- Joe Biden is kicking off a series of meetings with gun safety experts as part of Obama's initiative to curb gun violence (Fox News): http://www.foxnews.com/politics/2013/01/09/vice-president-to-meet-with-gun-safety-groups/
- The US Supreme Court will hear a case out of Missouri that tests a state's ability to take a suspect's blood to determine its alcohol content without a warrant (ABC News): http://abcnews.go.com/Politics/OTUS/scotus-drunk-driving-police-officers-order-blood-test/story?id=18165366#.UO1kp-T7Jqw
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I find the SCOTUS case interesting. Before I read the article, I would've thought that they would have to overturn the prior decision of the MO SC and was surprised to find the rulings had gone in his favor and been upheld. If SCOTUS upholds the MO SC decision, I can't see ANY way that the piss test for cash program several GOP governors have attempted to put in place will EVER hold up - and those who support liberty rejoice everywhere! It's a win for freedom and liberty all around. I wonder though, as it relates to the MO case, if the officer attempted field sobriety tests. The article doesn't say either way. Not sure that it matters but just curious.
ReplyDeleteWhatsamattausa - When I was posting this, I immediately thought of you.
DeleteI'm kind of torn with the overall subject, and I was curious about your opinion. Do you think it's legit/okay/Constitutional for MO to do the blood test as stated? Or do you think they would need to get a warrant as McNeely contests? I think the article makes an interesting case. I worry about both sides. On the "it's okay side" - I can see that there's enough probably cause, and as with some special exceptions, the "blood alcohol level can drop over time while waiting for a warrant" issue seems real. On the other hand, I wait about the "slippery slope" position - that the further stretching of the Fourth Amendment might lead to other stretching. I do hope to get lots of opinions on this one... what do you think? :)
Good morning LME!
ReplyDeleteI don't think MO has the right to do what they did. My understanding is that you are required, by virtue of obtaining a driver license, to submit to a breathalyzer and, if refused, you lose your license. If that is the case (I believe it is here in PA but don't know about MO - I believe it's the case nationally) than the punishment for refusal has already been agreed to and established. I think the MO SC made the correct decision. If it is overturned, police everywhere will simply opt for a blood test. I see no practical reason for a police officer to make a blood draw determination. I worry that blood tests will lead to wild goose chases. As an example, you get pulled over for a tail light out. The cop doesn't like you (perhaps you have a "Bad Cop, No Donut" sticker on your car) and decides to take you in for a blood test because he says your eyes were red and you slurred (regardless of fact as he is the only officer on scene). No alcohol comes up in your system but an opiate does. The opiate is from a prescription you are taking. Can the officer charge you? Whether legit or not, he may be able to make the DWI charge solely based upon his/her dislike of you and the fact you are/were on medication that you may not have taken in weeks. I live in Philadelphia which has one of the most corrupt police forces in the country. I don't think they should be given that much latitude to determine, unilaterally, if they want to harass you or search for something there is no evidence of.. VERY similar to the piss for cash BS that is being attempted and thankfully, is being shot down at every turn. Driving is not a right and can therefore be taken away quite simply. The right to be free from unreasonable search and seizure should NOT be infringed upon. Let's not forget that public intoxication is against the law, if SCOTUS overturns the prior decisions, what is to stop them from sitting outside of your (well, maybe not 'your' :)) local bar and drawing blood from anyone who walks outside. All the have to say is you stumbled and they wanted to secure evidence of your intoxication. Gives too much power to those who don't deserve it (which I know is a shitty thing to say about cops but the bad ones ruin it for the honest ones).
Whatsamattausa - GREAT, well thought points. You've definitely thought deeply about this (or at least similar cases), and you have made very relevant, rational points.
DeleteI hope someone stumbles upon this blog and can give an assessment of an opposing view so that both cases are laid out. I typically don't like to talk about things I don't deeply know or understand, and for me, this one is the case here. I prefer to keep the mouth shut and the eyes and ears open to learn something.
P.S. LOL at the bumper sticker.
I'll join in on the discussion.
ReplyDeleteI fully agree with everyone about this particular case, and that the decision should be upheld.
However, I'm not sure I quite agree on how strong that decision would tie into the situation of requiring drug tests for people that apply for government assistance/cash benefits. I think they're very different situations, and doubt that the law would cover both.
One is forcing people to submit to an immediate blood test without a warrant, as a reactive measure after the fact, and is separate from the decision of whether you have the privilege to drive (they don’t need a blood test to suspend your license). The other forces you to take a blood test as part of the condition of accepting a benefit, as a proactive measure before receiving it, and essentially is built up as a qualification of the program. In the ladder, you can still legally refuse to take the drug test and are not technically forced to take it, but you just likely will not qualify for the benefit. In the former, it doesn’t matter whether or not you refuse the drug test or even vow to never drive a car ever again in your life, you still are forced to take the drug test.
