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Old August 31, 2014, 07:53 AM   #1
OuTcAsT
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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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Old 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.
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Old August 31, 2014, 09:12 AM   #3
OuTcAsT
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Colt46 Wrote;
Quote:
According to case law anyway.
Like these ?

Quote:
"The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived." Chicago Motor Coach v. Chicago, 169 NE 221.

The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness." Thompson v. Smith, 154 SE 579.

The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment." Kent v. Dulles, 357 US 116, 125.

The right to travel is a well-established common right that does not owe its existence to the federal government. It is recognized by the courts as a natural right." Schactman v. Dulles 96 App DC 287, 225 F2d 938, at 941.
Just a few, but the notion that driving is a "privilege" is not necessarily true.
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Old 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.
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Old 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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Old August 31, 2014, 10:11 AM   #6
OuTcAsT
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Mosin-Marauder Wrote;
Quote:
You don't own the highways,
Then who does ?
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Old August 31, 2014, 10:27 AM   #7
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The State, the government?
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Old 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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Old 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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Old 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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Old 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:

Quote:
“No state government entity has the power to allow or deny passage on the highways, byways, nor waterways... transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation, i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurance.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22.

“Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with public interest and convenience.” ibid at 206.

“The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived.” ibid at 221.
Read the above with care. Now, as to who "owns" the roads...

Quote:
“It is well-established law that the highways of the state are public property; and their primary and preferred use is for private purposes...” Stephenson v. Binford 287 U.S. 251, 264, et al.

“It is settled that the streets of a city belong to the people of a state and the use thereof is an inalienable right of every citizen of the state.” Whyte v. City of Sacramento, 165 Cal. App.534, 547.

“The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness.” Thompson v. Smith, 154 SE 579.
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.

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:
Originally Posted by Spats McGee
DWI checkpoints have been upheld as constitutional.
Sure they have been. But they do so in context of being regulated by that license. Assuming you can prove that you are not required to have that permit to exercise a right, then the courts will be forced to look at such regulation in a different light. Will it still be constitutional? We simply do not know.
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Old 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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Old August 31, 2014, 01:28 PM   #13
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Quote:
Originally Posted by Al Norris
...Assuming you can prove that you are not required to have that permit to exercise a right, then the courts will be forced to look at such regulation in a different light. Will it still be constitutional?...
And that is still a big assumption. As we have discussed here extensively in the context of rights protected by the First and Second Amendments, there is substantial legal authority that even a right explicitly protected in the Constitution is subject to some regulation by government.

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:
  1. As Spats McGee has mentioned, there have been court decisions upholding the constitutionality of some checkpoints and/or defining the scope of what is a reasonable/unreasonable search and seizure under the Fourth Amendment.

    1. So with respect to a particular checkpoint operation, one can go to court to test whether the procedures used are consistent with applicable case law. In other words, while it might be possible to operate a checkpoint in a constitutional manner, one could always argue, if there are good facts to support the argument, that the procedures being used in a particular case are not constitutional.

    2. That would of course apply only to a particular checkpoint operated in a particular way.

  2. There is also the possibility of a frontal assault in federal court of the whole business of requiring a license for the non-commercial use of the public roads. That would be an expensive proposition, and I think it would have dim prospects for success.

  3. Or folks could get politically active and seek some legislation in a State to at least circumscribe how checkpoints are operated. How far this could get you and where it could get you would depend on the politics in a State.
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Old August 31, 2014, 02:35 PM   #14
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Quote:
“Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with public interest and convenience.”
This same type of language can be found in the Heller ruling. The ruling made it clear that the legislature can't deny a citizen the right to own a handgun and have it in ready-to-use condition but also made it clear that the legislature did have the right to implement registration/licensing schemes and also to otherwise generally regulate the right.
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Old August 31, 2014, 03:20 PM   #15
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Quote:
Originally Posted by Al Norris
Quote:
Originally Posted by Spats McGee
DWI checkpoints have been upheld as constitutional.
Sure they have been. But they do so in context of being regulated by that license. Assuming you can prove that you are not required to have that permit to exercise a right, then the courts will be forced to look at such regulation in a different light. Will it still be constitutional? We simply do not know.
Actually, Al, I wasn't referring to the licensing aspect at all. I haven't pulled & read the DWI checkpoint cases in several months, but my comment was simply directed at the fact that DWI checkpoints have been upheld as a reasonable, warrantless seizure under the Fourth Amendment. I don't recall any discussion of licensing in those cases, so I'm not convinced that the A4 analysis would change even if you could prove that a license cannot be required to drive.
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Old 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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Old 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.
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Old August 31, 2014, 06:47 PM   #18
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Quote:
But,if they cannot state probable cause,then what?
They aren't forcing EVERYONE who is stopped at the checkpoint to get a blood test. The only people who get tested are those whom the officers have probable cause to believe are intoxicated, i.e. breaking the law.
Quote:
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.
In cases where there's no reason to believe the person is intoxicated they are certainly free to go after briefly interacting with the officer. In fact, it's likely that they would have been able to continue on their way even faster if they hadn't played their "magic words" games with the officers. (By "magic words" game, I mean the belief that some have that if they say the "magic words" then the officer must admit that they are not one of the droids that he is looking for and release them.)
Quote:
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.
Being a jerk to the officers running the checkpoint is NOT "refusing to compromise on Constitutional protections". It's just being a jerk to the officers running the checkpoints.

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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Old August 31, 2014, 07:56 PM   #19
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Quote:
Originally Posted by HiBC
...There are a number of videos taken of folks at DUI checkpoints,DHS roadside checkpoints,etc.
...
...
...
...
...

But...I also concede it would be really dumb too put too much faith in something I saw on youtube. ...
Yes it would. The source matters. How they may have been edited matters. Selective videography matters.

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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Old 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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Old 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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Old 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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Old August 31, 2014, 11:36 PM   #23
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Quote:
Originally Posted by ronl
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....
Wrong.

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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Old September 1, 2014, 06:05 AM   #24
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Quote:
Originally Posted by Frank Ettin
2. There is also the possibility of a frontal assault in federal court of the whole business of requiring a license for the non-commercial use of the public roads. That would be an expensive proposition, and I think it would have dim prospects for success.


3. Or folks could get politically active and seek some legislation in a State to at least circumscribe how checkpoints are operated. How far this could get you and where it could get you would depend on the politics in a State.
Frank,

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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Old 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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