DUI Check Point Constitutionality.

I'd think you'd need a bit of both.

 

I'm pretty sure my points are off the topic of the OP. My concern is with the general re-stating of the meaning of portions of the Constitution and Bill of Rights. Everyone is hung up on random drug tests and DUI check points because I've chimmed in here and used them as an example (I guess). That's my fault.

I'm old enough to remember when both (DUI check points and random drug testing) discribed events were not legal and somehow at some point in time due to a reaction to events, the interpretation of the Bill of Rights was revised as to the intent of specific amendments. I understand that juricdictions have powers granted by the Constitution to develop local laws (must be done within the frame work and/or intent established by the Constitution and Bill of Rights) but, question the methodology and reasoning when the implimentation appears to be a contradiction to the Constitution and Bill of Right for example, eliminating problable cause.

I would like anyone on here to make a rational argument (for lack of a better term) on how either of the two subject events (random drug testing and DUI check points) are not random. Then after that, (because random drug testing is just that, random) explain to my simple mind where the probable cause is.

The only thing I'm seeing is "quit your job" or "it's for our own good". No one has really thought about and answered the legal logic behind the new interpretations of our Constitution and given a good answer.

It's really not that I have anything to worry about as I've already stated I'm not now nor have I ever been a drug user and I certainly don't drink and drive, so that is not my issue. My issue is the continued erosion of our rights and the fact that so many people accept is as the norm. If we enjoy living here (and I do) we should all be defenders of the Constitution.

As stated I could go work somewhere else, won't argue that point. What I will argue is that everyone has had a little bit of their freedom curtailed due to the relatively new interpretation of the USAs back bone.

 

Same thing in BC. They put in tough enforcement and extra roadblocks for DUI. They ruled there not allowed to question drivers unless there a legitimate reason.

Ive been stuck in one after a football game, took about .5 hour. Kindof a pain in the ass. Im all for it, just as long as it dosent waist peoples time. They should have done it in a different area.

 

Well this is a fascinating little thread. *sips cocktail*

Edit: I'm at home, I don't and won't drink and drive. That is just plain stupid and dangerous. BTW kudos to all LEOs that have to deal with drunks.

 

CALIFORNIA VEHICLE CODE
V C Section 13384 Written Consent to Chemical Testing of Blood Breath or Urine
13384. (a) The department shall not issue or renew a driver’s license to any person unless the person consents in writing to submit to a chemical test or tests of that person’s blood, breath, or urine pursuant to Section 23612, or a preliminary alcohol screening test pursuant to Section 23136, when requested to do so by a peace officer.
(b) All application forms for driver’s licenses or driver’s license renewal notices shall include a requirement that the applicant sign the following declaration as a condition of licensure:

"I agree to submit to a chemical test of my blood, breath, or urine for the purpose of determining the alcohol or drug content of my blood when testing is requested by a peace officer acting in accordance with Section 13388 or 23612 of the Vehicle Code."

(c) The department is not, incident to this section, required to maintain, copy, or store any information other than that to be incorporated into the standard application form.

V C Section 23612 Implied Consent For Chemical Testing
23612. (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if the person’s privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the revocation of the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision.

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Boy judging by the attached brief I'd say you don't have to submit but, they sure can make you sorry if you don't.

 

Good job. It only applies if you are arrested.

 

Lately my town has been setting.up cones in areas where you can do a u turn to avoid the check points but with.the cones you can't now.

 

The required "preliminary alcohol screening test," more commonly called a field sobriety test, provides sufficient grounds for that arrest, at which point all of the remainder applies.

 

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

Benjamin Franklin

Think about that next time you defend checkpoints, roundups of "illegals," random drug testing...

Anybody want to call Ben Franklin, a key supporter of the Bill of Rights, a liberal pinko commie?

 

I wouldn't call being intoxicated an "essential liberty." Remember that driving itself is not a right, it is a privilege. I you never want to be hassled by a DUI checkpoint again then don't drive. If you don't want to be drug tested then don't work for a company or agency that cares whether or not its employees are stoned on the job.

I don't consider it a violation of anyone's rights to have to pull over to see whether or not one is intoxicated while out driving on a holiday night when statistics have shown that one in seven are likely to be drunk behind the wheel. I also don't consider it a violation of a truck driver's rights for his company to inform him that he will be randomly drug tested. Random drug testing isn't that big of a deal -- we had it in the army in the 70s.