It’s really no different from any private/public employment opportunity requiring a drug test, or other programs that already exist that require drug tests (participating in certain studies, etc). That type of test, where it’s simply part of an optional application process, never involves or is even related to warrants.
I understand the privacy concerns of course with setting that up as a requirement, and how it could block people from getting assistance that they may need. But I don’t think that this is a two bird with one stone situation.
Howdy RKen!
DeleteInteresting thoughts... I didn't say that the law would cover both but rather there are enough parallels (both involve forced unreasonable searches which is really what we're talking about) that would seem to ice any discussion of implementing that. The right to be free from unreasonable search and seizure requires probable cause. Being on welfare does not provide probable cause for anything. In both instances, the government would be requiring an unreasonable search in order to obtain a benefit (welfare vs driving - neither is a right). Although you are correct that it is a prerequisite, I don't believe it is (or should be) legal to require someone to forego their rights. Would it be legal for the government to take a DNA sample from anyone who wants a Social Security card? How about a DNA sample in order to pay your taxes (that way, if you refuse, they can refuse your tax payment and lien your property)?
Private and public do not play by the same rules. A private company can require just about anything they want where the government needs to adhere to strict rules about fairness and equality. That is what this case is about, Was it reasonable for the officer to force such a test when the punishment for refusing it is pre-determined? Likewise, it is unreasonable to require a waiver of rights in order to receive benefits. If that were legal, the government could simply solve the gun problem by requiring folks who use any government sponsored facility (roads, buildings, mail, etc.) forego their right to bear arms in order to utilize government assets.
I have to disagree still. Filing for employment doesn’t provide probably cause, but again, both private *and* public employers can require drug testing. The government is no exception; you’re not going to get a job in many areas of government without passing initial and regularly schedule drug testing. There already are other government-related programs you have to take and/or disclose health-related test to qualify for as well (disability/SI).
DeleteI honestly don’t see that as much different from requiring drug tests to participate in certain benefit programs.
This isn’t to say I agree with the law, but I just don’t think that the two situations are equivalent.
RKen is correct. The government does require urine tests to work for it. So why should it be able to require a urine test for employment (which is reasonable) but not for getting free stuff from it?
DeleteAgain, not equivalent but share similarities.
DeleteDrug testing was initially brought in as a way to bring insurance costs down and has grown more intrusive from there.
So, RKen, you don't think it's unreasonable and/or illegal for the government to require a DNA sample to procure a Social Security card or for them to require people who drive on their roads to forego the 2nd Amendment rights? It's all the same thing, requiring the foregoing of rights for privileges. If that is what the courts uphold than god help us all! It's coercion and, as such, should have no place in a republic (in my opinion).
MN 4 Rick -
DeleteIt is not reasonable. I believe it was initially upheld in the courts as a way to cut insurance costs. I could be wrong (this whole drug testing business happened years ago so my memory could be hazy - happy to admit if I'm wrong) but I don't believe it was initially passed as a "we just want to know what this person is into" sort of thing although it has certainly become that. The 'free stuff' you speak of generally doesn't carry insurance and may be the reason the courts upheld drug testing for work but not for anything else (forced testing that is).
whatsamattausa- "So, RKen, you don't think it's unreasonable and/or illegal for the government to require a DNA sample to procure a Social Security card or for them to require people who drive on their roads to forego the 2nd Amendment rights? It's all the same thing, requiring the foregoing of rights for privileges. If that is what the courts uphold than god help us all! It's coercion and, as such, should have no place in a republic (in my opinion). "
DeleteAgain, it may not have been clear, but I wasn't choosing sides on either part of whether or not that is a good, reasonable law or expectation. My only point was that I believe it to be a completely separate issue from the DUI/blood test case.
I'm not completely sure how I feel about this type of law yet though, to be honest. I do think it would be ridiculous to start requiring unreasonable amounts of testing for EVERYTHING (in an unlikely worst-case scenario that the standard would allow as a possibility), but I also do think there are cases where it is a reasonable expectation to set (employment, possibly even certain benefits).
Still developing my opinions on this one, and listening more to what other people have to say as a point of view. I appreciate your contributions to that; you've made some good points.
I'm going to come in on the side contrary to Rken and whatsamattausa.
ReplyDeleteMy first thing is the constitutionality of it. I think it IS constitutional. The 4th amendment reads
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.
