Thank goodness the Washington Post didn’t perpetuate irresponsible Internet rumors on that snowball fight story. Instead, they went straight to MPDC for the official version of events, unskeptically published the resulting lies from the department’s spokesman, after which WaPo columnist Marc Fisherput up a smug blog post gloating about how responsibly the paper treated the story, as opposed to those hysterical blogs and Internet sites. Never mind that the blogs and videos had proof the WaPo got the damned story wrong. Facts aren’t as important as who followed journalistic protocol.
Interesting piece by Adam Liptak on the politicization of Supreme Court clerks.
Saddest Christmas story you’ll hear about today.
Speaking of the snowball fight heard ’round the world, Julian Sanchez has good thoughts on class, video, and police accountability.
Cow art. Some of these are quite moo-tiful.
The latest from Maricopa County.
Minnesota Supreme Court nixes innocent owner defense in forfeiture cases, says spouse has no claim if other spouse loses car after DWI stop.
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on Wednesday, December 23rd, 2009 at 8:39 am by Radley Balko
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TheAgitator.com
Greenwald has a good breakdown on the “journalistic objectivity” that poisons our corporate media when it comes to US authority figures.
http://www.salon.com/news/opinion/glenn_greenwald/2009/12/23/objectivity/index.html
Are the Pentagon’s denials true? Stelter doesn’t say, instead merely passing on al-Hajj’s allegations and the governments’ denials. Using the standard definition of American journalism, resolving conflicting claims and stating the actual truth is a violation of “journalistic objectivity.” Journalists only neutrally pass on claims, not report which ones are true. That’s why Al Jazeera’s doing so with regard to the Bush administration’s conduct is so offensive to The New York Times.
Notably, however, The New York Times itself, in news articles, has repeatedly accused other countries of engaging in “human rights atrocities,” often using that exact phrase to do so: see, for instance, here (America intervened to stop “atrocities” in Somalia, Haiti and Kosovo); here (accusing Peru of “human rights atrocities”); here (accusing Central American militias of being “guilty of wartime human rights atrocities”); here (referencing “human rights atrocities” in Bosnia); here (describing “human rights atrocities” by Sri Lanka); and here (detailing “human rights atrocities” by Serbia) Apparently, it’s a perfectly acceptable “objective” journalistic practice to describe a government’s actions as “human rights atrocities” — just as long as it’s not the U.S. Government being so accused. What a strange concept of “journalistic objectivity” The New York Times has adopted.
Even more amazing, the newspaper accusing Al Jazeera of deviating from “journalistic objectivity” itself explicitly bans the use of the word “torture” — when describing what the U.S. Government did, that is, even as it uses that word promiscuously to describe similar conduct by foreign governments. When interviewing al-Hajj, Stelter faithfully followed the NYT’s language ban, resulting in this illuminating exchange:
It’s a disease, and they need to keep their precious sources (or they might actually have to go out and do some research) so no calling the sources on their bullshit. No matter how many times their source rolls them.
The forfeiture case is troubling. The majority construes the “[innocent] owner” of the confiscated property to mean “all owners” based on the purported plain meaning of the statute, yet it would be just as easy, if not easier, to interpret the statute to mean any single innocent joint owner of the vehicle. Basically, the court bends over backwards to make a dubious interpretation of a statute knowing full well that it will result in the taking of valuable and necessary property from an innocent owner. Also, in what universe do the MN legislatures live to think that forfeiting one’s car (read: means to work, valuable asset, etc.) is putatively in-line with a DUI conviction? Hopefully, the legislature will clarify its intent and help reign in this ridiculous result. Hopefully, but doubtful.
“Because Laase refused to submit to a breath test, the $40,000 vehicle was permanently confiscated as punishment for “second-degree criminal test refusal.”
W…T…F ????????????????????????????
Refuse to blow, lose your ride? What kind of BS is this?
More head explosion:
“The majority countered that it was the job of the legislature, not the courts, to limit the applicability of a law.”
We’re not a check or balance, we’re a rubber stamp…..
I’m sure that you know that ignorance of the law is no excuse. If that is the law in MN, then that is the law.
That being said, I think it’s an unfair law and it should not exist. I can understand suspending or even revoking a person’s license for refusing to submit to a sobriety test but forfeiture is a bit extreme, if not unconstitutional. Surprisingly, tho, if such a challenge were to reach the SCOTUS, I’m sure that a 5-4 majority would uphold the “right” of the government to confiscate your shit.
Can anyone say, ‘creeping totalitarianism’? Suuuure you can!
