Archive for Sunday, August 22, 2010

Branson pushes for DUI search warrants

Charles Branson wants officers to pursue warrants for blood tests when drivers refuse to take a breathalizer.

August 22, 2010

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Douglas County District Attorney Charles Branson knows that without breath or blood test results, it can be difficult to convince a jury to convict someone of driving under the influence.

“It’s the ‘CSI’ age. Everybody wants proof. They want a test,” Branson said.

But getting drivers to voluntarily submit to these tests sometimes can be a tough job for police.

Suspects with multiple DUI offenses on their record often know the ropes: If they’re pulled over on suspicion of drunken driving, they won’t consent to any test. The Kansas DUI Commission in a 2009 report estimated one-third of people stopped refuse a breath test.

By not participating in a breath test, they’re willing to take the automatic one-year driving suspension imposed by the Kansas Division of Motor Vehicles, whether convicted or not, instead of giving prosecutors more evidence in a criminal case, Branson said.

Then the main evidence in court typically comes down to the officer’s testimony about the suspect’s behavior during the stop, including breath smelling of alcohol, bloodshot eyes and slurred speech. But juries want more, Branson said.

Now the district attorney’s office is asking Douglas County law enforcement officers to always seek a judge’s search warrant to draw blood for testing when a DUI suspect refuses to take any test.

It’s part of a larger effort to crack down on drunken driving in Douglas County.

“What we’re looking to do with the search warrants is give us the evidence to go forward with those criminal cases, especially on the people who have been there before because they are the ones who cause the most problems,” Branson said.

Skeptics

Some defense attorneys are calling the practice excessive.

“We have videotape that juries can be shown,” Lawrence defense attorney John Frydman said. “If someone’s staggering and stumbling, you can see it or hear it. If they’re not, you can see it, too, so it cuts both ways.”

Frydman understands why prosecutors want blood tests as evidence because he’s been successful in defending people who don’t voluntarily take breath or blood tests.

He said it raises civil liberties issues and it seemed a majority of DUI cases still end with a conviction even if the defendant refuses to take a test.

But Karen Wittman, an assistant Kansas attorney general and Kansas traffic safety resource prosecutor, said the tests are in place as a safeguard for the innocent as well.

“Chemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims that he has drank only a little and could not be intoxicated,” she said.

Branson said multiple-DUI offenders are coached to barely even speak to officers if they’re stopped in addition to refusing to take any tests.

He said officers still must convince a judge they have probable cause for the blood test on a suspect who is age 18 or older.

Procedure

It likely will apply to only a handful of DUI stops, Branson said.

For instance, last weekend 26 people were booked into Douglas County Jail on some type of drunken driving charge, and only one person refused all tests. A Kansas Highway Patrol trooper obtained a search warrant from a judge, and the man was taken to Lawrence Memorial Hospital to get a blood sample.

The sample was sent to the Kansas Bureau of Investigation for testing. Officers are instructed not to tell the suspect they are applying for a search warrant to prevent the appearance of coercion. The blood sample for the most part must be taken within two hours of the person last operating a vehicle.

In the past, law enforcement officials here and in other counties have focused on getting these warrants periodically, like during a busy weekend, but Wittman said Douglas County would be the first to make this a normal practice.

Other states, such as Texas, have had success at reducing refusal rates, she said. She hopes it will reduce drunken driving overall.

“You would think that if you knew that no matter what’s going to happen they’re going to find out, then that might have a little bit of a chilling effect of you drinking and driving,” Wittman said.

Douglas County already has one judge on call every weekend to review warrants.

Branson said the warrants are part of a multifaceted approach to prosecuting DUI cases in the county. His office received funding for next year’s budget to add an attorney position in January. The staffer will be a DUI and traffic specialist prosecutor who would concentrate on multiple-offender DUI cases.

The cases can get backlogged in the system because they often require tracking down records from other jurisdictions on past convictions. He said that makes it difficult to file those cases and makes them more time-consuming.

