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HelloKitty
08-26-2005, 06:17 PM
Just reading in my local paper about another sobriety checkpoint that netted 14 DUI'ers. While I am definitely not in favor of drunk drivers I am not all that enamoured with law inforcement trapping people and forcing them to prove they are NOT under the influence.

I don't like the idea of being pulled over when I'm just minding my own business, not drinking, wearing my seatbelt, etc etc. And how do they determine said DUI'ers? Do they make every person take a breathalizer or field sobriety test? This doesn't seem right either.

I guess it's a fine line, but how is this legal to pull over and stop motorists that are not doing anything wrong traffic wise other than turning down the wrong street and getting stuck in a checkpoint??

Mr. Blue Sky
08-26-2005, 06:22 PM
They do the same for insurance checks, too. The main reason you'll get is "driving is a privelege, not a right".

bordelond
08-26-2005, 06:25 PM
I think central to the legality of DUI checkpoints in most areas is the concept that driving on public roads is a privilege, not a right. Laws prohibiting rights are unconstitutional, while laws putting conditions on privileges seem to have much more leeway to be strict.

silenus
08-26-2005, 06:26 PM
If you check the case law, you will see that the Supreme Court has ruled that they are not an infringement of your rights, provided that the authorities follow certain guidelines. Among these are publicizing the checkpoint location in advance, allowing an alternate route, etc. They can't just plop one down unannounced on a road with no exits and check everybody. "That's profiling, and profiling is wrong!"

Unregistered Bull
08-26-2005, 06:28 PM
FWIW they aren't legal in TX.

HelloKitty
08-26-2005, 06:45 PM
They do the same for insurance checks, too. The main reason you'll get is "driving is a privelege, not a right".

Yeah, I know that's usually the answer, but it still rankles me. I love paying for a privelege.

:rolleyes:

Speaker for the Dead
08-26-2005, 07:12 PM
Yeah, I know that's usually the answer, but it still rankles me. I love paying for a privelege.

:rolleyes:
I think it's important to realise that we often pay for priveleges. I pay for the privelege to post on this board, and for the privelege of electricity (from a Crown corporation). It's rights that nobody should have to pay for.

Mr. Blue Sky
08-26-2005, 07:17 PM
I think it's important to realise that we often pay for priveleges. I pay for the privelege to post on this board, and for the privelege of electricity (from a Crown corporation). It's rights that nobody should have to pay for.

Locally, during one of these stops (which had been announced for at least a week in advance):

1. Several DUI drivers were removed from the road.
2. One guy who had several outstanding warrants got caught when he tried to get out of the line of stopped cars and drive off (Note to criminals: your 20 year-old beater car cannot outrun a cop on a new Harley police motorcycle).
3. One stolen car was recovered.

I've only been in one of these stops. I was delayed about five minutes. A minor annoyance at worst.

Otto
08-26-2005, 07:27 PM
FWIW they aren't legal in TX.
I'm assuming that you mean Texas hasn't authorized them. Were Texas to initiate such a program to catch drunk drivers, it would be legal under Michigan Department of State Police v. Sitz (http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0496_0444_ZS.html), which held that sobriety checkpoints were "reasonable" under the Fourth Amendment. The case was decided in 1990

Oddly, SCOTUS reached an opposite result ten years later regarding drug checkpoints in City of Indianapolis v. Edmond (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-1030).

So drunk driving checkpoints are legally OK, drug interdiction checkpoints are not.

Jon the Geek
08-26-2005, 07:31 PM
FWIW they aren't legal in TX.
So are the commercials I've been seeing here in Austin lately along the lines of "people don't turn themselves in for drunk driving, so we need checkpoints if we want to get 'em" a campaign to change the law in Texas? I assumed they were meant as a public service announcement, to convey something like, "See, we HAVE to have these checkpoints, or we wouldn't know people were driving drunk unless they did something!"

John Carter of Mars
08-26-2005, 08:05 PM
I get stopped at a roadblock, on average, about twice a year.* They check driver's license, insurance papers, vehicle ownership, and I assume if they had any indication of DUI they'd get you for that at the same time. I've never seen one of these checkpoints announced in advance.
It appears the law covering checkpoints varies from state to state.

*There's a long stretch of road through a pecan grove on my route to and from town, and the troopers like that shady place in the hot weather.

Campion
08-26-2005, 08:24 PM
I'm assuming that you mean Texas hasn't authorized them. Were Texas to initiate such a program to catch drunk drivers, it would be legal under Michigan Department of State Police v. Sitz (http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0496_0444_ZS.html), which held that sobriety checkpoints were "reasonable" under the Fourth Amendment. The case was decided in 1990.
Note that Sitz was decided under the US Constitution. On remand, the Michigan courts held that the roadblock, although permissible under the Fourth Amendment, violated the Michigan Constitution and therefore was impermissible. Of course, because the case was decided on the basis of state law, further review by the SCOTUS was not possible. Here's a brief syllabus (http://courtofappeals.mijud.net/Digest/newHTML/9385111.htm) of the Sitz case upon remand to the Michigan Supreme Court (decided 1993).

So Otto is correct that roadblocks to find drunk drivers do not violate the US Constitution, some states provide greater protections/rights than the US Constitution does. Texas apparently has never reached that question but, instead, has held that roadblocks are impermissible under Sitz because Texas has no statutory scheme authorizing them. The case is Holt v. State, 887 SW2d 16, 19 (Tex. Crim. App. 1994). I can't find it online.

So, yes, the law can vary from state to state; the US Constitution is only a floor for our rights. HelloKitty, your discomfort with the notion that law enforcement can make a warrantless, suspicionless stop (without probable cause, or even reasonable suspicion that a crime has occurred) is precisely the reason the Michigan Supreme Court held that the roadblocks violated the Michigan Constitution's analog to the Fourth Amendment.

dalej42
08-26-2005, 09:01 PM
I wouldn't mind this thread being moved to Great Debates. I think this subject is a good one for debate. Anyone else agree?

Mr2001
08-26-2005, 09:16 PM
I think central to the legality of DUI checkpoints in most areas is the concept that driving on public roads is a privilege, not a right. Laws prohibiting rights are unconstitutional, while laws putting conditions on privileges seem to have much more leeway to be strict.
I'd like to see a legal cite for this. There are plenty of perfectly legal restrictions on rights - for example, you can't vote if you haven't registered, and you can be required to vote at a certain location. As far as I can tell, "driving is a privilege, not a right" is a philosophical statement with no impact on law enforcement whatsoever.

El_Kabong
08-26-2005, 09:20 PM
I ran across one of these in Pennsylvania a couple years ago. Apparently stopping people without probable cause would in fact be legally dodgy in the Commnwealth, so the fiction (as announced by signs set up approaching the checkpoint) was that it was a DUI information checkpoint. You roll up, the cop hands you a brochure on the dangers of DUI, which just coincidently allows him to get close enough to smell your breath, and if he detects alcohol, voila, probable cause for a traffic stop.

Cunctator
08-26-2005, 09:34 PM
The legality of random breath tests here (NSW) is made quite clear under statute. The Road Transport (Safety and Traffic Management) Act 1999 states quite clearly:

A police officer may require a person to undergo a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:
(a) is or was driving a motor vehicle on a road or road related area; etc

groman
08-26-2005, 10:02 PM
I don't understand how driving could be a privilige. The government owns the roads - public property. To allow me the right of driving. Everybody needs their freedom to travel, saying driving is a privilige not a right is like saying "air, it's a privilige not a right". They want to put tight controls on driving, have sobriety check points, etc. then make it fair - all driveable real estate should be always available for sale to private parties, because otherwise we have no recourse. If you don't like public road rules, don't drive on public roads - and that would be a fine principle to live by if there was a viable alternative, however, the government makes it actively impossible to run an independent commercial road network.


Constitutionally speaking, even if the supreme court routinely disagreed with me, sobriety check points are not constitutional if you can't refuse the search and drive away without consequences. You have a right to be secure in your person, house, papers, and effects, against unreasonable searches and seizures. A random search is not reasonable, because reason presumes cause, and random implies there isn't one.

Mr2001
08-26-2005, 10:28 PM
I don't understand how driving could be a privilige. The government owns the roads - public property. To allow me the right of driving. Everybody needs their freedom to travel, saying driving is a privilige not a right is like saying "air, it's a privilige not a right".
Exactly. There are limits on who may drive and under what circumstances, but anyone who meets those criteria will receive a driver's license and be allowed to drive on public roads, unless and until his driving rights are revoked through due process of law. The same is true of voting, which is widely considered a right (right?).

A privilege, OTOH, is something that can be granted or revoked at someone else's discretion. Dad can take away Junior's TV privileges because Junior didn't take out the trash, or because his grades fell, or even just because he's in a bad mood, and then he can change his mind at any time for any reason.

Wishbone Ash
08-26-2005, 10:56 PM
So how come if checkpoints are published in advance is it not legal to turnaround when you see the checkpoint? You have not done anything wrong, you are just exercising the decision to turn around.

Saint Cad
08-26-2005, 10:59 PM
Constitutionally speaking, even if the supreme court routinely disagreed with me, sobriety check points are not constitutional if you can't refuse the search and drive away without consequences. You have a right to be secure in your person, house, papers, and effects, against unreasonable searches and seizures. A random search is not reasonable, because reason presumes cause, and random implies there isn't one.

For me the problem come from the fact that a cop cannot stop you at random and search your car as that violates the fourth amendment, but they can stop you and breathalyze you at random. I don't think it's a slippery slope to apply this to another situation such as knocking on your door at random and giving a drug test.

But there is more to it than that. In California, the traffic cameras that catch red light runners have been determined to be illegal speed traps and if you go to court, the judge will throw out the ticket, but the DMV will still suspend your license for not paying the ticket. Let me repeat that: the DMV can take away your right (oops priviledge) to drive for not paying an illegally given ticket that a judge has dismissed.


