Your papers please- DUI checkpoints now general purpose dragnets.

Great Debates
141

I think that’s talking about a different definition of privilege. For example, conversations between you and your attorney are generally exempt from subpoena or discovery. These conversations are “privileged.”
Note I’m not saying with certainty that there is a legal distinction between driving being a right and driving being a privilege, though I am fairly hesitant to say that driving is a right that can only be taken away via due process.

Don’t some states have “administrative suspensions” of a license for refusing a breathalyzer? Doesn’t that suggest a much lower consideration of driving?

142

That would fall into this part:
“A power of exemption against or beyond the law. It is not a right but, rather, exempts one from the performance of a duty, obligation, or liability.”

You’re exempt from having to produce documents deemed privileged.

143

Once piece of advice I’d give is don’t necessarily trust everything you read on the internet. Especially from lawyers who want you to hire them.

“In a forfeiture case, the Commonwealth bears the burden of establishing, by a preponderance of the evidence, that a nexus exists between the pertinent unlawful activity and the property subject to forfeiture; when that burden is sustained, the burden of proof shifts to the property owner to disprove the evidence or establish statutory defenses to avoid forfeiture.” Comm. v. 1992 Cheverolet, 844 A.2d. 583. You can also check out 42 Pa.C.S.A. § 6801.

The only thing even remotely like what your article is talking about, that I could find, is this section: “No property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner. Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of The Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act.” So cash and firearms found “in close proximity” to drugs are presumed to be derived from selling the substance. The owner, of course, can overcome that presumption.

Note: I am not going to do this for every State, every story on the internet, or the rest. Nor am I going to waste any more time with forfeitures which is merely a hijack of this thread. I’m not here to defend everything law enforcement does.

144

I’m not sure what your point is, but yes - for example, don’t abide by the state-imposed constraint regarding stopping at red traffic lights and your freedom to drive may be taken away (temporarily, I guess). Is that wrong?

145

I’ve never done asset forfeiture, but my understanding is that here in IL it is closer to what I said than you did. When I get a chance I’ll see if I can ascertain how off-base my recollection is.

146

My point was that your definition for what constitutes a privilege is, IMO, incorrect.

147

725 ILCS 150/1 et. seq. (that’s the drug forfeiture one).

148

Yeah - just glanced at it, and it looks as tho it says state needs probable cause to seize, after which owner must prove by preponderance of evidence that it was not subject to forfeiture.

Also believe there is - or recently was - a S.Ct. case in the IL stature. Alvarez v. Smith?

149

"Instead, section 9 of the Forfeiture Act (725 ILCS 150/9 (West 2000)) governs this action. The State carries the initial burden of demonstrating probable cause for the forfeiture of the real property or money recovered from illegal drug activities. To file a complaint to begin judicial forfeiture proceedings, section 9 simply requires that “after a review of the facts surrounding the seizure,” the State’s Attorney in the relevant jurisdiction be “of the opinion that the seized property is subject to forfeiture.”

The complaint must allege facts that provide reasonable grounds for the belief that a nexus exists between the currency or property and illegal drug activity."

“When a complaint has passed the pleading stage, the State, in its case in chief, must establish whether probable cause exists for the forfeiture of property such as a house or vehicle that is believed to be purchased with drug proceeds, an analysis that depends on the totality of the circumstances. Although the State is not required to tie the property seized to a specific drug transaction, a suspicion of general criminal activity is not enough; “the government must have probable cause to believe that the property is connected specifically to drug activities.”

People v. $280,020 U.S. Currency 372 Ill.App.3d 785, 866 N.E.2d 1232 (2007)

Federal Case:

“Civil forfeiture standards are now subject to the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. § 983(c)(1). CAFRA heightens the government’s evidentiary burden in civil forfeitures-the government must demonstrate by a preponderance of the evidence FN4 that the property sought is subject to forfeiture. See id. (“In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property … the burden of proof is on the Government to establish, by a preponderance of the evidence, that property is subject to forfeiture[.]”). Furthermore, § 983(c)(3) provides that “if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” Id.”

U.S. v. Funds in Amount of Thirty Thousand Six Hundred Seventy Dollars
403 F.3d 448 C.A.7

150

The State needs probable cause to seize, and then establish that probable cause in Court with a Complaint and presentation of evidence. If the State meets it’s burden, then it does shift to the claimant to establish by preponderance of the evidence, that it isn’t forfeitable.

This goes for the In Rem proceedings and not the civil forfeiture proceedings.

151

It seems to be it’s evident in the link provided in the OP, where a “sobriety checkpoint” **was used largely for arresting people for reasons unrelated to drunk driving. **

If “sobriety checkpoints” are being used largely to arrest people for reasons unrelated to drunk driving then, in fact, you’re already sliding down the slope.

Suspended licenses and outstanding warrants aren’t in “plain sight.”

152

Alvarez v. Smith, 130 SCt 576 dismissed as moot.
Apparently property can be seized without a warrant and held for 5 months before initiating judicial proceedings.

From the IL Act:
Sec. 8. Exemptions from forfeiture. A property interest is exempt from forfeiture under this Section if its owner or interest holder establishes by a preponderance of evidence that the owner or interest holder: …

Sec 9G. The State shall show the existence of probable cause for forfeiture of the property. If the State shows probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant’s interest in the property is not subject to forfeiture.

I forget - are we debating something here? Doesn’t this say in IL the claimant/owner bears the burden of proving the property ought not have been seized? After the state has been hanging onto it for more than 5 months?

