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With the New Year approaching, cities across the country are figuring out ways to deal with people who go a little... ahem... overboard in ringing in the New Year.

   The Dallas Police Department will conduct a No-Refusal DWI Initiative during the New Year’s holiday. This initiative will begin 6:00 P.M., Friday December 28th 2012 and will end 6:00 A.M., Wednesday January 2nd 2013.

    During this initiative officers will secure a search warrant for a blood sample from all persons arrested for DWI who refuse to voluntarily give a breath and/or blood sample.

That's right.  If you're arrested under suspicion of drunk driving in Dallas this weekend, and you don't want to voluntarily incriminate yourself... well, we'll just get a search warrant to get that incriminating evidence!

Now, even as a criminal defense lawyer, I understand that drunk driving is a touchy subject for a lot of people.  Drunk driving can lead to accidents, some of which can be fatal.  The Dallas area is currently dealing with a high-profile case involving a Dallas Cowboys player who (allegedly) killed a teammate in a drunk-driving accident.

But, doesn't anyone see a bit of a problem here?

Ever since MADD came on the scene in the early 1980s, civil liberties have been repeatedly curbed in the name of stopping drunk drivers.  So-called "sobriety checkpoints" -- in which a police officers set up a roadblock and can legally stop your car for no other reason than that you were driving down a particular road at a certain hour -- came along as one preventive measure to stop drunk driving.  But that's only the tip of the iceberg.  Many states also attach penalties for refusing to submit to a breathalyzer test (in other words, refusing to incriminate yourself), and most states institute an automatic driver's license suspension for being arrested on suspicion of drunk driving.  In Texas, it's taken a step further: registering a blood alcohol content above .08 results in a 90-day license suspension, but refusing to take a breathalyzer test?  That gets your license suspended for 180 days.

And, if you refuse to take the breathalyzer test, many communities in Texas have figured out a convenient way around that.  If somebody's been arrested for DWI, well, you can always go to a judge and get a search warrant for a blood sample!  But that might be somewhat inconvenient for the judge, given that a lot of DWI arrests take place in the middle of the night -- and if they wait until the morning, the evidence is either gone, or far too inaccurate to be of any use.  (If you're charging the guy with driving drunk at 11 PM on Friday, his BAC at 9 AM on Saturday isn't particularly meaningful.)  So many police departments will simply find a magistrate who's willing to sit in the stationhouse in the wee hours of the morning to sign off on search warrants.  But there's a problem here, too: oftentimes, the magistrate there simply acts as a rubber stamp, signing off on a search warrant for every person who's arrested on suspicion of drunk driving.  (Note: If you're naive enough to believe that the police never arrest people for drunk driving based on scant or nonexistent evidence, well, there's no helping you.)

I'd like to point out, by the way, that all of this -- the license suspension, the demands for self-incrimination -- occur on arrest... not after being tried and convicted of an offense.

Yet, in spite of all of our "cracking down," drunk driving continues to persist as a problem.  The practical causes of drunk driving aren't all that difficult to figure out.  The dearth of neighborhood bars in many areas means that people who want to go to a bar must travel many miles to get there; and the lack of reliable public transportation (and often exorbitant cab fares) means that getting behind the wheel often seems like the only practical way to get home after a night of drinking.  In addition, there's the problem that if you have to get to work the next morning, you can't leave your car parked outside the bar, so this can make taking a cab impractical as well.

In other words, drunk driving is a problem associated with a car-dependent culture (the effects of which, by the way, might actually make people want to drink.)  Cracking down on the immorality of drunk driving through ham-handed measures is treating the symptom, not the cause.  In a scant handful of American cities, going out for a drink involves a short walk to the local watering hole; but in the numerous car-dependent suburbs and exurbs of this country, going out for a drink means driving across town -- or, worse, to a neighboring town (or even county!) if your town's decided not to allow bars -- and putting the lives of yourself and others at risk.