In other words, there is no due process when it comes to drivers licenses.

HelloKitty
08-26-2005, 11:37 PM
I wouldn't mind this thread being moved to Great Debates. I think this subject is a good one for debate. Anyone else agree?

How exciting to have possibly started a Great Debate!

I don't think it's a slippery slope to apply this to another situation such as knocking on your door at random and giving a drug test.

At least you can refuse to open your door. Not quite the same as being able to refuse to pull your car over.

Wishbone Ash
08-27-2005, 12:07 AM
For me the problem come from the fact that a cop cannot stop you at random and search your car as that violates the fourth amendment, but they can stop you and breathalyze you at random. I don't think it's a slippery slope to apply this to another situation such as knocking on your door at random and giving a drug test.

But there is more to it than that. In California, the traffic cameras that catch red light runners have been determined to be illegal speed traps and if you go to court, the judge will throw out the ticket, but the DMV will still suspend your license for not paying the ticket. Let me repeat that: the DMV can take away your right (oops priviledge) to drive for not paying an illegally given ticket that a judge has dismissed.


In other words, there is no due process when it comes to drivers licenses.

interesting do you have a cite for the case?

Fredescu
08-27-2005, 02:46 AM
I don't understand. You want to question the legality of something that removes unsafe drivers from the road? In 1990, 22% of motor vehicle crash victims--1.2 million--were injured in crashes involving alcohol. Over 22,000 of these victims were killed. (http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=7999203&dopt=Citation)

I've only been in one of these stops. I was delayed about five minutes. A minor annoyance at worst.
Five minutes sounds excessive and I can understand a slight annoyance about that. If I'm driving around Sydney on a weekend night, I see random breath testing more often than not. When I'm stopped by one of these, the delay is around a minute. Quick breath into a tube and you're on your way.

Mr2001
08-27-2005, 02:50 AM
I don't understand. You want to question the legality of something that removes unsafe drivers from the road?
Your link doesn't mention checkpoints. Are there any statistics showing that DUI checkpoints are effective at reducing drunk driving accidents?

Fredescu
08-27-2005, 03:05 AM
Is it unreasonable to assume that since a large proportion of motor vehicle crash deaths are related to alcohol, that removing drunk drivers from the road will prevent accidents? I'm not sure whether they prevent enough for it to be statistically significant. For mine, if a minute of my time each weekend prevents one death in a year, it's worth it. If the statistics were not significant, one could argue that police are wasting their time and should pursue other avenues for the prevention of these deaths. It's the idea that one would try to find legal reasons to prevent checkpoints (we call it RBT here, for random breath testing) that I'm struggling to get my head around.

Mr2001
08-27-2005, 04:31 AM
Is it unreasonable to assume that since a large proportion of motor vehicle crash deaths are related to alcohol, that removing drunk drivers from the road will prevent accidents?
For checkpoints to significantly reduce deaths, we'd have to know that significantly more drunk drivers are taken off the road with checkpoints than without. We'd also have to know that the ones that are taken off the road are the ones who cause accidents - it's possible, for example, that the drunk drivers who are clever enough to learn about checkpoints in advance and avoid them are the ones who are responsible for the most accidents.

For mine, if a minute of my time each weekend prevents one death in a year, it's worth it. If the statistics were not significant, one could argue that police are wasting their time and should pursue other avenues for the prevention of these deaths. It's the idea that one would try to find legal reasons to prevent checkpoints (we call it RBT here, for random breath testing) that I'm struggling to get my head around.
Feel free to donate your own time, but please don't be so generous with mine or anyone else's.

I can certainly understand the opposition to DUI checkpoints. Aside from the inconvenience and theoretical arguments against them, it's reasonable not to want to have to prove oneself innocent on a regular basis. Checkpoints are there to require people who aren't exhibiting any signs of impaired driving to prove that they aren't impaired, which goes against a long tradition of "innocent until proven guilty".

Sobriety checkpoints are illegal in Washington, so I've never had to deal with them, but I'd oppose any attempt to start using them.

Saint Cad
08-27-2005, 04:34 AM
But there is more to it than that. In California, the traffic cameras that catch red light runners have been determined to be illegal speed traps and if you go to court, the judge will throw out the ticket, but the DMV will still suspend your license for not paying the ticket. Let me repeat that: the DMV can take away your right (oops priviledge) to drive for not paying an illegally given ticket that a judge has dismissed.


interesting do you have a cite for the case?


It's not a court ruling (since municipal courts do not use precedents in the strict sence of the work), but rather state law. California has strict laws against speed traps and the mechanism the cameras use violate those speed trap laws. In a state where speed traps are legal e.g. Washington, these cameras would probably be legal.

At least you can refuse to open your door. Not quite the same as being able to refuse to pull your car over.

For a traffic violation true, and if I were weaving all over the road, there's the probable cause for a breathalyzer. But for a search I do have a right to a search warrant detailing what they are looking for or an explanation of the probably cause leading to the search. Being in the fifth car in line is not probable cause for a search of my lungs.

guizot
08-27-2005, 04:56 AM
I believe that the fact is the Supreme Court has ruled that privacy under the Fourth Amendment doesn't apply to cars, while it does apply to your house or your person. I don't recall the reasoning, but I would imagine it has something to do with the pulbic dangers involved with intoxicated drivers, especially on days when people tend to drink a lot (St. Patrick's Day, etc.). So they can point a thingy that can detect alcohol fumes inside your car and then pull you over if it reads positive. But they can't point something at your home that shows if you are using excessive lights to grow marijuana plants. Also, they can't do a "checkpoint" on the sidewalk to see if anyone who otherwise is lawabiding has anything on them.

At least, this is how I understand it. Congress could pass a law making it illegal to treat cars differently, or a state could do that, but I doubt it would ever happen. So driving is a privilege, granted at the state's conditions, but walking, in theory, is a "right." Your car is a public place, open to various forms of scructiny. Still, I think many states have laws which require probable cause for a car stop/search. But the thingy that can detect from a distance fumes inside your car, has been ruled constitutional by the SCOTUS, I believe. On the same grounds, checkpoints would probably pass through the (present) SCOTUS as constitutional.

TheLoadedDog
08-27-2005, 05:06 AM
I'm not trying to be a smartarse here, nor judemental oe anything like that, but are there many other non-Americans reading this thread and thinking "woah!"? My country is so very culturally similar to the good ol' US of A on many, many fronts, but sometimes there are things that seem so alien, they could be from Mars (and I'm sure that goes both ways).

To me it just seems natural and normal that if you are driving a car, you can be pulled over and breathalysed. If you have sudden and unexplained enormous electricity bills, the power company is legally obliged to inform the police, in case you have a hydroponic cannabis set-up. That law is fairly new, but nobody complained a great deal when it came in.

Mr2001
08-27-2005, 05:09 AM
To me it just seems natural and normal that if you are driving a car, you can be pulled over and breathalysed. If you have sudden and unexplained enormous electricity bills, the power company is legally obliged to inform the police, in case you have a hydroponic cannabis set-up.
Are you implying some connection between those laws? There's quite a difference between investigating someone who's acting suspiciously (swerving on the road or suddenly using tons of electricity) and investigating someone who's doing nothing unusual (driving a car).

TheLoadedDog
08-27-2005, 06:02 AM
No connection beyond that both situations were previously mentioned in the thread, and both illustrate well the difference in national attitudes.

John Carter of Mars
08-27-2005, 08:57 AM
No connection beyond that both situations were previously mentioned in the thread, and both illustrate well the difference in national attitudes.(bolding mine)

You're confusing the USA's national attitudes with the USA Doper's attitudes. The two are quite different. :)

I suspect the majority of US dopers oppose checkpoints for DUI. I'm rather certain the majority of US citizens favor such checkpoints.
That's not to say that U.S. dopers are likely DUI practitioners. Most of us are simply weird and out of step with the national attitude.

Balthisar
08-27-2005, 09:15 AM
2. One guy who had several outstanding warrants got caught when he tried to get out of the line of stopped cars and drive off[.]
What?!? Maybe this isn't what I'm thinking it is, and whether the guy's guilty of something or not has no bearing on this, but are you saying that if one sees a roadblock, it's illegal to turn around?

Fredescu
08-27-2005, 09:31 AM
For checkpoints to significantly reduce deaths, we'd have to know that significantly more drunk drivers are taken off the road with checkpoints than without.
Here (http://www.afp.gov.au/afp/page/Prevention/RoadTrafficSafety/Alcohol/RBT.htm) are some stats of the amount of people taken off the roads in the ACT.

This one (http://www.monash.edu.au/muarc/reports/muarc039.html) shows that the introduction of RBT caused a significant reduction in fatal crashes in some areas.

We'd also have to know that the ones that are taken off the road are the ones who cause accidents
I see RBT as a preventative measure. It is not possible to know whether someone taken off the road would have gone on and caused an accident. It is well known (http://www.science.org.au/nova/052/052print.htm) that being under the influence of alcohol significantly reduces your ability to drive.

it's possible, for example, that the drunk drivers who are clever enough to learn about checkpoints in advance and avoid them are the ones who are responsible for the most accidents.
Being able to avoid them is an implementation problem, not something inherent in the idea.

Checkpoints are there to require people who aren't exhibiting any signs of impaired driving to prove that they aren't impaired, which goes against a long tradition of "innocent until proven guilty".
When you're using roads, you're using them conditionally. If the "innocent until proven guilty" principle were applied to roads, you would not have to get a drivers license or register your car. You have to prove that you are capable of driving. You have to prove that your car is road worthy (the extent of this probably varies from place to place). It is not unreasonable to expect to have to prove your sobriety once in a while.

