paullud
Veteran Expediter
It seems that someone would be able to ask for a lawyer to stop police from interrogating them or not be forced to testify against themselves.
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Avoid Deming, NM
- Thread starter paullud
- Start date
It seems that someone would be able to ask for a lawyer to stop police from interrogating them or not be forced to testify against themselves.
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cubansammich
Not a Member
Any casual reader with at least a third grade reading level and an ability to comprehend very simply written sentences should probably have a good idea of what you would back or not in most cases.
A good game might be to repost some old posts without the seemingly random capitalized words and try to guess which words were originally capitalized.
Example in the post above try and guess which word was originally capitalized?
A- you
B-have
C-no
D-idea
E-Don't
don't cheat and scroll back people
As long as the law requires probable cause [to suspect DUI], I'm in favor, because without it, a refusal can allow drunk drivers to continue driving.
The number of repeat offenders [in double digits!] proves that more needs to be done to stop intoxicated drivers from threatening our safety on the roads.
My suggestion for those who don't want to incriminate themselves with a breath test? Just call a taxi.
When I was in Japan, that was back in '71-'72, the punishment for drunk driving, first offense, was 1 in year jail, no questions asked. Good idea. They, at least at that time, had few repeat offenders.
paullud
Veteran Expediter
No one is going to get away, a refusal is used against the driver that also failed sobriety tests so there is plenty of evidence against the driver. We are a nation that is supposed to protect rights. Although driving is a privilege and not a right the ability to not testify against ourselves and remain silent are important rights worth protecting.
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"No one is going to get away"? Sorry, but they do. Cases are thrown out by judges every day for lack of evidence, aided & abetted by 'good' attorneys who can spin a somewhat plausible reason for the refusal and/or the failed sobriety test. Sometimes, the attorney is even telling the truth, because some medical conditions can look like intoxication to a casual observer.
A person's right to avoid incriminating himself has to be balanced against everyone else's right to not be killed or injured by an intoxicated driver on the public roadways. The rate of repeat offenders proves that some people are incapable of learning that lesson, and probable cause makes a blood test a reasonable compromise, IMO.
paullud
Veteran Expediter
The problem must be the judge in those cases and not that they couldn't forcefully take blood. A failed sobriety test is DWAI and if you have a medical condition that caused you to fail and choose not to provide a breath test or blood in your defense then it should be to bad for them.
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purgoose10
Veteran Expediter
Does the term "Driver Shortage" come to mind. LOL!
Making the penalties high enough for first time offenders and we would likely see a rapid drop in the numbers of drunk/drugged drivers out there. Punishment must be fast and harsh to be effective. We could stand a "shortage" of those kinds of drivers.
You're mixing two separate issues, the Fourth and Fifth Amendments. One is self-incrimination of the Fifth Amendment, for which there is no balance that can be achieved under any circumstances, and the issue of a warrantless search of the Fourth Amendment, for which the "reasonableness" requirement applies.
Fifth Amendment
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
On the self-incrimination, if you start applying balance to the right not to witness against yourself with someone else's right, then you can also just as easily apply the same balance for any and all other rights of the Fifth Amendment. You can be held to answer for a capital crime, without having been indicted or having a trial, just because someone thinks doing so will preserve everyone else's right not to be killed or injured by an intoxicated driver on the public roadways. In other words, "I think you did it, and by putting you to death for a murder that you may or may not have committed, it will save lives." I cannot believe that's where you want things to go in this country.
As for the reasonablness of a warrantless search, specifically in the forced taking of blood, it's unreasonable to take blood from someone suspected or accused of drunk driving based solely on the number of repeat offenders. The Supreme Court ruled on that quite specifically back in April of this year when the Missouri police were doing that very thing (Missouri v. McNeely). Blood can only be taken if there is reasonable suspicion and if there exists exigent circumstances (where there is simply no time for getting a warrant before the blood alcohol dissipates). The lone dissenter on the court who feels that a warrant should never be required: Clarence Thomas.
purgoose10
Veteran Expediter
Wow, it was just a joke. You know to much stress will kill ya.
I knew it was a joke, I just don't believe in humor. LOL!!
AMonger
Veteran Expediter
Bullspit. The Founding Fathers would find your interpretation risible, preposterous, and abhorrent, as would any decent person. The government isn't authorized to disregard constitutional protections in the name of balancing. iow, you're promoting tyranny... yet again.
I don't understand your WTH question. A DUI isn't a capital crime, but it is a crime. You're advocating a complete disregard, as Amonger notes, of a Constitutional protection of not being compelled to witness against oneself in order to balance the rights of others. If you can do that with one of the guaranteed rights of the Fifth Amendment, you can do that with any of them. If you do that, the Fifth Amendment is worthless, and, as has been noted, the result is pure tyranny, and a brutal one.
An infamous crime, under common law (as defined and understood at the time of the Amendment's ratification), was any crime that rendered the person convicted thereof incompetent as a witness. Meaning, the untrustworthiness of someone whereby a testimonial disqualification was imposed to prevent the introduction of evidence thought not entitled to credence. This encompassed treason, any capital crime, most felonies, and any crime involving deceit or fraud. The common law view of infamous crimes focused on the nature of the crime rather than the punishment. However, the modern view of infamous crimes does the opposite, using the punishment inflicted for the crime as the litmus test of what is an infamous crime.
