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View Diary: Nope. That's not a violation of civil liberties or anything. (93 comments)

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  •  These are reasonable points (3+ / 0-)
    Recommended by:
    debedb, suesue, DarkLadyNyara

    But, I'll counter.

    First, you assume that there IS sufficient probable cause to require a blood sample.  If you've been around a criminal court at all, you'd be aware that sometimes this arguably isn't the case.  And there's often an appearance that the magistrates involved have sacrificed their neutrality in granting the warrants.  I remember reading about a leaked e-mail from a prosecutor in the Harris County DA's office to a magistrate who'd agreed to participate in this that, while not actually stating that the magistrate was acting on behalf of the police and prosecutors, certainly gave that impression.

    Refusal to give a sample being treated as an admission of guilt: unfortunately, this is the law, but have you heard of the Fifth Amendment?

    28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

    by TDDVandy on Fri Dec 28, 2012 at 10:20:18 PM PST

    [ Parent ]

    •  This is a real simple issue (3+ / 0-)

      that is being obfuscated by irrelevancies.

      Murder is not a DWI, so folk can quit with that nonsense.

      If you are stopped and arrested for DWI, then you are required to provide a sample of breath, or a blood test.

      I have no idea why this is at all controversial in the specific instance where ONLY your breath or blood can provide the actual evidence.

      If we go down the route of supporting the idea that the only real evidence can be withheld by the suspect, then how on earth do we ever convict a drunk driver?

      Please don't patronise me with stupid questions about the 5th Amendment. It is not there to prevent the collection of evidence.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      by twigg on Fri Dec 28, 2012 at 10:25:13 PM PST

      [ Parent ]

      •  It actually isn't controversial (3+ / 0-)
        Recommended by:
        twigg, suesue, Johnny Nucleo

        But it should be.

        Your argument is based on the premise that because I was arrested, I am guilty, and I should have to prove myself innocent.  This runs counter to the entire notion of the criminal justice system.

        (Also, "only real evidence" is a mistaken assumption -- you've probably been around drunk people and can tell if they're drunk without a breathalyzer test.)

        28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

        by TDDVandy on Fri Dec 28, 2012 at 10:37:04 PM PST

        [ Parent ]

        •  This isn't correct (2+ / 0-)
          Recommended by:
          Chacounne, FrugalGranny

          and I appreciate that you accept that I confine my remarks to this one issue.

          There is a specific legal blood alcohol limit. Most folk exceeding it do not appear drunk, but they are legally unfit to drive.

          That level HAS to be measured, or there is no case and we may just as well forget it.

          This also protects suspects, because I do not want to be in court with the cops saying "He must have been drunk because I observed him to be weaving around and talking funny".

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          by twigg on Fri Dec 28, 2012 at 10:42:22 PM PST

          [ Parent ]

          •  Don't know what the laws are like (2+ / 0-)
            Recommended by:
            twigg, suesue

            where you live.  In Texas, the law defines "intoxication" as either (a) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (b) having an alcohol concentration of 0.08 or more.

            28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

            by TDDVandy on Fri Dec 28, 2012 at 10:46:51 PM PST

            [ Parent ]

            •  I think the Texas law (4+ / 0-)

              is so loose as to be itself a civil rights infringement.

              That a cop can get a conviction solely on his own judgement is an abuse.

              b ... is acceptable, and it needs to be measured.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              by twigg on Fri Dec 28, 2012 at 10:50:10 PM PST

              [ Parent ]

              •  Seems like drugs make that complicated (7+ / 0-)

                Marijuana isn't like alcohol, it can be measured in your system long after you are no longer under the influence. The current reading is not an accurate reflection of intoxication. Maybe that is what part A is mainly for?

              •  Well, actually (3+ / 0-)

                The conviction would be based on the judgment of a jury.

                Most police cars are equipped with dashboard video cameras that are automatically set to activate when the overhead lights are activated.  So, at the very least, in MOST cases there will be video evidence available to confirm (or rebut, as the case may be) the officer's assertions about how the suspect was behaving.  (The "booze on the breath" thing, though, can't be confirmed.)

