Several Constitutional rights "suspended" This Weekend

[Double Naught Spy]

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

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

For the last query, your tax dollars at work.

[guruatbol]

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

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

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

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

Remember the goal is to find drunk drivers.

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

Mel

[Glockstar .40]

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

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

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

[44 AMP]

Who administers the blood withdrawal?

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

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

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

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

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

That's why they take blood samples.

[JimDandy]

Originally Posted by OuTcAsT

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

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

[btmj]

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

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

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

Jim

[OuTcAsT]

JimDandy Wrote;

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

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

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

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

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

[OuTcAsT]

btmj Wrote:

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

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

[JimDandy]

The ability to freely travel by any means is a right

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

The no fly list suggests otherwise.

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

[carguychris]

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

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

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

[JimDandy]

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

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

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

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

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

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

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

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

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

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

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

[Al Norris]

Originally Posted by JimDandy

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

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

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

Originally Posted by JimDandy

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

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

Which answers your next question, by the way.

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

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

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

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

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

[Al Norris]

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

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

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

[JimDandy]

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

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

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

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

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

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

[Frank Ettin]

Originally Posted by JimDandy

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

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

Originally Posted by JimDandy

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

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

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

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

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

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

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

[JimDandy]

No Frank, I got that they're giving a special status to the DUI checkpoints. What I don't get is how they're justifying it. Von Raab was justified apparently because the results weren't usable without permission. But the drivers are more than being removed from the road. They're also being prosecuted.

I can see the special interest being getting them off the road. But isn't the subsequent arrest and prosecution the general interest in crime control?

[Frank Ettin]

Originally Posted by JimDandy

No Frank, I got that they're giving a special status to the DUI checkpoints. What I don't get is how they're justifying it. Von Raab was justified apparently because the results weren't usable without permission. But the drivers are more than being removed from the road. They're also being prosecuted.

I can see the special interest being getting them off the road. But isn't the subsequent arrest and prosecution the general interest in crime control?

You really have to read the entire opinion carefully and in the context of the case being decided. The opinions say what they say, and in each opinion the Court has set out its reasoning, including the reasons for distinguishing one situation from another.

Remember also that every case is, at its core, a matter of deciding a particular dispute -- was the search reasonable; was this checkpoint a Fourth Amendment violation; etc. A court in deciding a case needs to reach a result in that particular case. The opinion explains how a court reached that result.

As the Court explained in Edmond a DUI checkpoint has a special status relating to its utility for immediately removing an impaired driver (a hazard) from the road. That is at the heart of why the search and seizure is reasonable for Fourth Amendment purposes. Once it passes Fourth Amendment muster, the fruits of the search and seizure may be used to prosecute any criminal acts identified.

In National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Court was looking at a particular, challenged drug testing program implemented by the United States Customs Service. As that particular program under scrutiny was designed and operated as described in the opinion (at 661 - 663, footnotes omitted):

...After an employee qualifies for a position covered by the Customs testing program, the Service advises him by letter that his final selection is contingent upon successful completion of rug screening. An independent contractor contacts the employee to fix the time and place for collecting the sample. On reporting for the test, the employee must produce photographic identification and remove any outer garments, such as a coat or a jacket, and personal belongings. The employee may produce the sample behind a partition, or in the privacy of a bathroom stall if he so chooses. To ensure against adulteration of the specimen, or substitution of a sample from another person, a monitor of the same sex as the employee remains close at hand to listen for the normal sounds of urination. Dye is added to the toilet water to prevent the employee from using the water to adulterate the sample.

Upon receiving the specimen, the monitor inspects it to ensure its proper temperature and color, places a tamper-proof custody seal over the container, and affixes an identification label indicating the date and the individual's specimen number. The employee signs a chain-of-custody form, which is initialed by the monitor, and the urine sample is placed in a plastic bag, sealed, and submitted to a laboratory. The laboratory tests the sample for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Two tests are used. An initial screening test uses the enzyme-multiplied-immunoassay technique (EMIT). Any specimen that is identified as positive on this initial test must then be confirmed using gas chromatography/mass spectrometry (GC/MS). Confirmed positive results are reported to a "Medical Review Officer," "[a] licensed physician . . . who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his or her medical history and any other relevant biomedical information." HHS Reg. § 1.2, 53 Fed.Reg. 11980 (1988); HHS Reg. § 2.4(g), 53 Fed.Reg., at 11983. After verifying the positive result, the Medical Review Officer transmits it to the agency.

Customs employees who test positive for drugs and who can offer no satisfactory explanation are subject to dismissal from the Service. Test results may not, however, be turned over to any other agency, including criminal prosecutors, without the employee's written consent....

So in Von Raab it was merely by reason of a prior design of the program being scrutinized that the information obtained as a result of the search and seizure would not be routinely used for criminal prosecution. The Court therefore had no reason to consider whether the result would be different if that information could be thus used. However, as the Court noted, at 670 - 671:

...It is readily apparent that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment. Indeed, the Government's interest here is at least as important as its interest in searching travelers entering the country. We have long held that travelers seeking to enter the country may be stopped and required to submit to a routine search without probable cause, or even founded suspicion, "because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). See also United States v. Montoya de Hernandez, supra, 473 U.S., at 538, 105 S.Ct., at 3308; United States v. Ramsey, supra, 431 U.S., at 617-619, 97 S.Ct., at 1979-1980. This national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics. A drug user's indifference to the Service's basic mission or, even worse, his active complicity with the malefactors, can facilitate importation of sizable drug shipments or block apprehension of dangerous criminals. The public interest demands effective measures to bar drug users from positions directly involving the interdiction of illegal drugs.

The public interest likewise demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm, even if the incumbent is not engaged directly in the interdiction of drugs. Customs employees who may use deadly force plainly "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Ante, at 1419. We agree with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force. Indeed, ensuring against the creation of this dangerous risk will itself further Fourth Amendment values, as the use of deadly force may violate the Fourth Amendment in certain circumstances. See Tennessee v. Garner, 471 U.S. 1, 7-12, 105 S.Ct. 1694, 1699-1701, 85 L.Ed.2d 1 (1985).

Against these valid public interests we must weigh the interference with individual liberty that results from requiring these classes of employees to undergo a urine test. The interference with individual privacy that results from the collection of a urine sample for subsequent chemical analysis could be substantial in some circumstances. Ante, at 1418. We have recognized, however, that the "operational realities of the workplace" may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts. See O'Connor v. Ortega, 480 U.S., at 717, 107 S.Ct., at 1497; id., at 732, 107 S.Ct., at 1505 (SCALIA, J., concurring in judgment). While these operational realities will rarely affect an employee's expectations of privacy with respect to searches of his person, or of personal effects that the employee may bring to the workplace, id., at 716, 725, 107 S.Ct., at 1497, 1501, it is plain that certain forms of public employment may diminish privacy expectations even with respect to such personal searches....

Therefore, given the strong governmental interest in drug-free Customs Agents, it's conceivable that the Court would have blessed a drug testing program even without a "no prosecution" component.

[JimDandy]

OK that's it. They may have mentioned the prosecution thing, but it wasn't part of the question asked and answered...