“What we’re hoping to do with the search warrants and with having a dedicated person to review these cases,” Branson said, “is to shorten that time frame and have the consequences much closer to the event to try to reduce the number of DUI cases we see in Douglas County and reduce the number of repeat offenders on the roads.”

Comments

equalaccessprivacy 4 years, 10 months ago

Douglas County prosecutors are blackguards who don't mind exploiting tampered evidence if they get it in their corrupt,southern-justice-minded heads to persecute and frame an innocent person. What an ignorant and hateful place Lawrence is!

equalaccessprivacy 4 years, 10 months ago

Douglas County prosecutors are blackguards who don't mind exploiting tampered evidence if they get it in their corrupt,southern-justice-minded heads to persecute and frame an innocent person. What an ignorant and hateful place Lawrence is!

hipper_than_hip 4 years, 10 months ago

What they are telling you is it is NOT your body your choice. They can and will penetrate you and transfer bodily fluids. Make no mistake--just because it's a needle in your arm vs. something else in your something else doesn't make it any less an act of rape, which we're told is about dominance, power and control, not about sex.

They are telling you they can mount you and take you any time they want.

Food_for_Thought 4 years, 10 months ago

Here's an idea - STOP BREAKING THE LAW. STOP DRINKING AND DRIVING.

Amy Heeter 4 years, 10 months ago

How does this apply to hit and run drivers?

sherbert 4 years, 10 months ago

Then just make it mandatory to take the breath test and not optional, if it's going to be forced anyway. Why waste time and money, plus extra work by the hospital, to take them in for a blood test.

Scott Kaiser 4 years, 10 months ago

I agree. And if I'm not mistaken, some religions refuse transfusions and any procedure involving blood. How would that play out?

Food_for_Thought 4 years, 10 months ago

I wonder if those religions condone drinking copious amounts of alcohol and then operating a vehicle, endangering persons and property?

Kat Christian 4 years, 10 months ago

Have they nothing else more important to spend their time and money on? Not to say driving drunk isn't an important issue, but this is just putting a bandaid on the real problem. First we have too many bars here in Lawrence. 2nd Lawrence promotes "PARTY TIME" or allows the University Culture to promote it. So what do you expect when the town is pushing out liquor to these young people who are obviously too irresponsible to drink responsibly.
Plus...stated in the article: The cases can get backlogged in the system because they often require tracking down records from other jurisdictions on past convictions. OMG they spend less time tracking down past records of repeated violent criminals who steal, rape, child molest and murder and they want to spend more time tracking down past records on DUI's? I was told that past offensives cannot be entered into a new criminal offense. BULL....Yet the courts here want to bring up past DUI offenses? If past DUI offenses can be brought up in court then so should past criminal offenses and that goes for all court issues, including child custody cases.
Mr. Branson spend that money and time on the repeated violent criminals back cases and working with the University to curtail alcohol provided parties to these young people. Close down some of these bars downtown. Make this town more family friendly instead of a party zone.
Getting a warrant to invade a person's body is setting another domino affect of taking personal rights away from people. Don't get me wrong drinking and driving is a serious problem, but trying to work against our consitutional rights is worse and its just putting a band-aid on the real problems of working to change the party mentality culture that this town has allowed to grow to appease the University.

Kat Christian 4 years, 10 months ago

People are going to drink that's a given since probition was lifted. It is the other, outer venues that push drinking that creates the problem. Alcohol Ads should be stopped or limited. Alcohol should not be allowed at certains parties, especially on a University Campus. Of course law should not dictate if we can have alcohol in our homes. However I believe there are ways of promoting alcohol free activities, venues if it is a focus, instead of taking rights away. Of course if someone kills another person because they were drunk they should serve the maximum in prison. As far as I'm concerned their car was the weapon they used and being drunk was their choice not an accident so they should take full responsibility for their action.

notajayhawk 4 years, 10 months ago

"People are going to drink that's a given since prohibition was lifted."

