DUI/DWI and Soft Judges

A “soft” judge is one who is considered more likely to aquit or find a defendant not guilty than many other judges.

A judge who upholds a defendant’s Constitutional rights is not “soft” for doing so. Indeed, all judges have given an oath to uphold the United States Constitution and to defend the rights it provides. Any judge who fails to protect these fundamental Constitutional rights is not soft but in serious violation of this oath and should be removed from the bench for dereliction of duty.

In the U.S. today “[U]ncompromising enforcement of laws designed to rid our highways of the scourge of drunk drivers ranks only slightly behind the veneration of motherhood and probably slightly ahead of a robust hankering for apple pie in the hierarchy of values firmly embedded in our culture.” 1

That’s exactly as it should be. In fact, we must do even more to reduce drunken driving and the serious problems it causes. But in doing so, we must carefully protect individuals’ Constitutional rights. Otherwise, we become a police state.

The Indiana Court of Appeals ruled that “The requirements of the Fourth Amendment (of the United States Constitution) cannot be lowered” and it invalidated a county’s drunk-driving policy that provided for illegally obtaining evidence against citizens. 2

We must resist the strong temptation to obtain higher conviction rates at the expense of basic human rights. Otherwise, we become a police state.


  • 1. State v. Tischio, 107 N.J. 504, 522 (1987) (Clifford, J. Dissenting).
  • 2. Join Together.  Ind. court says police can’t require blood-alcohol tests. Jointogetheronline.org, 6-18-03.


  • American Civil Liberties Union (ACLU). NJ’s Highest Court Places Limits on Use of Force in Taking Blood Samples from DWI Suspects. ACLU press release, 7-26-01.
  • Nelson, Bruce, and Ames, Tera. Forced blood draws in DUI cases. Communique, 2003, 24(2).
  • Phillips, Robert C. DUI: Nelson vs. City of Irvine. San Diego County Legal Update Bulletin, 1998, 6, 5-12. “Taking blood from a DUI arrestee who has requested a breath or urine test is unlawful, even if not forced, justifying a federal civil rights suit for common law assault and battery.”
  • Ziemer, David. Both breath, blood tests cannot be taken. Wisconsin Law Journal, 10-8-03.

Filed Under: Drinking and Driving