Why anyone would be surprised at this is beyond me. The weakening of 4th Amendment strictures against government predations began with the forfeiture laws, themselves a Frankenstein’s Monster constructed in the lab of mad (social) scientists who thought they could limit that monster’s rampages because they thought it would only be used against big-shot drug ‘kingpins’.
Between that and the weakening of ‘Posse Comitatus’ and allowing the US military to be used against US civilians all in the name of the DrugWar (to protect the kiddies, you see) and we had a recipe for police to behave like the thieving ‘highwaymen’ of old. ‘Stand and deliver!’ has become ‘Blow, or lose your expensive ride!’
And I have to wonder: how many alcohol drinkers were all for the drug laws that included forfeiture?
What comes around goes around.
Confiscation and forfeiture isn’t too extreme if the ultimate goal is to generate revenue for the government forces.
That’s what I think has tainted this whole process. The whole government benefits so much from asset forfeiture and confiscation that nobody in government has any incentive to put any sort of check on it.
The Snowball cop hit the newsreels in Denmark yesterday, with video from Reason and a small interview blurb with the Reason cameraman. The cop was presented as being a giant asshat for what he did.
You hardly ever lose any property for refusing any search. Our founding fathers were pretty clear that search an seizures were to be tightly controlled. If your property is a bomb that is going to blow up a plane, that bomb can’t really be used for nonviolent purposes. But it’s not like a car can only be used in drunk driving, so there isn’t a reason for any authority to take it. The next of kin shouln’t lose their property rights just because a loved one lost their freedom justly or unjustly.
I meant to say “You SHOULD hardly ever lose property…”
Damn.
Not even gonna click on the WaPo link. I’ve seen the fucking video. Nuff said. I don’t find badgelicker “journalism” the least bit shocking or amusing anymore.
I will be adding “badgelicker” to my lexicon. Thank you for my morning learning. :)
THE DUDE PULLED A GUN ON SOME PEOPLE AFTER HIS CAR WAS HIT WITH A SNOWBALL.
JFC! How hard is it to understand?
I never drink, but I always thought that the smart thing was to refuse error-prone breath tests, and request a blood test (at least then there would be independent evidence that could be evaluated by your own experts) and that the worst that could happen if you refused the breath test is that you could get your license suspended. That was going to be my course of action if I got pulled over.
Have I always been full of it, or is it just that the laws changed while I wasn’t looking? Is there a state-by-state list that tells me where the crime of “criminal test refusal” exists?
Also, am I right about the unpredictability of breath tests, or should I go ahead and submit to one if I know that the last alcohol I consumed was those two doses of NyQuil 14 months ago?
#8
Matt you’re right on target with that. If you follow their logic, then the $10 I was aiming to give to the bell-ringers at the mall must be corrupt, must be seized, can’t run the risk that the evil-doers at the union mission might NOT use it to feed someone. All this because there happened to be a joint in my pocket next to the money.
It was nice seeing reason.tv on the video being shown on CNN. I bet that caused a surge in traffic on the reason.tv website.
I would like to see a website created just to spotlight police misconduct videos. We could all it AbuseTube.
Can you believe this comment from the Fisher Post? These people deserve the bad government that they support. Unfortunately, they are dragging us with them!
[I]“The officer had no choice but to take action on people who were impeding traffic in the roadway, throwing missiles across the Intersection. Assaulting peoples property & even assaulting the officer with thrown objects. One blogger writes his Snow balls had D size batteries in them! So do I fault the officer for un holstering his weapon after being hit twice in the head by what appeared to be snowballs after he IDENTIFIED himself as a Police officer & told people to stop? Heck No. I fault the organizers of theis event. A Ms Lacey Macauley says she and a few of her friends were responsible for organizing the event. She says this on her Twitter page & on her website.
http://lacymacauley.wordpress.com/
I suugeest the MPD and the DA’s office end the promotion of these type of activities. Pronto.”[/I]
On a separate note, where do I find a tutorial on the correct tags and formatting to use here?
Cow art is cool. The artist needs to hire a graphic artist who knows web design and typography to adjust her kerning, though…. her site looks like it says “TERES A ELLIOT”.
#13 MattJ,
I don’t know where you live, but the laws are different from state to state. Come to think of it, I need to look up the laws in NC, where I currently live.
When I lived in CA, the law said that you could refuse a field sobriety test in lieu of a breath or blood test. I did do this once, when DDing for a bunch of friends.
