Breathing Uneasy

Brian Doherty | January 20, 2006

Refusing to potentially incriminate yourself through breath-alcohol tests already leaves you open to license suspension and, as Radley Balko once reported, "Thirty-seven states now impose harsher penalties on motorists who refuse to take roadside sobriety tests than on those who take them and fail." (Hello, Fourth Amendment?) CNN reports that many states are trying to make the punishments for that refusal more severe.

Refusing some of the roadside tests they try to give you prior to the breath test is not yet illegal (or at least not everywhere--I'm not up on every state law on this topic). I wrote of a crafty DUI defense attorney's "Roaside Rights Kit" telling cops to buzz off back in Reason's November 2001 issue. Cops reaction to this standing up for one's rights? Said the attorney: "The most common response from officers is, 'If I saw anybody use this product I'd arrest them.'"

Comments

Kevin Carson|1.20.06 @ 10:55PM|#

It's only a matter of time till they start ruling about the parts of your home where you don't have a "reasonable expectation of privacy."

|1.20.06 @ 11:11PM|#

DUI Lawyer Myles L. Berman in Los Angeles does the rounds on local radio pretty frequently.

When he gets on and starts teling people to refuse the roadside tests, cops start calling in in a complete fit.

The guy is a saint: http://www.topgundui.com/

amazingdrx|1.21.06 @ 12:36AM|#

"I respond, 'Now you know what we are dealing with: people willing to arrest you just because you assert your rights.' That's the sort of intimidation this device is designed to respond to."

This is interesting..does the real value actually lie in angering the cop which then precipitates an unreasonable arrest and illegal action on the part of the officer? If one had video of the officer's misconduct, would that protect from conviction?

If police can videotape suspects, why can't the victims of police state inequity also use video to protect themselves during an incident involving police abuse of their constitutional rights?

|1.21.06 @ 12:51AM|#

If police can videotape suspects, why can't the victims of police state inequity also use video,,,

We probably will, with the way technology is going I can't see how it will be all that hard to equip yourself or your car with video equipment that streams to a storage place somewhere else (so they can't just bust up your camera). No doubt there will be attempts to make 'self-monitoring' illegal, though.

|1.21.06 @ 1:01AM|#

As much as my heart is with you guys, I don't think you have a legal leg to stand on. The reasoning (as I recall from Driver's Ed some thirty-plus years ago) goes like this: Driving is not a right but a privilege. When you hit the road, you're subject to the "implied consent" provision, which means that your act of driving implies that you will consent to the alcohol test. Or something like that.

Oh, hell...the bottom is that they have the lion's share of the gunpower and can do what they want, because they can. What the hey, it's honest, and much easier to understand that way.

|1.21.06 @ 1:05AM|#

I don't here much for the "pro" side of these tests on this board so I'll weigh in.

DISCLOSURE: I'm an ex-bartender and ex-EMT/Firefighter.

Simple fact. Drunks on the road kill people. With all due respect to civil liberties, just where are MY civil liberties being protected by allowing an intoxicated driver on the road? You know...the type of person who just might kill ME or someone on my family?

Now I'm all for curtailing abuse by the police as much as anyone. But from someone who has been there, a person who fails a roadside sobriety test usually does so because they're drunk...and thus a hazard to others on the road.

Don't get me wrong...I like my martini's as much as anyone. And I'm not talking about carte blanche for the thin blue line either. I know abuses occur. If you want to talk about third party oversight and certifications for the equipment and so on, I'm with ya'

But the reality is that at least many of these folks are pulled and tested justifiably. Some are even repeat offenders. Prior to the militancy of MADD and simlar groups, I saw folks with 5 or more DUIs pulled over. Slice it anyway you want but THAT person was a hazard.

It's one thing to protect someone's 4th amendment rights. But how is standing up for a person's "right" to not take a 'breatholizer' doing anything to protect me - a harmless bystander...or my family - from an intoxicated person behind the wheel?

It's nice to wax poetic about the drinker-driver's rights...until, of course, they kill or injure someone. Doesn't the victim have rights. And isn't that part of what my tax dollars are going for? Protecting me from - among other things - idiots incapable of self-control? A LOT if innocent people have died at the hands of people who chose to drink and drive. Who give defends their rights?

I have a lot of affinity for libertarian thought on many issues. But my biggest problem with the libertarian side of issues like this is that in the zeal to protect the drinker-driver, they fail to acknowledge the potential effect on others. And typical of most complainers, I hear little in the way of productive alternatives.

Whining about rights doesn't mean crap if folks are dead. At the end of the day I (and many others) want someone out there looking for folks like this and doing something about it.

Attack my position all you want (as I'm sure some will) but like it or not, I'm the other side. If you wan't to sell me on the idea that breatholizers are bad, you'd better be throwing out a solution that both protects the drinker-driver's 4th ammendment rights AND protects others safety as well.

|1.21.06 @ 1:11AM|#

Interesting... if they can do this because they have the gunpower...

I'll stop before I just get flamed. But you get the idea.

I honestly think we'd have a chance at a better society if people just had more of penchant towards meeting excess government power with overwhelming force on a community level. I guess we'd all have to get along better for that to happen though.

|1.21.06 @ 1:35AM|#

If you wan't to sell me on the idea that breatholizers are bad, you'd better be throwing out a solution that both protects the drinker-driver's 4th ammendment rights AND protects others safety as well.

I won't go so far as to say that breathalizers are 'bad', but the thing is that they don't really address the real issue.

I'm absolutely behind getting impaired (and otherwise criminally stupid) drivers off of the road. Problem is that most of the effort involved in handling 'drunk' drivers is actually counterproductive in terms of getting the real menaces off of the road.

To peg some arbitrary level of alcohol as 'impaired' is ignorant. People handle these kind of things differently, and while I personally tend to think that if you've been drinking, driving isn't really a good idea, some people handle it better than others and I'd rather have someone with a .08 BAC driving relatively sanely over some *sober* dickbag driving 20 or 30 mph over the speed limit, changing lanes willy nilly, and talking on a cell phone.

Not to mention that, for the most part, a lot of the *real* offenders seem to be the repeat DUI drivers who have been arrested, fined, lost their licenses, but somehow continue to drive anyway.

What point having the law at all if it isn't going to remove the worst offenders?

As for refusing a breathalizer, etc., my take on things is that if you're driving well and safely, you shouldn't be stopped, even if the cop thinks you might have been drinking, and if you're not driving well and safely, you should be stopped (and possibly arrested) *regardless* of whether you've been drinking or not. One should be able to refuse a breathalizer (or other similar 'search', with impunity. If one is driving badly, one should be dealt with according to the bad driving, with BAC, etc., as a modifier, if you're driving safely, it shouldn't matter otherwise.

There's way too much of a witch hunt attitude about drunk driving (and don't get me wrong, if you're driving badly while drunk, I'm perfectly fine with you being shot on sight). I'd rather see a focus on dealing with bad drivers, regardless of why they're bad, rather than focus on one particular issue.

|1.21.06 @ 2:07AM|#

"Whining about rights doesn't mean crap if folks are dead."

This is, oddly enough, the position taken by the anti-gun movement, the wonks that want to be able to wire-tap at will, and Bill O'Reilly, who seems to think the internet ought to be regulated, to say nothing of the Religious Right wing nutters who want to curtail the first amendment, the federal congress who has all but relegated the 9th amendment to the ash-heap of history, the drug warriors who happily kick doors in at 4am because someone might have some weed, and blahblahblah.

amazingdrx|1.21.06 @ 2:20AM|#

"Whining about rights doesn't mean crap if folks are dead.... you'd better be throwing out a solution that both protects the drinker-driver's 4th ammendment rights AND protects others safety as well."

Good point, death and injury, that is the real thing that society wants to prevent with DUI laws.

But many drivers are impaired, from many different causes, and the fact is that no matter how sober one is while driving shit happens.

The real answer is safe vehicles. All the inovations have been developed for racing, like three point harnesses, carbon fiber tubs, roll cages, non-explosive gas tanks ...and on and on. These devices routinely save the lives of drivers who crash at well ober 100 mph...oftentimes right into concrete walls.