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Comment Preferences

  •  Tip Jar (11+ / 0-)

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

    by TDDVandy on Fri Dec 28, 2012 at 10:05:59 PM PST

  •  I don't actually see (7+ / 0-)

    a civil liberties issue here.

    If you failed a breath test, or there was sufficient probable cause to require a blood sample, then I don't see why a warrant to obtain one should not be granted.

    I would also support the idea that a refusal to give a sample should be treated as an admission of guilt.

    Quite frankly, I have the right not to be killed by drunk drivers, and my civil liberties trump theirs.

    You are not incriminating yourself under these circumstances. The cops are doing their job.

    Now if you want to argue that the police are dishonest, or corrupt, then that is a completely different matter.

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

    by twigg on Fri Dec 28, 2012 at 10:12:42 PM PST

    •  once again (12+ / 0-)

      The far left and the far right are united in their very selective understanding of the concepts of civil liberties.

      I would also support the idea that a refusal to give a sample should be treated as an admission of guilt.
      Does that go for all searches or just for suspicions of things it's politically correct to be against?
      Quite frankly, I have the right not to be killed by drunk drivers, and my civil liberties trump theirs.
      Non-sequitur. You also have the right not to be murdered, so?
      •  Exactly. (3+ / 0-)
        Recommended by:
        debedb, jayden, suesue

        Unfortunately, there are a lot of people who seem to be accepting of curtailments of civil liberties in the context of drunk driving.

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

        by TDDVandy on Fri Dec 28, 2012 at 10:38:19 PM PST

        [ Parent ]

        •  How is a search conducted with a lawfully issued (5+ / 0-)

          warrant a curtailment of civil liberties?

          Sorry, but you seem to be making the argument that driving drunk is "practical" so people who get behind the wheel impaired shouldn't be arrested and tried for DUI.

          You don't want me on any of your juries for your drunken clients.

          •  because it's forcing you to potentially provide (2+ / 0-)
            Recommended by:
            annecros, Johnny Nucleo

            self-incriminating evidence, against your will, which is specifically banned by the constitution.

            How is a search conducted with a lawfully issued warrant a curtailment of civil liberties?
            what about that do you not understand? forcing you to give blood, or take a breathalyzer test, against your will, should, by definition, render that evidence inadmissable in court, warrant or no warrant. why not get a warrant forcing you to admit guilt while your at it? save a whole lot of time and money on that "due process" thing, wouldn't it?

            i'm no fan of drunk/impaired driving, but i'm even less of a fan of my constitutional rights being violated, in the name of public safety.

            a few comments:

            In Texas, it's taken a step further: registering a blood alcohol content above .08 results in a 90-day license suspension, but refusing to take a breathalyzer test?  That gets your license suspended for 180 days.
            these are civil actions, not criminal. you don't have a constitutional right to a driver's license. you agree to these contractual restrictions, when you accept the license.
            The practical causes of drunk driving aren't all that difficult to figure out.  The dearth of neighborhood bars in many areas means that people who want to go to a bar must travel many miles to get there; and the lack of reliable public transportation (and often exorbitant cab fares) means that getting behind the wheel often seems like the only practical way to get home after a night of drinking.
            that's really too fucking bad, but it hardly qualifies as a "practical cause". it's an inconvenience, at best. sure, it would be lovely (and environmentally positive) to have good public transportation, around the clock. since that isn't the case, you learn to deal with it, and not by hopping in your car, driving 20 miles to hit the closest bar, getting drunk, and then driving the 20 miles back home. how about the more logical (and safe) alternative of purchasing your libation of choice, taking it home, and drinking it there? win-win.
    •  erm (4+ / 0-)
      I would also support the idea that a refusal to give a sample should be treated as an admission of guilt.
      Only in that case, or in other cases too?
      •  If you're accused of a crime (1+ / 0-)
        Recommended by:
        debedb

        In twigg's world (and in DWI jurisprudence) you're guilty unless you can prove your innocence.  In the legal system we supposedly have in the US, the opposite is true.  Not to mention that there are PLENTY of reasons to never, ever consent to any sort of search.  