I was pulled over for not stopping at a yellow intermittent light (yeah, I know, the cop was just trying to find something) and the cop said he smelled alcohol and asked if I had been drinking. I told him that I hadn’t had a drink all night but that I was driving 4 drunk people home, hence the smell. He said he didn’t believe me and that I was driving erratically so he asked me to step out of the car and perform a field sobriety test. So, I told him that I could never pass one of those (terrible balance) and asked if I could instead submit to a breathalizer. He had to call in a buddy because he didn’t have one with him. So, I waited 20 minutes for the second cop car to arrive and I blew a 0.0. The cop wasn’t satisfied, so he said he had to wait 30 minutes to administer it again, to see if it would go up (big Asshole, the cop). So, after another 30 minutes went by, I again blew a 0.0. The cop asked me to wait another 30 minutes but the second cop, a sergeant, told him to let me go, but only after I complained and asked to see his supervisor.
“Have I always been full of it, or is it just that the laws changed while I wasn’t looking? ”
Regarding DUI, yes, the laws changed drastically over the
last 25 years. It became Political Suicide to challenge MADD-based
legislation so that now we have bizarre scenes unfolding like the gov’t
seizing someone’s car because they won’t provide incriminating evidence.
factoid : Candy Lightner abadoned MADD after founding it because it
became too Prohibitionist.
It’s the judge dredd era matt m’boy, there’s a law somewhere that makes you a criminal and you can’t know what it is.
On the flip side, I have to admit that in the small town I used to live in when the cops raided my house and arrested me they piled all my guns in one place and had a little huddle before correctly deciding they couldn’t take anything except the .45 I’d had in my pocket answering the door. The crap that ends up in the news needs to be put down, hard, but my anecdotal evidence isn’t always that cops are dicks. They were even nice enough not to cuff me in front of friends and neighbors and waited til we hit the care. Quite a bit diff from the ones I grew up with, who stole my Mossberg and my dad’s .38 on seperate, legal, occasions.
TL;DR: My experience with confiscation laws has been mixed but some seemed reasonable.
1)“A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law,” Minnesota Statutes Section 169A.63 states. “…2) If a motor vehicle is owned jointly by two or more people, each owner’s interest extends to the whole of the vehicle and is not subject to apportionment.”
IANAL, but, part 1 of this statute (notation mine) seems to be saying that the state doesn’t need to prove that a crime has been committed, in order to seize the vehicle, but that the (sole) owner must prove his innocence, in order to prevent the seizure of the vehicle.
Question: When did it become required for ANY American citizen to prove his innocence, i.e. what happened to the burden of proof is on the accuser (the state)?
Part 2 emphasizes “each owners interest” and makes no mention of or provision for the states’ interest – this indicates to me that the interests of the “innocent” (co) owner to keep his vehicle would take precedence over the states interest in seizing it.
3) “The majority countered that it was the job of the legislature, not the courts, to limit the applicability of a law.”
Question: Then why the fuck is this panel of judges ruling on the “applicability” of this law? Didn’t they just say it wasn’t their job?
In the movie “The Godfather,” there’s a line that goes, “You can steal more money with a briefcase, than you can with a gun.”
Apparently, you can steal more money with a robe, than you can with a briefcase…
Re Snowball fights: The FOP is now calling out MPD Chief Lanier for “prejuding” the case. Hopefully they will get their asses handed to them.
I never drink, but I always thought that the smart thing was to refuse error-prone breath tests, and request a blood test (at least then there would be independent evidence that could be evaluated by your own experts) and that the worst that could happen if you refused the breath test is that you could get your license suspended. That was going to be my course of action if I got pulled over.
This is an issue I have tried to figure out with little success. It varies by state. For states that do make a distinction, it does not seem to be a breath versus blood distinction, but rather a distinction of Portable Breath Test versus Breath/Blood/Urine (at the option of the police). IOW, you will be “penalized” less (or not at all) for refusing a Portable Breath Test (”PBTs”), but as far as the other ones go, you really need to submit.
There are policy reasons for this: (i) PBTs require one to trust the police officer out in the field to be honest about what the reading was; and (ii) PBTs produce sucky results. While some people criticize non-portable breath tests (sometimes called bench tests), they are much better, and much less susceptible to purposeful and accidental police tomfoolery.
If I am pulled over, and am asked, I plan to say: “I consent to blood, non-portable breath and/or urine. That is the extent of my consent.” If I am asked again, I plan to repeat that answer in those same words. However, this will not keep my car from being impounded (although they may unimpound if I blow 0.00 at the station), and it may not keep me from being penalized for refusal. Nevertheless, the result I am trying to avoid is one where give a PBT and then prevent me from following up with a better test to show that I was sober.