But this would involve the goverment violating the right of corporate "citizens" to make unsafe products to benefit their bottomline.

Safe vehicles would protect everyone on the highway, impaired or not. Vastly reducing the toll of injury and death.

Instead the corporate friendly police state decides that invading the privacy of real citizens is necessary to prevent highway deaths. Chemically analyzing them at will.

Why aren't our legislators willing to undergo breath tests and for that matter, drug tests at random intervals on the job? They want US to be tested at the whim of any policeman, invading our bodies with hitech chemical analysis.

90% of hihgway death and injury can be eliminated with proper installation of safety equipment on vehicles that operate on public highways. Public highways, we the people own those highways.

Halliburton doesn't own them yet, although that is one of the latest neo-conservative plans...sell the national highways to private contractors.

When you are pulled over by Halliburton security contractos and you are then chemically analyzed and fined apropriately on the spot, will you say yes sir, no sir... or will you wind up in a holding cell making a human pyramid while attack dogs chew on your ass?

Choose bunky, corporate "citizens" rights, or real citizen's rights?

Now ask me about mushroom clouds or repeal of the US constitution. The neoconman fear mongering false dilemna of the moment.

|1.21.06 @ 4:08AM|#

But this would involve the goverment violating the right of corporate "citizens" to make unsafe products to benefit their bottomline.
"safe" is a subjective term... so car makers make insanely "safe" vehicals, and they also make "unsafe" vehicles, depending how absolutly anal paranoid you are. When I was in Cambodia, I would often see a family of 3 or 4 on a single motor skooter (ma, pa, and the kids). And, of course, we in North America are at the other extreme of risk, where a parent can go to jail for not installing a child's car seat properly.

What you are talking about is not violation the rights of corporations, but violating the rights of consumers. Consumers should have the right to decide if they want to spend $15,000 on a reasonably safe car, or spend $90,000 on the same vehicle that is more safe. In fact, people have the option to get 5 point harnesses, roll cages, etc., now... all they have to do is spend the money. Most people decide that the increased safety isn't worth paying as much as a house for.

Simple fact. Drunks on the road kill people. With all due respect to civil liberties, just where are MY civil liberties being protected by allowing an intoxicated driver on the road? You know...the type of person who just might kill ME or someone on my family?
Simple fact. Child pornographers use the internet. Now, I know you won't like the government requiring that all your internet communications must be monitored by the FBI... with all due respect to civil liberties, it could be MY children that might be the victim. I think you need to shut up about all this "privacy" crap and start letting the government know every website you browsed! Sound good? No? Why not?

Simple fact. Terrorists kill people... with all due respect to civil liberties, it could be my family bombed! That is why we should profile high-risk individuals, based on religion, national orgin, and political philosophy, and the government should monitor those individuals 24-7. After all, what about MY civil right not to be bombed! Sound good? No? Why not?

I don't see why drunk driving is somehow different than any other crime which could endanger your life. Reasonable people realize that in a free society there are going to be risks. Life isn't 100% safe. Sometimes innocent people die for no good reason other than someone did something stupid. We should definitly punish those individuals who injure other people, for any reason. But there is no excuse for a god damned police state! Go to North Korea or Cuba for a place where they put safety above liberty... I heard it is real safe in those places!

|1.21.06 @ 4:18AM|#

I'm basically with madpad, and this is one of those "if libertarians *ever* want to win an election, this *is not* a winning issue" things. Keep in mind, I'm absolutely *not* in favor of checkpoints that stop everybody in a big random dragnet, and I might also suspect that a constitutional amendment might be necessary to make these things constitutional. But I do think that having measures in place to ensure that people driving around 2 ton metal boxes at high speeds is reasonable and a good idea. And as long as we've given gov't the ability to regulate safety on public roads, then this is fair game. My main concern is that reasonable suspicion be required for any stop or search or intrusion.
Somebody's drunk; a cop pulls them over; how is evidence going to be gathered proving he/she is drunk? What is the libertarian alternative to proving that somebody is plastered, and is no longer to be trusted with that 2 ton metal box?

amazingdrx|1.21.06 @ 4:45AM|#

hehehey funneee stuff rex!

R C Dean|1.21.06 @ 7:34AM|#

Driving is not a right but a privilege.

That is always the mantra, but I've never understood where it comes from or what its limits are. In other words, sez who?

"Printing a newspaper isn't a right but a privilege." Why not? There are plenty of other ways to get a message out?

What is the libertarian alternative to proving that somebody is plastered, and is no longer to be trusted with that 2 ton metal box?

The testimony of cops, other drivers, videotape, smacked up cars - you know, the same kind of evidence we use to convict people of other crimes.

|1.21.06 @ 8:09AM|#

Refusing some of the roadside tests they try to give you prior to the breath test is not yet illegal (or at least not everywhere--I'm not up on every state law on this topic).

Wish I had known this about a year and a half ago. I got pulled over, failed 3 out of 5 of the roadside sobriety tests, and then blew a 0.01. I explained to the cops that I was sober from the beginning, but they really just wanted me to be drunk or something. I was pulled over for having "old" New York license plates a couple days after everyone was required to have attached the "new" New York plates, and the cops convinced themselves that I was drunk. They also asked me if I regularly drove after drinking, and then explained to me that my "problem" was that I hadn't had enough "practice" with drinking and driving. Somewhere along the line, they had forgotten that they hadn't pulled me over because of any performance issues, but to be safe, I've taken to drinking and driving on a regular basis so as to stay "current." Kidding, kidding!

That said, I'm not opposed to cops pulling over swerving vehicles and having chats with the drivers. Seems that swerving and driving like a drunk stacks up to probable cause, and there is nothing in the U.S. Constitution that prevents the States from passing DWI laws.

|1.21.06 @ 8:12AM|#

Somebody's drunk; a cop pulls them over; how is evidence going to be gathered proving he/she is drunk?

But the issue is not whether someone was drunk, the issue is whether he or she was driving unsafely. If they weren't, there's no reason for them to have been pulled over anyway; and if they were driving unsafely, then there should be ample evidence of that (changing lanes erratically, speeding, etc.), and BAC shouldn't enter into the equation. Nobody should get pulled over and have their current blood composition tested by the state if they were doing nothing unsafe; and nobody should get a pass on unsafe driving behavior just because they're a teetotaler.

|1.21.06 @ 9:15AM|#

There are 90,000 swine in Indiana with multiple DUI offenses on their record, and I suspect 99 percent of those are legit. The problem remains you can't trust a drunkard OR those sworn to protect and serve. Although I have never encountered a lawless boozer on the road I have been involved with cops who have pulled me over for no other reason than a Ferrari emblem on a Honda......under the false pretense of rolling a stop sign. UNFORTUNATELY all of that "gunpower" can corrupt the simpletons who find the profession of law enforcement appealing. This is NOT the only incident involving cops who have learned to game the system in the same manner criminals do, i.e., they realize their illegal conduct will be overlooked if they fabricate an officer safety issue. I received a complimentary car frisk (limited search) by a rookie punk who lied about observing me reach under my car seat. I got the impression this was his routine and learned the department DOES NOT keep any record of vehicle frisks or searches. MOST departments nationwide do not keep any record since 90 percent of searches are fruitless.

Most of the cops involved in that beating of the old black man in New Orleans have been dismissed. They claimed this victim was reaching for something in his waistband after realizing they had been burned by a video. HE DIDN'T EVEN HAVE A WAIST ! How is it these sociopaths weren't jailed for assualt? Did their uniform immunize them from the same penalties that a street hoodlum would have faced?

I don't know of any other profession that EXCLUDES applicants with an above average IQ:

A federal jude dismissed a lawsuit by a man who was deemed too smart to be a New London, Conn., police officer. U.S. District Judge Peter C. Dorsey said the Police Department's rejection of Robert Jordan because he scored too high
on an intelligence test did not violate his rights. The city's rationale for
the long-standing practice is that candidates who score too high could soon
get bored and quit after undergoing costly academy training. Dorsey said: "The
question is not whether a rational basis has been shown for the policy chosen
by the defendants. Plantiff may have been disqualified unwisely, but he was
not denied equal protection." Jordon, 48, scored a 33, the equivalent
of an IQ of 125. The average score nationally for police officers, as well
as office workers, bank tellers and salespeople, is 21 to 22, the equivalent
of an IQ of 104.

|1.21.06 @ 10:50AM|#

"I honestly think we'd have a chance at a better society if people just had more of penchant towards meeting excess government power with overwhelming force on a community level."