        "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 09:25:40 AM PST

        [ Parent ]

    •  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.

    •  just as a thought, blood contains DNA (1+ / 0-)
      Recommended by:
      DarkLadyNyara

      and this gives the local cops, should they care to catalogue or check the DNA, access to possible evidence of past or future criminal behavior which they may not be entitled to.

      remember that there are those who feel all Americans should have their fingerprints or DNA on file, no matter how intrusive or invasive the procedure

    •  How about because it will be poorly trained (0+ / 0-)

      police officers taking the sample rather than a professional?  Hope you enjoy permanent nerve damage when the officer gets frustrated and just decides to keep randomly digging for half an hour because he doesn't know how to find a vein.  Oh, and don't forget that many officers will probably reuse the needles after wiping them down with alcohol.

      You have watched Faux News, now lose 2d10 SAN.

      by Throw The Bums Out on Sat Dec 29, 2012 at 08:58:33 AM PST

      [ Parent ]

  •  So, the answer to drunk driving is more bars? (10+ / 0-)

    That logic seems vaguely familiar.

    •  :) (4+ / 0-)
      Recommended by:
      debedb, DeadHead, Villanova Rhodes, matx

      202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

      by cany on Fri Dec 28, 2012 at 10:21:47 PM PST

      [ Parent ]

    •  I am sorry you missed the point. (6+ / 0-)

      So... would the answer be prohibition?  Didn't we try that before?

      The actual answer is better zoning laws and public transportation.  It's not so much more bars as it is making it such that people can get to and from them without driving.  Easy to do if the bar is close by, as opposed to being on the other side of town (which unfortunately is how most cities approach it -- put all the bars in town on a single street that's far from residential areas.)

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

      by TDDVandy on Fri Dec 28, 2012 at 10:26:44 PM PST

      [ Parent ]

      •  There are many ideas (6+ / 0-)

        in there that I would fully support.

        The idea of a fully integrated public transport system, and a refusal to allow bars to have parking lots would be neat :)

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

        by twigg on Fri Dec 28, 2012 at 10:37:40 PM PST

        [ Parent ]

      •  So the answer is more bars in residential (3+ / 0-)

        neighbourhoods, where the residents will be subjected to the increased noise and violence associated with those bars ?  I think that is a bad idea.

                              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 10:42:38 PM PST

        [ Parent ]

        •  it doesn't have to be next door. (0+ / 0-)

          I don't know what sort of bars you're used to, but I don't think I've ever seen violence at a bar.  I'm sure it happens, but its not frequent.

          •  Depends on where you live (0+ / 0-)

            Up north in Wisconsin there were lots of bars, and they didn't seem to have much violence.

            Down south, on the other hand, it seems like there is a problem every weekend in many places.

            Of course, YMMV.

            Women create the entire labor force. ---------------------------------------------------------------------------------------- Sympathy is the strongest instinct in human nature. - Charles Darwin

            by splashy on Sat Dec 29, 2012 at 01:46:52 PM PST

            [ Parent ]

      •  It can help but... (8+ / 0-)

        I'm in San Francisco. I live across the street from a bar. It sits 20 feet away from a bus stop for one of the major bus routes. They don't ride the bus. They stagger off to the car and drive off. I've had to report more than one or two of them.

      •  I can think of a few alternatives between (2+ / 0-)
        Recommended by:
        johnny wurster, matx

        "a bar within walking distance of every home" and "prohibition" -- but I bet you could, too.

        Public transportation for drunks is a lovely idea (unless you're the driver or fellow passenger, but who cares about them??), but it's only practical in a few areas, particularly at the hours bars close, or even after the evening rush hour.

        Many drunk drivers are on their way home from work (full disclosure: including the one who nearly killed me and severely injured several others when he took out five cars at full speed on the freeway, so I don't profess objectivity). Most of them don't start their work day thinking "better park at the station, take the train sixty miles, and then catch two buses instead of driving as I always do, because I might hoist a few at 5:00." (I live in SoCal, and such commutes are common.) They wouldn't forgo the after-work happy hour to drive home and then walk to a neighborhood bar, if only they had one. They're drinking with their work friends -- particularly when it comes to holiday parties. This isn't merrie auld England where the neighbourhood pub is the center of social life.