At police boards, I have asked what they do when suspects refuse consent to PBTs, but give consent to other tests. Policeman will not answer that question.
Really this whole question of “can I refuse a PBT?” is overdue for a decent journalistic treatment. Because it is mysterious and it looks like police and prosecutors are trying to fix it so that the public never gets a straight answer to what should be a really simple question.
One of the biggest disgraces in Maricopa Cty is the fact that the ABA has basically ignored this story, while local lawyers (defense and prosecution) have battled Sheriff Joe. The ABA is more interested in beauty pageants and enhancing diversity, while lawyers in Arizona are fighting against Arpaio’s thugs and their use of force over justice while the ABA sits on its hands.
Regarding #16, the “blogger” that the guy horribly misquote is Cynical in CA, from this very blog, who said:
“That DC cop is lucky he wasn’t in Jersey. We used to put “D” batteries inside our snowballs.”
Reading comprehension fail.
+1 to #1 for the link, and the point it makes. My journalism degree has been gathering dust for 24 years for this very reason. (Well, that and the fact that I couldn’t afford the pay cut to be a reporter, plus the uncertainty of getting fired every six months.)
Even in the early 1980s in a behind-the-times college, “journalistic impartiality” was getting competing quotes and presenting them equally, even if the reporter had solid evidence that either party (or both parties) were lying.
John Wilburn. You just haven’t been paying attention for the past 20 years or so. Civil forfeiture eroded the idea of having to prove guilt a long long time ago. It has been having to prove the “material, object, etc” innocent to get it back.
- Not saying I like it or agree with it, but it’s been this way for awhile that you have to prove the stuff wasn’t a product of criminal enterprise etc for awhile.
“Really this whole question of “can I refuse a PBT?” ”
Yes, you can unless you have hurt someone.
But I believe the second time is a misdemeanor in states like FLA.
In Raleigh,NC, I went to see a trial and the only people
that were being acquitted were the non-blowers, but they
lose the license for 6 months due to DMV penalties.
Heres the hook, Emergency rooms won’t do the blood test
unless they have Law Enforcement approval. And the ER doctor’s written
appraisal (although blood test denied) of “healthy, sober, alert” were considered “hearsay” and not allowed.
I witnessed this case with my own eyes.
Nevertheless, the result I am trying to avoid is one where [I am given] a PBT and then prevent[ed] from following up with a better test to show that I was sober.
Besides correcting the typos in this sentence, I wanted to add the further thought that PBT readings cannot be used as evidence in court in some (probably most and maybe all) states. However, even if the policeman is lying about your PBT reading on the roadside, PBT result (real or imagined) does give the police officer an ironclad reason to bring you to the police station and have a whole bunch of police officers observe that you appear impaired to them without affording you the luxury of a test to allow you to prove otherwise. If I am going to get dragged to the police station sober, then I want to give the policeman the benefit of a fraudulent PBT reading (I don’t drive impaired at all, so it would be fraudulent) as far as 4A clearing of my arrest.
In Raleigh,NC, I went to see a trial and the only people
that were being acquitted were the non-blowers, but they
lose the license for 6 months due to DMV penalties.
But which breath test did they refuse: Portable or Bench?
That is my main point. If one refuse Bench Breath, I don’t have a problem with DMV penalties. It is the refusal of Portable that: (i) shouldn’t be illegal; and (ii) is very difficcult to figure out if it really does subject one to penalties (assuming consent to Bench Breath, of course). This issue should not be hard to figure out. It is hard to figure out because people seem to alsways conflate Bench Breath and Portable Breath.
Oh, PBT =portable breath test. Was losing track of acronyms.
YES you can refuse this one, although on the filed you won’t
be told it’s optional.
Edmund Dantes. Thanks. Another step in the road towards my re-education about the rights I once thought I had as an American citizen…
Exact DUI laws somewhat from state to state (esp regarding various tests and penalties/consequences for refusing such) so it’s impossible to say how a particular situation should be handled. Some attorneys advise against any test, others advise taking them, on the grounds that it’s easier to explain to a jury why various tests are inaccurate, as compared to explaining why the tests were refused (in most states such refusal is admissible and the jury can interpret that as evidence of intoxication).
Duiblog.com has lots of info on how we got to the sorry state we’re in with DUI laws. As noted by others, all the judges and legislators are afraid to piss off MADD so we get insane laws about taking your car because you won’t incriminate yourself, forced blood draws by cops, immediate suspension of drivers’ licenses without a conviction, no right to an attorney, no right to jury trial, etc etc.