I think this approach was tried a few years ago in Texas, near a little place called Waco, if I recall correctly.

I don't believe that anyone has tried to duplicate the experiment since.

|1.21.06 @ 10:53AM|#

I don't think I could ever pass a roadside test.

Where do people learn to pull their hands in from a great distance and touch their noses or their mouths? Isn't is more efficient to lower your head closer to the plate when you eat?

|1.21.06 @ 11:04AM|#

Hello, Fourth Amendment?

She's dead, Jim.

|1.21.06 @ 12:27PM|#

Many years ago I was driving through rural North Carolina on a dark and rainy night with my then-boyfriend, and a cop pulled me over. He said he saw my car swerving (untrue), and then he said that my boyfriend and I both reeked of alcohol. (Impossible; my last drink had been about a month before that; my boyfriend, who wasn't driving, had had ONE beer about four hours before).

So he pulled me out and gave me that bullshit sobriety test. It was pitch-black except for the blue strobe lights on top of his car, so of course he had me facing the strobe lights when I did the test, and got suspicious of the fact that my eyes were thus getting all squinty. (Also, I had a hard rainstorm landing right in my eyes.) So I had to undergo that bullshit "reciting the alphabet backwards," and do the touch-your-nose test and the walk-in-a-straight-line test and a bunch of other stupid crap, and it was about ten minutes before he finally gave up and let me go (and I was as soaking wet as if I'd jumped into a swimming pool).

I sometimes wonder what would have happened to me had I been alone that night, rather than with my boyfriend. I suspect it would not have been pretty.

|1.21.06 @ 1:36PM|#

I'm basically with madpad, and this is one of those "if libertarians *ever* want to win an election, this *is not* a winning issue" things.
It depends... We could let people know that minorities are orders of magnitude more likely to be pulled over, and pursued with legal action by these type of searching or testing. Abitrary stops and searches by police act pretty much as a way for police to scare urban black people out of the suburbs (if you see a black man driving through the neihborhood, stop him for not making a complete stop at a stop sign, or driving 5 over the limit, or "swirving", or some other BS reason. ... call for backup. Give him every test in the book, search his car, pat him down... and throw the book at him for even the slightest infraction). Do these kinds of things to every black person who drives through the neighborhood, and pretty soon black people get the message that they are not wanted. This happens in virtually all lilly white suburbs in the United States.

So, given the fact that traffic stops are almost universially used as a method of terrorizing minorities, I know there is a lot of minorities who would be willing to support the libertarian position on this. Add to that young people who are constantly harrased by police and we could get the young vote... point out that women are often sexually exploited by cops making traffic stops, and that you, or your daughter or wife could be sexually exploited because of these laws, and I think we could whip up the feminist crowd into a real frenzy.

I think if Libertarians used some of the techniques used by the Democrats and Republicans ("You don't support the Patriot Act? It is because you support terrorism and hate America! We are all going to be bombed and die unless you support the Patriot Act!" - "You don't support my welfare program? It is because you hate the poor and want them to suffer! You greedy capitalist want the poor to starve to death in the street."), and said "If you support regular traffic stops, you are a racist who wants to terrorize minorities and who supports the sexual exploitation of innocent women!!!" and we could make some headway. Lets do a little fear mongering and smearing of our own!

|1.21.06 @ 2:04PM|#

I do not know if this idea has any merit but years a go a rather "experienced" dui driver told me that he got out of any number of breath tests by literally coughing/hacking into the breath test. By doing that (he said) it messes up the reading and they have to reset the equipment and when they do retest you simply cough/spew into the thing again and the machine has to be reset. After a few times doing this you hopefully have sobered up and the test comes up clearing you.

|1.21.06 @ 2:05PM|#

It's one thing to protect someone's 4th amendment rights. But how is standing up for a person's "right" to not take a 'breatholizer' doing anything to protect me - a harmless bystander...or my family - from an intoxicated person behind the wheel?

Honestly, I don't see how this argument's much different from those made by 2nd Amendment opponents. Now if only America had a "driving lobby" on par with its "gun lobby".

|1.21.06 @ 2:08PM|#

Kevin Carson,

You don't have a reasonable expectation of privacy on your front porch.

:-P

|1.21.06 @ 3:26PM|#

It occurs to me: the very first time I drank alcohol, at a junior-high-school party, I had no tolerance at all, of course, so I got roaring drunk from a very small amount of booze; even if I'd had my license there was no way in hell I could have been trusted to drive a car, yet my blood-alcohol level was probably well below the limit. Whereas a guy who's had two or three beers a day for the past thirty years could probably down a six-pack with no ill effects at all, but his blood-alcohol level would be above the legal limit.

I fully agree with all the previous posters who said that the standard should be the level of impairment, not the level of alcohol in your blood.

|1.21.06 @ 3:35PM|#

There are lots of crimes that are just as much of a threat to the public as drunk driving. Indeed, the existence of the 4th Amendment makes stopping these crimes and arresting criminals very hard. No doubt people die and are raped or victimized every year because the cops fail to catch criminals they would have otherwise caught had they not been burdened by the 4th Amendment.

The fact is that this "driving is a privilage" crap is a legal fiction to get around the obvious fact that everyone has a 5th Amendment right not to incriminate themselves and a 4th Amendment right not to be searched absent a warrent. If someone is suspected of rape, you can't just draw blood from them without a warrent from a judge. Yet, if someone is suspected of having a couple of beers and driving, you can take their breath and or their blood with no warrant. Why is DUI so special that we have to give up our rights when we don't in every other type of criminal offense no matter how serious?

While the Constitution is not a suicide pact, principle does matter. As far as the deaths associated with drunk driving, driving is dangerous and kills thousands of people every year no matter what. You are just as dead whether the guy who hits you is a drunk or asleep. Further, I take issue with the number of "alchohol related" deaths put out by people like MADD. Everytime there is an accident and one of the drivers had been drinking it is assumed that the drinking was the sole cause of the accident. A lot of those accidents would have happened even if both drivers had been sober, so still would have, but not all. We will never know.

The bottomline is either the 4th and 5th Amendments mean something or they don't. It is one thing to modify those for the sake of national security, although even that is debateable and certainly only done in extreme circumstances. What we have with DUI is core Constitutional principles of police search and rights against self incrimination being thown out the window for an ordinary crime that is not even a felony for the first offense. That is disturbing.

|1.21.06 @ 3:48PM|#

I think Phil's got it right. If you're driving like an asshole then you probably deserve to get pulled over and harassed by the cops. (Of course cops are consistently the worst drivers I encounter on the road, so who pulls them over?) Whether you have a naughty substance in your body at the time shouldn't enter into the equation. I know when I drive after I've had a few (the horror!) I am even more careful than usual. I know I'm one swerve or speedtrap away from being harassed.

|1.21.06 @ 4:52PM|#

If one had video of the officer's misconduct, would that protect from conviction?

If police can videotape suspects, why can't the victims of police state inequity also use video to protect themselves during an incident involving police abuse of their constitutional rights?


Driving is not a right but a privilege.


Here in the People's Republic of Illinois, where citizens have "the privilege of using tangible personal property", videotaping police officers without their permission (which they will certainly never grant) is a Class 1 felony punishable by up to 15 years in prison.

Try videotaping the police, and you just might find yourself in jail with a $250,000 bail (especially if you're black).

|1.21.06 @ 5:50PM|#

Ammonium,

While I agree that that law is BS, the guy in question was actually waiting around for traffic stops to occur and then videotaping them. It might be different if you had a nanny-cam mounted to your visor -- to prevent vandalism, of course -- which just happened to have recorded your interactions with the officer after he stopped you.