"Unreasonable" to me, is the key word. When someone appears, is showing signs/symptoms of intoxication AND driving while intoxicated, I don't think it's unreasonable to determine the threshold of their drunkenness via a blood test. Unreasonable would be to assume that everyone coming out of the bar and walking to their car is going to drive intoxicated and therefore we must take their blood. But I think most people (applying the oft-used "reasonable person test" employed by judges) would deem it reasonable to apply a blood test in the case in Missouri and beyond.
I fear that if it is removed, people would might drive drunk will take it into account with the notion of "well, they can't prove my BAH if I don't do a breathalyzer therefore I'll just drive and refuse."
If we're going down the path of corrupt cop extremes, as we whatsamattausa did with the "why not just blood test everyone coming out of the bar" example, if it's as simple as "well, we don't need a blood test, we can just remove your license should you refuse a breathalyzer" what stops corrupt cop under the "no blow no license" example from enacting revenge on someone he doesn't like by claiming he appeared drunk and refusing to give a blow test? If you can go to one extreme, I can point to the other.
To me, it's all about REASONABLE searches, and I think this is.
Hello and Happy New Year MN4Rick!
DeleteThere is no doubt that "unreasonable" is the key word. But another key provision you seem to be missing is the need for a warrant (truly, the hospital should have refused the test without one - the parallel I'll draw is in real estate (my profession). I can't get an eviction with a court order, even if I can prove my tenant has not paid rent for a year and that I've gone through all of my notice requirements. - Hell, most places wouldn't even change the locks without one!. We have rules for a reason. This particular officer apparently decided he didn't have to follow the rules (obtaining a warrant). The driver refused the breath test, as is his/her right and should then be subject to immediate forfeiture of his/her driver license, as is the pre-determined remedy. You are correct that this ruling opens the door for everyone to refuse breath test (I wish they would, it would relieve traffic congestion :)) but there are still consequences for doing so - you lose your driving privilege. Had that cop taken the time to get a warrant, the search would have been legal. The illegal part is him making his own determination. Frankly, I'd sue the ass out of the hospital for taking my blood without any lawful permission.
You are right, a corrupt cop could do that but he would have to turn off his recording device to make that happen and any lawyer worth a salt should be able to turn that into reasonable doubt in front of a jury (since I would say the bulk of Americans are skeptical of police honesty).
Ultimately, I can see the ruling going either way but I believe justice is on the side of upholding the lower courts' ruling. It'll be an interesting decision. Overturning the decision is, in my opinion, VERY dangerous and opens the door a little more to living in a police state. To rule in favor of the state would allow cops to run amuck. To overturn this case is to take another little slice of freedom away from those in the land of the pretty much free.
But even more important than this ruling will be the gay marriage rulings... which, by the way, I absolutely can't wait for. But we'll save that for another day. :)
Whatsamattausa - We have both made good points. Yours are well spoken, and it's great that this forum exists to debate. I don't know if we ever will have a concise agreement, but like you said, let's see how it comes out.
DeleteI do want to point out one thing, however. There is a misunderstanding of the 4th Amendment. There are actually two clauses (as in sentences here). First:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"
Second: "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."
Warrants described in the second clause are far different from the first. As stated in the first clause, "reasonable" searches are perfectly constitutional. To issue a warrant, a different thing, in the second clause, if done correctly (as stated: "particularly describing the place to be searched, and the persons or things to be seized") by an agent of the court IS legal, too.
But it is a misunderstanding that you must have a warrant to conduct a search. That's false; you must have probable cause to have a warrant; you must have a reason (again "reasonable") to conduct a search. If you watch Cops, for example, many times (and my lawyer friend confirmed this), if during a routine traffic stop the driver is acting as if he had drugs, it looked like he threw something out the window, smells of weed, and all that, the police officer can remove the driver and search the car based on reason (it's not unreasonable to believe the perp's car had drugs). A warrant is not needed.
Just wanted to clear that up. As far as gay marriage, I'm torn. I completely see the argument of "freedom" and that even if society views something as sinful, abhorrent, and terrible, people should be free to do so. I do agree with the notion, however, that parallels: can society determine the rules that govern it? Can it determine that robbery is abhorrent? Or murder? And, as referenced in a previous post here, I think under the title Modern Federalism, "Freedom" means that a group of people can choose how they live. If 99 people vote for gay marriage and 1 opposes it, the one that opposes screams "but it's my right." Who protects it? And why should the voice of 1 override the voice of 99? As that article mentions, where do rights come from? The people that grant them? I believe so. So with this, I'm torn. I don't want to get into a big gay marriage debate though. I'll wait for the ruling to be handed out and I'm sure LME will post it under morning headlines and we can debate there :)
Hi Mn4Rick,
DeleteI definitely believe it's "unreasonable" for any authority figure to be able to force anyone into blood tests on a whim. I know that the idea is that they should only do it when they, as an individual, feel that there is "just cause", but I don't think any single person should be able to make that determination by themselves. This is what judges are for; not police officers.