Make that “exact DUI laws vary somewhat.”
“….PBT readings cannot be used as evidence in court…” Herein lies the problem. Most DUI cases don’t even make it to court. Most people take the plea coercion. Besides, in most states, even if you fight and win in court, the DMV will take your license anyway. As long as the state deems driving a privilege and not a right, they will always be able to hang that shit over your head. I’ve known people who’ve gotten suspended for things that don’t have anything to do with driving.
Thanks for the input, guys.
At least now I know that, while I may be full of it, it’s rather difficult not to be. Given that I’m always sober, the issue is unlikely to come up with me, but ignorance of the law is no excuse, so I’m doing my best not to be ignorant.
I’m confused why an emergency room won’t do a blood test – even if you offer to pay out-of-pocket? Will they draw a blood sample for you for the purposes of another test, that you can get your lawyer access to after the fact? My father was a union official and he was always sending his guys to get pre-tested if they were worried they may not pass an upcoming urine test, so I know places that will do independent tests exist (though I recognize that they won’t be open at night or on the weekends).
Texas is now a “blood test without consent” state, where police are authorized to hold you down by force and take your blood for testing.
I agree that laboratory blood tests are always preferable, and you should decline any field sobriety test in favor of blood. But I really don’t want a cop who has had 8 hours of training in how to draw blood stabbing me with a needle.
“I’m confused why an emergency room won’t do a blood test – even if you offer to pay out-of-pocket?”
I can only speak of WakeMed in Raleigh , and surrounding hospitals,
although I imagine it’s the same all over.
They charged a relative $600 for the ER visit
and refused the blood test. The relative was going to sue for Medical
Fraud but was so sick of lawyers by that time he just moved on.
So although the DUI ticket says you have a right
to an independent test, it’s pure bogus. Not a hospital in town will
do the blood test for fear of upsetting the police.
Fuck WaPo. Those goddamn newspapers have been piling up on my front steps for months now. I used to read ‘em on the metro but now I drive to work. I’m canceling my subscription – why should I pay to have trash delivered to my doorstep?
As anyone with small children knows (especially at Christmas time), D-cell batteries are ungodly expensive. Methinks there is some exaggeration in the snowball comment.
I found this in the NC General Statutes:
“GS_20-139.1 (b5) A person may be requested, pursuant to G.S. 20‑16.2, to submit to a chemical analysis of the person’s blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of the breath, in the discretion of a law enforcement officer. If a subsequent chemical analysis is requested pursuant to this subsection, the person shall again be advised of the implied consent rights in accordance with G.S. 20‑16.2(a). A person’s willful refusal to submit to a chemical analysis of the blood or other bodily fluid or substance is a willful refusal under G.S. 20‑16.2.”
Refusing the PBT for a blood test is a violation of the implied consent law and will automatically result in a 30 day suspension of your license. However, according to G.S. 20-16.2, you are authorized a witness or attorney to be there and double check the reading on the PBT, so long as the test isn’t delayed longer than 30 minutes. So, if your witness isn’t there in 30 minutes, you must take the test.
In New Mexico, if you refuse a breath test, you are automatically charged with aggravated DWI, which is defined as having a BAC of 0.16 or more. I believe you also automatically get your license suspended for a year. Penalties for aggravated DWI include a mandatory minimum 48 hours in jail, which could go up to 90 days I think. Possible penalties for all DWI’s in New Mexico include fines, community service, Alcoholics Anonymous meetings, MADD victim panels, one year suspension of license, one year ignition interlock, etc.
If you are arrested for DWI, your license is immediately suspended, and you have to have a DMV hearing to get it back. That’s separate from the court case, so you can win your DMV hearing but lose your court hearing, and your license gets suspended anyways. We also have “per se” laws that make it a crime to have a 0.08 BAC while driving, along with the DWI charge. So the state has two chances to convict. People in this state get the book thrown at them.
I think that repeat offenders can get their car seized, but not first-timers. It can be seized even if the driver doesn’t own the car. So I think that Minnesota case wouldn’t even get that far if it were in New Mexico.
Speaking of interlocks, all first-time DWI offenders in New Mexico get a one year interlock (that they have to pay for, naturally). Our wonderful Sen. Udall has proposed a bill to make that a federal mandate for all states. Same as with the 0.08 BAC standard, the bill proposes to withhold federal transportation funding if states do not get on board. I really hope that doesn’t happen, because I think interlocks are BS and don’t work, but I get a sneaky feeling it will happen with MADD pushing it all the way.