153

I have not defined privilege in this thread.

154

Ah, now that is a good point. And to me, a surprising one. It’s kinda the other way around here in the UK - the police will pull you over for a trivial speeding transgression because it gives them a chance to perform a breath test - because drink driving is considered the big target.

But yes, it does sound like the slippery slope is already being trod in the case you’re describing.

155

[hijack]
Yeah, but what constitutes “probable cause”? AIUI, a roach in the ashtray does, (transporting illegal drugs), and can get your car seized in Oklahoma.

Did you realize that they’ll work with banks who hold outstanding loans against cars, but you’re out of luck if it’s just a mechanic’s lien?

Had a brother-in-law that got screwed out of a very large chunk of money because a car he had a lien on (long story) got seized for a roach in the ashtray and the folks who owned the car didn’t have the money to prove the car was innocent.

The drug forfeiture laws are totally bullshit.
[/hijack]

I’ve got no real problem with DUI checkpoints in theory, but I do agree that they should be checking for DUI, not using these as a general net to catch any-and-everyone who comes through.

Got a bong in plain sight? OK, they can’t really ignore that, now can they. If you’re that stoned, you shouldn’t be driving anyway.

There’s supposedly a faint smell of marijuana or the driver “looks funny”, so they use that as an excuse to call dogs and search the car, then bust you for a couple of joints? Bullshit.

I’m not too sure about running ID checks on everyone, either. If I’ve understood correctly, they have to have at least “reasonable suspicion” to do a Terry stop. Where’s the “reasonable suspicion” here - that you’re driving down the road they decided to set a checkpoint on?

I think there is a slippery slope here, and I think we’re sliding down it, even if it’s not very far yet.

156

Here in the great State of Washington, I’m almost certain that our Supreme Court has disallowed random checkpoints. At least in the 45 years I’ve lived here I have never heard of the state running one. (Except in one instance which I’ll get into in a moment.)

There is a kerfuflle going on right now about the U.S. Border Patrol setting up checkpoints at other locations than a border crossing, to check for illegals. (Or, as they’re now referred to, “Undocumented Democrats” :D) And in this case at least one sherriff’s department has notified all concerned that they willl not assist the Border Patrol in any way in these operations. In my own case, I think if I were stopped in one of these operations and asked for identification I would tell them that I did live in Nazi Germany once, but moved our because I didn’t like it, and if they want to arrest me go ahead. No need to mention that I was four years old at the time.

Anyway, about the checkpoint mentioned earlier. Back in the antedeluvian days of 1967 or so, the State of Washington issued all new vehicle licenses once a year only, requiring them to be displayed on January 1st of each year. This, as you might expect, caused a huge run on the DOT offices towards the end of each December.

At that time I was working for Boeing on the SST (I have lived, I tell you!) and was in a car pool that parked in one of the big Boeing parking lots surrounding the Boeing Development Center in South Seattle.

The first work day of the new year the State Patrol decided that it would be a splendid idea to have a couple of patrolmen standing at the entrances to the lots, checking to see that all had their new licenses. Well, as traffic was always creeping bumper to bumper at these lot entrances, this instantly caused a mile long backup, delaying arrival at work by almost a half hour, so everyone was late that day.

Everyone was pretty pissed about this, so (and I admit, I was one of the instigators of this), almost everybody involved in this immediately called the State Patrol to complain bitterly. I guess their lines were pretty well tied up that morning - the lady I finally got thru to sounded very harrassed. And the Patrol never did anything like that ever again.

One of the few times in my life that I’ve been able to strike a blow for Liberty.

157

Bengangmo has already made some excellent points regarding RBT (Random Breath Test) checkpoints in Australasia. Public support for them is as near to 100% as to make no real difference, and I think most people here take the view that their collective right to safer roads far outweighs an individual’s “right” not to be inconvenienced for 30 seconds by an RBT.

In short, there’s no “slippery slope” here. The police can stop your car for absolutely no reason and breathalyse you, and it’s been that way for at least 20-odd years. And it hasn’t morphed into “Let’s stop random people’s cars and go through them looking for drugs or see if there’s any outstanding warrants on the passengers”.

Evidently there’s some massive cultural differences at work here from the sounds of it, though. But from this part of the world, it’s frankly baffling that anyone could have a problem with RBT checkpoints.

158

This is the same conclusion I’ve arrived at. Random checkpoints just seem to do the job in other places, but in the case described here, it sounds like there was some hidden agenda, dressed up as a campaign against DUI (or at least that people are concerned or convinced there was).

Are the police in America just inherently less trustworthy than elsewhere?
(that’s an earnest question, not a potshot)

Of course nothing is perfect, and I’m sure counterexamples can be found, but my experience of the police here in the UK and to a limited extent, in some other EU countries, there doesn’t seem to be quite such a pressing and overwhelmingly general need to constrain them from becoming the bad guys.

159

Believe me, they will hassle you even if what you are doing is legitemate … I was traveling a few months ago rather late on a friday, and pulled into a rest area and was taking a nap in my car and got rudely awoken by a cop accusing me of being drunk. It was only midnight, and in NY state in general the bar closing time is 2 am … I was pulled in for much less than the 2 hour limit, and a nap is well within proper use of a rest area. Being hassled for taking a short nap is stupid, when they should be looking for people actually driving unsafely. The only ‘open beverage container’ that one will find in my car is a bottle of water, and he even sniffed that … I suppose he was looking for vodka…:rolleyes:

160

I take that back. I reread the post where I thought you had and it did not say what I thought it said.