blood in some cases) for determining alcohol concentration. If you refuse the test and the officer followed the correct procedure for the stop and the request of the test, you lose your license.
DUI STOPS OFTEN TRIGGER TWO SEPARATE LEGAL EVENTS
When you are stopped for suspicion of DUI and/or eventually arrested, two things may occur. You may be charged criminally for DUI and your license may be suspended.
A refusal to submit to a breath test is often referred to and is considered a “civil penalty”. Implied consent only applies to public roads and not private land. Therefore, you may not be in violation of implied consent if you refuse to submit to a breath test if you are stopped on private property. Unfortunately, you can still be charged with DUI on private property. (See Op. Atty. Gen. No. 97-0167, Griffith, March 28, 1997.) A refusal of a test for DUI is not a criminal offense in itself. No arrest can be made solely for refusal. However, evidence of the refusal may be used against you in the criminal case as evidence for probable cause and evidence of intoxication.
The general public is more familiar with criminal penalties and proceedings regarding DUI. First offenses generally result in a fine, 48 hours of jail time (usually suspended) requirement to take classes, license suspension and other potential penalties. Subsequent penalties are much more harsh.
WHAT HAPPENS WHEN YOU REFUSE A DUI BREATH TEST?
The officer is required to appropriately make the stop (4th amendment / Probable cause).The Officer is also required to appropriately make the request for the test. The procedure for the request begins when Officer has reasonable grounds and probable cause to believe a person has been driving on the public roadways under the influence of alcohol (or other substances). The Officer shall then inform the individual that failure to submit to chemical tests or tests of breath shall result in the suspension of his / her privilege to operate a motor vehicle upon the public streets and highways of this state for a period of 90 days (if 1st offense).
At the time of refusal the individual automatically loses their license. The officer should demand that the individual surrender the license to the officer. The officer will provide the driver a receipt for his license. The receipt indicates which test was offered (breath, blood or urine) and that the test was refused. The document will also indicate that the “person using this form as a driving permit forty-five (45) days after the date of arrest, should have this license status checked” to determine whether the driver’s license is suspended. The document also has a statement by the officer providing the probable cause and a statement signed by the officer.
The officer (usually the clerk) will forward the licenses and the report sworn by the officer to the Commissioner of public safety. The Commissioner’s method of notification is established in Miss. Code Ann Section 63-1-52.
You may then have an administrative hearing concerning issues of probable cause of the stop, the refusal and the procedure in which the request for testing was offered to you. If your license is suspended at the administrative level, you may appeal within 10 days in Circuit or County Court.
A few important notes :
Your license CAN be suspended prior to any hearing for a refusal and it has been held not to violate due process rights.
Neither dismissal of charges or full acquittal of criminal charges at trial will cancel the suspension period for a refusal.
SOME CONSTITUTIONAL ISSUES
Below are just some of the constitutional issues that have been raised in prior DUI cases. The analysis of such issues are extensive, and far too voluminous to be all inclusive in this blog, but researchers should consider the following issues:
4TH AMENDMENT / MISS CONST. ARTICLE 3, SEC. 23. Some would argue that implied consent allows the State to override your 4th Amendment right against warrantless searches. Unfortunately, it is has been upheld as constitutional by the Courts.
21ST AMENDMENT – This Repealed the prohibition against alcohol and made consumption and possession of alcohol legal.
DUE PROCESS CLAUSE OF THE 14TH AMENDMENT – attaches United States Constitutional rights to be applicable for State and local Governments.
5th AMENDMENT and the right against self incrimination.
6th AMENDMENT and the right to counsel