“Refusing the PBT for a blood test is a violation of the implied consent law and will automatically result in a 30 day suspension of your license. However, according to G.S. 20-16.2, you are authorized a witness or attorney to be there and double check the reading on the PBT, so long as the test isn’t delayed longer than 30 minutes. So, if your witness isn’t there in 30 minutes, you must take the test.”
I think this is true only for the jail breath test, not the PBT roadside test.. I went to the trial and the roadside test result barely even came up. Also I don’t see PBT in the quotes above.
But I really don’t want a cop who has had 8 hours of training in how to draw blood stabbing me with a needle.
I don’t want anyone drawing my blood who’s job performance rating depends on her number of OWI arrests and/or convictions. regardless of how much training she has.
Police like to make everything into a “training” issue. Training is not the big issue. Integrity is.
As an example, look at that snowball fight story that Mr. Balko keeps posting about. Everybody is focussing on whether the undercover had justication to clear leather. That is an interesting issue I suppose. The more interesting issue is that he clearly committed a crime by lying to the police about what happened. That charge isn’t debatable, the way a brandishing charge owould be, but no one seems to be talking about a false report charge here. I guess I am kind of weird, but the way I look at it is: Brandishing:bad::false police report:much worse. It is the policeman’s lies I worry about, both in a snowball fight and in a DUI stop context.
Mike #41
My workplace has a recycle bin with lots of batteries that are essentially worthless. I also think the comment was an exaggeration, but not for the reason you do.
It might be possible that some jerk could get away with throwing a snowball like that at a vehicle in a crowd like that, but hit a person with one of those and the crowd would probably serve up a beating over it.
So although the DUI ticket says you have a right
to an independent test, it’s pure bogus. Not a hospital in town will
do the blood test for fear of upsetting the police.
You do get a nice refusal-to-treat legal claim against the hospital, though. A hospital will probably pay you a lot of money to avoid explaining in court why they would not give you a blood test. Whether your claim would ultimately have legal merit is beside the point — it is not a road a hospital is going to want to go down in court. If the hospital argues that it is not a medical emergency, then you ask them why they do blood tests at the behest of the police — they aren’t medical emergencies in that same sense.
The two states I’ve been licensed in (WA and MA) are “implied consent” states in which you have the right to refuse a breath test (not sure about portability) with no criminal penalties, but your license is automatically revoked for some time (over a year, I think).
“You do get a nice refusal-to-treat legal claim against the hospital, though. A hospital will probably pay you a lot of money to avoid explaining in court why they would not give you a blood test.”
Dave, Thanks for the advice.
The hospital VP showed up after subpoena at the trial and looked a little sea-sick explaining that only cops get to direct blood tests.
Then he stated that the hospital in writing told the police 7 years ago not to refer defendants to his hospital anymore.
Problem is the courtroom milieu was so redneck none of this really mattered. District Court in Raleigh is set up to convict, not dole out justice.
Most of the standard HTML tags work here. Google “HTML tags” and you should see some examples. (You can’t change fonts or embed photos or videos, however.)
The solution to losing one’s vehicle in MN for failing to submit to a breathalyzer test is simple.
If you own a $40K vehicle, go ahead and buy a $500 piece of shit to drive exclusively on bar night. It gets confiscated? Oh well, buy another one.
Or better yet, don’t fucking drive.
Or you can fight the State. Let me know how that works out for you.
Cynical in CA
You forgot an alternative: Make friends with a legislator and borrow his car on bar nights.
:)
Make friends with a legislator? I’d rather have my $40K ride confiscated!
Bwahahahahaha!
Point of clarification: I’m amazed that my little fable about putting D batteries in snowballs is going mildly viral, but I have to clarify that:
1. I was joking, I never did that and did not know anyone who did.
2. It’s actually Philadelphia sports fans who throw snowballs and batteries at Eagles and Phillies games.
3. While Giant fans did throw snowballs at a game in 1995, only Eagles fans are barbaric enough to pelt Santa with snowballs.
Eagles fans … eeeeechhhh.
Well, I am not giving legal advice. Just discussing interesting legal issues in the abstract.
If one did sue the hospital for refusal to treat, that would not get you out of criminal penalties. One would need to bring a separate tort suit against the hospital.
Probably the reason the hospital exec looked seasick is that he knew he was conceding that police do in fact order his hospital to do blood tests, which means that that fact will not need to be proved in any subsequent tort suit against the hospital. I mean, of course his hospital does this, but there is a difference between knowing it does and proving it does, and that difference is measured in money. He is on record on that now, tho.