Not to say that they wouldn't try to throw the book at you anyway (and you'd be especially screwed if they noticed the cam during the stop), but if the law applies to security cameras then every bank, convenience store, gas station, etc that cops visit is in violation of the law.

b-psycho|1.21.06 @ 6:14PM|#

The explanation I recall for "driving is a privilege" is that the roads are "public" (read: tax-funded), so what your liscense means isn't that you can drive but that you can drive outside of your property. There's a point behind it, but that still doesn't justify the extent to which the drunk-driving laws have been stretched.

If the idea is to pull over and arrest people that are too drunk to be driving, then it strikes me as odd to threaten to arrest someone who is clearly sober simply because they have the courage to question why you pulled them over. How many people that are visibly sloshed or otherwise impaired are zipping by while these cops are profiling for giggles?

I live in Northern Georgia. On a regular basis I've actually seen people driving, sloppily, with a freakin open container in their free hand right past a cop and not get pulled over, whereas friends of mine have been pulled over and accused of running lights where there aren't any. You tell me what the problem is...

|1.21.06 @ 6:17PM|#

Here in the People's Republic of Illinois, where citizens have "the privilege of using tangible personal property", videotaping police officers without their permission (which they will certainly never grant) is a Class 1 felony punishable by up to 15 years in prison.

Are you kidding? What possible justification could there be for such a law? Given the amount of power the state wants to entrust with police, what they do in public, under color or authority, simply must be a matter of public record. Videotaping happens to be the most accurate way or establishing that record. Making illegal the one tool individuals have to hold police accountable is just disgusting.

|1.21.06 @ 6:56PM|#

just put a sign on your car: warning: this car is protected from theft by video recording being transmitted to a remote location

|1.21.06 @ 6:57PM|#

...video [and audio]...

|1.21.06 @ 7:06PM|#

Well whatever they want to call it, that it should be illegal to record an officer of the state in public, acting in his official capacity, is just wrong. At least it ought to be anywhere that aspires to be a free society.

|1.21.06 @ 7:20PM|#

Based on the idea by biologist (and by Dave W. a couple months ago), I like the idea of just putting a sticker on the lower right corner of your driver-side passenger window (where a police officer would readily see it while talking to you through your rolled-down window:

NOTICE: As part of a scientific experiment, this vehicle and its surroundings are at all times subject to real-time and/or recorded surveillance by video, audio and/or other means. The location and exact nature of the monitoring equipment is unknown to the driver of the vehicle, who CANNOT turn it off or remove it.

|1.21.06 @ 10:44PM|#

". . .It's one thing to protect someone's 4th amendment rights. But how is standing up for a person's "right" to not take a 'breatholizer' doing anything to protect me . . "

Madpad,

How does standing up for a person's right to not be stopped and searched randomly on the street protect you from robbery, rape, assault, etc?

If the police are so trusted and we consider being protected from (possibly) becoming a victim of crime, why don't we just have a constitutional referendum to repeal the 4th? That way we can have this arguement once and settle it instead of the current process of having it worn away by every "crisis".

The 4th admentment isn't there to protect you from me, but to protect you from abuses by state organs.

As youre anecdotes point out, the current DUI scheme doesn't discourage people from repeat offending

|1.21.06 @ 10:46PM|#

Is the formatting of this page FUBAR for anyone else?

|1.22.06 @ 12:31AM|#

Is the formatting of this page FUBAR for anyone else?

Yeah. Somebody posted a huge URL that broke the right margin of the page.

The Wine Commonsewer|1.22.06 @ 1:10AM|#

As long as I've been alive the penalty in Californicate for refusing a sobriety test is an auto-fucking-matic suspension of your driving privelge

I probably spelt that wrong because I've been drinking wine while watching Tivo'd Idol with Mrs TWC and the kids because she was outta town for a couple of days and missed the show when it ran. Now I'm downstairs listening to great old rock and roll while the kids fade into slumber.

|1.22.06 @ 1:48AM|#

This isn't about a DUI. People are missing the point. Points of note are: (1) the portable breathalizers that police officers carry with them in their cars is not completely accurate [that is why they are required by law to give you a second breathalizer or blood test at the station]; (2) if you refuse a breathalizer, the officer can arrest you based only on your erratic driving, or whatever reason he/she pulled you over; (3) to refuse a breathalizer renders you automatically guilty in the eyes of most state DMVs, thus causing you the loss of driving privileges for up to one year.

In Colorado, if one refuses a breathalizer, the DMV automatically revokes your license for one solid year, and refuses to issue any kind of temporary driving privileges, forcing those in rural areas to either hitch a ride into town for work, depend on friends & family, or lose their job altogether.

The issue here really is that the state has the right to revoke your license for as long as one calendar year, even if they have very little evidence (they are not bound by the "reasonable doubt" standard) for doing so. It's the officer's word against yours (and you were, accd. to the officer, intoxicated). Of course, if you were drunk, you should not have driven. But, if you were not drunk, you will still lose your license for refusing to take the breathalizer test. And, most states do not have reliable public transportation. Losing a license can put families into poverty.

And: Did you know that officers are not required to read you your Miranda Rights when arresting you for a DUI?

|1.22.06 @ 1:49AM|#

This isn't about a DUI. People are missing the point. Points of note are: (1) the portable breathalizers that police officers carry with them in their cars is not completely accurate [that is why they are required by law to give you a second breathalizer or blood test at the station]; (2) if you refuse a breathalizer, the officer can arrest you based only on your erratic driving, or whatever reason he/she pulled you over; (3) to refuse a breathalizer renders you automatically guilty in the eyes of most state DMVs, thus causing you the loss of driving privileges for up to one year.

In Colorado, if one refuses a breathalizer, the DMV automatically revokes your license for one solid year, and refuses to issue any kind of temporary driving privileges, forcing those in rural areas to either hitch a ride into town for work, depend on friends & family, or lose their job altogether.

The issue here really is that the state has the right to revoke your license for as long as one calendar year, even if they have very little evidence (they are not bound by the "reasonable doubt" standard) for doing so. It's the officer's word against yours (and you were, accd. to the officer, intoxicated). Of course, if you were drunk, you should not have driven. But, if you were not drunk, you will still lose your license for refusing to take the breathalizer test. And, most states do not have reliable public transportation. Losing a license can put families into poverty.

And: Did you know that officers are not required to read you your Miranda Rights when arresting you for a DUI?

amazingdrx|1.22.06 @ 9:04AM|#

If one fits a profile one gets pulled over, it has little to do with safety.

Once the officer approaches it gets personal. Why?

Because official representatives of the police state go through a filtering process. Only control addicts, those addicted to being controlled by others and controlling others pass the filter.

Chickens who do not participate in enforcment of the pecking order either escape the cage or they are pecked to death by the mob.

If one does not match one's personality to the filter when pulled over, any number of excuses exist under the law to ratchet up the tension exerted by the system.

|1.22.06 @ 9:25AM|#

How does standing up for a person's right to not be stopped and searched randomly on the street protect you from robbery, rape, assault, etc?

Now's where I get to ask what you're talking about. It's not protecting me from robbery, rape, assault, etc....and it's not supposed to.

It's supposed to protect me from and drunk idiot driving a ton of metal over me and possibly killing me in the process.

We could go back to those halcyon days of yore, I guess. When there were no breatholizers and no focus on drunk drivers. Lot's of innocent people died (and still do). But by God...the drinker driver's rights were protected!

According to NHTSA statistics posted on www.alchoholalert.com, in 1982, alchohol related driving deaths accouted for 60% of the total. In 2004, the accounted for 39%. The total number went from 26,173 for 1982 to 16,694 in 2004 - a significant drop. Interestingly, the over all total didn't decrease much - 43,945 total death in 1982 to 42,518 in 2004.

However since the population grew by some 20% in that same period, (1982 resident population was 230,645,000. The 2000 resident population was 276,059,000) the actual percentage of deaths to the total population fell from 1.9% to 1.54. So real traffic deaths actually decreased some 18%. That also means the real traffic deaths involving alchohol went down more than 20% as well. So with all due respect, if breatholizers and other measures reduced the volume of deaths that dramatically, there's something to it.

Listen. I said before I understand that police abuses occur, equipment can be problematic and people's rights do need to be protected. But so do innocent people.

An individual's right to not be unnecessarily infringed of their 4th ammendment rights is no less important - in a practical sense - than MY right not to be victimized by that same individual's stupidity or carelessness. Allowing me to sue in the courts is a hollow measure when I or someone I love is already dead.

