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Still a Bad Law

Still a Bad Law

By Eugene C. Puliam, The Phoenix Gazette

July 9, 1977

In five weeks a new Arizona implied consent law takes effect, replacing an earlier version that a federal court, as was expected, found unconstitutional. The new law enacted by the Legislature in anticipation of the court ruling, is little improvement, however; it still tramples on individual liberty.

Under the old law, supposedly the end-all answer to the drunken driving problem, the state deemed that by the act of driving a car the citizen granted consent to take a chemical test if suspected of driving while intoxicated. Refusal to take the test resulted in automatic suspension of the suspect's driver's license. The citizen could appeal, but couldn't drive legally until the suspension was voided, administratively or by the courts.

The Gazette predicted at the time the old law was under consideration that it would not hold up in court because under the American way the state cannot grand a citizen's consent to anything. The court found that the implied consent law violated due process of law because it didn't not provide for a day in court.

The new law does provide for a hearing, but the citizen goes there guilty, required to show cause why his license should not be suspended. It would be surprising indeed if the courts hold such a charade to constitute due process.

If they do, presumably the state could require a citizen caught with tools that might be used in a burglary to show cause why he should be allowed on the streets. There is almost as much a right to drive as to walk, qualified only by considerations of public safety that enables the state to require divers licenses.

To be sure, the drunken driver should be kept off the road, but the implied consent law doesn't accomplish that. The new law will operate exactly as the old one did, only to keep people who refuse to take chemical tests off the road.

Attorney Kathleen Carey

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