Cynical: the problem with a $500 car is that it breaks down. Less of a problem in CA, but in MN in winter that could be your death.
CynCA:
Sorry. I meant PRETEND to make friends with a legislator.
Aresen- Awesome, thanks… at least I know what to look up, now.
The more I read about these drunk driving laws, the more I realize the unconstutionality of them. Why don’t they get challenged? As well as the forfeiture laws (I know some have)? We have downright thrown the constitution out the window. It is open season (just look at the health care bil!).
Here are a couple sites that are pretty good on the NC DUI laws.
http://www.jasonetaylor.com/dwi_dui.cfm
http://www.totaldui.com/news/articles/breathalyzer/breathalyzer-refusal.aspx
One thing I find missing is to refuse Field Sobriety Tests (FST). All good lawyers will tell you to refuse a FST as they are usually not what is going to convict you, but are going to be extra ammunition for the clown suited thug in court.
#57 It is indeed sad. First it was drugs, then DUI, now it’s the sex offenders, who knows when they are coming for the rest of us.
I practice law in GA which is about middle of the road compared to other states’ dui laws. Automatic license suspension if you are arrested but at least in Altanta you can get the cop to withdraw the initial suspension if your client agrees to plead guilty. First offense in the last 5 years means you can get a temporary permit for work, then get full license back after 4 months. Interlock only for repeat offenders. You have the right to a jury trial (unlike some other states). No forced blood draws (yet?). 4th DUI in 10 years is a felony. Portable breath test is admissible in court only for presence/absence of alcohol. Intoxilyzer of .08 or above = automatic guilt and it is up to you to refute a machine you cannot cross-examine. Refusal of any/all tests is admissible against you and can be viewed as evidence of intoxication.
Oh yeah,
Off topic but good news nonetheless: Cheye Calvo’s lawsuit against the PG county police is moving forward. Bastards are still stonewalling on releasing the police report of the home invasion.
http://voices.washingtonpost.com/crime-scene/ruben-castaneda/judge-rules-suit-vs-pr-georges.html
Refusal of any/all tests is admissible against you and can be viewed as evidence of intoxication.
Has tere really been a case in georgia where the suspect refused some tests (eg, PBT), but not others (eg, bench breath)?
I would love to have a cite if you know of such a case.
The trick that they’re employing is to turn illegal activity into administrative issues rather than criminal law issues. That way, rather than charging the officer with a crime, they get to simply mete out some faux punishment (suspension with pay, etc.) and he gets no criminal record.
Everything would change if we (society) would collectively grow a pair and properly punish *all* crimes, including those committed by on-duty law enforcement officers. That includes the “aiding and abetting”, too.
Some of you guys forget: at one time the MADD-hatters advocated red-letter license plates for 1st time offenders. But I’m sure that all of these problems could be solved if the drinking age was raised to 30. You know what? Fuck it, let’s just abolish alcohol altogether. Shit, I’m on a political roll…none of us will ever be safe until we all live in grass huts and grow our own food.
Here’s a great story on what can happen when cops and prosecutors unite to coverup misconduct
http://www.chron.com/disp/story.mpl/metropolitan/6783572.html
In 2002 a couple of cops from the Harris County, Texas Sheriff’s Office roughed up two brothers, Erik and Sean Ibarra, then arrested them on false charges for the non-crime of videotaping a drug raid on a neighbor’s house. The criminal charges got thrown out and the Ibarra brothers filed a civil suit in state court. Their attorney offered to settle the suit for $50,000 and a simple apology from the deputies involved. But the sheriff and the county attorney dug in their heals and decided to fight the suit out in court. Part of the county’s strategy was to appeal the suit to federal court where they mistakenly thought they would have an easier time getting it dismissed. The results were finalized yesterday. Here is a short list of all the costs they racked up in the process:
- The verdict ended up costing the county (i.e. taxpayers) almost $4 million total.
- Two assistant county attorneys were found guilty of coaching witnesses during the case.
- The lawsuit inadvertently exposed a sex scandal from email records turned over during discovery, forcing the resignation of the District Attorney. The emails showed him engaged in an extramarital affair, as well as sending racist and sexually explicit material on county computers.
- The lawsuit became political fodder in the 2008 elections, where both the incumbent Sheriff and incumbent County Attorney were given the boot by voters.
- The Sheriff’s office is now being monitored by the USDOJ’s Civil Rights division.