Breatholizers exist for one reason...to be a quantifyable number alluding to guilt. It may be sometimes innacurate, but it takes ascertaining a drivers level of intoxication out of the subjective realm of "the ol' roadside sobriety test" and into the realm of quantifiable measure.

From there, years of research have associated a level of intoxication with a level of impairment. And my own practical experience working with fire departments and other first responders bears it all out.

So far, no one has answered my challenge. How do you protect the rights of both? Come up with a better idea and I'm all ears. But lamely saying "breatholizers don't solve the real problem." is just that...lame.

|1.22.06 @ 10:46AM|#

Madpad,

I have a right not to be murdered or have my house robbed in every bit the same sense that I have a right not to be killed by a drunk driver. You never answered my question, if we can't throw out the 4th and 5th Amendments for other crimes, even though doing so would undoubtably save lives and take criminals off the streets faster, why can we throw out the 4th and 5th Amendments for drunk driving? What is so special about drunk driving? Do you really believe that it is a more serious crime than murder or rape?

|1.22.06 @ 11:54AM|#

just where are MY civil liberties being protected by allowing an intoxicated driver on the road? You know...the type of person who just might kill ME or someone on my family?

And here it starts.

Constitutionalism to me means trading this laughable false security and protectionism for living in a self-determined land.

Read: Obviously you simply have absolutely no "right" to be protected from anything. What you have is a due process right following any crimes committed against your person. You also have (had) the right/responsibility to lethal force to protet yourself. Get broadsided by a drunk? Take him in. He killed your child? Put a cap in him.

Law enforcement used to be, and was by design, a citizen's responsibility. Now it's virtually illegal to uphold the law, although concealed carry laws are encouraging.

My moniker, aside from provoking lefties and baiting intellectuals, refers to a trip into Nevada twelve years ago. My first stop into the state for gas and I encountered a couple grizzled prospectors get out of ancient pickups, both wearing revolvers I probably couldn't lift. In NV, open carry is also legal, including, I believe on the floor of your car.

Now that is law enforcement. The presumption of innocence means being presumed capable of upholding the law, not being protected from crime.

Please get used to it and drop the nannyism.

|1.22.06 @ 11:59AM|#

Driving is not a right but a privilege.

Utter rubbish, and constitutionally completely unfounded. What part of secure in their persons don't you understand?

Driving is a sovereign right, as much as walking is. What's illegal, in my view, is licensing. Since when does the state have the right to force me to adopt oversight, proof of competence, and the potential denial of carrying out my affairs?

Once again, enforcing the law after a crime is simply not the same as potentially preempting crime by a central power.

It's past time to weigh the outcomes of these two conflicting principles in the balance of actual constitutional right.

|1.22.06 @ 12:03PM|#

I have a right not to be murdered or have my house robbed in every bit the same sense that I have a right not to be killed by a drunk driver.

Please cite that right. Cite any of those "rights".

You have plenty of rights to be the victim of a crime. You also have the right to protect yourself. You have the right to hire a neighborhood security force. You have the right to call the authorities. You have the right to due process. You have the right to prosecute a criminal.

But you have no godamn right to protectionism.

|1.22.06 @ 12:22PM|#

6Gun,

I agree. I was making a point that by madpad's logic we have a right not to be the victim of a lot of things yet we don't throw our rights over the side to enforce those laws. In a ultimate sense, no we don't have a right not to be a victim.

|1.22.06 @ 1:19PM|#

What is so special about drunk driving? Do you really believe that it is a more serious crime than murder or rape?

What's so special? In a word...preventability. Because police are already out identifying and dealing with other issues, identifying a drunk driver is often relatively easy. They are out, driving in an erratic fashion and often obvious in their impairment. Simple solution...get them off the road. Also, road deaths far outstrip murder rates (look it up) so I'd say that it makes sense to have the police doing something about it since they are, as I've already pointed out, there.

I see no problem in administering a field sobriety test and breatholizer to someone who is already displaying obvious signs of being a threat to other's safety. I think even the most ardent constitutional defender would agree that one's rights are limited to the point at which their actions threaten other lives. A person on the open road demonstrating hazardous driving is demonstrating probable cause...and that IS in the constitution.

Murder and rape are far more pernicious and less obvious. The offenders are usually trying to not be discovered.

Read: Obviously you simply have absolutely no "right" to be protected from anything. What you have is a due process right following any crimes committed against your person. You also have (had) the right/responsibility to lethal force to protet yourself. Get broadsided by a drunk? Take him in. He killed your child? Put a cap in him.

Ridiculous poppycock. So police shouldn't be able to stop someone from murdering me if the crime is evident and probable? Reducing my right (and it IS a right) to live a life unencumbered by the affects of a drunk choosing to drive simply because it's not enumerated in the Bill Of Rights is a specious one and downright asinine.

Since you've established that I do, indeed have a right to protect myself, I should point out that I'm paying people (police) to protect me. It is after all MY tax dollars. They are under civilian control and enforce law which I elect people to write. I also live in Florida and we recently established that I do indeed HAVE a right to use deadly force to defend myself.

I never claimed to have a right NOT to be affected by tragedy. I simply claimed that I have rights to not have my life, liberty or pursuit of happiness infringed upon by either the state OR a person, in this case a drunk driver. In a very real sense, the criminal justice system is there - in part - to gird the point at which my rights are bumped up against by someone else's.

Most would agree that it's moronic to allow police to act only after a crime has been commited? And how can I "put a cap" is said drunk if he's killed me? Does he get off then? What it he kills my child or wife. Does killing him bring them back? It's easier and less painful to EVERYONE concerned (including the drinker/driver)if the problem is prevented rather than waiting til it's occured.

And what is the sense (if any) in making the police the universal bad guy in this equation? Yes, some police abuse their power. But most - in my experience - are commited professionals who take their job seriously.

Yes, the system is messy, imperfect and not uniformly applied. But as I pointed out before, the ones of you complaining about 4th ammendment infringement seem short on sincere and workable suggestions for improvement.

Letting drunks drive and whatever happens happens is just patently stupid.

|1.22.06 @ 4:06PM|#

Madpad,

Preventability doesn't cut it. If we didn't have Constitutional protections, a lot of murders and rapes could be prevented by taking people off the streets quicker before they commit other crimes. If you are investigating a serial rapist in a community whom you know is going to rape again, why not just conduct manditory DNA testing for the entire community to prevent the rapes? By your logic we should.

The bottomline is that there is nothing in the Constitution about "preventability". The Constitution doesn't say, we have rights unless and until it involves a crime that can be easily prevented by violating your rights. The Constitution doesn't say that. If you think it should, amend it.

|1.22.06 @ 5:01PM|#

If you are investigating a serial rapist in a community whom you know is going to rape again, why not just conduct manditory DNA testing for the entire community to prevent the rapes? By your logic we should...The bottomline is that there is nothing in the Constitution about "preventability".

And by your logic the police would be unable to intervene and protect anyone from a crime until it had already occured.

John, the argument isn't solely a Constitutional one. The argument is about balancing the constitutional rights of the drinker-driver with the public safety. I guess though, since "public safety" isn't mentioned in the Constitution, I shouldn't be alowed to have it, huh?

Instead of dealing with the issues I've laid out, some folk seem content to throw out a bunch of hyperbole picking minutiea frommy posts and accusing me of wanting to gut the constitution in the name of public safety. I've made no such assertions.

In this particular case however, I simply see no problem with adminstering a breatholizer or roadside sobriety test to someone who's demonstrated probable cause (that's in the 4th ammendment) of driving while drunk.

In most states driving drunk is against the law. It's against the law because years of research has shown a high correlation between drunk driving and death or injury.

Asserting that a drunk driver should be allowed to cause whatever mayhem they want simply because YOU think that their potential victims have no rights is not logical.

|1.22.06 @ 5:15PM|#

Madpad:

"Letting drunks drive and whatever happens happens is just patently stupid."