Canadjun
08-27-2005, 09:43 AM
I don't understand how driving could be a privilige. The government owns the roads - public property. To allow me the right of driving. Everybody needs their freedom to travel, saying driving is a privilige not a right is like saying "air, it's a privilige not a right". They want to put tight controls on driving, have sobriety check points, etc. then make it fair - all driveable real estate should be always available for sale to private parties, because otherwise we have no recourse. If you don't like public road rules, don't drive on public roads - and that would be a fine principle to live by if there was a viable alternative, however, the government makes it actively impossible to run an independent commercial road network.
There is an alternative - don't drive. I don't have a driver's license, and I certainly have the freedom to travel. Yes, my options are more restricted than someone that does have a driver's license, but I can still get where I need to both for pleasure and for work. Taxis and public transit are useful things. Your options are more restricted than someone who has a pilot's license (I'm guessing you don't - if you do, pretend you're one of the majority that don't :) ). I haven't heard of anyone insisting that being able to pilot an aircraft is a right.

As an aside, my sister and brother-in-law don't have driver's licenses, and a good friend has a license but not a car (simply because he has no need of one), so I may be unusual, but I'm certainly not unique! :)

FilmGeek
08-27-2005, 10:22 AM
So are the commercials I've been seeing here in Austin lately along the lines of "people don't turn themselves in for drunk driving, so we need checkpoints if we want to get 'em" a campaign to change the law in Texas? I assumed they were meant as a public service announcement, to convey something like, "See, we HAVE to have these checkpoints, or we wouldn't know people were driving drunk unless they did something!"
I think that commercial is national. I see it here.

Club 33
08-27-2005, 10:57 AM
But there is more to it than that. In California, the traffic cameras that catch red light runners have been determined to be illegal speed traps and if you go to court, the judge will throw out the ticket, but the DMV will still suspend your license for not paying the ticket. Let me repeat that: the DMV can take away your right (oops priviledge) to drive for not paying an illegally given ticket that a judge has dismissed.


I spent the day in traffic court a few weeks ago in sunny southern California. I assure you that the judge was not dismissing any tickets that came as a result of a traffic camera. You information seems suspect.

Mr2001
08-27-2005, 11:14 AM
Here (http://www.afp.gov.au/afp/page/Prevention/RoadTrafficSafety/Alcohol/RBT.htm) are some stats of the amount of people taken off the roads in the ACT.

This one (http://www.monash.edu.au/muarc/reports/muarc039.html) shows that the introduction of RBT caused a significant reduction in fatal crashes in some areas.
Thank you, that's what I was looking for. Looks like it was pretty significant: "It was found the initiative reduced fatal crashes (in high alcohol times of the week) in Melbourne during 1990 by around 19-24% relative to what was expected."

BTW, any idea what they mean by "Bus-based RBT stations using highly visible 'Booze Buses' largely replaced car-based stations"?

Being able to avoid them is an implementation problem, not something inherent in the idea.
Unless checkpoints are going to be set up at every street corner, or all your city's bars and Christmas parties are on an island with only one bridge connecting it to the mainland, the checkpoints are inherently avoidable.

You have to prove that you are capable of driving. You have to prove that your car is road worthy (the extent of this probably varies from place to place). It is not unreasonable to expect to have to prove your sobriety once in a while.
That's a good point, but the police don't stop traffic to measure emissions at random or administer driving tests. You periodically get your car inspected and your vision tested because they both tend to fail over time, but most people will never drive drunk.

I still think this is a step too far, and sets up a slippery slope to performing other searches at random. ("Your BAC looks fine, but I think I smell some drugs, bombs, or illegal immigrants in your trunk. We could get lawyers and judges involved, but it'd get you on your way much sooner if you just stepped out of the car and opened the trunk and glove box for me, OK?")

TheLadyLion
08-27-2005, 11:21 AM
Everybody needs their freedom to travel, saying driving is a privilige not a right is like saying "air, it's a privilige not a right". Oh, please. Lots of people survive without driving; try surviving without air. Driving is not a right; one can take a bus, taxi, carpool, bike, or hoof it. Not too many options for breathing. Poor analogy.

Every privilege has responsibilities that go with it. Obeying the laws governing driving on the thoroughfares is the primary responsibility. Driving impaired is not only against the law, but it also jeopardizes others on the road. Personally I would rather be inconvenienced for several minutes at a DUI checkpoint than run the risk of a drunk driver taking me off the planet permanently. If just one driver out of 100 at that checkpoint is removed from the road because he is too impaired to drive, that might be one or more lives saved that day. The inconvenience is worth it to me.

Dubious Weasle
08-27-2005, 11:29 AM
I see a key difference between DUI checkpoints and drug checkpoints. Likewise I see a large difference between the police being able to test you for intoxication in your car and being able to decide to knock on your door and test you for drugs.

The difference is if you are intoxicated or otherwise impaired while operating a vehicle you are posing a significant safety hazard to your fellow citizens whereas, if you are smuggling drugs in your car or using illegal drugs at home you are not posing the same safety hazard. You would still be participating in an illegal activity of course, however I believe it is the safety issue which allows the police to perform the inspection.

Mr. Blue Sky
08-27-2005, 11:33 AM
What?!? Maybe this isn't what I'm thinking it is, and whether the guy's guilty of something or not has no bearing on this, but are you saying that if one sees a roadblock, it's illegal to turn around?

I don't know if it's illegal or not, but I guess the police figured he had a good reason to run. This time they were right.

TheLadyLion
08-27-2005, 11:34 AM
I don't think it's a slippery slope to apply this to another situation such as knocking on your door at random and giving a drug test. While I can understand and appreciate that such jumps could eventually be made in the law, the situation is qualitatively different. As long as I'm at home getting drunk or smoking methamphetamine or shooting up heroin, I don't run the risk of causing a vehicular accident or running over a pedestrian with my house. Now the minute I drink my last drop, smoke my last quarter gram or have my last fix, and I decide I have to get behind the wheel of my vehicle to get more of whatever my favorite drug is, others are now at risk on the road as well.

There is bound to be someone out there saying that loved ones at home are at risk if I'm sitting there getting blotto, and that person is right. But that is for another thread.

Big Whistle
08-27-2005, 11:59 AM
1. Driving as a privilege: Driving is a legal privilege because it is not a right. If it were a "right," you would be able to force the government to allow you to do it, absent some showing by the govenment of circumstances sufficient to restrict your doing it. An example is voting. As long as you are 18 years of age, and a citizen of the United States, you get to vote for federal office holders. The government can't stop you unless you have done something sufficiently obnoxious that the government is allowed to restrict you from it (e.g., be a former felon).

By comparison, driving is something you have to get the permission of the government to do. You can't just get behind the wheel at 16 and start driving; you have to get educated, take a test, pay a fee, etc. Thus, it is a privilege. And a privilege is much easier to take away than a right.

2. Constitutionality of roadblocks: Roadblocks under certain circumstances were ruled constitutionally valid siezures back in 1976, when the issue of checkpoints inside the border to ferret out illegal aliens was addressed. The analysis is simple: stopping a car for a short question and answer session is a minimal intrusion on one's life, and as long as there is a sufficiently important purpose and evidence that the purpose is effected to some degree by the roadblocks, they are constitutionally valid. See United States v Martinez-Fuerte, 428 U.S. 543 (1976). Roadblocks to find drunken drivers were upheld by application of the same review (Michgan Dept. of State Police v Sitz, 496 U.S. 444 (1990)). Note that the Court in Sitz accepted that finding as few as 1% of those drivers stopped were in violation of the DUI laws was sufficient effectiveness, since a much smaller rate of succes was sufficient in Martinez-Fuerte.

There are a number of suspicionless siezures or searches that are allowed by the Court as being "reasonable." Thus, it isn't sufficient to say that a seizure is unreasonable absent reasonable suspcion of commision of a crime.

3. California's Red Light Cameras: What apparently happened is simple. California law requires advance notice of 30 days before installing and using an automated traffic control device monitoring compliance by drivers with a stop signal (Vehicle Code §21455.5). Most cities had interpreted this provision to require advance notice only before installation of the first such light in a jurisdiction. A Superior Court judge in Orange County ruled that the warning was required for each and every new installation of such a device. An appeal from this ruling was made directly to the California Supreme Court, which apparently declined to accept review. The actual extent of the procedings is difficult to ascertain, since the primary providers of content are the organizations devoted to eliminating such cameras. Please note that this does not result in a determination that red light cameras in California are, per se, illegal.

A little Straight Dope.

yoshi
08-27-2005, 02:18 PM
Oh, please. Lots of people survive without driving; try surviving without air. Driving is not a right; one can take a bus, taxi, carpool, bike, or hoof it. Not too many options for breathing. Poor analogy.


try living out in the country where things are really far away, and there is no afforable public transpo. saying it is not a right is akin to saying walking around wihtout a medicine ball on your foot is a privilage not a right.

Saint Cad
08-27-2005, 02:42 PM
I believe that the fact is the Supreme Court has ruled that privacy under the Fourth Amendment doesn't apply to cars, while it does apply to your house or your person.

It is illegal to search a person's car without a warrant or probable cause at a traffic stop, thats why cops need to ask you permission to look in your trunk if they stop you ans you are perfectly within your rights to say no. (Preston v. United States) It is legal to search cars if the person is arrested for a crime and the search of a car is material to the case (probable cause). The Supreme Court ruled recently that a person's car was an extension of their living space and as such had the same status as a house under the 4th amendment. This is why is said it's not a slippery slope to go from stopping a car to give a breathalyzer test to going into people's home for drug tests under the same rationale of "compelling state interest".

Also, in Indianapolis v. Edmond the Supreme Court ruled that random stops for searching cars for drugs was unconstitutional. However, this will not hold up for sobriety checkpoints since the issue is that DRIVING while intoxicated is the crime while being drunk at home is not.

