Supreme Court to Decide Whether States Can Make You Leave Your Fourth Amendment Rights at the DMV Evan Bernick Assistant Director at the Institute for Justice Excerpt ... Can states make you abandon your Fourth Amendment rights if you want to enjoy the privilege of driving? Thats the question at the heart of one of the most consequential cases that the Supreme Court will decide this term, in terms of practical impact upon ordinary Americans. Birchfield v. North Dakota involves challenges to Minnesota and North Dakota statutes that make it a crime for drivers to refuse warrantless chemical tests of their blood, breath, or urine to detect the presence of alcohol. The Supreme Court consolidated three cases to be reviewed. Two involved individuals who were convicted for declining to take a blood test and a breath test, respectively; the third involved an individual who refused field sobriety tests, was taken to a hospital and subjected to a blood test, and was later convicted of drunk driving. The Supreme Court has long held that the Fourth Amendment generally requires police to obtain a warrant before conducting a search. But in the lead case under review in Birchfield, the North Dakota Supreme Court held that because driving is a privilege, not a constitutional right, and because North Dakota law requires police to inform drivers that they will be criminally punished if they refuse to be tested, drivers can be said to have given their consent to the test. In exchange for the privilege of driving, then, people effectively waive their right to refuse to submit to a physical intrusion that cannot reasonably be described as anything other than a search. This reasoning is positively Orwellian, and the Court should squarely reject it. Read the rest ... http://www.huffingtonpost.com/evan-bernick/supreme-court-to-decide-w_b_9742132.html? IMO the notion that driving is a privilege is a fraud invented by the state to control and tax The People via driving. In this modern world (at least in the US), driving is a basic necessity for many who have no access to public transportation in certain locations. Driving is a right protected by the 9th Amendment, that pesky Amendment that is usually ignored by the courts because it protects ALL unenumerated rights. But that's just a side issue. No one should ever have to be forced to consent to waive their constitutionally protected rights in order to drive, privilege or not. My guess is that the Supremes will agree with the North Dakota Supreme Court because they always look for creative ways to destroy the Bill of Rights.
Here is how it works in my state: You refuse, you get charged with the DUI and the refusal, but they cannot convict you of both. You are 100% guaranteed to be convicted of something, it is just a matter of which. I don't drink and drive so I don't have a dog in the fight, but it is complete bull(*)(*)(*)(*) the way this scenario plays out.
I wonder why that is? Well of course, the state ASSumes you're guilty as charged the moment you're charged unless and until proven otherwise. But if you have the audacity to actually want to exercise your constitutionally protected right to a trial, they can always pull the "plea bargain" card where they threaten that if you take it to trial and are found guilty, you will be sentenced to a draconian amount of time behind bars. I rarely drink, never mind drink and drive but I will defend the Constitution and the exercise of all individual rights as long as I breathe.
Been that way as long as I have been driving. I assume it was a get tough on drunk driver thing MADD sponsored. Not really. Unless you blow nuclear radiation, you have to be on your 3rd offense before you will actually get any time generally unless you also kill somebody or damage something. I don't like the precedent of trapping you either way if you get pulled and refuse.
I have concerns either way. I detest the bizarre idea that there is a presumption of a waiver of your fourth inherent when drive. But I see consequences to determining that there is a presumptive constitutional right to drive on the public road. There is a compelling state interest in requiring an individual showing of mastery in the skills and knowledge, in requiring persons to certify that they do not have seizures or other medical conditions, and requiring them to take a vision test before they drive for example. You don't want to have to wait for their third accident before you force them to take a vision test, or make them drive around a few blocks and show you that they can stay in the damn lanes, and know how early to brake before the intersection.