Letting anyone drive unsafely is stupid. Drinking and driving just gets singled out too often, especially when it comes to taking away rights. For example, talking on a cellphone while driving has been scientifically proven to impair you more than a .08 BAC. Now, in the interest of science, I'd be willing to support a much higher absolute threshold under which nobody should be allowed behind a wheel. .20, perhaps. There becomes a point at which blood alcohol concentration makes one an inherent danger---but .08 ain't it.

But, stopping someone who, say, has a burned out taillight, then testing him/her at .08, and arresting them, throwing them in jail, fining them out the ass, forcing them to attend classes, taking away their license, not to mention lawyer's fees---all when said "drunk" never actually did anything unsafe...well, that makes no sense. Different people handle alcohol differently---some much better than others. This is enhanced yet again by how well they can drive to begin with. I know people who seem to drive better when they're "drunk", say, .10-.15 BAC. At the same time, I know nitwits who drive horribly when they're completely sober. The DUI laws and BAC-guided system are blind to this inequity---which is a big reason they are a failure. Many things cause people to drive poorly and be a hazard to others on the road---alcohol, especially at .08-.14, is not an automatic indicator of unsafe driving.

This is why it's important to keep The State from creating imbalanced laws that disproportionately punish, and take rights away from, those who have an arbitrary blood alcohol concentration, unless they exhibited obvious signs of unsafe driving.

Drunk driving "laws" should consist of officers who patrol the streets and highways, looking out for those who are an obvious hazard to others. And their arrest and punishment should be commensurate with other such unsafe driving offenses, not tagged to any stupid arbitrary number---and they should enjoy all the rights that others enjoy.

I have no sympathy for others who put my life in jeopardy on the road---I just don't see anything fair about arresting some guy who was driving perfectly, but happened upon a roadblock with a .08 bac...while that twat in a land yacht who's chatting it up on her celly and just cut me off gets, at the most, a moving violation---IF a cop happens to see it.

Alot of unsafe driving happens out there. DUI laws just provide the cops with some sort of measurable way to arrest a bunch of people because they might be a hazard. There's no way to really measure how tired someone is or how much their cellphone is impairing their skills.

|1.22.06 @ 5:16PM|#

Madpad:

"And by your logic the police would be unable to intervene and protect anyone from a crime until it had already occured."

No, not true. But they need to have better evidence that a crime is imminent than some horseshit breath machine.

|1.22.06 @ 5:25PM|#

Madpad:

One other thing: how do you justify the obvious inequity in this:

Driver A is weaving and cutting people off. Cop sees this, pulls him over. He's sober, and the cop gives him a ticket for unsafe driving. He's on his way, gets a few points on his license and pays a $150 court fee.

Driver B is weaving a cutting people off, just the same as driver A. Cop sees this, pulls him over. Smells alcohol on his breath. Cop forces him to take breathalyzer test. He blows a .09. Cop arrests him. Puts him in prison. He has to pay fines, court fees, money for mandatory classes, lawyer's fees, and has his license suspended.

Both drivers were causing the same amount of danger to their fellow drivers---yet, because one's bad driving was (apparently) caused by alcohol, he gets a punishment that is much, much worse---and gets more of his rights taken from him, to boot.

Do you think that any of this is right?

|1.22.06 @ 5:27PM|#

"In most states driving drunk is against the law. It's against the law because years of research has shown a high correlation between drunk driving and death or injury."

The correlation in most of those studies begins around .15 BAC.

|1.22.06 @ 5:32PM|#

"Asserting that a drunk driver should be allowed to cause whatever mayhem they want simply because YOU think that their potential victims have no rights is not logical"

Nobody said they should be "allowed to cause mayhem". Just that having alcohol, especially the arbitrarily low limits most states enforce, in one's bloodstream is not an automatic indicator of "mayhem".

|1.22.06 @ 5:43PM|#

Ridiculous poppycock. So police shouldn't be able to stop someone from murdering me if the crime is evident and probable?

The police have every obligation to apprehend criminals in the act, and you know I wasn't saying otherwise. But they're innocent men and women until the second they engage in criminal behavior. Cops may shoot bank robbers, may shoot folks seeking to shoot you, and, at this time, may haul drunks who emperil others away. But that's not what you're suggesting.

You're argusing a relative case that says police are convenient to the act of preventing "probable" crime. Spoken like an authoritarian. Are you? "Probable cime" is a place you do not want to go, Mr. Minority Report. Or do you?

You would be wrong, my friend, and your ilk frighten me: The authorities are (were) restrained from presuming guilt and law therefore shouldn't constitutionally be allowed from covering "probable crime".

You, on the other hand, are not owed the luxury of having your life protected when you venture far and wide. It's a potentially lethal public roadway where citizens have a damn serious legal obligation to follow the law -- you slam into someone, drunk or otherwise, and you pay their estate everything you own.

You may not force your fellows to live under the thumb of a nanny state to try and protect your conscious decision to risk the lives of your family.

The question is simply whether society values this asinine protectionism of yours more than it does it's essential right to freedom. You've answered the question; please don't go vote it now.

See the difference? Hauling folks off to jail because they refuse to be harassed and pressured into incriminating themselves isn't preventative justice, it's cheapass protectionism from your Master. Preventing your fellow man the presumption of innocence and due process isn't constitutional and isn't mature.

|1.22.06 @ 5:49PM|#

Just that having alcohol, especially the arbitrarily low limits most states enforce, in one's bloodstream is not an automatic indicator of "mayhem".

Exactly. A couple dacades before the MADD'ers went insane, in some states you could drink and drive. What you could not do is be found drunk following an accident.

The point is clear: You have a responsibility to protect the rights, property, and lives of your fellows as best you can. You also have the simultaneous right to live as you choose on the right side of that line. Cross it and pay the legal price.

Preventing "probable" crime is not at all the same thing, obviously, as putting real teeth into laws. Laws that must not infringe over two hundred years of self responsibility and personal legal sovereignty.

None of this matters much these days. We have the madpads of the country to argue relative positions on subjective points of feeling...

|1.22.06 @ 8:42PM|#

6Gun,

I've bent over backward to explain my position within one narrow aspect of the law regarding a subject I'm well acquainted with. I've lost friends and seen members of my own family's lives ruined by accidents from drunk driving.

I'm not some liberal fruitcake wanting safety for all at the cost of liberty. But still you seem determined to paint me that way. With all due respect I've grown weary of your relentless attacks on my (alleged) desire for a nanny state. You're behaving like an ass.

"Probable crime"? Dude, driving drink isn't a "probable crime." It is a crime. period. It is a criminal act on every state. This whole adventure is merely an attempt to catch them already committing a criminal act before they deprive someone of life or health, which statistics show they are likely to do.

Once again YOU'RE ducking the public safety reality. Let's see you or someone you love have their lives damaged by a drunk driver. Will you feel the same? I doubt it.

You attack my position without doing the simplest thing I ask....come up with a better idea. But letting folks drive drunk willy nilly ain't a better idea. Like most whiners, all you can do is complain. When the rubber meets the road, you lack the imagination to provide a realistic solution.

Laws that must not infringe over two hundred years of self responsibility and personal legal sovereignty.

The whole point is that by choosing to drive drunk, drinker-driver has chosen to avoid self responsibility.

If the numbers are set too low, that's one thing. Tell your state senator and get the law changed. If the equipment is faulty, do something about it. But the problem is that drunk driving still accounts for a big chunk of highway deaths. That's a problem, dude.

You have a responsibility to protect the rights, property, and lives of your fellows as best you can.

Right...that's the first thought the drunk driver has when getting behind the wheel.

We have the madpads of the country to argue relative positions on subjective points of feeling.

And lastly...go fuck yourself sideways. Asshole.

|1.22.06 @ 9:12PM|#

The correlation in most of those studies begins around .15 BAC.

I've actually read that it's more like .04%. Listen, I know it makes folks feel better to believe everything is crap and that 'police are just out to railroad everyone' and 'alchohol affect everyone differently' and '.08 is arbitrarily low'.

In the end, you're still avoiding a serious problem that has destroyed many lives and pretending that the constitution says you have no right to interfere. I say that's absurd and silly.