It was a given while prohibition was in force - that's why it was lifted.

tanaumaga 4 years, 10 months ago

playing the k.u. card? there are more than students abusing alcohol, driving under the influence, and then get pulled over.appease the uni?...please.

slowplay 4 years, 10 months ago

I wonder how many of Frydman's clients went on to injure, maim or kill someone after he got them off and back behind the wheel.

notajayhawk 4 years, 10 months ago

I wonder how many thieves stole again after their attorney got them off, how many acquitted rapists attacked someone else, how many murderers that were declared 'not guilty' later killed someone else. That's our system of justice, or do you suggest we judge them guilty or not guilty before allowing them to have an attorney?

And, um, incidentally, it says "he’s been successful in defending people who don’t voluntarily take breath or blood tests", it doesn't say they were driving drunk. Your assumption that the ones he got off were guilty anyway is precisely why need have the system of justice we do, particularly the assumption of innocence.

jafs 4 years, 10 months ago

Yes, but if someone's not driving drunk, it's hard to understand why they would refuse to use a breathalyzer.

If we really wanted to prevent drunk driving, and the associated problems, we could install interlock devices in all cars - my wife gets the credit for that idea, but I think it's an interesting one.

notajayhawk 4 years, 10 months ago

So is it okay with you if we search cars without a warrant? After all, if someone's not hiding anything, why would they refuse to allow a search?

Why would anyone object to being asked for ID if a police officer asks them for it for no particular reason?

For the most part, I agree there's no legitimate reason for refusing the breathalyzer. Except they aren't always accurate. If the machine was operated improperly, not calibrated correctly, or not working as it should, it's possible to get an invalid 'positive' result. I'm not talking about something that detects alcohol when none at all was present, but suppose you're at about a 0.06 - why take a chance the machine will come back saying 0.08? That then puts the burden of proof on the accused to prove the machine was calibrated/operated improperly.

Amy Heeter 4 years, 10 months ago

I know of one that continued to drive despite his license being suspended, revoved,denied and every other way to disallow. He ended up doing a long jail sentance ,was on parole and still bought another car to drive right in front of the parole office. Still drives drunk today even though he was to never get a license in Kansas again. Losing driving rights means nothing to those who are habitual anyway.

kansasredlegs 4 years, 10 months ago

Probably no one, but even if Frydman got him off, he'd be back on the street and driving regardless. You certainly don't know the game and or rules based on your comment. Convictions don't result in significant time. It is exception, not the rule if someone does more time than statutory minimums.

puddleglum 4 years, 10 months ago

"And, um, incidentally, it says "he’s been successful in defending people who don’t voluntarily take breath or blood tests", it doesn't say they were driving drunk. Your assumption that the ones he got off were guilty anyway is precisely why need have the system of justice we do, particularly the assumption of innocence."

EXACTLY! a court order to draw blood? my GOD. why not try to go after something a little more important-like drunk drivers running over cyclists, pedestrians, or boats or whatever-and leaving the scene? We read about this happening all the time so do something about it.

notajayhawk 4 years, 10 months ago

Oh, my god. Did we just agree on something???

I do hope you were similarly aggrieved at Kansas' new law that gives the police the authority to order a blood test after any accident in which the police officer has a reason to suspect substance use.

Food_for_Thought 4 years, 10 months ago

Yeah, I'm sure the police just sit around and don't look for the suspect vehicle(s) involved in a leaving-the-scene accident. [/sarcasm]

The car and driver is long gone before the cops arrive, and the only means they have to find the vehicle are witnesses (they they're present) and debris left behind at the scene of the accident, (if it is present). I'd imagine most people who leave the scene of an accident do whatever they can to prevent themselves from being found.

timeforachange 4 years, 10 months ago

The answer to fixing our nations alcohol problem is not by taking away my rights as an individual. Giving the police the right to invade and violate by body is NOT the answer. This slippery slope I'd rather not go down.

