Actually, methinks Realhoops hit the distinction nail on the head - stripping a privilege from someone is not a criminal punishment, but a civil one. The practical effects of the distinction are:
there is a lower standard of proof required before your license can be revoked/suspended (preponderance of evidence v. beyond a reasonable doubt);
Loss of license can be imposed in addition to (and in separate proceedings from) criminal punishment; and
A license may be revoked/suspended without any actual evidence of wrongdoing - e.g. at least in some states you may have your license suspended if you refuse to take a BAC test - even if DUI charges are never made against you, much less proven.
I may very well be wrong here, but IIRC the suspension for refusal to take a BAC test is automatic - IOW no due process. I really think that can’t be right, but that’s what my brain is telling me.
So, given these practical distinctions between privilege and right, should driving be a privilege or a right?
The law is “implied consent” - by operating an automobile on a public road, you are consenting to BAC testing on demand. By refusing to take a test, one breaks the terms of the license, whereupon it ceases to exist.
And, yes, CA Supremes have upheld “sobriety checkpoints” - random stops without cause, to administer field sobriety checks. Don’t know if they would actually take a blood sample without cause, but they will do the stops.
Contractual obligation is a way of acquiring rights. My paying for the service gives me the right to demand the service.
I picked a private sector example because it offered a sharper delineation. If you were looking for a government example, I would say the government allowing you to eat pretzels is a right. The government deciding to build a park in your neighborhood is a privilege that they are bestowing on you.
Sobriety (drugs or alcohol) as it relates to ones safety while driving is certainly a valid reason to strip someone of thier lisence.
What I meant was the government taking away driving rights/priviledges strictly as a punishment. This is the case when someone is caught with marijuana in ones home and looses their driving license as a punishment, IMO.
Also, the courts can take away a driver’s license for a year for anyone caught using a fake ID. No one is making the argument these people are unsafe drivers, the lisence revoke is strictly a punishment that doesn’t cost the state any money.
Where does this happen? I’ve seen lots of cases where vehicles are taken away from people caught distributing drugs, but I’ve never heard of licenses being taken away for possession of drugs anywhere. Do you happen to have a link or anything?
Additionally, in the forfeiture scenario the courts consistently take pains to try to distinguish between “punishment” and “forfeiture”; punishment is considered a criminal term and forfeitrue is a civil term, usually. The actual difference between the two is perhaps more semantic than anything else, but …
HH, the due process question is not the implied consent issue, but whether the cop must demonstrate to a court that the driver refused to submit to the BAC test before the license is yanked.
Normally speaking, the cop would have to get up on the stand and say, “yep, I told her to take the breathalyzer, but she refused,” and the court would have to determine whether or not that actually happened.
Without due process, the cop could take the license from the driver on the spot. And whether that is allowed is what I’ve heard some stories about, but admittedly I know little about this issue.
Privilege is a right granted with more restrictions.
Constitutional rights are inalienable, which means no one can take them away from anyone. Everyone has constitutional rights but not everyone are allowed to drive.
That don’t work, either, X. Constitutional rights most certainly can be taken away from people. In many states, for example, felons cannot vote - even if their crime did not involve election fraud.
Well, IzzyR, that confirms my suspicion that we view and define rights quite diffeently, so it makes little sense for me to quibble with you over whether driving should be considered a “right”, since your use of that term is so much broader than my own.
“A right to eat pretzels” trivializes what should be fundamental.
May i hazard an opinion that voting is not a right but a privilege as well. It is a privilege granted to law abiding property owning citizens. If it were inalienable (such as our right to life, liberty and the persuit of loose women …er happiness) then anyone can vote, including aliens, illegal or otherwise.
I disagree. Not that I think pretzels are all that important. But the right to eat pretzels is not a distinct right in and of itself. It is part of a larger right to essentially do mind my own business and do whatever I want. Pretzels are merely one example. If the government would start telling you what you can or can’t eat (without some enormously compelling interest) I would see this as an infringement on your basic freedom to make your own decisions about yourself. It would take a much more compelling interest for the government to interfere with this right than it would to decide not to give you some sort of privilege.
Um, all three of those ‘inalienable rights’ can be taken away: Life by capital punishment, liberty by imprisonment, and pursuit of hapiness by, well, by capital punishment or imprisonment.
And voting most certainly is a constitutional right, not a privilege.
Actually, Polycarp, since it is agreed that there should be a lower age limit on driving, I think there could be an upper one as well. I’m not saying revoke all licensces from people over 70 or whatever, but I’ve had too many run-ins with incompetent old people to not make me believe that there needs to be more rigorous testing when you get older. I’m not saying all old people suck at driving, nor do all teenagers, and I’ve run into plenty of incompetent people of all ages. However, I still think that since we restrict driving of the young due to age because of various physical characteristics and mental capacity, we should also start doing this for the older people.
I just skimmed through it and couldn’t find it, but does it say anywhere in the US Constitution that citizens have the right to free and unhindered travel through the country?
The law is “implied consent” - by operating an automobile on a public road, you are consenting to BAC testing on demand. By refusing to take a test, one breaks the terms of the license, whereupon it ceases to exist.
That sucks. It’s like I don’t have a choice ya’ know? You can have this, that, and this too, but if you do, you have do this and you haveto that. That’s Effed up.
[tangent]Actually, Reallhoops, the government on every level-city, county, state, and federal-can impound or confiscate your car without any proof whatsoever. Do a Google search for the subject with “louisiana” included. Many jurisdictions have a great desire to confiscate vehicles for damned near any reason you can imagine…without any practicable recourse. [/tangent]
Um, It’s not that I hate to be contrary, it’s just that I am.
Sua, the government doesn’t provide a damned thing that we don’t pay for, at least in this instance. In my state and county, gasoline in selling for around $1.40/gallon. Of that, $0.445 is taxes…taxes levied to pay for roads and maintenance. Which adds up to one hell of a lot of cash. Whenever I have to pay for something, it is no longer a privilege, it is my damned right. But with the Supremes eroding our rights as citizens and land owners, I can see how one might get confused.
The "right to travel’ is not guaranteed anywhere in the text of the Constitution, but it is one of the few rights that have been explicitly found in the unenumerated rights of the Ninth Amendment (and hence protected from unnecessary state abridgement by the Fourteenth).
The material quoted below is taken from a website which suggests that it is not found in the Constitution, but cites the lead case, Shapiro v. Thomson, which suggests that it is a Ninth Amendment right.
This site discusses the validity of durational residency requirements vis-à-vis the constitutional right to travel.
(I searched with several useful search engines for an online cite of the Shapiro case, with no results. Maybe one of our legal eagles can come up with material on it.)
well true enuf that certain rights are removed as punishment for unlawful behaivior but they were inherant to any person before a crime was commited. The old adage still holds, your rights end where your fist hits my nose. You actually forfeited those rights, not have them taken away.
In the case of voting and driving, you apply for these rights. There are set rules and regulations you must follow to maintain these rights and certain restrictions that must be followed to use these rights, making them both a privilege.
The constitution has ammendments to prevent descrimination from voting and desinfranchisement but nowhere does it affirmatively say that all people have a right to vote. It mentions it is the duty of every citizen to vote but not a right.
Now I did mention in the beginning that privilege is a right with more restrictions in it. I may have overstepped the bounds of logic by saying no one can take a right away from anyone. I was trying to express the difference between having a right which is what all people have and a privilege where only the qualified has the right.
I may have overstepped the bounds of logic by saying no one can take a right away from anyone. I was trying to express the difference between having a right which is what all people have and a privilege where only the qualified has the right.