I have no desire to see anyone treated unfairly. I'm not on some nanny state witch hunt (despite what 6Gun believes) and I feel very strongly about the Contitution and the protections it affords. I don't want to see people's livelyhoods affected over minor infractions and despite some people's desire to portray my posts that way.

|1.22.06 @ 9:18PM|#

I fully agree with all the previous posters who said that the standard should be the level of impairment, not the level of alcohol in your blood.

I second that! As a person of Slavic descentage (look, I made a new word!), I have the capability to withstand large quantities of alcohol while maintaining my faculties and my reaction time rather well, thank you.

|1.22.06 @ 10:37PM|#

Well, madpad, with your reasoning yourself into and out of your own corners, and with your refusing to answer the central question posed of you -- cite your right to safety -- followed by an obscenty, I'd say you've played your hand: Your relinquishing your responsibility and your proclaiming the pain of life as more than you can take sounds for all the world like the bleating of a social dependant. Some day let me tell you about the pain of runaway statism, my friend...

|1.23.06 @ 12:24AM|#

6Gun,

Spouting off lame objectivist buzz-words and accusing me of something I'm not only makes you even more weird and pathetic. My obscenity? Bad on me. You were irritating. For that I apologize.

I already dealt with the "right to safety" thing, moron. I conceded that no right was enumerated in the constitution. But since most of our laws are based on a presumption of the right to life, liberty and the pursuit of happiness, obviously safety from drunks and other idiots (who would deprive us of those rights through irresponsible actions) could be implied.

The constitution serves to protect our rights from both the state AND our fellow citizens. If I have no presumed right to safety from the criminal actions of fellow citizens, then the whole criminal justice system and police force are unconstitutional. The very idea of public safety is anathema to a just society as the framers would have had it. (Psst...one of those framers invented Fire Departments. Guy named Franklin. Pretty sure you've heard of him.)

So here's an idea. Let's just chuck the police, the fire departments and EMTs and make everybody fend for themselves. After all, some of them might overstep or abuse their authority. If one's bad they ALL are. And not getting hit by a drunk driver is, after all, MY personal responsibility. If I don't want to get hit...stay home. But if I do - as long as I'm not dead, of course - then I can "put a cap in him."

I know...let's see you at least go fight for this one in the public square. Let's see you stir up some public awareness about those so-called "victims" of drunk drivers. I'll look for it on the news.

"Wrong place, wrong time. World's a cruel place. Don't like it? Stay home. Life was ruined by a drunk college student? We could've stopped him, of course, but that would've infringed on his 4th ammendment rights. Now, now, stop crying. Don't be a pussy. Just track him down and kill him. I know it won't bring your husband back. But you'll have exercised your rights. Uh...I can't remember which right that was exactly. But it's here somewhere."

|1.23.06 @ 8:12AM|#

Let's see you or someone you love have their lives damaged by a drunk driver. Will you feel the same? I doubt it.

I just wanted to point out for the record that this is the most bullshit argument in the history of bullshit arguments. It doesn't work on death penalty opponents, it doesn't work on pro-choicers, it doesn't work on anti-war people, and it doesn't work here. It's a non-starter.

But the problem is that drunk driving still accounts for a big chunk of highway deaths. That's a problem, dude.

But by your own admission it doesn't account for a majority of them. So why don't we instead concentrate our efforts on the unsafe driving habits that account for a majority of highway deaths.

I still haven't seen you address the question asked above, which was:

Driver A is weaving and cutting people off. Cop sees this, pulls him over. He's sober, and the cop gives him a ticket for unsafe driving. He's on his way, gets a few points on his license and pays a $150 court fee.

Driver B is weaving a cutting people off, just the same as driver A. Cop sees this, pulls him over. Smells alcohol on his breath. Cop forces him to take breathalyzer test. He blows a .09. Cop arrests him. Puts him in prison. He has to pay fines, court fees, money for mandatory classes, lawyer's fees, and has his license suspended. [Added: There is a very good chance his job might be in danger as a result of this.]

Both drivers were causing the same amount of danger to their fellow drivers---yet, because one's bad driving was (apparently) caused by alcohol, he gets a punishment that is much, much worse---and gets more of his rights taken from him, to boot.

Do you think that any of this is right?

|1.23.06 @ 8:42AM|#

And your comparison of driver A and driver B is bullshit as well. You are fully aware of the difference, Phil. Your question was not answered because it was disengenuous. But here goes.

Driver A is assumedly driving erratically out of choice or negligence. The officer/law assumes that ticketing him will generally have the effect of making him/her more aware that his/her driving isbeing monitored and deserving of a ticket. It is assumed that by getting a ticket (or even a warning) Driver A generally will monitor their own driving more carefully and do what is necessary to avoid further financial hits and points on there license which would result in a loss of driving priviledge.

Driver B is driving erratically because they are drunk and physically incapable of NOT driving erratically. Thus the police officer/law assumes that the driver cannot continue without being a threat to the safety of others on the road.

It should also be noted that alchohol is not the only thing that would cause an officer to prevent a driver from driving.

If the driver has a suspended license, the officer will tell the driver he cannot drive. In some jurisdictions, the officer could take the driver into custody.

If the driver is visibly out of control, insane, unreasonably antagonistic, etc. the officer will generally make a determination that the driver is not in control and will generally take measures to prevent them from driving up to and including taking the driver into custody.

Basically any driver that's visibly unable or demonstrably unwilling to maintain safe control of their vehicle, are generally in the same boat as driver B.

Happy?

|1.23.06 @ 8:45AM|#

As for the disparity in punishments, Driver B's infraction is generally considered to be negligence of a greater potential threat and the law is written in such a way as to curtail drivers driving while intoxicated.

I don't know if I necessariy agree with the point of the law being used to manage behavior. But I know the law has helped reduced highway deaths.

|1.23.06 @ 8:46AM|#

Well, it wasn't my question originally, it was Evan's; I was just curious as to your answer. But thanks for the mindreading foul ("You are fully aware of the difference, Phil."). I know now that you are not a person with whom a reasonable discussion can be had, so, whatever.

|1.23.06 @ 9:11AM|#

Speaking of Benjamin Franklin, wasn't the fire department he invented an all-volunteer PRIVATE fire department not under government auspices - you know, making the case to his fellow Philadelphians to join together as private citizens and exercise civic responsibility to mutual benefit without the state?

|1.23.06 @ 9:30AM|#

Madpad,

Your credibility went down the shitter when you used the "alcohol-related" statistics. Those are so misleading that anyone using them has no clue as to what they are talking about.

|1.23.06 @ 9:33AM|#

Another point...

The war on alcohol is creating drunk drivers. By allowing precincts, towns, and counties to be "dry", they are only forcing people who want to have a drink or two to travel farther... and traveling farther usually means driving. If anyone truly game a shit about getting drunks off the roads rather than using it as a front for a temperance movement, they'd allow alcohol to be sold in more places so that people wouldn't have to travel to get it.

|1.23.06 @ 9:55AM|#

Let's see. We have a lot of arrests for drunk driving and for driving over the speed limit because there are objective tests for those, administered by machines. Police might choose to be friendly and not stop you or not arrest you, but they can't arrest you for those offenses unless the machines say they can. And damaging the machines so they give false positives is supposed to be hard for police to do in the field -- and if they get caught doing it they've definitely committed a crime. It isn't "Perhaps your professional judgement was a little off", it's "You have intentionally falsified evidence of a crime".

Even though there are reckless driving laws available, they don't get used much because people instinctively distrust the police. When a policeman says that in his judgement you were driving recklessly, is he doing his duty to the republic or is he harassing you because he wants to harass you?

What we want to do is reduce accidents, and we want to do it without infringing anybody's rights. The hardcore approach would be to say that everybody has the right to do anything they want to do on the road, and if there is an accident then experts will determine who's at fault and those who are at fault will be legally liable. People who care about their assets will learn to drive responsibly. But this does not work well enough to suit me. Turning irresponsible drivers into irresponsible bankrupt drivers is no solution.

The current approach of concentrating on drunk drivers, fast drivers, and people who run red lights is also no solution. It does bring in revenue for governments and insurance companies, but it doesn't do that much for reducing accidents.

