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August 31, 2014, 07:53 AM | #1 |
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Several Constitutional rights "suspended" This Weekend
http://www.policestateusa.com/2013/t...nts-labor-day/
It appears that , once again in my State ( and several others ) The 4th and 5th amendments are to be suspended. DUI Checkoints will be set up randomly and, if you are deemed "under suspicion" you will be subject to a seizure of a blood sample with "no refusal". They have judicial commissioners on standby to issue an immediate search warrant to compel you to give the sample or, it will be taken by force. This article argues that it is constitutional: http://www.commdiginews.com/politics...g-stops-21024/ It seems to me that, you are being subjected to an "inastant mini-trial" on the spot. One in which you are assumed guilty until proven innocent. What say ye ?
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August 31, 2014, 08:40 AM | #2 |
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Driving is a priviledge
According to case law anyway.
The ability to travel freely without gov't permission or monitoring isn't something the Bill Of Rights ought to spell out. Wish they added an extra amendment back then. |
August 31, 2014, 09:12 AM | #3 | ||
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Colt46 Wrote;
Quote:
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WITHOUT Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech. Silence Dogood Does not morality imply the last clear chance? - WildAlaska - |
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August 31, 2014, 09:34 AM | #4 |
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The "implied consent" business was thrashed out some years ago.
By holding a driver's licence you are automatically assumed to have given consent to be tested for sobriety. If you don't want to be tested for sobriety, don't get a driver's license. What would the Founding Fathers say? Sorry, I will limit myself to trying to divine the true intent of John Browning. |
August 31, 2014, 09:50 AM | #5 |
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Implied consent is still in use in almost every state (including mine). As said before, driving is a privilege, not a right( at least in my state it is). You don't own the highways, but it is your responsibility to be safe on them. No breakage of amendments here, I'm afraid.
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August 31, 2014, 10:11 AM | #6 | |
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Mosin-Marauder Wrote;
Quote:
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August 31, 2014, 10:27 AM | #7 |
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The State, the government?
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August 31, 2014, 10:57 AM | #8 |
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if its a right, why do we need a license?
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August 31, 2014, 11:22 AM | #9 |
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Michigan State Police Vs. Sitz
in 1990 the Supreme Court ruled that, despite having a fundamental right to move about the country on state roads, you are not secure in your person or property with regards to operating a motor vehicle.
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August 31, 2014, 11:31 AM | #10 |
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DWI checkpoints have been upheld as constitutional. The Fourth Amendment does not prohibit all warrantless searches, only unreasonable ones.
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August 31, 2014, 11:46 AM | #11 | |||
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OuTcAsT, you need to quote a bit more from Chicago Motor Coach than the snippet you did. There is a reason, which I will explain:
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What these cases have in common is that they were taken up by commercial entities to try and get out of paying fines for commercial use (in one form or another). What the courts have all said, is that for commercial purposes, the State has the power to demand you be licensed (intrastate commerse power). A license for the "privilege" of driving has become so ingrained upon the public, police and the courts, that you will have to prove that it is not required, and in fact violates your common law rights. The problem with having a license to drive, is that you have voluntarily made a contract with the state. When you buy into the States regulatory scheme, you have waived your natural rights (liberties) for the privilege of statutory “rights.” Now you are under the authority of the State as to how and when and with what you can travel. That includes mandatory vehicle emission checks; Mandatory insurance requirements; Mandatory seatbelt laws... The whole nine yards (vehicle "registration" is a personal property tax and is a different animal), and yes, mandatory sobriety check points. Anyone may drive without having a state mandated license. 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. Quote:
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August 31, 2014, 01:07 PM | #12 |
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Thanks, AL. I agree I should have taken it a bit further, your explanation is much more illuminating.
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August 31, 2014, 01:28 PM | #13 | |
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So even if the U. S. Supreme Court were to find an implicit constitutional right to drive on the public roads (much as it has found an implicit constitutional right of privacy), a ruling out of the current arrangements and requirements for the licensing of drivers can not be a foregone conclusion. With regard to these sorts of checkpoints, I immediately see three possible paths for attacking them:
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August 31, 2014, 02:35 PM | #14 | |
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Quote:
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Do you know about the TEXAS State Rifle Association?
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August 31, 2014, 03:20 PM | #15 | ||
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Quote:
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August 31, 2014, 05:50 PM | #16 |
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Where does the legality of forcing blood samples to those under suspicion fall into place?
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August 31, 2014, 06:10 PM | #17 |
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I have no inclination to argue with the legal minds here.