Have to keep in mind, that refusing to take the blood test isn't some kind of "gotcha!" loophole that allows a person to get away free. In most states you have the right to refuse both, but as a result you usually will automatically have your license suspended for up to a year (regardless of anything that may follow). I’m pretty sure that would still be the case, regardless of this law and the SC decision?
MN4Rick -
DeleteAgreed... We can continue when SCOTUS makes their determination but I do appreciate the points you've raised.
As for the warrant, I do understand that but it can be a slippery slope when a warrant is and is not needed. To stay with your example, if I was pulled over smelling of weed and my car was searched and nothing found, can a cop search the place I just came from without a warrant (and I'm aware this has nothing to do with the topic at hand, just throwing it out there)?
In your example on gay marriage, that is why we live in a republic and not a true democracy. It is the job of the law makers to protect the rights of the few from the masses. This from one of my favorite freedom fighters, Larry Flynt: "Majority rule will only work if you're considering individual rights. You can't have five wolves and one sheep vote on what they want to have for supper."
For gay marriage, "it is the job of the law makers to protect the RIGHTS of the few from the masses." And then you employ a standard, expected, sounds great but does nothing quote. It's as if you completely ignored what I said:
DeleteWHO grants those "rights?" For a right to be a right, it has to be granted by someone. In a country of 100, 100,000, or 100,000,000 if all but one person feels that the country shouldn't live in a way (just like I said, what if only one felt like he should have the right to do something everyone else objects to), how does he get that right? How is it protected?
I think it's wonderful to think in the way you do. I also think it's entirely unrealistic. A right doesn't come from any source other than what is granted by fellow man. LME wrote a great piece on this, you should check it out> http://loudmouthelephant.blogspot.com/2012/11/modern-federalism-great-compromise-part.html
Hi Rick...
DeleteQ: "WHO grants those "rights?"
The Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights...
A: their Creator : )
RE: Gay 'marriage' - the key word is NOT 'gay' - it IS 'marriage'...
Marriage of any flavor IS NOT enumerated under the Constitution... it is therefore NOT a FEDERAL issue, it IS a STATE issue.
MOST states have placed it on their ballots. Nine of fifty have voted it IN - the others have voted it OUT.
I'm confused as to why this continues to be an 'big deal'. Marriage is CIVIL and ALL states have CIVIL co-habitation and/or domestic partner protection laws that protect homosexual couple's 'rights' in the SAME fashion as hetero couples.
Neither DOMA NOR Gay Marriage have any business at the federal level.
Hey Dara,
DeleteActually, the issue people have with the civil unions typically involves not having all the same benefits of marriage. Survivor and spouse benefits being one of those things that most civil union definitions do not allow for.
Dara: The Declaration of Independence does not grant anything. It's just a statement. Rights are granted and protected by a supreme law (Constitution).
DeleteBut even if they were granted in the DOC, it's still a document created by man. Just like I said "WHO grants those "rights?" For a right to be a right, it has to be granted by someone. In a country of 100, 100,000, or 100,000,000 if all but one person feels that the country shouldn't live in a way (just like I said, what if only one felt like he should have the right to do something everyone else objects to), how does he get that right? How is it protected?"
If rights, whether in 1789, 1865, or in 2013, are not chosen, agreed upon, and upheld and protected by a group of people, they're not rights at all. I've asked this many times (and I've taken LME's logic, which I firmly believe in because it just makes plain damn sense): if all but one person within a country vote on something, and that dissenting voice claims, "but it's my right" who backs him? Who protects his right? The fact remains: it's not his right until society says it is. All these loopy and goofy clauses of false reason that claim "it's my right to marry" or do this or do that are just nonsense. Until granted and preserved by a group of people, the right doesn't exist. As far as being from a creator, I'm a strong Catholic. Hence why I supported Santorum. Even I don't agree that rights come from a "creator" or God being.
Hi Rick...
DeleteOh no, Grasshoppa... I cannot concur with your opinion. I know most of you are agnostic or whatever, BUT you can NOT dispute the FACT that our Founders BASED the Bill of Rights and the Constitution on the BIBLE.
THEY wrote the thing and whether the seculars of our society like it or not...it CLEARLY STATES our Rights are 'endowed by our Creator.'