And to think…all of that could have been avoided had they taken the initial deal of $50,000 and an apology. At least in this case, the thick blue wall of silence backfired. Big time.
The story above just keeps getting better. Apparently one of the Ibarra brothers took his settlement from the lawsuit and invested it in an electric transportation company around downtown Houston.
The company uses electric-powered carts and operates on voluntary gratuity payments…which people are evidently eager to give because the service is good. As a result the company is also not subject to the city’s complex taxi cab licensing bureaucracy & associated rate regulations. Now the city is furious and they’re trying to force Ibarra out of business by digging up a novel interpretation of a 100 year old jitney law.
http://www.chron.com/CDA/archives/archive.mpl?id=2009_4772819
PW, that happens way to often. Saw a guy here wrongfully arrested, charges dropped, all he ever asked for was an apology. Didn’t happen. Cost the taxpayers 5000, just because some douchebag cop and city council couldn’t admit to being wrong.
The two states I’ve been licensed in (WA and MA) are “implied consent” states in which you have the right to refuse a breath test (not sure about portability) with no criminal penalties, but your license is automatically revoked for some time (over a year, I think).
http://stockerlawfirm.com/DUI_CRIMINAL_PENALTIES
This site (see footnote IV) seems to indicate that you can refuse a PBT in WA, but not a Bench Breath.
Refusal of any/all tests is admissible against you and can be viewed as evidence of intoxication.
This is why it is important to refuse a PBT by saying the magic words:
“I consent to blood, non-portable breath and/or urine. That is the extent of my consent.”
What would otherwise look like consciousness of guilt now becomes consciousness of innocence.
Another good one is:
“My consent to perform FSTs is conditional upon the performance being video recorded.”
Of course, this knind of stuff works only if you have not been drinkin’.
“My consent to perform FSTs is conditional upon the performance being video recorded.”
That’s a good point. Out in Raleigh they don’t do videos for the field test.
I asked why. The answer?? Too many cops were getting in trouble for protocol violations. That’s a good reason to discontinue a practice that
would make it easy to discriminate impaired vs non-impaired drivers, aint it?
If you really wanna get mad about DWI stuff, check out duiblog.com. I think I first heard about that site on theagitator, so kudos to Radley and the gang.
FST’s are conducted to gather evidence against a suspect, not to decide whether or not to arrest the suspect. According to the lawyer who writes duiblog, a cop decides whether to arrest or not at the driver’s window, not after doing FST’s. As for videotaping them, IMHO no cop is going to do that willingly when he can just say whatever he wants to say on the arrest report, knowing that if there is a dispute, his testimony will win out 99% of the time. So if you are asked to do FST’s, I am not a lawyer, but I have read that you should politely refuse to do them unless there is some penalty for refusal.
As for videotaping them, IMHO no cop is going to do that willingly when he can just say whatever he wants to say on the arrest report, knowing that if there is a dispute, his testimony will win out 99% of the time.
The point isn’t to get the FSTs video’d. The point is to give yourself room to argue later that there was no refusal to take FSTs. Rather, there was consent with a reasonable condition attached.
Will this argument win in court? Maybe. Maybe not. However, it is better than: (i) taking unrecorded FSTs; and/or (ii) straight up refusing.
Re: WaPo ~ Internet 1 dead tree Media 0
Wow, thank god I live in the great state of Wisconsin where drunk driving isn’t a criminal offense!
The whole forfeiture for property used while committing a crime is fascinating to me. Forfeiture originally was supposed to be so that crime lords couldn’t keep their ill-gotten gains, and I totally support it for that purpose. Think “Bernie Madoff gets to keep the cash”. Obviously not proper.
But we’re now taking a car because the driver was drunk? That’s not ill-gotten property. At what point do we stop? Seriously. Forfeit the car because you’re speeding?
@58: “Why don’t they get challenged?”
Because of snarling attack ads in elections accusing the incumbent of being soft on drunk drivers.
On the car story… This isn’t “spouse”, this is “joint owner”.
C’mon Radley, that wasn’t quite accurate was it. And I think it’d ridiculous that a car should be immune simply because it’s jointly owned. Fine, if you insist on that then have a fine equal to the assessed value of the car. Sorted.
The logical conclusion of Radley’s preferred interpretation of the “innocent owner” defense would allow criminals to shield their proceeds from forfeiture by placing 1% ownership in an “innocent” 3rd party.
If you are an owner, even in part, you need to do due diligence to ensure that your property is not being used for criminal activity, or risk losing it.