For those people whose argument is: it is only a minute and if it gets drunk drivers of the road . . . , would you be so willing to give up your rights if the police came to your neighborhood and searched every house (including yours) looking for guns, drugs, bomb-making equiptment, etc.? This is even more convienent since it won't waste even a minute of your time (they'll do it while you're at work) and it would certainly save lives.

Speaker for the Dead
08-27-2005, 03:25 PM
Do you encounter many random DUI stops on the highway? I'm actually curious, since lots of people--mostly teenagers--I know like to go out of town (to cabins and acreages) when they have their wildest parties.

Speaker for the Dead
08-27-2005, 03:32 PM
The Supreme Court ruled recently that a person's car was an extension of their living space and as such had the same status as a house under the 4th amendment. This is why is said it's not a slippery slope to go from stopping a car to give a breathalyzer test to going into people's home for drug tests under the same rationale of "compelling state interest".

[...]

For those people whose argument is: it is only a minute and if it gets drunk drivers of the road . . . , would you be so willing to give up your rights if the police came to your neighborhood and searched every house (including yours) looking for guns, drugs, bomb-making equiptment, etc.? This is even more convienent since it won't waste even a minute of your time (they'll do it while you're at work) and it would certainly save lives.

You seem to be arguing two things in this post. Do you see it as a slippery slope or not? The first part says "no," while the second says "yes."

Your argument is flawed in the second part, anyway. The situations would only be similar if the police warned people ahead of time and gave citizens the right to refuse the search, perhaps by putting up a sign on their door. People can take alternate routes around DUI checkpoints, so you'd need the same sort of "out." Furthermore, your idea of "convenient" is rather limited. Having my house disordered (as it would have to be if they were searching that many houses) would ultimately take up far more of my time than breathing into a tube.

Ferret Herder
08-27-2005, 03:35 PM
try living out in the country where things are really far away, and there is no afforable public transpo. saying it is not a right is akin to saying walking around wihtout a medicine ball on your foot is a privilage not a right.
Hey, you don't have to live out in the country, you know. What do you think happens to people who get their licenses yanked over repeated DUIs? The courts don't say "oh, but he lives in the country, let's let him keep driving." (Yes, I know that some DUI offenders get waivers for work-related driving only, but IIRC even that can be removed eventually.)

Otto
08-27-2005, 04:05 PM
try living out in the country where things are really far away, and there is no afforable public transpo.
Get a horse.
The Supreme Court ruled recently that a person's car was an extension of their living space and as such had the same status as a house under the 4th amendment.
In what case?

Saint Cad
08-27-2005, 05:47 PM
You seem to be arguing two things in this post. Do you see it as a slippery slope or not? The first part says "no," while the second says "yes."

Your argument is flawed in the second part, anyway. The situations would only be similar if the police warned people ahead of time and gave citizens the right to refuse the search, perhaps by putting up a sign on their door. People can take alternate routes around DUI checkpoints, so you'd need the same sort of "out." Furthermore, your idea of "convenient" is rather limited. Having my house disordered (as it would have to be if they were searching that many houses) would ultimately take up far more of my time than breathing into a tube.

My point with the second example (purposely made ridiculously extreme) was to respond to the people who seemed willing to put up with the sobriety checkpoint because of the same reason the Supreme Court declared them legal, namely
A) it doesn't inconvience them too badly (subjective I know)
b) it serve a valuable public service (taking drunk drivers off the road)
The question is: is this criteria enough to give up Fourth Amendment rights? From your reply, you also need to have access to a way to avoid the search. Now the question is, if at the checkpoint the police want to search for anything other than alcohol in my lungs, I can refuse by saying no. Why don't I have this right covering the air in my lungs?

Otto
08-27-2005, 06:17 PM
Why don't I have this right covering the air in my lungs?
Perhaps for the same reason you don't own your garbage once it's mixed with "common" garbage? As long as you can keep your lung air separate from the "common" air, it's yours.

Note I have no idea if this rationale has any basis in case law; just one possible answer to the question.

Now, what was that case you mentioned in which SCOTUS declared the car to be an extension of the home?

guizot
08-27-2005, 07:15 PM
It is illegal to search a person's car without a warrant or probable cause at a traffic stop, thats why cops need to ask you permission to look in your trunk if they stop you ans you are perfectly within your rights to say no. (Preston v. United States)Thanks for the correction, because my memory was different. But if they stop someone, what "probable cause" do they need to do someting beyond asking you for your license and insurance? Can you say "no" if they want you to do a "sobriety test"? I imagine that if you did, they'd just say that that was "probable cause," and they'd do a search of your vehicle anyway, too. If you resisted, they'd just bust you even more.

So it's a moot point, or rather, a catch-22. They can always find "probable cause," when they want to. Maybe in theory they're wrong, but who can stop them in practice?

And what about those things that can detect the vapors in a car at a distance? Didn't they rule them legal? That's what I recall. In effect, they're examing the interior of your car, and they can do that to anyone they want. Probably there will be other, more advanced, detection systems, that can find whatever they're looking for. I don't advocate possession of such things, I'm just pointing out that they can't do such inspections of homes without a warrent, AFAIK. Is it an inconsistency or not?

I don't know the year of Preston vs. U.S., but it could be that the SCOTUS has changed since then.

Anyway, at a traffic stop, how much constitutes "probable cause"? Can they force anyone to search and sobriety test regardless of how they drive? Or do they have to have some visible sign? Is this a subjective estimate on the part of the officers, or are there some objective signals they have to go by? Can a driver just say, "Hello, here's my license, here's my insurance, now let me go," (refusing a test)? Can they do the same thing to people walking on the sidewalk? Is there a difference?

I know this is pretty much theory vs. practice. In practice, it seems that they can do just about whatever they want.

Big Whistle
08-27-2005, 07:27 PM
try living out in the country where things are really far away, and there is no afforable public transpo. saying it is not a right is akin to saying walking around wihtout a medicine ball on your foot is a privilage not a right.
No offense, but where I live there is a sizeable population of people who live quite far out in the country, and refuse, that's right, refuse to drive automobiles. They don't seem to find it a problem. ;)

Big Whistle
08-27-2005, 07:33 PM
Thanks for the correction, because my memory was different. But if they stop someone, what "probable cause" do they need to do someting beyond asking you for your license and insurance? Can you say "no" if they want you to do a "sobriety test"? I imagine that if you did, they'd just say that that was "probable cause," and they'd do a search of your vehicle anyway, too. If you resisted, they'd just bust you even more.

So it's a moot point, or rather, a catch-22. They can always find "probable cause," when they want to. Maybe in theory they're wrong, but who can stop them in practice?

And what about those things that can detect the vapors in a car at a distance? Didn't they rule them legal? That's what I recall. In effect, they're examing the interior of your car, and they can do that to anyone they want. Probably there will be other, more advanced, detection systems, that can find whatever they're looking for. I don't advocate possession of such things, I'm just pointing out that they can't do such inspections of homes without a warrent, AFAIK. Is it an inconsistency or not?

I don't know the year of Preston vs. U.S., but it could be that the SCOTUS has changed since then.

Anyway, at a traffic stop, how much constitutes "probable cause"? Can they force anyone to search and sobriety test regardless of how they drive? Or do they have to have some visible sign? Is this a subjective estimate on the part of the officers, or are there some objective signals they have to go by? Can a driver just say, "Hello, here's my license, here's my insurance, now let me go," (refusing a test)? Can they do the same thing to people walking on the sidewalk? Is there a difference?

I know this is pretty much theory vs. practice. In practice, it seems that they can do just about whatever they want.
Before you pretend to discuss US constitutional law, I recommend you learn it, first. At the very least, do some quick research to confirm or deny your contentions.

As for the statements by SaintCad, the fallacy in your argument is that you do not "give up" your Fourth Amendment rights. Rather, you never HAD a right to deny the temporary seizure discussed in Sitz and in Martinez-Fuerte. Not all warrantless seizures are unreasonable; indeed, English law never held so, nor has American law at any point in our history.

Recliner
08-27-2005, 08:23 PM
So how come if checkpoints are published in advance is it not legal to turnaround when you see the checkpoint? You have not done anything wrong, you are just exercising the decision to turn around.

Exactly. This is one of my personal problems with the situation, as it stands now. The legal claim is apparently that nobody is "forced" to submit to the checkpoint; therefore, anyone who passes through and is found to be operating under the influence has simply incriminated themself.

However, in my state, at least, the checkpoints work like this: there will be a sign set up on the side of the road saying something like "Sobriety Checkpoint Ahead". A police cruiser will be stationed near the sign. Based on the claim of the state/law-enforcement agencies, nobody is forced to pass through the checkpoint; however, around here, if a car turns around and "opts out" of the checkpoint, the cruiser will give chase and immediately pull them over. Based on what I've heard of other states (I live in Connecticut), the situation is similar -- anyone who is clearly avoiding the checkpoint is presumed to be violating the law, and is thus given extra scrutiny.

xash
08-27-2005, 08:26 PM
Moving to GD for further discussion.

-xash
General Questions Moderator

Mr2001
08-27-2005, 08:36 PM
As long as you are 18 years of age, and a citizen of the United States, you get to vote for federal office holders. The government can't stop you unless you have done something sufficiently obnoxious that the government is allowed to restrict you from it (e.g., be a former felon).

By comparison, driving is something you have to get the permission of the government to do. You can't just get behind the wheel at 16 and start driving; you have to get educated, take a test, pay a fee, etc. Thus, it is a privilege. And a privilege is much easier to take away than a right.
Ah, but you can't just go down to any old polling place on election day and start voting, either. You have to register in advance (in most places), go to the correct polling place, sign your name, etc. Those are comparable to the steps you must follow to get a driver's license.