Romans832 4 years, 10 months ago

I was "all ears" waiting to hear what the answer IS. You told me what the answer isn't. Can you offer a solution to our nation's alcohol problem?

Practicality 4 years, 10 months ago

"why not try to go after something a little more important-like drunk drivers running over cyclists, pedestrians, or boats or whatever-and leaving the scene?"

But how are they supposed to go after them when the individual refuses to submit to a test to prove they were drunk?

"For the most part, I agree there's no legitimate reason for refusing the breathalyzer. Except they aren't always accurate. If the machine was operated improperly, not calibrated correctly, or not working as it should, it's possible to get an invalid 'positive' result."

The blood test would eliminate the inaccuracy though.

notajayhawk 4 years, 10 months ago

And believe me, if you think blood test results are always accurate, you're sadly mistaken. Operator error and improperly calibrated machines, not to mention the additional source of potential error in mishandled or contaminated samples, leads to even bigger problems.

somebodynew 4 years, 10 months ago

A different perspective - -

First off, no one (even the Government) is taking any rights away from anyone. While I do not expressly agree with what Branson is proposing, I am trying not to be swayed by extremist talk either. We are free from searches (in most part) EXCEPT by a warrant. The police do not just write out a warrant and attack. It has to be reviewed by a DA and then signed by a Judge, showing proper probable cause. That procedure follows the laws (rights) of individuals.

Second - On the hit and run topic. It would be nice if this worked for them, but it probably won't unless they are caught right away. Did you catch the sentence in the story that talked about needing to be done within 2 hours??? Most of the hit and runs aren't caught for a couple of days, negating the possibility of getting a warrant.

That also goes to my problem with the whole story. Nowhere does this story discuss how Branson is going to streamline the process so the cops can actually GET a search warrant within 2 hours. (Not very likely unless a new system is in place.) And, where are all the cops required going to come from???? Somebody has to guard/watch the alleged drunk while the office who witnessed the driving fills out the affadavit and gets it signed, then take the person to the hospital (which just might be busy with emergencies), and Oh, yes - something tells me there are other calls just stacking up on other matters the police have to deal with.

Now, I hope Branson has already approached this topic with the Chief, Sheriff, Directors and Hospital, but somehow I doubt it.....

begin60 4 years, 10 months ago

Good points, and I certainly don't support irresponsible drinking that endangers others' lives. That said, the conflict of interests in the Douglas county law enforcement jurisdiction are out of control and stomach-turning.You can't tell who is the criminal and who is the lawyer/cop anymore because powerful political and monied interests are abusing the legal system for their own corrupt ends.

All these people(Judges, DAs, lawyers )graduated from KU, are in bed with one another, and lack the moral backbone to stand up to the power abuses going on up there on the hill. KU cops can just file a case without ever warning or citing someone about something that misrepresented and lied about in the first place and because it's KU the DAs will likely sign off and prosecute, no questions asked. Blame the victim all the way to the jail house door! Dirtball ethics win the day.

Food_for_Thought 4 years, 10 months ago

According to Kansas law, a driver can be deemed "impaired" by either being

(1) above 0.08 BAC or (2) proven to be impaired by alcohol.

The "two-hour" rule only applies to the first example only. A person can still be charged and convicted of DUI after more than 2 hours has passed, so long as it can be established that the driver did not consume any alcohol between the accident and being arrested, and through tests and police-observation that the person was deemed to be operating their vehicle impaired.

notajayhawk 4 years, 10 months ago

If a conviction is possible solely by police observation of his behaviors and performance on sobriety tests, then what do we need the blood test for?

verity 4 years, 10 months ago

"Douglas County District Attorney Charles Branson knows that without breath or blood test results, it can be difficult to convince a jury to convict someone of driving under the influence."