 

So when a person drives or works does that mean they give up the rights provided in the Constitution and the Bill of Rights? It's not the driving or working (we know a lot of people don't work) in question, it's the probable cause that is my issue.

And I believe "privileges" are addressed in the Bill of Rights (at least 14th amendment and maybe more) regarding states will respect privileges and not prevent one from having them without due process. The 14th amendment was another amendment relied on while DUI check points were be being found illegal at the State Supreme Court level.

I'm still waiting on an answer to my question a few post up...

 

Yes and no.

The majority opinion stated (in a nutshell) that they are in fact a violation of the 4A, but the "greater good" exceeds the "limited damage" potential of the violation.

So... no, they are not Constitutional... and many cities have been forced to suspend driver's license and insurance checkpoints because of this.

 

They are in fact a violation, and a few people have stood up to them, been detained, and been released after CHP was summoned and realized what was going on.

Those checkpoints have authority only over commercial transportation, not private vehicles.

Toll roads... Those are not search/inspection/interrogation stops.

Commercial operators, as a part of their agreement when receiving a commercial driver's license and business permit, voluntarily forfeit certain Constitutional rights.

 

"Where are you coming from?"
"Easton"
"Where are you going?"
"Weston"

Unknown to you, a robbery and murder was committed by a person driving a vehicle matching your vehicle's description in Easton.
You have now become a "person of interest" and are likely going for a ride... long enough to be put into a lineup if there are any witnesses, long enough to verify your alibi... if you can provide them with the names of people that were with you during the time that the crime took place.

You're now facing a $500 towing charge, potentially thousands in bail (and you do NOT get the money back that you paid the bondsman)...

All because you believed that you had nothing to hide and talked your way into jail.


Cops are not talking to you to make conversation. They are talking to you because they are looking for a reason to take you in.

 

For the life of me I can't understand why some of you think it's a violation of your rights to have to do something that you agreed to when you obtained your driving privileges, namely not drive when intoxicated.

You have a right to drink, and even drink yourself to death if that's what you want to do, in a private venue. However, if your actions begin to endanger others your personal rights end and social rights take precedence.

Because a good number of people are going to go out and drive drunk, warnings that they might face substantial penalties notwithstanding, it stands to reason that for the good of society on those few nights of the year when the bars are packed and a motorist may be drunk that the people we have hired to maintain social stability be allowed to set up a checkpoint.

Or do you want to wait until that drunk motorist kills your family and cripples you for life so that you can be content that the police can then arrest him without violating his civil rights?

I used to teach a marine board course in boating safety. Is it a violation of the boater's rights for the Coast Guard to stop him and ask to see if he has the requisite safety equipment on board? How about the DOT officer at the snowy mountain pass that stops vehicles and requires them to chain up?

 

You are citing examples that are a totally different situation (commercial checkpoints, boating equipment, chain requirements).

Please go back and read the 4th and 5th amendments. I know our modern school system does not teach it anymore.

The government does not have the authority to search you without reasonable suspicion or probable cause.
They do have the authority to detain and question you for a "reasonable" period of time, but under the 5A you are not obligated to answer ANY questions, AND the failure to respond may NOT be taken as a sign of guilt and may not be used for reasonable suspicion/probable cause.

A warrantless search is legal only if the officer can articulate specific probable cause that, were a judge available, would result in the judge issuing a warrant.

Open containers in plain view? Reasonable suspicion.
Driving erratically? Reasonable suspicion.
Vehicle occupants moving in a way that indicates they may be attempting to conceal something? Reasonable suspicion.

Leaving an area that has a lot of bars? NOT reasonable suspicion. As someone said... in his town there is one way in and one way out. EVERYONE must pass that area. Doesn't mean they're drunk.
Having an NRA or Jack Daniels bumper sticker? NOT reasonable suspicion (courts have SPECIFICALLY ruled that the NRA sticker may not be used as a basis for a weapons search).


You have the right to drink.
The officer has the right to throw you in jail for driving drunk.
Being behind the wheel is not legal grounds for the officer to presume that you are drunk.

 

And what a I don't understand is the willingness of people to sacrifice our rights that current and past generations have died for so that we could live in freedom. For the record, DUI check points were NOT legal when I obtained my drivers license (even though DUI/OWI was illegal). Further, many states appellate & supreme courts have ruled DUI check points were in fact a violation of the 4 amendment. We don't want to go into state vs. federal rights.