In 1958 the Supreme Court ruled in Green v. U.S. that an infamous is any crime which carries the penalty of death or of imprisonment in a state or federal prison for more than one year. That was the de facto standard of indictment by grand jury or presentment (a formal presentation of information to a court, esp. by a sworn jury regarding an offense or other matter, but is also the act of being formally charged with a crime, whether that charge came from a grand jury or not) for any felony. So, an infamous crime is essentially a felony.
But it doesn't matter. If you drive an vehicle, you automatically consent to a breathalyzer test. If you refuse to take that test you are automatically admitting guilt. A blood test is unnecessary, as you'll be convicted without it. A breath test only estimates the blood alcohol content, but a blood test actually measures it, which is why the police want to use a blood test. But a urine test will also work. It's just not as accurate. Then again, lab tests for blood alcohol aren't exactly 100% accurate, either. Too many mistakes.
We need to prevent drunk driving but we can’t violate peoples’ rights in doing so or we become a police state. Balancing the right against self-incrimination in order to preserve the possible violation of someone else's right is a straight-up justification for violating their rights. There's no way to spin the balancing of a guaranteed right - either you have the right, or you don't.
The forced drawing of blood is nothing more than the state committing assault and battery. OMG the state will insert a piece of metal into your body, against your will, for the purposes of satisfying the state's accusations, wants and wishes. In doing so, they are compelling you to prove your guilt or innocence. That is outrageous.
And the state is doing this without any consequences. While the penalty for causing an accident or killing or injuring someone while you are intoxicated should be incredibly harsh, the penalty to the state for inserting something into your body only to find you not intoxicated should be something along the lines of the state giving you the pink slip to the state.
Most people assume the blood in the drawn sample is the same as the blood in the veins when the sample was taken. This is more often than not false. If the blood is improperly drawn it will affect the integrity of the sample. Improperly drawn blood can result in false positives for alcohol as high as 50 percent. Then, if even a short delay in testing the blood, or if the blood isn't stored properly, the blood will ferment because of the bacteria, yeast and sugar present in the blood. What happens when something ferments? Alcohol is produced. Awesome. Then, finally, the blood is tested in a gas chromatograph that is calibrated for the presumption of alcohol, as opposed to a confirmatory method specific to alcohol. It's quicker and easier to look for something specific than it is to look at everything and then identify what all is present. This method can cause compounds which may respond to the method of detection in a manner similar to alcohol to be falsely measured as alcohol. When you use that method, the test cannot determine whether the alcohol being measured was originally present in the person’s vein or whether the alcohol being measured is that formed during fermentation during the delay before analysis has occurred.
So not only are the testing methods not 100% accurate, the method used to obtain the blood sample (the forced insertion of a foreign object into your body by the state) is a tyrannical abomination of personal liberty, privacy and security.
Lets us ask the dead, or the ones left alive in the aftermath MADD - Statistics
Driving impaired is like riding on a cruise missile....
Add up the $$$$$ and this is just 1st offense...and your insurance carrier your rates will go thru the roof for years...
Over .08 is a criminal offense in Ontario. First offense is a minimum $1000 fine, automatic 3-month driver's license suspension from the Ministry of Transportation and an additional 12-month suspension by the courts. After the suspension is a $150 reinstatement fee, minimum 1 year ignition interlock condition upon reinstatement, which cost $1300 and you have to take the remedial driver safety course, which cost $475. You also get a criminal record. People charged with drinking and driving do not qualify for legal aid.
I like that condition...taxpayer money is not going to be used for your defense!!!
If you blow over .08 on the first breath sample and then blow under .08 on your second breath sample, the officer has the choice whether to charge you with impaired or give you a 12 hour suspension.
Charged with a 12-hour suspension means your car gets towed and is impounded for 24 hours. The storage fees and towing fees will be astronomical because the government has contracted towing companies and their impoundment lots could be 100 miles away from where you are charged.
Add up the $$$$$ and this is just 1st offense...and your insurance carrier your rates will go thru the roof for years...
Over .08 is a criminal offense in Ontario. First offense is a minimum $1000 fine, automatic 3-month driver's license suspension from the Ministry of Transportation and an additional 12-month suspension by the courts. After the suspension is a $150 reinstatement fee, minimum 1 year ignition interlock condition upon reinstatement, which cost $1300 and you have to take the remedial driver safety course, which cost $475. You also get a criminal record. People charged with drinking and driving do not qualify for legal aid.
I like that condition...taxpayer money is not going to be used for your defense!!!
If you blow over .08 on the first breath sample and then blow under .08 on your second breath sample, the officer has the choice whether to charge you with impaired or give you a 12 hour suspension.
Charged with a 12-hour suspension means your car gets towed and is impounded for 24 hours. The storage fees and towing fees will be astronomical because the government has contracted towing companies and their impoundment lots could be 100 miles away from where you are charged.
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1 year in jail on fish heads and rice. THAT would put a stop to most drunk driving. The Japanese like to drink even more that the Scotsmen do, but drunk driver was rare there. At least it was when I was stationed there. Punishments for that offense are FAR too light.
the whole subject is treated far too lightly down here....