                Of course, that's well after the arrest.  If the officer is arresting the guy on bogus assertions, at the point at which he's requesting a breath sample, there's yet to be any sort of "neutral" intervener.

                28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

                by TDDVandy on Fri Dec 28, 2012 at 10:56:10 PM PST

                [ Parent ]

                •  I may be out of line here (2+ / 0-)
                  Recommended by:
                  FrugalGranny, Johnny Nucleo

                  But I genuinely believe that Field Sobriety Tests and any other subjective display of behaviour are completely unreliable for a DWI conviction.

                  Many folk behave strangely when stopped by the police, and that is evidence only of stress.

                  If we want to set a blood alcohol limit, then we should do so and that is the ONLY test that counts.

                  Then, when required to provide a sample, you are not a suspect incriminating yourself, you are a witness, giving evidence.

                  It might convict you, or might not. If it does then you probably shouldn't have been drinking and driving.

                  Again ... my remarks apply only to this specific example.

                  I hope that the quality of debate will improve,
                  but I fear we will remain Democrats.

                  by twigg on Fri Dec 28, 2012 at 11:01:38 PM PST

                  [ Parent ]

                  •  Right. (3+ / 0-)
                    Recommended by:
                    twigg, suesue, Johnny Nucleo

                    I think the problem I see here is that people can have all sorts of reasons for refusing a breathalyzer test.

                    A person who refuses a breathalyzer test could simply be drunk, knows it, and doesn't want that evidence to be used against him.  Or, he could be some ornery guy who has a basic grasp of civil liberties and is offended that the police would even accuse him of driving drunk, and doesn't think he should have to prove that he's not.  Or, he might have had a single beer, which is extraordinarily unlikely to produce a BAC over .08, but doesn't understand that.  Or he might not trust the accuracy of the breathalyzer test.

                    The Occam's Razor explanation is probably the case in most instances, but you never know.  To put in a different perspective: if, on the witness stand, when asked if he had consumed any alcohol, the defendant pleads the Fifth Amendment, the jury is specifically instructed that that can't be used against him.

                    28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

                    by TDDVandy on Fri Dec 28, 2012 at 11:18:42 PM PST

                    [ Parent ]

                    •  That is why we have trials (2+ / 0-)
                      Recommended by:
                      TDDVandy, Shippo1776

                      Although, if you have failed a blood test then maybe you should be pleading ... or have some strong mitigation that you can present (sometimes happens).

                      I do think the whole area of civil liberties is threatened, and should be kept in sharp focus because we will lose anything we do not fight for.

                      Oddly though, DWI is one area that actually has a simple way to determine the facts (the reasoning may offer relief).

                      So I guess I am saying that we need, in this case, to separate out the various strands and allow the police to do their job because we need them to, while identifying that which is the real issue.

                      And I do think there are serious issues with subjective opinions in this area.

                      I am also not in favour of "checkpoints" because they too are open to abuse unless it is mandated that EVERY driver going through is stopped and breathalyzed.

                      Otherwise, it's just too easy to single out just the poor people, or black people ... well you get the drift.

                      I hope that the quality of debate will improve,
                      but I fear we will remain Democrats.

                      by twigg on Fri Dec 28, 2012 at 11:27:47 PM PST

                      [ Parent ]

                      •  Well, yeah. (1+ / 0-)
                        Recommended by:
                        twigg

                        Checkpoints actually aren't legal in Texas, and one of the requirements the Supreme Court implemented for them was that they have to have a set "pattern."  I.e., the police stop every third car, something like that -- they can't set up a checkpoint and then stop cars at random.  (Whether or not that rule is followed is a different matter -- it's kind of hard to prove that it wasn't.)

                        By the way, DWI is one instance of a crime where police actually have a tendency to target the well-to-do (or at the very least not give them a free pass.)  DWI cases often have arguable evidence, so arresting somebody with the means to go out and hire a lawyer to fight it ups the odds that it will go to trial.  Cops usually get overtime pay when they're subpoenaed to testify in court.

