Several Constitutional rights "suspended" This Weekend

[Crankgrinder]

Not only that, it if I understand correctly about proving that licensure not being required to "travel freely" what says such doesn't mean that unlicensed individuals be required to use public transportation, rather than private vehicle?how would that be "denying" anyone the use of public roads for.travel?

 

[44 AMP]

In my state, its sort of contractual. Part of having the license. If you are stopped, you can refuse the breath test or the blood test (provided there is no accident involved), BUT if you do your license is automatically suspended (6mo. I think).

There are no issues about search& seizure, because it is a contract you voluntarily enter into when you get your license.

 

[Frank Ettin]

The whole aspect of blood tests and the like can possibly be held to be illegal from the standpoint that one cannot be forced to testify against oneself....

Wrong.

The U. S. Supreme Court has already ruled that a blood test is not subject to Fifth Amendment protections (Schmerber v. California, 384 U.S. 757 (1966)). It may, however, be subject to Fourth Amendment protections (Schmerber, supra and Missouri v. McNeely, 569 U.S. ___ (2013)).

But even with Fourth Amendment protection, blood test evidence may be obtained under exigent circumstances, with consent, or with a warrant. Whether consent for Fourth Amendment purposes under McNeely includes consent implied pursuant to various state driver licensing laws is, as far as I know, still something of an open question.

 

[Fishing_Cabin]

2. There is also the possibility of a frontal assault in federal court of the whole business of requiring a license for the non-commercial use of the public roads. That would be an expensive proposition, and I think it would have dim prospects for success.


3. Or folks could get politically active and seek some legislation in a State to at least circumscribe how checkpoints are operated. How far this could get you and where it could get you would depend on the politics in a State.

Frank,

Unsure of your knowledge on grants and funding initiatives, which checkpoints are part of a grant or funding system put on by the Governor's Highway Safety Program (GHSP). So to try to get something changed on the state or federal level will also include going after the grant/funding program within the GHSP.

Each state may do things slightly different, but to be simple, each checkpoint (or other approved activity) equals "X" number of points. With the points an agency can get certain equipment through the program. This is typical for local agencies participating, but I can not say if, each state "Highway Patrol" unit gets points as well.

https://connect.ncdot.gov/municipal...ments/2014 GHSP Point System Instructions.pdf

 

[cryogenic419]

Heres a thought on this that I haven't seen brought up

Who administers the blood withdrawal? Are they qualified/licensed to do so? Who is testing the specimen? Are they qualified/licensed to do so?. Do they have a chain of custody procedure in writing (who is going to have access to the sample)? Who is financially responsible for the costs associated with the tests? I would be extremely upset if they pull me over completely sober, pull the bloodtest BS on me, then try to slap me with some sort of a bill after the test comes back clear and would definitely fight that in court even though I have a feeling fighting it would cost more than the bill for the bloodwork. Its a matter of principals.

I saw somewhere in this post that they have judicial commissioners on standby ready to issue warrants. I would assume that the warrants be very specific about what they are looking for and the sample cannot be used for anything else such as dna cataloging/testing dna against evidence in unsolved cases, searching your vehicle, any items in your vehicle, etc? All they need for the warrant is the officers claim of reasonable suspicion? Is there any criteria that must be met before they can claim reasonable suspicion? If you can pass a field sobriety test (Horizontal Gaze Nystagmus) with flying colors and and you absolutely do not smell like alcohol can they still proceed with obtaining a warrant to test your blood?

Hopefully I will never have to deal with one of these checkpoints, but if I do I am turning on my cell phone to record, just in case.

 

[Double Naught Spy]

Who administers the blood withdrawal? Are they qualified/licensed to do so? Who is testing the specimen? Are they qualified/licensed to do so?. Do they have a chain of custody procedure in writing (who is going to have access to the sample)? Who is financially responsible for the costs associated with the tests?

Yes, they meet all the legal standards for doing such tests and if not, the testee can get their day in court. This is one of those arguments that has been hashed out numerous times already.

For the last query, your tax dollars at work.

 

[guruatbol]

All I have to say is, I don't like any check point. The check point going north by the border patrol, the age check points, none of them.

However, I hate drunks on the road more. I don't drink so nothing to worry about.

When a subject pulls into one and he rolls his window down and the officer smells and observes behavior that makes the person a suspect all the officer has to do is fill in the blanks on the preformatted template and present it to the judge. The judge signs it and there you go. A legal search for a mandatory blood sample and depending on the wording a search of the car.

Now I suppose it is possible for a designated driver to roll the window down and there be a smell. However a prudent officer would ask questions and probably have you pull to secondary. Once in secondary you would undoubtedly be asked to step out of the car. If not intoxicated then all would be normal, you may get to to a field sobriety test and the sent on your way.

Remember the goal is to find drunk drivers.

Like I said I don't like any check point as they can all be abused, but I hate drunk drivers more and as long as there is tight oversight, I say make it happen.