And the government can't stop you from driving unless you've done something sufficiently obnoxious that they're allowed to restrict you from it (e.g. demonstrate that you're unable to drive safely). You can't have your license revoked just because some judge or police officer feels like it; they have to have a legal justification.

Either voting and driving are both rights, or they're both privileges.. or there's another difference between them that no one has mentioned yet.

Monty
08-27-2005, 09:16 PM
Seems to me that the sobriety checkpoints aren't searches of a car or person but rather a qualification check. The law requires those who operate a motor vehicle on the public highways and byways to be qualified, to include not being under the influence of alcohol or drugs, to be operating them.

Is that the line that the government's taken in operating these checkpoints?

BTW, someone menetioned above that these checkpoints aren't legal in Texas. I read the Austin American-Statesman (http://www.statesman.com/) online quite often. That paper lists traffic enforcement locations for the week (http://www.statesman.com/metrostate/content/metro/stories/08/27traffic.html) (requires registration). From that page:
The Austin Police Department publishes a weekly list of locations where officers will focus on enforcing traffic regulations. Distributing the list is intended to help make drivers more aware of enforcement and thus increase compliance with traffic laws, the department says.

Monty
08-27-2005, 09:18 PM
Mr2001: Upon reaching voting age, I'm eligible to vote in my jurisdiction. Upon reaching driver licensing age, I must pass a test regarding my knowledge of traffic rules and also a driving skills test prior to the jurisdiction licensing me.

Is that enough difference?

jackemaxton
08-27-2005, 09:29 PM
I've never lived in a state that practiced DUI checkpoints, so how does this advance notice work? Where can one go to see the schedule?

Monty
08-27-2005, 09:33 PM
Local newspaper, radio news, television news, and checking with the law enforcement agencies.

dalej42
08-27-2005, 11:43 PM
In Texas, sobriety checkpoints are illegal, as they should be. I believe they have a "chilling effect" in which officers search for every possible reason to issue a citation to someone. Once stopped, they can issue any possible citation regardless if the driver is intoxicated.

DWI laws in Texas are also unconstitutional for a variety of reasons including mandatory interlock devices for non-convicted defendants, double jeopardy administrative license suspensions, and unconstitutional driver license "surcharges."

Monty
08-27-2005, 11:59 PM
Okay, dalej42: Would you please provide a cite for them being illegal? Could you also provide a cite that DWI laws are unconstitutional--a court rendering, not your opinion?

dalej42
08-28-2005, 12:46 AM
As far as sobriety checkpoints being illegal in Texas? You only have to go to MADD's (http://www.madd.org/home/) website to find that Texas does not allow sobriety checkpoints.

There are no court opinions(that me as a non-lawyer knows about) of the other opinions I stated. I believe that no one who has not been convicted of DWI should be required to put an interlock device in their car. I also believe that their should be no automatic license suspension for people who are arrested for DWI. That case should be in front of a judge, not the DPS. I also don't believe that if someone is convicted of DWI. they should have to pay an extra 1000 dollars every year for 3 years on top of their court fine. That is double jeopardy. The same person paying a fine twice for the same offense.

Monty
08-28-2005, 01:51 AM
The extra money you're talking about is not a court sentence, but rather a private transaction known as obtaining insurance.

That is not double jeopardy.

Monty
08-28-2005, 01:53 AM
BTW, your own link DOES NOT say that Texas does not allow checkpoints, but rather that it does not conduct them. There is a world of difference.

dalej42
08-28-2005, 02:02 AM
The extra money you're talking about is not a court sentence, but rather a private transaction known as obtaining insurance.

That is not double jeopardy.

In Texas, the Department of Public Safety will charge an extra $1000 per year for 3 years. This is a total of $3000 for a person convicted of an intoxication offense. This is above and beyond any insurance company surcharges. In addition, the "surcharge" is $2000 per year on top of any other surcharges for an offense if there was a BAC of .20

dalej42
08-28-2005, 02:06 AM
BTW, your own link DOES NOT say that Texas does not allow checkpoints, but rather that it does not conduct them. There is a world of difference.
Here (http://www.statehighwaysafety.org/html/stateinfo/laws/checkpoint_laws.html) is another site which states that such checkpoints are illegal in Texas.

dalej42
08-28-2005, 02:07 AM
In Texas, the Department of Public Safety will charge an extra $1000 per year for 3 years. This is a total of $3000 for a person convicted of an intoxication offense. This is above and beyond any insurance company surcharges. In addition, the "surcharge" is $2000 per year on top of any other surcharges for an offense if there was a BAC of .20

Here (http://www.txdps.state.tx.us/administration/driver_licensing_control/drp/drp.htm) is the site for the current law.

Monty
08-28-2005, 02:24 AM
Thanks for what you've provided; however, your links are still lacking. See 1 through 3 below.

1) The surcharges are levied based on an accumulation of points assessed against one's driver license. That is still not double jeopardy.

2) Your other site does not quote a state law or court case, but merely asserts that it's illegal under Texas's interpretation of the federal Constitution. I asked for an actual cite to state law or court decision.

3) Perhaps you're missing the simple difference between right an privilege. The State, as the grantor of the privilege, can set restrictions on said privilege.

Monty
08-28-2005, 02:31 AM
BTW, dale, I'm genuinely concerned about the checkpoint issue in Texas. After all, the police, as shown in the link I provided above, do announce traffic enforcement locations.

I'm interested in what actual Texas law/Texas court cases say about the issue.

groman
08-28-2005, 02:33 AM
I haven't heard of anyone insisting that being able to pilot an aircraft is a right.


Better late than never.

I'm insisting it. It is a right. It's right there along with everything else in freedom of transportation. I'm also against requiring ID to get on airplane. Why do they care what my name is if I paid for the ticket?

dalej42
08-28-2005, 02:59 AM
[QUOTE=Monty]Thanks for what you've provided; however, your links are still lacking. See 1 through 3 below.

1) The surcharges are levied based on an accumulation of points assessed against one's driver license. That is still not double jeopardy.

It is double jeopardy. Person Z is fined for their DWI offense. They are then required to pay the DPS surcharge. That is 4 fines (3 years DWI surcharge plus the initial court fine.)

dalej42
08-28-2005, 03:09 AM
[QUOTE=Monty]Thanks for what you've provided; however, your links are still lacking. See 1 through 3 below.

2) Your other site does not quote a state law or court case, but merely asserts that it's illegal under Texas's interpretation of the federal Constitution. I asked for an actual cite to state law or court decision.

I often disagree with Texas courts. However, Texas made the right decision. They can't stop traffic simply because they believe that someone may be intoxicated. Here is a site (http://www.nhtsa.dot.gov/people/injury/alcohol/SobrietyCheck/caselaw.html) although I am not a lawyer.

Monty
08-28-2005, 03:16 AM
They are not permissible in Texas under the federal constitution only because Texas has no statutory scheme authorizing them.

In other words, they're just not being conducted because Texas hasn't gotten around to authorizing them with the attendant requirements that the federal Supreme Court mandated yet. That's a far, far cry from sobriety checkpoints being unconstitutional if Texas were to authorize them.

The surcharge is not double jeopardy. It is paying for a PRIVILEGE based on one's previous exercise of that PRIVILEGE. Double jeopardy is being tried twice by a court of law for the same offense.

Monty
08-28-2005, 03:22 AM
I neglected to mention an important point.

The surcharges also are not double jeopardy because the law providing for them and their application is already in place.

Saint Cad
08-28-2005, 04:59 AM
Perhaps for the same reason you don't own your garbage once it's mixed with "common" garbage? As long as you can keep your lung air separate from the "common" air, it's yours.

Note I have no idea if this rationale has any basis in case law; just one possible answer to the question.

Now, what was that case you mentioned in which SCOTUS declared the car to be an extension of the home?

But a breathalyzer checks my lung air - not common air. As for the case site, I don't remember it off-hand (it was a couple years ago), but the cases involving cars are pretty consistant that a search of a car must be with a warrant or probable cause that the car is material evidence to a crime.

Saint Cad
08-28-2005, 05:04 AM
Before you pretend to discuss US constitutional law, I recommend you learn it, first. At the very least, do some quick research to confirm or deny your contentions.

As for the statements by SaintCad, the fallacy in your argument is that you do not "give up" your Fourth Amendment rights. Rather, you never HAD a right to deny the temporary seizure discussed in Sitz and in Martinez-Fuerte. Not all warrantless seizures are unreasonable; indeed, English law never held so, nor has American law at any point in our history.

Very true. Giving up my 4th Amd. right would be if an officer asks to search my car and I say yes. It is more accurate to call the sobriety checkpoints a denial of 4th amd. rights. I stand corrected.

Saint Cad
08-28-2005, 05:14 AM
I also don't believe that if someone is convicted of DWI. they should have to pay an extra 1000 dollars every year for 3 years on top of their court fine. That is double jeopardy. The same person paying a fine twice for the same offense.

Do you have any clue what double jeopardy is? DJ is retrying someone for a crime once they have been acquitted. People get double (or more) punishment for the same offence all the time. Think about when you watch CourtTV and the person commits one act (let's say shooting someone) and they're tried, convicted, and punished on multiple charges (murder, conspiricy to commit murder, illegally discharging a firearm, littering [leaving the body on the ground]).

Big Whistle
08-28-2005, 08:50 AM
Very true. Giving up my 4th Amd. right would be if an officer asks to search my car and I say yes. It is more accurate to call the sobriety checkpoints a denial of 4th amd. rights. I stand corrected.
Well, yes, though I suppose the even more accurate statement under the circumstances would be: "a denial of potential Fourth Amendment rights." :p

As for Mr. 2001: the situations are quite inapposite. The state would be totally within its powers to refuse to lisence drivers at all. Constitutionally, there would be no ability to claim a denial of any "right" you have.