First line of article.

grimpeur 4 years, 10 months ago

When you get a driver's license, you agree to abide by certain rules and are certainly subject to stops by law enforcement. They can check your breath, your speed, your license plate and status, your eyes, your speech, your balance. Sometimes they can check your car. If you're under the delusion that some civil right is being violated when you agree to these well-known and perfectly reasonable terms, what, then, is the best way to remove a drunk driver from the road?

Ask a typical local lawyer how much of their practice is devoted to DUI/DWI. Why? Because the loopholes exist to be exploited. Remove the loopholes, remove the payoffs and the stupid fake "traffic classes" for forgiveness of points on your driving record, remove the second and third and fourth chances for DUIs, start figuring out how to suspend and revoke licenses, impound vehicles and jail repeat bad drivers consistently, quickly, and permanently, instead of giving them an loophole so that they can keep driving. That's backwards and irresponsible. Stop fooling around with these cretins.

Don't like these rules? Then don't drive. Afraid the breathalyzer will show positive, or that the margin of error is too big? Don't drink and drive. You say you need your car for work, or your family depends on it? Then you're an even bigger loser for risking it. Think your personal privilege to drive drunk, recklessly or aggressively trumps the rights of your fellow citizens to their public safety and order? Think again.

slowplay 4 years, 10 months ago

Nice post. If convicted for a DUI, you should lose your license and go to jail for the first offense. Mandatory 2 year license suspension and 30 days in jail. Then your license plates are changed to a bright red color so everyone knows you are drunk driver. I believe everyone who complains about the breathalyser, blood-tests, length of penalties, etc. etc. regarding DUI's probably drinks and drive on a regular basis. I will gladly submit to any of the above because I DO NOT drink and drive and I will support anything that gets these drivers off the road.

slowplay 4 years, 10 months ago

That doesn't refute my assumption unless you can prove otherwise. Nobody has a right to endanger other human beings in such a reckless manner. Undisclosed check points every evening, stronger penalties, saturation patrols, whatever it takes., I'm for it.

notajayhawk 4 years, 10 months ago

I rarely drink, when I do I drink at home or within walking distance. I happen to know a little bit about the limitations of breathalyzers and blood tests for substance use as part of my professional duties. Defender was correct, your assumption was based on ignorance.

slowplay 4 years, 10 months ago

Of what am I ignorant? That those who whine about breathalysers, checkpoints, etc. etc. drink and drive?

slowplay 4 years, 10 months ago

I'll stand by my assumption. There is no logical reason other than the fear of being caught that would make me think otherwise.

Food_for_Thought 4 years, 10 months ago

Yeah, take the responsibility off the drinkers and the drivers! Blame the drinking establishments! It's the server's fault for taking your order and their responsibility that you (a) don't drink too much, and (b) don't drive after leaving. I hope you write your congressman that letter. It will give him a good laugh.

windjammer 4 years, 10 months ago

A person can get just as drunk on 3.2 % as 5.0 %. Because it may state it is 5% it doesn't usually test out at 5 %. 3.2 % means it can't be over that percent and usually it is below 3.2 %. I,ve seen more than one person say they can't get drunk on 3.2 % and then stumble around like a fool. Good luck with your congressman.

lionheart72661 4 years, 10 months ago

You know what I like? Our governor will raise taxes on food and cigarettes but put on the brakes when it came to raising the price of alcohol or just enforcing an old law. Now th DA is whinning about wasting judicial time to get a search warrant to obtain blood samples. That will mean dragging a Judge out of bed at 3 in the morning to get the search warrant. No what we need to do is have stricter laws on alcohol, tax the crap out of it like they did cigarettes. Underage and irresponsible drinking is a major issue throughout the country, not just Lawrence. So NO to warrants and YES to taxing liquor. I don't drink nor do I smoke so yes i am unbiased to this issue.