        In other words, most people aren't looking for a place to go out to drink once they're home, though obviously some are. They're socializing where they are and have been conditioned to equate socializing with "getting too drunk to drive safely." Shame on all of us, from frat culture to Mad Men to Monday Night Football to criminal defense lawyers who go beyond putting the state to its proof and instead seek to justify their clients' criminal behavior.

        The "underlying cause" of drunk driving is being drunk with access to a car. As with the gun issue, other countries have found ways to minimize the problem of drunk driving. Perhaps we could learn something from them. Meanwhile, sorry, but finding your clients a convenient place to get hammered just doesn't warrant changing my local zoning.

        I actually agree with you about some of your legal concerns about warrants and probable cause (although the matter is more state-specific than covered here), but your flights of fancy about addressing the car culture detract from those arguments. There are a lot of civil liberties issues to care about. This one is on the list, but pretty low on mine.

    •  No, the answer is more... (3+ / 0-)

      COMMUNITY bars....Perhaps you missed that!

      "Ronald Reagan is DEAD! His policies live on but we're doing something about THAT!"

      by leftykook on Fri Dec 28, 2012 at 11:10:00 PM PST

      [ Parent ]

  •  Last night I was watching (7+ / 0-)

    North by Northwest. In the movie Cary Grant gets kidnapped and the kidnappers force him to drink a bottle of liquor and then drive (they are hoping to make it look like he drove drunk and then crashed and died). He gets arrested for DUI and is trying to fight it since he was forced into it. His mother says, "Oh, just pay the two dollars!"

    That really struck me since even with inflation that was quite a paltry fine. Things have changed.

  •  Blood sample far more invasive than breath sample (10+ / 0-)

    That's the problem I have with this.  

    A breath analysis is arguably a logical and reasonable extension of the traditional low tech non-invasive technique of an officer smelling your breath.  

    Nothing about your person or your privacy is invaded when your breath is sampled and tested.

    A blood sample, on the other hand, is absolutely a an invasive technique.  

    There are so many reasons, none of them having to do with alcohol or drug impairment, that should protect one from having ones blood involuntarily taken, unless a very high legal standard has been met for so doing.

    If your actual physical body can be invaded without a warrant, this means you can be poked and probed without cause, your DNA may be taken without recourse, you may be subjected to physical and psychological invasion.

    It makes a mockery of the already all but destroyed 4th amendment.

    •  actually (2+ / 0-)
      Recommended by:
      Shuksan Tahoma, splashy

      It's no problem to get DNA off a breathalyzer. Legally if you get a breath test it's your obligation to either demand to keep the mouthpiece part, or clean it off before you let him take the machine back (both of which could easily get you arrested, but tough shit) otherwise you've "discarded" your DNA and it's totally fine for the police to test it or archive it or whatever they want.

      •  that's an important point I missed (1+ / 0-)
        Recommended by:
        splashy

        Obviously, usually a legit DUI arrest and breath test has nothing to do with collecting DNA.

        OTOH, police can and do collect DNA from (mostly) murder suspects through legal deceits including envelopes (you're a sweepstakes winner) and chewing gum (hey friend, want a stick of gum?)

        It's conceivable that a breathalyzer test could be used in deceit against a sober suspect in a murder case.

        That's really an aside, I'm not offering an opinion here.

      •  that is a whole lot different (1+ / 0-)
        Recommended by:
        splashy

        than sticking a needle in my arm without consent and causing me to have a complete meltdown because I'm needle phobic and mildly aspie.  The invasion of my BODY without consent is not acceptable for non hospital/emergency lifesaving situations.

        And we sail and we sail and we never see land, just the rum in the bottle and a pipe in my hand...

        by Mortifyd on Sat Dec 29, 2012 at 12:39:53 AM PST

        [ Parent ]

  •  That was interesting enough (2+ / 0-)
    Recommended by:
    Villanova Rhodes, Joy of Fishes

    to capture my attention.