On the other hand, a state cannot suspend voting. You have a right to be able to vote in elections, a right guaranteed to you by the Constitution of the United States.

Where many people get confused on the issue of "rights" is when they are looking at something the feel the SHOULD be able to do by "right." I think most people feel that way about driving. But wanting the law to be a certain way doesn't make it be that way.

Gymnopithys
08-28-2005, 09:42 AM
Who decided that driving is a privilege, not a right - and why ?

Saint Cad
08-28-2005, 10:45 AM
As for Mr. 2001: the situations are quite inapposite. The state would be totally within its powers to refuse to lisence drivers at all. Constitutionally, there would be no ability to claim a denial of any "right" you have.


That analysis is not completely accurate. Take for example Brown v. Board of Education. A state is not required to provide a free public education, but if it does (and every state does), then it is a property right and protected by the 5th and 14th Amendment. Thus one could argue that the state creates the right to a driver's license simply by offering it.

Campion
08-28-2005, 12:21 PM
In other words, they're just not being conducted because Texas hasn't gotten around to authorizing them with the attendant requirements that the federal Supreme Court mandated yet. That's a far, far cry from sobriety checkpoints being unconstitutional if Texas were to authorize them.Two points, Monty. First, a citation, from post number 12 in this thread:
So Otto is correct that roadblocks to find drunk drivers do not violate the US Constitution, some states provide greater protections/rights than the US Constitution does. Texas apparently has never reached that question but, instead, has held that roadblocks are impermissible under Sitz because Texas has no statutory scheme authorizing them. The case is Holt v. State, 887 SW2d 16, 19 (Tex. Crim. App. 1994). I can't find it online. Under Holt, therefore, roadblocks in Texas currently are unconstitutional under Sitz, because Sitz lays out the requirements with which states must comply before initiating DUI roadblocks. Texas has interpreted Sitz as requiring a legislative mandate -- a statute authorizing roadblocks -- before said roadblocks pass muster under the federal constitution. So dalej42's statement with which you took issue was correct; he didn't assert that Texas already had found that a roadblock was unconstitutional (as Michigan has), but merely:
In Texas, sobriety checkpoints are illegal, as they should be.Under Holt, they are illegal, and unconstitutional because they don't comply with Sitz. If Texas were to pass a law permitting them, we do not know whether the roadblocks would pass muster under Texas's constitution as it appears that question has not come up. But currently, roadblocks in Texas are found by the Texas courts to violate the Fourth Amendment.
It is illegal to search a person's car without a warrant or probable cause at a traffic stop, thats why cops need to ask you permission to look in your trunk if they stop you ans you are perfectly within your rights to say no. (Preston v. United States).
SaintCad, can you please cite to and distinguish the wingspan cases, or at least explain how they are consistent with your perception of current 4th amendment car jurisprudence? For purposes of your response, please remember that the courts treat the vehicle and the trunk differently.

Big Whistle and SaintCad, if no one's said it yet: welcome. I hope you plan to stick around.

Saint Cad
08-28-2005, 05:18 PM
SaintCad, can you please cite to and distinguish the wingspan cases, or at least explain how they are consistent with your perception of current 4th amendment car jurisprudence? For purposes of your response, please remember that the courts treat the vehicle and the trunk differently.


I would say the seminal case is Preston v. United States in which it is stated that searches of motorcars must meet the test of reasonableness under the Fourth Amendment before evidence obtained asa result of such searches is admissible. Preston v. United States, 376 U.S. 364, 366 (1964) which is based in part on Carroll v. United States and Brinegar v. United States. Carroll v. United States does imply that the mobile nature of a car may make some searches legal that would otherwise be illegal in a fixed residence.

Many of the cases where police officers are given carte blanche to search a car is when the person is being arrested such as New York v. Belton, Chimel v. California, United States v. Herndon; however there seems to be limitations on this with the person being arrested being linked to the car both by distance (United States v.Strahan) and time (Thornton v. United States). In addition, cars that are impounded can be searched for inventory purposes (United States v. Lumpkin and Colorado v. Bertine).

Big Whistle
08-28-2005, 05:54 PM
That analysis is not completely accurate. Take for example Brown v. Board of Education. A state is not required to provide a free public education, but if it does (and every state does), then it is a property right and protected by the 5th and 14th Amendment. Thus one could argue that the state creates the right to a driver's license simply by offering it.
That is incorrect as you should well know. What the state may not do upon having granted a privilege is withhold that privilege once granted without proper application of due process. Nor (in general) may a state engage in discriminatory behaviour in provision of the privilege when such discrimination draws a line on the basis of race. It does not in any way create a right out of the privilege.

Mr2001
08-28-2005, 06:37 PM
Mr2001: Upon reaching voting age, I'm eligible to vote in my jurisdiction. Upon reaching driver licensing age, I must pass a test regarding my knowledge of traffic rules and also a driving skills test prior to the jurisdiction licensing me.

Is that enough difference?
No, I don't think so.

If you are old enough, and you are a citizen, and you register, and you go to the correct polling place, then you are entitled to vote. Your ability to vote cannot be revoked without due process of law.

If you are old enough, and you prove yourself capable of driving safely, and you pay the fee, then you are entitled to a driver's license. Your license cannot be revoked without due process of law.

It seems irrelevant to me that one right depends on a competence test and the other doesn't. The voting age itself is supposedly a rough guideline for determining competence.

The state would be totally within its powers to refuse to lisence drivers at all.
I'll believe that when I see it.

Monty
08-28-2005, 06:53 PM
Mr2001, please see Big Whistle's posting immediately above yours.

Neurotik
08-28-2005, 06:57 PM
It seems irrelevant to me that one right depends on a competence test and the other doesn't.
Correct. They are, in fact, both about the same - both privileges. States have the option to restrict the right to vote with whatever means they wish, so long as the restrictions are applied consistently to every individual in the state and do not discriminate based on race, sex or age (above 18).

There is no explicit constitutional right to vote like there is with free speech or due process.

Saint Cad
08-28-2005, 07:05 PM
That analysis is not completely accurate. Take for example Brown v. Board of Education. A state is not required to provide a free public education, but if it does (and every state does), then it is a property right and protected by the 5th and 14th Amendment. Thus one could argue that the state creates the right to a driver's license simply by offering it.
That is incorrect as you should well know. What the state may not do upon having granted a privilege is withhold that privilege once granted without proper application of due process. Nor (in general) may a state engage in discriminatory behaviour in provision of the privilege when such discrimination draws a line on the basis of race. It does not in any way create a right out of the privilege.

Directly from Brown v. Board
(c) Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.

So public education is not a priviledge, it is a right. So the question is, what distiguishes a driver's licence from public education that make one a mere privilege and the other a right?

Mr2001
08-28-2005, 07:10 PM
Correct. They are, in fact, both about the same - both privileges. States have the option to restrict the right to vote with whatever means they wish, so long as the restrictions are applied consistently to every individual in the state and do not discriminate based on race, sex or age (above 18).

There is no explicit constitutional right to vote like there is with free speech or due process.
The 26th Amendment states: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

Of course, since driving is a right even though some people refer to it as a privilege, I suppose voting could be a privilege even though the Constitution refers to it as a right. ;)

Neurotik
08-28-2005, 08:09 PM
The 26th Amendment states: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."
There are rights and then there are rights. States can take away your right to vote, so long as it's not discriminating against a protected class. Not much of a right.
Of course, since driving is a right even though some people refer to it as a privilege, I suppose voting could be a privilege even though the Constitution refers to it as a right.
:rolleyes:

By your silly definition then, making a U-Turn at an intersection is a right.

Mr2001
08-28-2005, 08:19 PM
There are rights and then there are rights. States can take away your right to vote, so long as it's not discriminating against a protected class. Not much of a right.
It's as much of a right as, say, the right to bear arms. I'm willing to call that a right, even though it's denied to felons and there are limits on where it may be exercised. Are you?

By your silly definition then, making a U-Turn at an intersection is a right.
Yeah, I suppose it is, at least in this state. Do you think I merely have the "privilege" to make a U-turn where it's allowed, and if so, how is that any different in practice from having the right to do so?

Neurotik
08-28-2005, 09:25 PM
It's as much of a right as, say, the right to bear arms. I'm willing to call that a right, even though it's denied to felons and there are limits on where it may be exercised. Are you?
Bad example, since I believe there is some dispute as to whether the Second Amendment offers an individual right or a state right.
Yeah, I suppose it is, at least in this state. Do you think I merely have the "privilege" to make a U-turn where it's allowed, and if so, how is that any different in practice from having the right to do so?
As I said, there are rights and then there are Rights. You have the right to make a U-Turn where permitted in the broadest sense of the word. Compare, in practice, with your right to distribute flyers you print up on your home computer to people on a street corner.

One is done at the whim of the legislature with nothing to stop them from banning it except the constituency getting annoyed with them and voting them out. If the appropriate legislature banned U-Turns and you sued to get it overturned, the onus is pretty much going to be on you to justify it.

The latter example is protected by the highest laws of the country and there's very little the legislature can do to stop you from doing it, short of amending the constitution. If the legislature banned it, the onus would be on them to justify why they should be permitted that sort of censorship.

If you want to state that you have a right to drive, provided you can pass whatever regulations the legislature chooses to set, then that's technically correct. But let's not get it confused with a Right.

Saint Cad
08-28-2005, 10:28 PM
If you want to state that you have a right to drive, provided you can pass whatever regulations the legislature chooses to set, then that's technically correct. But let's not get it confused with a Right.

So you're saying that the right to drive is not an unenumerated right protected by the Ninth Amendment? But let's say for the sake of argument you're correct and driving is a priviledge and not a right. You still do not give up your 4th Amendment rights protecting you from personal searches or having your car searched unless:
A) There is a warrant
B) There is probable cause
c) You are being arrested

So why should all of this change at a sobriety checkpoint?