I happen to agree... to grant ANY MAN the POWER to decide/determine what IS or IS NOT a right for the 'masses' is downright dangerous (think: Chavez, Hitler, Mussolini, Mao, Stalin - hell, LOOK at Morsi and Abbas!) - and OUR Founders KNEW that.
You missed the point with your 'loopy right to marry' comment. Marriage statutes are NOT enumerated in the Constitution as a Federal duty - they are therefor the responsibility of the STATES.
So far, the States are doing just fine... by a vote of 'the people', some states have legalized gay marriage - some have not.
Question: How come the pres. and those on the left squawk 'the people spoke' just shut up and deal with it' when the right complains about some stupid, costly, wasteful, unConstitutional, etc. move this president makes... but when the PEOPLE of a STATE speak against gay marriage - it's a whole 'nother ball game?
Double Standard Much?
As far as the blood alcohol testing goes, why doesn't the whole "If it only saves on life it is worth it" bull crap line not apply to the 4th Amendment the same way it does to the old antiquated 2nd Amendment?
ReplyDeleteHey Slim and Happy New Year to you. I was wondering where you've been. :)
DeleteWith regard to your question, how do you mean? If we applied the "If it only saves on life it is worth it" bull crap to everything, we would live in a state free of freedom. I'm not a big fan of that line unless it makes sense and I don't see how it could relative to either amendment.
Blood tests don't save lives :P
DeleteIf a cop suspects that someone is at a danger to drive, they already have the power to detain the person and/or take away that privilege (even if only temporarily). Whether or not they take a blood test doesn’t change that.
Was the guy under arrest at the time of the blood test? Did he have any prior DUI arrests?
ReplyDeleteA yes to these questions could change the outcome of the ruling.
Driving is a privilege, not a right. In receipt of your driver's license, you consent to the use of the breathalyser, when asked by an officer - HIS probable cause is whatever driving violation HE observed.
Refusal is grounds for immediate revocation of your driving privilege.
My question is this: If it's 'proper and legal' to 'require' a suspected drunk/impaired driver to submit to the breathalyzer - you MUST blow long and hard to force something that's within your body into the 'machine' for a reading - what is the difference between that and a blood or urine test... other than the convenience factor?
Under the 4th a person has the right to protect their person... but NOW I'm really confused..
Disclaimer: I've been 'substance' tested many times; breath, blood, urine AND hair. It's really no big deal - unless one has REASON TO BELIEVE THEY WON'T PASS...
The difference, I think, is that breath will only turn up alcohol whereas all other tests will turn up any and everything you have in your system which is none of the governments business. If I just got back from Amsterdam where I decided to smoke a little weed and I test positive for such, I don't wanna big brother charging with anything (if that's possible). Further, any test results "CAN and WILL be used AGAINST you in a court of law"... They have no probable cause to reserach my drug history (be those drugs legal or not).
DeleteIt absolutely is a big deal and it has everything to do with liberty. I have the right to not incriminate myself thus, the right to deny any test. I've agreed to lose my license for doing so and I'm ok with that (mainly because I don't have a choice in that aspect). But no big deal to willy nilly give up rights??? WOW!!!
I take it you do not treat all of your rights equally? My basis for that question is you seem quite adamant about not giving an inch on your 2nd Amendment rights but are just fine with giving up your right from self incrimination.
'I take it you do not treat all of your rights equally? My basis for that question is you seem quite adamant about not giving an inch on your 2nd Amendment rights but are just fine with giving up your right from self incrimination.'
DeleteI was tested both initially and randomly as a condition of employment. Whether or not I 'feel' it 'violates my rights' these are the FACTS: Although it MIGHT be within my Constitutional 4th Amendment right to refuse... NO test = NO job.
So... I test so I can be ALLOWED to work - so I can pay taxes - so they can be dispersed - to people who live off them - without THEM being asked to take such a test to be eligible - because THAT would violate THEIR rights.
Funny how that works out, huh?
Oh and just so's ya know - my fingerprints are ALREADY on file in about a zillion data bases - also a condition of employment... so PLEASE don't try to lump me in with the 'gun crazies'...
The 2nd Amendment is NO LESS important and/or crucial to the survival of America as a FREE country, than the 1st or the 14th or the 22nd... THESE are the LAW of the land...
I have a question for all you 'repeal the 2nd' people.
IF 'they' WERE to succeed in their quest to repeal the 2nd Amendment, just EXACTLY how long do you think it would be, before 'they decided' that the 1st - or the 4th - or even with a shift in 'power' - the *13th - was 'outdated' and MUST be discarded ('for the children' ya know).
*before anyone screams 'racist', the 13th addresses SLAVERY with NO mention of SKIN color.
"Beuler? Anyone?" I'm waiting....