Food_for_Thought 4 years, 10 months ago

Wow, this page is filled with intellectual geniuses! (NOT)

Yeah, you sure are biased. You don't drink, you don't smoke, so it's no money out of your pocket. Since the tax increases don't affect you whatsoever, you're all for it. I bet if they increased the taxes on something that DID affect the money in your bank, you'd be singing a different tune...

Sigmund 4 years, 10 months ago

"For instance, last weekend 26 people were booked into Douglas County Jail on some type of drunken driving charge, and only one person refused all tests."

So 26 DUI's on a typical weekend and how many drunk driving deaths last couple of years? Repeat drunk drivers know to refuse all test to minimize penalties and seeking a search warrant is already within current law? I almost never agree with Branson, but the police should have already have been doing this. My only disagreement this time with the DA is this long overdue.

Sigmund 4 years, 10 months ago

"The man was booked on multiple charges, including attempting to elude, reckless driving, failing to report an accident, driving while intoxicated, driving while suspended and leaving the scene of an accident." "Lawrence man arrested after car chase", August 22, 2010, LJWorld Online http://www2.ljworld.com/news/2010/aug...

Sigmund 4 years, 10 months ago

SCHMERBER v. CALIFORNIA has been settled law for over 40 years.

U.S. Supreme Court, SCHMERBER v. CALIFORNIA, 384 U.S. 757 (1966)

"At the officer's direction a physician took a blood sample from petitioner despite his refusal on advice of counsel to consent thereto. A report of the chemical analysis of the blood, which indicated intoxication, was admitted in evidence over objection at petitioner's trial for driving while intoxicated. Petitioner was convicted and the conviction was affirmed by the appellate court which rejected his claims of denial of due process, of his privilege against self-incrimination, of his right to counsel, and of his right not to be subjected to unreasonable searches and seizures." .... "We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures." http://scholar.google.com/scholar_case?case=9806833505253407923&q=SCHMERBER+v.+CALIFORNIA,+384+U.S.+757+%281966%29&hl=en&as_sdt=2002&as_vis=1

sciencegeek 4 years, 10 months ago

Most of the writers here have overlooked a major point: driving is a PRIVILEGE, not a RIGHT. Driving under the influence is a conscious CHOICE. We aren't talking about poor, innocent victims here. No one forced them to drink, get into a vehicle weighing a thousand pounds and capable of moving at high speed, and unleashing it on every other human being in their path.

While you're talking about legalisms and inaccurate breathalyzers, thousands of people every year are killed by drunk drivers. Anyone who's lived in Lawrence knows this happens. Have any of you lost a friend or loved one to a drunk driver? I've lost two--one was a pedestrian, the other a passenger in another car. I was injured by a drunk driver myself while sitting at a stop light. We were all innocently minding our own business when our lives were changed, or ended. Who speaks for us?

If you don't like the warrant idea, come up with a better idea. But do it quick, before you become one of the TRUE victims of drunk driving.

notajayhawk 4 years, 10 months ago

"Driving under the influence is a conscious choice."

Not entirely true. Nobody sets out for the evening with the intention of driving drunk.

It's a simple matter of math and biochemistry. The current limit is what, 0.08% ? The problem is that a person's judgment starts being affected at around 0.03-0.05%. In other words, before you've lost your ability to safely operate a motor vehicle, you've lost your ability to decide whether you've lost your ability to operate a motor vehicle. While there is obviously a significant number of habitual offenders, most people who end up getting arrested for a DUI are just normal people that went out to dinner and had some wine, or were driving home from watching the football game at their buddy's house, or just left the wedding reception of their favorite niece.

I am NOT saying that makes it okay - but drinking and driving is rarely a conscious choice.

Sigmund 4 years, 10 months ago

Drinking and driving is a ALWAYS a conscious choice. They intended both acts of drinking and of driving, although they may not have intended to get caught. In fact, involuntary intoxication (somebody spiked your drink) is a defense to DUI.