Mr2001
08-28-2005, 11:09 PM
Bad example, since I believe there is some dispute as to whether the Second Amendment offers an individual right or a state right.
In other words: "Yes, Mr2001, it's a right, even though some people argue about what type of right it is. I guess even things that are sometimes restricted can still be rights."

As I said, there are rights and then there are Rights.
And as I said, driving is a right. Feel free to assign your own meaning to the capitalized form of the word, since you're the only one using it.

You have the right to make a U-Turn where permitted in the broadest sense of the word. Compare, in practice, with your right to distribute flyers you print up on your home computer to people on a street corner.
I don't think you'd get very far trying to distribute flyers on a street corner when the city works department is trying to repave that sidewalk, for instance. You might even go to jail for interfering with their work if you refuse to get out of the way. Does that mean you have no right (or no "Right") to distribute flyers on a street corner, or simply that this right--like any other--can be restricted when it's reasonable and necessary?

If you want to state that you have a right to drive, provided you can pass whatever regulations the legislature chooses to set, then that's technically correct.
Yes, thank you. Imagine all the time you could've saved just by skipping to this bit. ;)

Cunctator
08-29-2005, 02:34 AM
BTW, any idea what they mean by "Bus-based RBT stations using highly visible 'Booze Buses' largely replaced car-based stations"?When police set up RBT (Random Breath Testing) checkpoints, they usually do so in one of several ways:
- a single police car on the side of the road, with the police officers waving randomly selected cars over for the test; or
- as above, but with perhaps 2-3 police cars; or
- as above, but with a booze bus, 5-6 officers and a larger area on the side of the road where perhaps 7-8 drivers can be tested at once.

Here are some pictures of booze buses from the Western Australian police force. (http://www.nachohat.org/gallery/police_booze_bus)

Fredescu
08-29-2005, 05:36 AM
Unless checkpoints are going to be set up at every street corner, or all your city's bars and Christmas parties are on an island with only one bridge connecting it to the mainland, the checkpoints are inherently avoidable.
Being avoidable by luck is different to being avoidable through cleverness and learning about them in advance. I don't claim that everyone going from A to B with a checkpoint in the middle will have to be tested. With the most common implementation I see, it is even possible to drive straight by one and avoid it. Often a police officer will wave you into a queue marked out by witches hats. If the queue is full they do not wave anyone in. Stations tend only to stay in one spot for an hour or so. From week to week they choose different locations, including side streets. Learning about them in advance is quite a difficult prospect.

"Yes, Mr2001, it's a right, even though some people argue about what type of right it is. I guess even things that are sometimes restricted can still be rights."
If prior to receiving (or renewing) your drivers license, you were told one of the 'restrictions' of the license was that you may be stopped at a DUI checkpoint, that would be ok?

Big Whistle
08-29-2005, 04:14 PM
So you're saying that the right to drive is not an unenumerated right protected by the Ninth Amendment? But let's say for the sake of argument you're correct and driving is a priviledge and not a right. You still do not give up your 4th Amendment rights protecting you from personal searches or having your car searched unless:
A) There is a warrant
B) There is probable cause
c) You are being arrested

So why should all of this change at a sobriety checkpoint?
As I have stated before you do NOT have such a right. The Fourth Amendment does not, neither by its terms, nor by the case law on point, provide you with any such right. You are, under the Fourth Amendment, protected solely from "unreasonable" searches and seizures. A roadblock isn't a search, anyway, it is a seizure. And you are subject under the Fourth Amendment to any number of potential warrantless seizures.

Please stop misrepresenting the US Constitution in your efforts to argue this point.

Mr2001
08-29-2005, 04:21 PM
If prior to receiving (or renewing) your drivers license, you were told one of the 'restrictions' of the license was that you may be stopped at a DUI checkpoint, that would be ok?
Well, that could lessen the issue of limiting drivers' freedom. I don't know how practical it would be to start a policy like that, though. My license doesn't need renewal for another 3 years, so there'd be no need or opportunity for me to consent to being stopped at a checkpoint until then, but I don't know how a police officer would be able to tell me apart from someone who has consented to it without actually stopping me to check my license.

On the other hand, it might not resolve the issue. It wouldn't be OK to ask people to waive their rights to free speech in order to exercise their right to drive, for example; why should it be OK to ask them to waive their rights to be free from unreasonable searches?

My state already has an "implied consent" law, under which anyone who receives a driver's license implicitly consents to taking a breath or blood test, but only "if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug" - i.e. they need a reason to suspect that the test will find something.

Big Whistle
08-29-2005, 05:04 PM
Mr. 2001, you are quite incorrect in your understanding of what is a "right," at least in the sense we are discussion (that is, the responsibility of government to private individuals). A "right" is a power inherent in a person and incident upon another (in our case, the state). If you do not have to do anything to have the power, you have a "right." An example can be found in the Fouth Amendment, which preserves to the people of the United States the "right" to be secure against unreasonable searches and seizures. You don't have to do anything to obtain that power; it is inherent in you. You have a "right" to speak freely; you don't have to go get a "speak freely" lisence from the United States in order to do so.

A privilege, by comparison, is a particular benefit enjoyed by a person beyond the common advantages of other persons. A foreign ambassador is privileged in that he cannot be arrested to answer most civil and criminal charges. He doesn't get this by a right; it is, instead, a privilege he has by virtue of his status. And it can be waived, either by the country from where he hails, or by the country in which he is resident (though the latter might cause an international incident and have questionable recognition).

The legal ability to drive upon the roads of a state is not a "right." You don't have the legal capacity to force the state to let you drive inherent in your person. States put up numerous barriers and qualifications to driving. They also take away the ability to drive legally for a variety of reasons, though they must follow due process to do so. You must demonstrate competence before being lisenced. In many states, you must show that you were properly instructed, especially if you intend to drive under the age of 18. You are restricted as to the class of vehicles you may drive absent further testing. If you do any of a number of silly things, you can have the lisence revoked or suspended, including relatively unrelated and trivial things like failure to pay child support or possession of drug paraphernalia. And, as I stated above, there is no inherent, legal reason a state couldn't simply suspend all driving on its roads, if it felt it necessary. The practical aspects guarantee it wouldn't be something any state would do, of course.

Now some here have chased the red herring of being able to force the state to let one drive upon passing the requirements as indication you do have a right to drive. But this misstates the situation. The state is in many cases obligated to offer you due process, especially if you are going to lose life, liberty or property. This is not a right to drive, but rather a right to be treated fairly in the case of obtaining a lisence to drive. The difference is simple: if the state wished, it could raise the driving age to 25, and those who are 16 to 25 would not be able to claim a constitutional violation of their rights, except, at best, on the basis of invidious age discrimination, which likely would not succeed.

Please be advised that there is no case from the Supreme Court that would require the state to issue you a lisence should you fill the forms out, etc. Bell v. Burson, 402 U.S. 535 (1971) is inapposite, since it involved taking a lisence away that had already been granted. Still, this would all be irrelevant, because the right to due process is not the same as a right to drive, for the reasons elucidated.

You have no "right" to drive. If you think you do, cut up your lisence, refuse to renew it, and drive around without one. Preferably, drive right up to an officer of the law and show him your lack of lisence. See how far your "right" gets you.

Mr2001
08-29-2005, 06:07 PM
A "right" is a power inherent in a person and incident upon another (in our case, the state). If you do not have to do anything to have the power, you have a "right."
So then voting isn't a right, even though the Constitution explicitly calls it a right? That doesn't seem like a very useful definition. Got any better ones?

Big Whistle
08-29-2005, 06:11 PM
Directly from Brown v. Board
(c) Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.

So public education is not a priviledge, it is a right. So the question is, what distiguishes a driver's licence from public education that make one a mere privilege and the other a right?
First of all, citing to a headnote is really not a very good idea. Headnotes aren't law. ;)

But admittedly that headnote parrots language from Chief Justice Warren in the case. Unfortunately for your argument, the language is obiter dicta. Since the Supreme Court resolved Brown on the equal protection issue, it didn't need to arrive at a determination of whether or not a right had been denied. And it doesn't require a determination that education in Kansas is a "right" to determine that providing education in a "seperate but equal" fashion is a denial of equal protection; inded the language in the opinion addressing that issue makes no reference to the "right" supposedly found just five paragraphs earlier.

And in light of the decision of the Court in San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), it is hard to support the concept that there is a "right" to education, even in states that provide for public education. Even after quoting the paragraph in Brown from which your reference came, the Court simply would not go so far as to find a protected "right" guaranteed by the Constitution, either explicitly or implicitly. Certainly, if the concept that public education, once provided at all, becomes a "right" were valid, the Court would have had to directly address the issue of a denial of that right through the funding scheme in the State of Texas.

So no, in my opinion, the law as it stands doesn't create a "right" simply because it provides for a public program, whether it be education or driving lisences.

Big Whistle
08-29-2005, 06:14 PM
So then voting isn't a right, even though the Constitution explicitly calls it a right? That doesn't seem like a very useful definition. Got any better ones?
Sorry, but that doesn't wash, either. The state can't prevent me from voting. It can't lisence the action of voting. It can register me, but I don't have to show any qualifications, other than age, to be able to vote. Not the same thing at all, as you quite well know.

You can't call the dog black just to try and say that it looks the same as the panther.

Big Whistle
08-29-2005, 06:15 PM
I hate the lack of edit features.

The "right" to vote, of course, is not absolute; there are ways the state can limit it, but subject to substantially more protection than my privilege of driving.

catsix
08-29-2005, 06:31 PM
Has anyone ever tried to claim that the 'You will give us blood, breath or urine or we will take away your license' routine is contrary to the right not to incriminate yourself?