Here's my suggestion. Expand the police videotapes to be good at showing reckless driving. Put up cameras in places where people often make mistakes, etc. When someone makes a serious error on the road, call them in to look at the video and discuss what they did wrong. After a couple of incidents in some set time, sentence them to driving school. If their reactions seem impaired, let the police stop them and test their reflexes -- the issue isn't which drugs they've been taking, the issue is their reflexes. Maybe let police occasionally test people's reflexes at random -- if you're ahead of them and they turn on their lights, how long before you flash your brakes? A quick flash to show them you saw them, then you start to look for a place to pull over -- and if they were just checking your reactions and you were quick enough, they wave you on. Some people are better drivers drunk than sober because they have more practice that way. If their reflexes are too slow they're a menace. The issue isn't that they've been drinking, the issue is that they aren't fully competent to drive.

Maybe driving is a right. Driving badly is not a right or a privilege or a crime. If you drive incompetently, somebody ought to show you what the problem is so you can fix it.

Police could harass you by making you go in to discuss your driving when you were doing right. But you'll get the chance to discuss it with somebody else, with the tapes to show what they said you did wrong. They're likely not to.

|1.23.06 @ 10:05AM|#

Russ 2000, couldn't agree more on the dry county thing. As for statistics, it is a pattern on this board that inconvenient statistics are usually shot down as misleading. I'm aware of this bias and conceit. I'm confident in the data I used and I think I posted to it, but show me some better data and I'll reconsider. I'm not as unreasonable as Phil seems to think.

As for Phil's criticism of me being unreasonable, frankly I'm being far less unreasonable than some others on this thread. At least I didn't start to full-throated personal attacks that 6Gun seems so comfortable with (I did respond to it in a moment of weakness, though.)

Your criticism is both inaccurate, unfair and childish. Long on attack. Short on substance.

I am attracted to many libertarian ideas and ideals. But I simply see some weaknesses in those ideals to effectively address certain issues and this is one of them.

|1.23.06 @ 10:22AM|#

DISCLOSURE: I'm an ex-bartender and ex-EMT/Firefighter .... My obscenity? Bad on me. You were irritating. For that I apologize ... I already dealt with the "right to safety" thing, moron.

Perhaps if I'd the perspective of a former public servant who also used to make a living getting people drunk, I'd see things your way, madpad. Instead I just see argumentative schizophrenia.

Let's see you or someone you love have their lives damaged by a drunk driver. Will you feel the same? I doubt it.

You have miniscule credibility, and even less sense with which to reason personal rights based on emotion.

|1.23.06 @ 10:29AM|#

I think 6Gun is M1EK's more conservative cousin. They both seem almost incapable of taking part in a discussion here without being complete assholes.

|1.23.06 @ 11:00AM|#

anon...you took the words right out of my mouth.

|1.23.06 @ 11:26AM|#

...complete assholes.

Ah, it's a "discussion".

Evidently when double-talking weakmindedness isn't the standard here at the inestimably civily libertarian Reason...

anon...you took the words right out of my mouth.

...evidently mindless arrogance is. Point taken, anon. You do yourself proud.

|1.23.06 @ 11:33AM|#

IIRC, this thread started out about the assertion of our few remaining constitutional rights when it comes to traffic stops and DUI.

Here's something that every person who drives away from a bar or restaurant after having even one drink should know: the minute the officer asks you to step out of the car, you are screwed.

Take the field sobriety test? No use splitting hairs over your performance, the officer will mark it down as "poor."

Tell the cop you've only had one beer? Well now, you've just admitted to "driving under the influence", not intoxicated, maybe not impaired, but under the influence.

Blow a .05 (for example)? In Ohio you can still be prosecuted for OVI if the officer "believes" you were impaired. Of course the officer does, or you would never have been asked to step out of the vehicle. The .08 standard does nothing to exonerate you, it only ensures that you will be convicted if it's that or above.

The really neat thing is in doing all that, you just sewed up the case against yourself.

Refuse any of the above and a pissed-off officer will arrest you on the spot. You still have to go through all the rest plus a mandatory suspension. The only thing working in your favor is that you haven't handed over evidence to be used in prosecuting you.

That's why you're screwed as soon as the officer asks you to step out of the car.

|1.23.06 @ 12:17PM|#

Right, 6Gun. You just keep on pretending that's what's going on. I'm sure that makes it easier to rationalize the fact that you always seem to be involved in this sort of namecalling, when most people have very few problems having civilized discussions. It couldn't possibly have anything to do with you. And please, feel free to respond with another substance-free condescending snark. You just wouldn't be you without them.

|1.23.06 @ 12:23PM|#

6Gun,

Interesting that you would use the word civil. From the start you have...

1. baited and attacked anyone who disagreed with you.

2. called me all manner of negative epithets before I dropped my A-bomb.

3. taken one opinion of mine and tried to magnify it into some bizarre attack on my character.

4. weakly tried to claim the high ground in this thread through absolutely zero substance and a lot of name calling that has little to do with anything factual let alone reagrding the actual issue.

In other words, you've simply regurgitated the Limbaugh-Hannity-Coulter style book...and added little too it. Bravo. You have served your masters well, plebian. Now go to bed and let the adults talk.

|1.23.06 @ 4:16PM|#

Chris, if you haven't been drinking the breathalyzer test will probably show that. It can help in that case.

I was getting stopped by the police that way for a couple of months. I'd been associating with some drug dealers. They weren't exactly drug dealers, but they'd signed a lease intending to share the house with 6 or 8 other people, and the others all left town, and to get the money they tried to sell a lot of lidocaine and pretend it was cocaine. But their mark was a narc, who blew his cover arresting them. So then they still needed somebody to co-rent their house, and the guy had lost his job. I didn't want to live with them but I gave him some job leads.

After that I started getting stopped by the police, particularly when I took long trips. They'd flash their lights and tell me I'd been swerving all over the road. I'd get out for a coordination test and such, and since I had nothing to hide I wasn't at all afraid. I'd do their tests and answer their questions and when I wasn't the slightest bit afraid they didn't bother to search my car. They didn't bother to give me a breathalyzer test. They'd just tell me to be careful driving and let me go.

Of course if the police have it in for you, you can expect big problems. But maybe the police don't have it in for you.

We have a problem here, that if we don't let them use their best judgement they're going to be mostly useless. But if we let them do things according to their own judgement some of them will abuse the privilege.

I don't see any good way around that. But technology probably can't hurt, if we use it. Get a mechanical record of what they do and they at least have to go to more trouble to hide the abuse.

Could we do OK without professional police? Various places have tried that, and they get a different set of problems. Which problems would be better?

|1.23.06 @ 8:45PM|#

Lighten up, anon, madpad, you two are just a little too sensitive. Go back over your stellar performances in this thread and then tell me you brought either enlightenment or civility.

Besides, calling ignorance is rarely pretty. When you go off on a touchy-feely tangent, madpad, and try and claim it honors BOTH for-the-children pop politics AND the original ideals of what was a far, far more libertarian nation than today's, that's going a little too far off the credibility meter. Choose a horse already.

Sorry that evidently hurts as much as reality bites. I'd think that with your experience, you'd have developed a thicker skin when someone comes knocking.

And anon, if you're the Reason civility police, please consider not going and making a pedantic twat out of yourself in any future solo efforts, okay?

|1.24.06 @ 11:16AM|#

Chris, that makes sense.

I say that going after drunk driving is not the right approach. It's merely convenient to do it that way, and it plays into the mindset of the moral people who disapprove of drinking.

The problem isn't drunk driving, the problem is incompetent driving.

The other problem is how much we want to trust the police when they might possibly abuse their authority.

If we accept that people don't have an inherent right to drive incompetently -- and that we should have professional police who regulate driving -- then ideally the police should have cameras that will show the judge just what they saw. Or better yet, the driving instructor. Don't take away a license unless the driver can't or won't learn.

And drunk drivers shouldn't be tested for alcohol consumption, they should be tested for reflexes etc. If the argument is that drinking changes their reflexes, vision, etc to make them unsafe drivers, then the test should show that they're unsafe drivers. That's the real issue, not whether they've been drinking. If drinking makes them *careless* drivers then the video will show that.

Hmm. I think I'll recommend this to my state representative. Possibly he'll try to get funding for a study about how to implement it. In 10 or 15 years something might come of it.