I certainly do not give a Youtube video more credibility than anything Frank Ettin says. I'm asking this from a position of honest ignorance. There are a number of videos taken of folks at DUI checkpoints,DHS roadside checkpoints,etc. These folks stop at the checkpoint,then they say"I'd rather not(comply with request)I'd rather travel on my way.Am I being detained?What is your probable cause?Well,no,I'd rather not pull over to that spot,I prefer to be on my way.Am I being detained? Am I free to go?Etc. I do not know what to make of this.I understand,if there is probable cause,then implied consent takes over..but in Colorado,you can still refuse the blood draw or urine specimen,you just accept you will be prosecuted for DUI. Your sample can prove you innocent. But,if they cannot state probable cause,then what? In these videos,the ones that get posted,the official get exasperated,call supervisors,etc,but in the end,it (at least sometimes) works out that the officer says OK,you are free to go. So,assuming zero alchohol consumption and no other lawbreaking,I can see a point in insisting the Constitution be honored.I can see how refusing to compromise on Constitutional protections is a way to take good care of our Liberty. But...I also concede it would be really dumb too put too much faith in something I saw on youtube. |
August 31, 2014, 06:47 PM | #18 | |||
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Quote:
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The Supreme Court has ruled that properly conducted sobriety checkpoints are constitutional and that no refusal blood tests with a warrant are also constitutional. So it's not about "refusing to compromise on Constitutional protections", it's about refusing to compromise on a personal interpretation of the Constitutional protections in spite of the fact that the personal interpretation is clearly inconsistent with the official one. That is not insisting that the Constitution be honored, it is the mark of a crank. Think about it like this. Imagine a person being stopped for a speeding ticket and then telling the officer that he won't accept the ticket because he holds a personal interpretation of 60mph that is different from the official definition. How far do you think that he'll get in terms of beating the ticket?
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August 31, 2014, 07:56 PM | #19 | |
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Maybe some checkpoints are pushing the envelop too hard. And maybe some agencies have adopted possibly borderline or abusive practices. If so, they need to be challenged in court where each side can fully state its case. And if practices which pass constitutional muster are still thought to be offensive by enough people, a political solution can be vigorously pursued.
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August 31, 2014, 08:50 PM | #20 |
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The whole aspect of blood tests and the like can possibly be held to be illegal from the standpoint that one cannot be forced to testify against oneself. Since the blood, bodily fluids are mine and no others, in fact I am testifying against myself when such is taken by force and used as evidence against me. Just a meager morsel for thought.
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August 31, 2014, 09:58 PM | #21 |
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Not only that, it if I understand correctly about proving that licensure not being required to "travel freely" what says such doesn't mean that unlicensed individuals be required to use public transportation, rather than private vehicle?how would that be "denying" anyone the use of public roads for.travel?
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August 31, 2014, 10:55 PM | #22 |
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In my state, its sort of contractual. Part of having the license. If you are stopped, you can refuse the breath test or the blood test (provided there is no accident involved), BUT if you do your license is automatically suspended (6mo. I think).
There are no issues about search& seizure, because it is a contract you voluntarily enter into when you get your license.
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August 31, 2014, 11:36 PM | #23 | |
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The U. S. Supreme Court has already ruled that a blood test is not subject to Fifth Amendment protections (Schmerber v. California, 384 U.S. 757 (1966)). It may, however, be subject to Fourth Amendment protections (Schmerber, supra and Missouri v. McNeely, 569 U.S. ___ (2013)). But even with Fourth Amendment protection, blood test evidence may be obtained under exigent circumstances, with consent, or with a warrant. Whether consent for Fourth Amendment purposes under McNeely includes consent implied pursuant to various state driver licensing laws is, as far as I know, still something of an open question.
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September 1, 2014, 06:05 AM | #24 | |
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Unsure of your knowledge on grants and funding initiatives, which checkpoints are part of a grant or funding system put on by the Governor's Highway Safety Program (GHSP). So to try to get something changed on the state or federal level will also include going after the grant/funding program within the GHSP. Each state may do things slightly different, but to be simple, each checkpoint (or other approved activity) equals "X" number of points. With the points an agency can get certain equipment through the program. This is typical for local agencies participating, but I can not say if, each state "Highway Patrol" unit gets points as well. https://connect.ncdot.gov/municipali...structions.pdf |
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September 1, 2014, 06:33 AM | #25 |
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Heres a thought on this that I haven't seen brought up
Who administers the blood withdrawal? Are they qualified/licensed to do so? Who is testing the specimen? Are they qualified/licensed to do so?. Do they have a chain of custody procedure in writing (who is going to have access to the sample)? Who is financially responsible for the costs associated with the tests? I would be extremely upset if they pull me over completely sober, pull the bloodtest BS on me, then try to slap me with some sort of a bill after the test comes back clear and would definitely fight that in court even though I have a feeling fighting it would cost more than the bill for the bloodwork. Its a matter of principals. I saw somewhere in this post that they have judicial commissioners on standby ready to issue warrants. I would assume that the warrants be very specific about what they are looking for and the sample cannot be used for anything else such as dna cataloging/testing dna against evidence in unsolved cases, searching your vehicle, any items in your vehicle, etc? All they need for the warrant is the officers claim of reasonable suspicion? Is there any criteria that must be met before they can claim reasonable suspicion? If you can pass a field sobriety test (Horizontal Gaze Nystagmus) with flying colors and and you absolutely do not smell like alcohol can they still proceed with obtaining a warrant to test your blood? Hopefully I will never have to deal with one of these checkpoints, but if I do I am turning on my cell phone to record, just in case. |
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