Mel

 

[Glockstar .40]

Like I said I don't like any check point as they can all be abused, but I hate drunk drivers more and as long as there is tight oversight, I say make it happen.

Tight oversight? Like with the IRS or NSA? I'm sorry but anything the government does requiring "tight oversite" will get abused. Why do they need blood samples? Why won't a breathalyzer be sufficient to find drunk drivers?

Whether they found a loophole in the law to make it legal or not seems fishy to me as to why they would want to do one.

 

[44 AMP]

Who administers the blood withdrawal?

In my area, its done at a hospital, by medical professionals, with officers in attendance to do chain of custody.

If you are stopped for suspicion of DUI, you get the breathalyzer. If you are involved in an accident, you get the blood test.

Why do they need blood samples? Why won't a breathalyzer be sufficient to find drunk drivers?

because there are several things that will give a false positive on the breath test. Like mouthwashes or cough syrup with alcohol in them.

The blood test results (BAC) are very difficult to argue against in court, AND there is no issue about the calibration/accuracy of the breath meter, and, the chain of custody tracking, including the time of the sample allows for a legally acceptable standard. Alcohol in the blood breaks down at a given rate, so a sample taken 1 hour (for example) after the accident can be used to give an accurate base for what was in the blood at the time of the accident.

That's why they take blood samples.

 

[JimDandy]

Just a few, but the notion that driving is a "privilege" is not necessarily true.

All of the snippets you quote refer to the right to travel, not the right to drive. There are any number of ways to travel on the roads without driving yourself. Look at it like the point made about concealed vs Open Carry. A place can outlaw Open or Concealed but not both. The right is to carry, not carry in a specific way. Thus the right is to travel, not to travel in a specific way. You can hire a driver, ride a bus, etc.

 

[btmj]

I accept that the courts have ruled that DUI check points are reasonable. I don't like having my time wasted, however. The state does not properly balance the cost of imposing a check point with the cost of apprehending drunk drivers. The cost of wasted time is not borne by the state, it is borne by all the people waiting in line at the checkpoint.

I would be in favor of a legislative solution. The state legislature could pass a law mandating that compensation be paid to everyone who goes through the DUI checkpoint and is not charged with a crime. $15 per hour for each person inconvenienced seems reasonable, since that is about the median wage in the US.

I would be in favor of carrying this further, and mandate that the state compensate people anytime they are questioned, detained, compelled to testify, compelled to jury duty, etc.

Jim

 

[OuTcAsT]

JimDandy Wrote;

All of the snippets you quote refer to the right to travel, not the right to drive.

Actually, they refer to the right to operate a vehicle, be it motorized, or not.
You might look back at Al Norris' post, he highlights this quite well.

The ability to freely travel by any means is a right. If you "sign away" your rights by entering into the contract of a "drivers license" with the DMV of your State, you agree to their curtailment of your rights.

Again, the right to drive has been changed to a "privilege" by popular propaganda over the years and, the public-at-large has bought into the scheme.

So, again my statement: The notion that driving is a "privilege" is not necessarily true.

 

[OuTcAsT]

btmj Wrote:

I would be in favor of carrying this further, and mandate that the state compensate people anytime they are questioned, detained, compelled to testify, compelled to jury duty, etc.

Jury Duty is compensated, although not at a normal wage.

 

[JimDandy]

The ability to freely travel by any means is a right

The hitchhiking prohibitions on the interstates suggest otherwise. But as Greyhound, Yellow Cab, and personal conveyances are still allowed the right remains.

The no fly list suggests otherwise.

Speed limits, no wake zones, (Fishing) lakes that prohibit motorized water craft, and on and on suggest otherwise.

 

[carguychris]

Re: the driver's license Right vs. Privilege debate, AFAIK no US state requires a driver's license or vehicle registration for bicycling on public roads. IOW if you philosophically object to the idea of obtaining a gov't license or paying a tax in order to exercise a right, feel free to pedal away.

Additionally, AFAIK you cannot be charged with a DUI while riding a bicycle in most states, although you may be charged with public intoxication, reckless driving, and/or obstruction of traffic.

I suppose bicycles are the vehicular equivalent of black powder muzzleloaders.

 

[JimDandy]

There are hundreds of court cases (case law) that state that not only travel, for personal use, but actually driving your own vehicle, for personal use, is a right of Liberty and not a privilege.

Are any of them Federal? What are some of them?

that you will have to prove that it is not required,

If there are court cases already saying so, why do we have to prove it?

But to do that, you will find that you will have to shell out tens of thousands of dollars in various legal fees. The courts will find in your favor. But simply drive out of the jurisdiction of that court, and you will face the same thing in another jurisdiction.

It's already been done, why does one have to do it again?

I'm not trying to be combative, I'm honestly asking.

For it to be fundamental right, (most) everyone has to have it correct?

That means if John Q Public sues for it it State Court in California and wins, everyone in California wins while they're in California. This would make it a fundamental right in California, correct?

Maybe I should start with- is a "Right of Liberty" the same as a "Fundamental Right"?