If you really think that most of the 26 people booked into Douglas County Jail last weekend were "are just normal people that went out to dinner and had some wine, or were driving home from watching the football game at their buddy's house, or just left the wedding reception of their favorite niece" you are mistaken.

Much more likely they went out that night to party and to get good and "buzzed" and they succeeded. They then intentionally got behind the wheel of a car and drove. Their driving was so poor that a police officer noticed the impairment and pulled them over.

notajayhawk 4 years, 10 months ago

I wasn't clear, I apologize. Drinking and driving is, indeed, a conscious decision. Operating a motor vehicle past the point where you are too intoxicated to do so safely is not. As I mentioned, before you reach the point where you can not do so safely, you have lost the ability to determine whether you can do so safely. I didn't say anything about the legal aspects or whether that was a defense in court, and I specifically stated it was NOT okay. I said driving after you've had too much is rarely a conscious decision.

"If you really think that most of the 26 people booked into Douglas County Jail last weekend were "are just normal people that went out to dinner and had some wine, or were driving home from watching the football game at their buddy's house, or just left the wedding reception of their favorite niece" you are mistaken. "

So you know all 26 of them, Sigmund? How many of them left home that day with intentions consistent with those I mentioned, and how many, exactly, "went out that night to party and to get good and "buzzed" and they succeeded. They then intentionally got behind the wheel of a car and drove." Please do tell us how many of the 26 met that description, since you're evidently better informed than the rest of us.

notajayhawk 4 years, 10 months ago

It is not, however, either illegal or necessarily dangerous to drive "after imbibing". Only after imbibing too much. As I said in my response to Sigmund above, I misstated in my original comment; while you both are correct that drinking and then driving is a conscious choice, driving after you've drunk too much is usually not. And while I could be wrong, I believe when sciencegeek said "Driving under the influence is a conscious choice", he was referring to the latter.

jafs 4 years, 10 months ago

This is a good point.

Drinking affects one's judgment early on.

What's the solution?

I think my wife's idea to simply install interlock devices in all cars that prevent people from starting them if their BAC is too high is an idea worthy of consideration.

jafs 4 years, 10 months ago

If people exercised good judgment on their own, this wouldn't be a problem.

Both of your suggestions require that people exercise good judgment.

jafs 4 years, 10 months ago

For the record, I drink an occasional half glass of wine, and have never driven drunk.

Sigmund 4 years, 10 months ago

sciencegeek (anonymous) says… "Most of the writers here have overlooked a major point: driving is a privilege, not a RIGHT. "

I know I am picking at nits here (and possibly tilting at windmills), but there is very little distinction between a "privilege" and a "right." despite courts to this day using that phrase. Courts merely characterize certain privileges as "rights" when they wish to impose a higher degree a of due process on the government, or vice versa they will demote a right to a "privilege" when they wish to lower the due process needed to remove them. Typically such statements are conclusions and without any rationale except to quote someone else whose statement was equally unsupported.

This isn't just a recent observation of mine, but the subject of a 1968 Harvard Law Review article; "In this article Professor Van Alstyne reviews the uses and misuses to which the "privilege" concept has been put and then examines those doctrines whose flanking attacks have gradually eroded its efficacy. But none of these doctrines comes to grips with Holmes' basic idea of a "privilege" to which substantive due process is inapplicable. Applying Holmes' own jurisprudence, the author argues that the concept of "privilege" is today no longer viable, and that the size and power of the governmental role in the public sector requires substantive due process control of the state in all its capacities." The Demise of the Right-Privilege Distinction in Constitutional Law, By: William W. Van Alstyne, Harvard Law Review, Vol. 81:1439. http://www.constitution.org/cmt/right-privilege.htm

To state that a person does not have a "right" to a drivers license is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities to obtain and maintain such license. This right, like all privileges granted to citizens, can only be removed only upon failure to comply with those terms and after being afforded a substantial amount of due process by the government.

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