                        28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

                        by TDDVandy on Fri Dec 28, 2012 at 11:40:49 PM PST

                        [ Parent ]

        •  People can appear to be acting drunk when in fact (8+ / 0-)

          they are having a diabetic reaction, or a number of other medical problems. The ONLY way to know for sure if someone is drunk and how much they have drunk is through measuring the blood alcohol level.

                             Just my two cents,
                                   Heather

          Torture is ALWAYS wrong, no matter who is inflicting it on whom.

          by Chacounne on Fri Dec 28, 2012 at 10:47:22 PM PST

          [ Parent ]

          •  Fair point. (0+ / 0-)

            But, there are other ways of ascertaining this.  (Somebody having a diabetic reaction probably wouldn't have booze on the breath.)

            28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

            by TDDVandy on Fri Dec 28, 2012 at 10:51:09 PM PST

            [ Parent ]

            •  So, you would allow someone to be convicted (1+ / 0-)
              Recommended by:
              FrugalGranny

              of Drunk Driving based soley on the testimony of the arresting officer, but not allow that officer's testimony to be the basis of a warrant to obtain measurable evidence of the crime ?

                                  Curious,
                                   Heather

              Torture is ALWAYS wrong, no matter who is inflicting it on whom.

              by Chacounne on Fri Dec 28, 2012 at 10:56:23 PM PST

              [ Parent ]

              •  Have I said (2+ / 0-)
                Recommended by:
                jayden, Johnny Nucleo

                that it shouldn't be allowed?

                The problem isn't that a magistrate can sign off on a search warrant, but there's a fine line between signing off on a search warrant and rubber-stamping one.  Agreeing to sit at the station all night for the purpose of granting search warrants on DWI arrests, at the behest of the police and/or prosecutors, at least gives rise to the suspicion that the magistrate isn't exactly a "neutral" actor here, no?

                (A person can, in fact, be convicted solely on the testimony of the arresting officer, at least in Texas, FYI.)

                28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

                by TDDVandy on Fri Dec 28, 2012 at 11:08:03 PM PST

                [ Parent ]

                •  Your entire diary is about how problematic it is. (0+ / 0-)

                  Seems to me that the reason they are at the station is a timing thing, so the measurement of the blood alcohol level will be as accurate as possible, but I could be wrong about that.

                                      Just my two cents,

                                             Heather

                  Torture is ALWAYS wrong, no matter who is inflicting it on whom.

                  by Chacounne on Fri Dec 28, 2012 at 11:15:02 PM PST

                  [ Parent ]

                  •  The problematic part (3+ / 0-)
                    Recommended by:
                    suesue, Chacounne, Johnny Nucleo

                    is when the magistrate is acting not as a neutral arbiter but as an adjunct member of the law enforcement authorities who requested the warrant.

                    It's not to say that the magistrate being at the police station automatically makes that true, but there have been instances in the past in which leaked e-mails indicated that that likely WAS the case.

                    28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

                    by TDDVandy on Fri Dec 28, 2012 at 11:31:31 PM PST

                    [ Parent ]

                    •  Okay, then those magistrates need to be punished. (0+ / 0-)

                      This does not seem to be a systemic problem, although perhaps in some places it is.

                                                   Just my two cents,
                                                         Heather

                      Torture is ALWAYS wrong, no matter who is inflicting it on whom.

                      by Chacounne on Fri Dec 28, 2012 at 11:37:28 PM PST

                      [ Parent ]

      •  nobody's saying murder is DWI (3+ / 0-)
        Recommended by:
        TDDVandy, suesue, Johnny Nucleo

        we are saying that both are crimes and rights of the accused should be the same.

        my god,the GOP is scary, but I feel like this side is catching up...

        •  I think you should read the discussion (0+ / 0-)

          It was a very positive one, and conflating the right of a suspect with the ability to gather evidence, in the example given, is not helpful.