I'm not following how there can be hundreds of case law cases and yet I'd be required to reinvent the wheel in all these jurisdictions?

 

[Al Norris]

There are hundreds of court cases (case law) that state that not only travel, for personal use, but actually driving your own vehicle, for personal use, is a right of Liberty and not a privilege.

Are any of them Federal? What are some of them?

A lot of them are. Federal district. Federal Circuits of Appeal. Even some Supreme Court cases. They all have two things in common.

1. They are all Commerce Clause cases.
2. What was said about private ownership and driving, are dicta.

that you will have to prove that it is not required,

If there are court cases already saying so, why do we have to prove it?

Because all of the cases that I could find, were references to lower state court cases and were never challenged at the appellate state level. Hence they applied only in that judicial district.

Which answers your next question, by the way.

Without a challenge in a higher court, any such decision pertains only to that particular judicial jurisdiction. If you have won a decision in your district, you cannot challenge to a higher court. Such a challenge must come in the form of an appeal by the loser.

Lower court decisions are not precedent. Heck, even in the same district, another Judge is not bound by what the deciding Judge has ruled. So you may, in fact, be faced with the same challenge in the same district, by a different district Judge.

To my knowledge, there are no State Courts of Appeal, let alone a State Supreme Court decisions, that have been successfully decided in the favor of the individual. If there were, then such actions would be precedent, but only for that State.

To my knowledge, no one has successfully litigated this idea at the Federal level and won. Even if they did, it would still not be precedent, unless it was litigated to at least the Federal Appellate level. It would then be a valid application of law, but only in that Federal Appeals Circuit.

So while I firmly believe that we have seen a right be relegated to a privilege, I have neither the time, and certainly not the money it would require, to take it to (federal) court and challenge the licensing laws.

 

[Al Norris]

And with that, it brings us around to the question of these roadblocks (Call them DUI checkpoints or whatever you will).

It is my belief that they will (almost) always be held as constitutional, not because they interfere with your liberty to travel, but because they are part and parcel of the States ability to license a specific mode of travel, which license you have voluntarily agreed to abide by.

Try to remember, that the State has a compelling interest to maintain the Public Safety. These "checkpoints" are a method to ensure that safety.

 

[JimDandy]

I did some quick googling, and I'm a bit confused.

How do CITY OF INDIANAPOLIS v. EDMOND and Michigan Dep't of State Police v. Sitz not contradict themselves?

I somewhat understand the distinction between Brown v Texas and these random checkpoints. From my reading there's often less of a 4A protection to vehicles than persons or fixed places because vehicles can move and move quickly. I remember that in some case about searching a motor home and whether it was a home or a vehicle and which level of protection it gets.

Anyway.... What I don't get is both of the first two cases involved a checkpoint on a vehicle. It was legal to pull over everyone because they may be driving drunk even though the officer has no reason to suspect they are as it's somehow a special government interest as referenced in Nat'l Treas. Emp. Union v. Von Raab while detecting illicit drugs is " indistinguishable from the general interest in crime control"

Von Raab made it special government interest "beyond the normal need for law enforcement" apparently because the urine test results weren't usable in court without the permission of the tested person. I'm pretty sure everyone who gets stopped at a checkpoint can get arrested without their permission.

Is there something I'm missing, or is this just a matter of we decided this during that year, and that during this year, and we're all ignoring the conflict hoping nobody notices?

 

[Frank Ettin]

...Is there something I'm missing,...

Yes there is. You need to more carefully read the opinions.

....How do CITY OF INDIANAPOLIS v. EDMOND and Michigan Dep't of State Police v. Sitz not contradict themselves?...

Edmond involved checkpoints for the purpose of interdicting traffic in illegal drugs. Sitz involved sobriety checkpoints. If you had read the decision in Edmond, you would have seen that the Court explained the distinction (City of Indianapolis v Edmond, 531 U.S. 32 (2000), at 37 - 38):

...The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U. S. 305, 308 (1997). While such suspicion is not an "irreducible" component of reasonableness, Martinez-Fuerte, 428 U. S., at 561, we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicion less searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." See, e. g., Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes); Treasury Employees v. Von Raab, 489 U. S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e. g., New York v. Burger, 482 U. S. 691, 702-704 (1987) (warrantless administrative inspection of premises of "closely regulated" business); Michigan v. Tyler, 436 U. S. 499, 507-509, 511-512 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534-539 (1967) (administrative inspection to ensure compliance with city housing code).

We have also upheld brief, suspicion less seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing....

And in Edmond, the Court noted with specific reference to Sitz (Edmond, at 39, emphasis added):

...In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief, suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. 496 U. S., at 447-448. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. Id., at 447. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. See id., at 451....

Not every checkpoint for every purpose is the same. Not every search and seizure without a warrant is the same. For Fourth Amendment purposes it's always a question of reasonableness. And in considering the question of reasonableness in any particular case, a court will consider a variety of factors including the nature of the interest served and the imposition on the citizen.