I must say I'm also amazed by the number of people that respond with comments like "don't drive" or "quit your job" yet they are not well versed in the subject matter. You must read and understand the Consitution and Bill of Rights (something several people I've spoke to and not just on TW have not done) to understand where I'm coming from. Don't just be sheep, understand what is out there, fight (as we've had to do in the past) and don't be victims of misinformation from people willing to tell you anything because they have an agenda.

 

Joe, just because we don't share an opinion doesn't make everyone on the other side of the argument sheep. We could well have considered it and come to a different conclusion. I dunno, could happen. Also, I can quote you the Bill of Rights from memory, I've read the Constitution many times. Hell, I have an annotated version of it on my iPhone.

So from the link you posted I take it you work for/are contracted with the FAA. I never said you should quit your job, I said it's your right to do so. However, I have read your later posts and now see where you're coming from. Honestly, it really wasn't clear earlier. Perhaps this document would be interesting to you: http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2832&context=wlulr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dare%2520random%2520drug%2520tests%2520for%2520federal%2520employees%2520unreasonable%2520search%2520and%2520seizure%26source%3Dweb%26cd%3D2%26ved%3D0CDQQFjAB%26url%3Dhttp%253A%252F%252Fscholarlycommons.law.wlu.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D2832%2526context%253Dwlulr%26ei%3DvNRIT4TRHoWmgwfw28CTDQ%26usg%3DAFQjCNEJCM7tnEZ-I4IV4YL5Ht5Ad9QuIw#search=%22random%20drug%20tests%20federal%20employees%20unreasonable%20search%20seizure%22

I'll admit I haven't read the entire thing, it's 20 pages long. But it discusses some relevant court decisions regarding drug testing, including specifically the drug testing of government employees and why courts have upheld random drug testing. Basically it comes down to while a drug test does indeed constitute a search of materials a person expects to be private (specifically their urine in the case of a UA), the search is reasonable because the government has a weighty need in some industries of keeping everyone safe. I don't know what you do in the FAA, but it seems like anything dealing with airplanes, flight, or preparations for flight are something you don't want someone doing while high. The rights of 300 passengers on a commercial aircraft (or even 2 or 3 on a non-commercial one) to survive the trip outweighs your right not to hand over a UA sample. And so the courts have upheld random drug testing where there is a compelling need. I agree with the court decision there. I don't want my pilot drunk, I don't want air traffic control stoned, etc. If you're in a condition to think Half Baked is a funny movie, you should not be responsible for anyone's life. You may feel that chips away at your rights, but the right to not die in a fiery plane crash trumps the right not to pee in a cup.

I've noticed a couple comments (not necessarily in this thread? Can't remember) that it's the liberal whiners we have to thank for this sort of thing. Not sure about DUI checkpoints, but guess who started the random drug testing of federal employees? Ronald Reagan. That darned liberal.

 

Yes, a good answer! We don't have to agree, I just want someone who has put some thought into it to provide reason and balance to the other side of my coin! You just did and can I say I'm glad you know a document vital to our country.

I am aware that the gipper drove the drug testing. I am also aware of the specific event that pushed him over the edge on pursuing random testing. I must say it was a rare disappointment from what I consider a fine man when taken in total.

As I'm sure you're aware, I've read many rulings from many courts re drug testing and I will do the same with the link you provided.

In the end, there is nothing I can do but submit, which is what I do without a peep. The law supports the opposing view from my perspective. Of course in my mind, it's still wrong because at certain (very high) levels judges even agree that it is not consistant with the 4th amendment. That being said, I will admit a certain logic behind it. I will also freely tell people IMO it is not really effective. Only 10% of the specific groups need be tested per year. So doing the rough math if you have 100 people in your group working 250 days per year that equals 25,000 work days. Per the regulation, and actual numbers tested by and large, that mean your taking 10 total test in any given year to capture 25,000 work days. That's .04% of the work days being captured. And because it's random, you may test somebody like me (who might drink 1 beer a month but not on a work night and never does drugs) all 10 times. That means if you're a drinker (or user of drugs that don't stay in your system) you're as safe as those flying on your aircraft.

Again, thanks for the well (if disagreeable) response. I like a good fact based, backed by links if needed debate.

Oh & in reference to his political standing, he would be cosidered a bleeding heart compared to me, all my family & friends.