          You may feel "this side is catching up", I beg to differ.

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          by twigg on Fri Dec 28, 2012 at 11:54:14 PM PST

          [ Parent ]

          •  Right. (3+ / 0-)
            Recommended by:
            twigg, debedb, Johnny Nucleo

            The issue I see is that this is an instance where the ability to gather evidence can infringe on the right of a suspect.  There's no really comparable instance to this in the justice system -- if the police want to search your house for evidence of a crime, they can either get your consent or they can get a warrant (assuming they have probable cause), but they can't threaten you with penalties if you refuse to let them in your house without a warrant.

            There's no real issue with getting a search warrant for a blood sample, but when a magistrate agrees ahead of time to sit at the station house to sign off on search warrants, there's at least an appearance that the magistrate is acting on behalf of the police rather than as an impartial observer.  Granted, DWI has the peculiar issue of time being a factor because alcohol exits the body, but you have to wonder if the magistrates involved are actually making neutral determinations about whether probable cause exists for a search warrant or simply acting as a rubber-stamp for anyone who gets arrested.

            28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

            by TDDVandy on Sat Dec 29, 2012 at 12:08:20 AM PST

            [ Parent ]

          •  I did :) (1+ / 0-)
            Recommended by:
            twigg

            As you can see from uprates.

            It has become a very good discusion, and, in one of those rare moments of online discussions when  'someone's wrong on the internet', I'm sorry for being a bit knee-jerk.

            I still think there are two big problems with this, philosophically. One is that the concept of DUI effectively punishes a biological state even without any harmful action; that in my mind is too close to a thought-crime. Another is the ease with which we agree with this whole 'privilege not a right' mantra -- but why

            •  Um, hello? (3+ / 0-)
              Recommended by:
              johnny wurster, Johnny Nucleo, twigg
              One is that the concept of DUI effectively punishes a biological state even without any harmful action
              Are you suggesting that someone should only be charged with DUI if they cause an accident and kill or harm someone? That's ridiculous.

              That would be like saying I can take out a gun and spray bullets into a crowd, but it would only be a crime if I managed to hit someone with a bullet.

              Driving drunk is inherently as dangerous as spraying a crowd with bullets.

              •  That's absurd (2+ / 0-)
                Recommended by:
                twigg, debedb
                Driving drunk is inherently as dangerous as spraying a crowd with bullets.
                Drunk driving is dangerous, yes.  But your equivalency is beyond ridiculous.  

                "And the President of the United States - would be seated right here. I would be here. And he would be here. I would turn - and there he’d be. I could pet ‘im." - Lewis Black

                by libdevil on Sat Dec 29, 2012 at 09:34:07 AM PST

                [ Parent ]

                •  The analogy is extreme (1+ / 0-)
                  Recommended by:
                  elmo

                  I grant you that, but it's not a bad one.

                  Drunk driving kills thousands every year. The numbers per incident might be smaller, but those folk are just as dead.

                  It's not a stretch to say that if you get behind the wheel drunk, you turn a normally safe transport machine into a deadly weapon, even if the intent is absent.

                  I hope that the quality of debate will improve,
                  but I fear we will remain Democrats.

                  by twigg on Sat Dec 29, 2012 at 09:59:57 AM PST

                  [ Parent ]

                •  A good friend's boyfriend (1+ / 0-)
                  Recommended by:
                  twigg

                  is dead this year, killed by a drunk driver who plowed into him as he was riding his bicycle on a quiet neighborhood street. The driver never even bothered to stop.

                  He is every bit as dead as if the killer had taken out a gun and shot him.

              •  I see (0+ / 0-)

                It's very hard to argue some points because some people get emotional.

            •  Civil liberties are an emotive topic (1+ / 0-)
              Recommended by:
              debedb

              and the discussion remained calm, allowing the points to be explored.

              Special credit goes to the Diarist, because I challenged his work, and he responded very positively.