I'm going to ignore precedent, because SCOTUS is often retarded in their reasoning anyway (as is typical of lawyers), and just look at the wording of the 4th amendment. The 4th amendment protects against unreasonable searches and seizures. So when is a search reasonable, and when is it reasonable to not get a warrant for a search? Preserving life and the ability to preserve life being compromised by having to obtain a warrant are good arguments for making this kind of search reasonable. I think it's clear that driving is a necessity for many Americans. But even if we go so far as to call it a right, rights come with responsibilities. A car is one of the most lethal things people regularly encounter. A mishandled car is dangerous like a rampaging elephant innocent bystanders can die. The purpose of doing the search of somebody suspected of being drunk is to stop them from killing other people. So it's not reasonable for the officer to let you go on your way because you refuse an alcohol test. Here's how I think it should work: Officers should record all encounters, including your car before they pull you over. If they can document that a person was driving erratically, or that open alcohol containers are present in the car, that should establish probable cause to test the person for alcohol/drugs. If they cannot document those things, then it's an illegal search. If the person can then pass the field sobriety test OR a breath test, they should not be charged. Alcoholics can perform under much higher alcohol levels than non-alcoholics, so the legal limit thing shouldn't be absolute.
You originally said: And I asked: So perhaps my question wasn't clear. I should have asked, why can they not convict you of both in your state? Law enforcement often charge suspects with as many offenses as possible in order to throw as much manure against the wall and hope some stick. If both are criminal offenses, there is no reason not to convict a person of both IMO unless there's something about that in your state I'm not aware of. Just curious, perhaps you don't know.
I can't disagree with any of of your points. The free exercise of any right has its limitations. That is, one cannot lawfully exercise a right if the exercise of that right violates the rights of others. By the same token, the state cannot legislatively violate the Bill of Rights (regardless that it's done regularly).
Ok. Don't know. I assume the legislature wanted to be able to convict you of both and a court somewhere has ruled you cannot for some reason. I have just been in court when a DUI/refusal were being heard and the Judge said when he convicted the person for the DUI he could not also convict him for the refusal even though he had refused.
I would prefer we sign a contract when we get our license, stating that if we refuse a breathalizer test or FST, we may have our license suspended. no criminal charge, just loss of driving privileges. it should not be a crime to refuse to be searched, in the absense of a probable cause/reasonable suspicion. if we allow that, then we could also be charged with a crime for refusing to consent to a search of our vehicle, without a warrant. i hear it takes 5 minutes to get a warrant by phone, so this shouldn't even be an issue.
How about maintaining a safe distance between you and the vehicle in front of you ? Or allowing safe entry onto the highway of vehicles seeking to merge with traffic ? Or better traffic control and safety built into roads and highways that takes more into account than saving a few extra dollars ???
What happened to probable cause ? What happened to a sworn search warrant based on probable cause and what is to be searched for and why ? What happened to a person being "SECURE" In their person, place, papers, possessions and the right to travel unimpeded ? If driving or operation of a conveyance is not a right, when did travel or operation of any conveyance diminish any travelers other civil rights ?
All good ideas. But none of that replaces the need for a driver's permit or drivers license or the testing required for both. Driving is a skill that needs practice and proof of proficiency. Once you call driving a 'constitutional right', you can't test for it, any more than you can require a proficiency test before offering a ballot or allowing someone a right to blog. Once you tell the public that they have a right to bear arms, you can't preface it with a requirement that they pass an accuracy test to show that they hit the bull's eye 80% of the time at 40 feet.
You have a Constitutional right to travel Our Nation's highways unimpeded and to be secure in your person, possessions and papers, the means to do so, a horse, a horseless carriage, what we call today an automobile, or car. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And yet the words of your paragraph differed from those in the amendment you quoted. I did not see the words, 'travel our nations highways unimpeded' anywhere in the fourth, let alone on the hodgepodge of county, city, or state funded roads leading into those interstate highways. Do you also believe that there exists a right travel by plane using the major airlines and airports without having yourself or your luggage searched pending probable cause? As far as I know, there hasn't been an appellate court decision that said that a de facto requirement that your driving privileges be dependent on a state commissioned and sanctioned drivers license was an infringement on your civil liberties, an that is my concern.
Oh they tried and passed that here in Illinois but it was overturned because they were strapping people down and stealing their blood, and without question it was a violation of not only their Fourth Amendment rights, but the Fifth Amendment as well... It's indeed a Fourth Amendment violation but the Fifth plays a larger role here....... One cannot be compelled to incriminate oneself....
It's not the 4th Amendment that protects the right to travel, it's actually the 9th Amendment, it protects all unenumerated rights. The 4th Amendment applies to your last sentence, the TSA violates that right 24/7.