Random
08-29-2005, 06:40 PM
Has anyone ever tried to claim that the 'You will give us blood, breath or urine or we will take away your license' routine is contrary to the right not to incriminate yourself?

Yes. Not my area, so I can't give you a cite offhand, but people have tried this. It doesn't even come close to working in a drivers' license situation, for the reason under discussion. (The state can take your privilege to drive away for basically any reason, because it's not a right.) You refuse to take the breath test, your license is gone, with no criminal due process required as a prerequisite.

But beyond that., it's my understanding that persons have been compelled to give up their DNA in non-driving, criminal situations. I'll defer to Bricker on this, though. It's his area, not mine.

Mr2001
08-29-2005, 06:44 PM
Sorry, but that doesn't wash, either. The state can't prevent me from voting.
This is too funny. Have you ever tried voting without being registered?

Campion
08-29-2005, 08:47 PM
Has anyone ever tried to claim that the 'You will give us blood, breath or urine or we will take away your license' routine is contrary to the right not to incriminate yourself?To add to Random's post, I'll simply say that the courts that have considered the argument have rejected it on the ground that the privilege against self-incrimination is limited to "testimonial" or "communicative" evidence. Schmerber v. California (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=384&invol=757), 384 U.S. 757, 761 (1966) ("We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.") (footnote omitted).

So to the extent your question is, can you be forced to provide urine, blood, or breath samples upon a showing of probable cause (i.e., a police officer pulls you over and believes you've been drinking), the answer is yes, providing those samples does not violate your privilege against self-incrimination. (And all the other caveats, like probable cause, etc., that go to other constitutional protections.)

Monty
08-29-2005, 08:59 PM
This is too funny. Have you ever tried voting without being registered?
The state has a legitimate interest in ensuring that you are entitled to vote in the jurisdiction in which you are attempting to vote. Once you have established, per the governing laws, that you are so entitled then the state cannot deny you this right absent your conviction for a disqualifying offense.

Mr2001
08-29-2005, 09:48 PM
The state has a legitimate interest in ensuring that you are entitled to vote in the jurisdiction in which you are attempting to vote.
Indeed. Just like their legitimate interest in ensuring that I'm capable of driving safely and thus entitled to drive.

Saint Cad
08-29-2005, 10:26 PM
First of all, citing to a headnote is really not a very good idea. Headnotes aren't law. ;)

But admittedly that headnote parrots language from Chief Justice Warren in the case. Unfortunately for your argument, the language is obiter dicta. Since the Supreme Court resolved Brown on the equal protection issue, it didn't need to arrive at a determination of whether or not a right had been denied. And it doesn't require a determination that education in Kansas is a "right" to determine that providing education in a "seperate but equal" fashion is a denial of equal protection; inded the language in the opinion addressing that issue makes no reference to the "right" supposedly found just five paragraphs earlier.

And in light of the decision of the Court in San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), it is hard to support the concept that there is a "right" to education, even in states that provide for public education. Even after quoting the paragraph in Brown from which your reference came, the Court simply would not go so far as to find a protected "right" guaranteed by the Constitution, either explicitly or implicitly. Certainly, if the concept that public education, once provided at all, becomes a "right" were valid, the Court would have had to directly address the issue of a denial of that right through the funding scheme in the State of Texas.

So no, in my opinion, the law as it stands doesn't create a "right" simply because it provides for a public program, whether it be education or driving lisences.


To be honest, we studied Brown in the context of court cases relating to special education. It was presented as the case that recognized free public education to all children as a property right that cannot be denied under the 5th amendment (due process) and the 14th Amendment (equal protection). Of course we never studied San Antonio School District v. Rodriguez

Saint Cad
08-29-2005, 11:57 PM
And in light of the decision of the Court in San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), it is hard to support the concept that there is a "right" to education, even in states that provide for public education. Even after quoting the paragraph in Brown from which your reference came, the Court simply would not go so far as to find a protected "right" guaranteed by the Constitution, either explicitly or implicitly. Certainly, if the concept that public education, once provided at all, becomes a "right" were valid, the Court would have had to directly address the issue of a denial of that right through the funding scheme in the State of Texas.

I just read the case. It's interesting that this court that was so dismissive of education as a fundamental right was able to conceive of abortion as a privacy right that was protected by the Ninth Amendment.

Big Whistle
08-30-2005, 07:33 AM
Indeed. Just like their legitimate interest in ensuring that I'm capable of driving safely and thus entitled to drive.
No no no no no.

Not that I should bother with you on this; you've obviously chosen to close your mind to what is being said.

But there is a difference between signing up to vote and proving that you are qualified to drive. One can be taken away (the ability to drive legally), the other can't (voting). You persistently ignore this difference in attempting to treat each the same.

In the absence of something concrete in return from you, I'll just ignore future efforts on your part to ignore what I say as a response. At least SaintCad is engaging in discussion, not the bulletin board equivalent of sticking one's fingers in one's ears and saying, "I can't hear you."

Big Whistle
08-30-2005, 07:36 AM
I just read the case. It's interesting that this court that was so dismissive of education as a fundamental right was able to conceive of abortion as a privacy right that was protected by the Ninth Amendment.
<chuckle> Well, consistency hasn't ever been one of the strong points of the Supremes. ;)

When I was in law school in 1984, I was offered the chance to do a research paper on a constitutional law topic. I got all excited at the time about attempting to establish a right to bilingual education. I ran smack dab into the stone wall of decisions essentially denying that education was a fundamental right, or even a right of substantial value. I decided to write about something more likely to succeed. :D

Monty
08-30-2005, 07:44 AM
Indeed. Just like their legitimate interest in ensuring that I'm capable of driving safely and thus entitled to drive.
Once you prove to the satisfaction of the government that you are who you are and that you are of age to vote, the government cannot--absent convicting you of a crime--deny you the vote nor can the government dictate to you how you may exercise that vote. In other words, the government cannot tell you who to cast you vote for. On the other hand, it can and does dictate to you a number of restrictions on how you exercise your privilege of driving.

Monty
08-30-2005, 07:46 AM
Indeed. Just like their legitimate interest in ensuring that I'm capable of driving safely and thus entitled to drive.
Response #2 to this comment:

So you admit that the government has a right to monitor your use of the privilege of driving? You admit that it's okay for the government to check on you, albeit randomly, for your current qualification (not under the influence) to be operating a motor vehicle?

Neurotik
08-30-2005, 08:21 AM
In other words: "Yes, Mr2001, it's a right, even though some people argue about what type of right it is. I guess even things that are sometimes restricted can still be rights."
Fair enough. To you, any legal action is a right. So long as you're aware that it's a pretty useless and redundant definition and renders the general idea of rights so broad as to become useless, I'm not going to argue over it.

Bricker
08-30-2005, 08:38 AM
I just read the case. It's interesting that this court that was so dismissive of education as a fundamental right was able to conceive of abortion as a privacy right that was protected by the Ninth Amendment.

Neither Roe nor Casey rests on the Ninth Amendment.

groman
08-30-2005, 01:38 PM
But there is a difference between signing up to vote and proving that you are qualified to drive. One can be taken away (the ability to drive legally), the other can't (voting). You persistently ignore this difference in attempting to treat each the same.


A minor nitpick, but the right to vote is a much easier right to lose in many states than the right to drive. Just check out some state laws about ex-cons voting. In some states, committing ONE felony bars you from voting for the rest of your life. Not even multiple DUIs will make you lose your right to drive for the rest of your life.

Saint Cad
08-30-2005, 07:07 PM
I just read the case. It's interesting that this court that was so dismissive of education as a fundamental right was able to conceive of abortion as a privacy right that was protected by the Ninth Amendment.

Neither Roe nor Casey rests on the Ninth Amendment.

Really? Roe v. Wade is based in part on Griswold v. Connecticut which deals with unenumerated rights. Actually, Roe v. Wade and the right to privacy is based on a few amendments including the Ninth.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

However, Roe v. Wade could be said to boil down to the Ninth and Fourteenth Amendments

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Although Justice Blackmun chooses to justify his ruling under the Fourteenth Amendment, it seems that the using the Ninth is equally acceptable. In fact, IMHO Blackmun's use of relating "personal liberty" to the Fourteenth Amendment seems an error. I suspect that this should be read as a unenumerated right protected under the Ninth Amendment and is thereby protected from state interference under the Fourteenth Amendment since Texas had no "compelling interest" in continuing the pregnancy.

Mr2001
08-30-2005, 08:45 PM
But there is a difference between signing up to vote and proving that you are qualified to drive. One can be taken away (the ability to drive legally), the other can't (voting). You persistently ignore this difference in attempting to treat each the same.
No, you're just ignoring the facts. The right to vote can be suspended or revoked entirely in many (most?) states if you're convicted of certain crimes, as groman pointed out.

Once you prove to the satisfaction of the government that you are who you are and that you are of age to vote, the government cannot--absent convicting you of a crime--deny you the vote nor can the government dictate to you how you may exercise that vote. In other words, the government cannot tell you who to cast you vote for. On the other hand, it can and does dictate to you a number of restrictions on how you exercise your privilege of driving.
Ah, but the government does tell you how you may exercise the right to vote. They don't tell you who to vote for, just like they don't tell you what destination to drive to, but they do tell you where and when you may vote and how you must behave while you're in a polling place. It's physically a less complicated act than driving, so there are fewer restrictions, but I believe they're comparable.

So you admit that the government has a right to monitor your use of the privilege of driving? You admit that it's okay for the government to check on you, albeit randomly, for your current qualification (not under the influence) to be operating a motor vehicle?
Only if they have a reason to believe I've become less qualified to drive.

People who are driving erratically are more likely to be drunk than the average driver, and so are people leaving a bar, so I don't mind testing them. But being at a certain intersection or being the 5th car in line doesn't make me any more likely to be drunk than anyone else.