              The internet at its finest, I think ... and we don't even have to agree to have learned something from each other.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              by twigg on Sat Dec 29, 2012 at 10:02:40 AM PST

              [ Parent ]

      •  Actually, it is: (1+ / 0-)
        Recommended by:
        Johnny Nucleo

        The 5th Amendment gives a criminal suspect the right to refuse to incriminate himself. Providing blood samples, DNA, etc is self incrimination.

      •  i guess you failed that con law class. (2+ / 0-)
        Recommended by:
        Johnny Nucleo, libdevil
        Please don't patronise me with stupid questions about the 5th Amendment. It is not there to prevent the collection of evidence.
        it is there to prevent the state from forcing you to, among other things, testify against yourself, and forcing you, against your will, directly providing incriminating evidence against yourself. i really can't make it any simpler than that.
    •  I'll add ... (3+ / 0-)
      Recommended by:
      TDDVandy, FrugalGranny, debedb

      If there are issues with the way this is implemented.

      If the police are not doing this correctly ... they are separate matters and worthy of debate.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      by twigg on Fri Dec 28, 2012 at 10:31:27 PM PST

      [ Parent ]

      •  (Well, yeah.) (3+ / 0-)
        Recommended by:
        debedb, suesue, Johnny Nucleo

        Your argument rests on the assumption that the actors are acting in good faith -- basically, that only people who are actually driving drunk are ever arrested for drunk driving.

        The argument falls apart if you've been around criminal courts long enough to know this isn't always the case.

        28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

        by TDDVandy on Fri Dec 28, 2012 at 10:40:28 PM PST

        [ Parent ]

    •  When the state (1+ / 0-)
      Recommended by:
      engine17

      granted you the privilege of a driver's license, I thought you willingly consented to blood sampling.  You essentially waive some rights for the privilege of driving.

      •  No. (1+ / 0-)
        Recommended by:
        johnny wurster


        Not this mind and not this heart, I won't rot • Mumford & Sons

        by jayden on Fri Dec 28, 2012 at 11:23:27 PM PST

        [ Parent ]

      •  Yup... (0+ / 0-)

        You don't have a right to drive, you get a license, from the state government, and it comes with conditions. Among them is a legal obligation to submit to testing for DUI.

        •  no, not at all. (2+ / 0-)
          Recommended by:
          Johnny Nucleo, jabney

          we don't forfeit our 4th amendment rights when we get into cars.  

          there's no implied consent at work.  whats happening, and why courts have ok'd random checkpoints, is that busting DUIs is so really, really important that we can conduct stops without the sort of particularized suspicion hat the 4th amendment normally requires.

          this is the same sort of rationale that gets us things like the patriot act. and maybe that's fine, but I do wish people would be a little more thoughtful when considering their positions, rather than having the outrage meter cranked up to 10 on every damn issue even if it means being outraged because of reason X one day and then because of not-X the next day.

          wow, I guess I needed to get that out of my system.

          •  Better read up on it... (0+ / 0-)

            You waived some of your 4th Amendment rights when you applied for a driver's license.

            I've had licenses from NJ and Utah. In both states, by accepting a license, you agree to submit to field sobriety and breathalyzer tests (don't recall if blood tests are included also.) Refusal is by law admission of guilt, and if you don't like that part, you are free to be a pedestrian or passenger, but not a licensed driver.

            I happen to think the courts have gotten it wrong regarding checkpoints - I think probable cause should be the appropriate threshold for being stopped. Once stopped, however, being tested is part of the agreement you entered into with the state when you accepted your license.

    •  Has Schmerber v. California been overruled? (1+ / 0-)
      Recommended by:
      johnny wurster
    •  I would think that in many DUI stops (2+ / 0-)
      Recommended by:
      Johnny Nucleo, jabney

      that there would be probable cause, whether because of smell, acting drunk, etc.

      note: I was busted for DUI many a year ago, am generally a big fan of civil liberties, and think MADD is horrific.  I also think the puritan fingerwagging we saw at this site over the recent DUI bust of that (R) senator was despicable.

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