    Seriously?  

    Drinking at night + work in the morning = a reason to drive drunk?

  •  Blood Alcohol (0+ / 0-)

    The threshold for blood alcohol is too high.  If you were aware that you could get busted for 2 beers at about 0.25 BA, you might slow down your consumption. By .035BA you are too drunk to excercise good judgement or drive safely.  If you cannot walk to drink then don't drink.

  •  People strapped into cages on wheels are easier to (1+ / 0-)
    Recommended by:
    cactusflinthead

    control than people who perambulate on their own two feet. The freedom of the road is one of the main American delusions along with living in suburban enclaves as the ideal of independence.
    Presumably, the concept of self-government is really scary to people who aren't sufficiently aware of themselves to engage in self-direction. What seems strange is that people in need of direction are particularly prone to giving directions. I suspect it's a matter of imitation. People tell them what to do, so they pass it on, often without acting on the direction because they are incapable of follow-through. Thus the competent are lured into doing the incompetents' job and hardly anyone notices who actually does what.

    Democracy is the epitome of DIY, but a lot of people just aren't into doing. "All hat, no cattle."

    We organize governments to deliver services and prevent abuse.

    by hannah on Sat Dec 29, 2012 at 02:42:06 AM PST

  •  can they still administer a field sobriety test? (1+ / 0-)
    Recommended by:
    Joy of Fishes

    Locally, they do this in lieu of a blood test or Breathalyzer and tape the test.  This tape, with the officer's testimony, comprises the case, with the refusal to submit to testing also admitted into evidence.  ITMT, the refusing driver's license is suspended until the matter is ajudicated  

    •  Being on the road on New Year's (0+ / 0-)

      is not sufficient probable cause, the same as walking down the sidewalk in a "bad section" of town.

      Like littering, there is simply no excuse for driving while impaired, but I am deeply troubled by extra-constitutional solutions to problems.

      I see a very beautiful planet that seems very inviting and peaceful. Unfortunately, it is not.…We're better than this. We must do better. Cmdr Scott Kelley

      by wretchedhive on Sat Dec 29, 2012 at 05:15:26 AM PST

      [ Parent ]

  •  I really don't understand how this is a severe (2+ / 0-)
    Recommended by:
    johnny wurster, Joy of Fishes

    violation of someone's rights, or a violation at all, if they are still getting a warrant.  Now I wouldn't go anywhere near as far as say twigg did above (refusing a search should never be considered an admission of guilt), but I don't see why this would be a significant issue.

    ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

    by James Allen on Sat Dec 29, 2012 at 05:30:45 AM PST

  •  If they can't tell by your breath but they still (1+ / 0-)
    Recommended by:
    DarkLadyNyara

    think you're too impaired to drive, then it doesn't matter if it's over-indulgence or a diabetic problem (as someone mentioned it above)- I think that if the police think you are impaired they should take you to a medical place immediately. Let real nurses take your blood, and yes, let people see what's in it. That is what probable cause IS all about. If you're sober and they were personally harassing you, you'll have their evidence to sue them with. If you are impaired for any reason- good job, cops.
      Driving is a privilege, not a right, as it says in the very beginning of the instruction manual from my state. I am very happy to see both scheduled and surprise DWI stops going on, as I don't want to see anybody driving drunk or even just driving badly. In fact, if you're dumb enough to drink and drive that route after the checkpoints have been advertised ahead of time as they are here, then you're really dumb.
       

  •  So, the real solution (0+ / 0-)

    Is to have bars all over the place, or at least liquor stores all over the place - I guess.

    Why don't they drink at home? Why go to a bar? I my experience, bars are dangerous places.

    But, others may feel differently...

    Women create the entire labor force. ---------------------------------------------------------------------------------------- Sympathy is the strongest instinct in human nature. - Charles Darwin

    by splashy on Sat Dec 29, 2012 at 01:43:02 PM PST

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