Friday, August 20, 2010

DUI Checkpoints

With Labor Day close upon us, people need to prepare themselves for those pesky DUI checkpoints, because those liberty infringement devices are increasingly the rage in local law enforcement. They are not popular because they are effective, because statistically they are not. They are popular because they are funded by grant funds from Sacramento, that come from Washington, DC, that had been taken from us back here; it is a big, costly circle that your and my money has traveled to then screw over you with.

The grant system is one of the greatest evils in policing, because grants are essentially a political bounty for pressing certain types of cases; the merit of the case does not matter; the filthy lucre funding its processing drives the affair. And nowhere is the evil more manifest than in drunk driving, DUI, DWI, or whatever label.

MADD, the lineal descendants of the Women’s Christian Temperance Union of old, which gave us Prohibition and the 18th Amendment, are furious that the 21st Amendment repealed Prohibition, but their neo-Prohibitionism is even more dangerous than its ancestor oppression. They have, with phony statistics and threats of placard-laced demonstrations, conned or intimidated legislators, judges, DAs, and cops into increasing harshness regarding drunk driving, and so they all lose their soul in the evil bargain.

Of course, if the Framers’ will be done, civilian jurors would be protecting accusees from governmental overreaching, but jurors have increasingly lost their independence and have come to believe that their government is good, reliable, trustworthy, and to be heeded. Yeah, idiotic as it sounds, people on juries cannot seem to see, or do not want to believe, the corruption in their very presence. Perhaps their own sense of security would be lessened if they came to understand how corrupt their government is in these things, but their lack of institutional skepticism has dangerously undermined the very foundation of our jury trial system.

The truth of the matter is that government makes a bundle from drunk driving, between the block grant moneys from DC, to the penalty assessments on the fines [now about 400% of the base fine, if not more], to the various fees, to the costs of the rehabilitation programs, to the need for more DAs and judges to try the matters. The fiscal corruption underlying DUI investigation and enforcement would make Bernie Madoff look like Mother Teresa in comparison.

“But what of the dangers of drunk driving?” Garbage! The system, at the insistence of the pushy harpies from MADD, have created the category of “alcohol-related [accidents, deaths, incidents, etc.]” in place of drunk-driver-caused [same],” because the incidence of those things being actually caused by drunk drivers is miniscule, and that truth would undermine their political agenda. But something gets into the stats as being “alcohol-related” if a sober driver hits a drunk pedestrian; if a sober driver’s drunk uncle in the back seat is thrown out when the car flips over because its tire fell off; if a drunk driver is sitting lawfully at a light and a sober driver negligently runs into him; etc.; that category has nothing to do with who caused what. Yet those “alcohol-related” stats are the ones that supply the pneumatic numbers that make everyone go nuts about drunk driving.

Drunk driver caused accidents are in single digit %-ages, which would not help the MADD harpies, nor the block grant ghouls, nor the legions of government employees who profit from DUI enforcement and prosecution and conviction.

So, what of checkpoints – they are legal, are they not? Well, it all depends on what you mean by legal. The Framers would not have tolerated such a suspicionless invasion of privacy. As Justice Clarence Thomas, a student of the Constitution whose scholarship on the subject is almost as faithful and pure as mine, has opined, “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.” But, you see, most judges, even up to the U.S. Supreme Court, are politicians; few are scholars, and even fewer are faithful to the finding principles.
And those politician judges have found that a properly erected and run[!] checkpoint is “legal,” just as other politicians have found it beneficial to set up the scheme in the first place. But they do have to be properly erected and run, and very few are so, even for the watered down constitutional standards of the neo-Prohibitionist judges.

But beware, if you go through them. First off, watch, look, and listen, and if you see one ahead, turn off; that is legal. Don’t give the constabularial ghouls the opportunity to tell you to stop, tell you to wait, tell you to go, tell you to blow into their hands, command you to answer questions, etc. See, that is part of what is going on here. Cops like the checkpoints, whether they get any arrests out of them or not, because they then have the chance to play “we’re the Man; we’re in charge of your freedom” to the citizens thus stopped and inconvenienced. This is an incident of police statism, not public safety.

The fact of the matter is that communities that do not receive these grant funds do not do checkpoints on their own dime, because they give miniscule results for the efforts expended. There might be 500-800 citizens stopped while going about their business, and from that will come only 1-3 DUI arrests, if that many. Every police chief worth his stars [and some wear five, like General of the Army Douglas MacArthur!] will confess that saturation patrols are far, far more effective in apprehending drunk drivers than are checkpoints.

So, first try to avoid it by turning off. If you are in one and get approached, hand your license and registration and proof of insurance and say you do not want to talk, period. You don’t have to talk; you don’t have to say where you are coming from or going to or whether you have had anything to drink. Decline to say anything.

If they then shunt you over to the investigation line, be polite, but answer no questions, say nothing, and do not perform any objective symptoms [field sobriety] tests – you have a right to refuse, and politely do so, on advice of counsel, this counsel! If you are arrested, of course, you have to submit to a breath or blood test. Ask for breath, and then a back-up urine test, which is your right. When they say you cannot have a back-up urine test, politely request that the officer record that you have requested it. Then say nothing else. Anything you say to the police can and will be used against you, either in the order you said it, or in any order than helps their case. The cops are not there to help you. They are there to put DUI cases together. They make money by putting cases together; they make nothing by being nice to you and letting you go, so they will not. Ever.

Checkpoints are tyranny, DUI arrests and convictions are the product of evil maneuvers by purposeful people, and all aspects of both the stop and of the prosecution are fightable. Do not cave in, or else evil people will thereby be emboldened to harass others.
If you do get snagged, though, there are things to be done, if you have the right lawyers. Call us.

Thursday, August 19, 2010

Proposition 8 Curiosity

One hears all sorts of absurdities and points and positions pertaining to the same-sex marriage issue, and it is important to sweep away prejudices and to look solely at the constitutional points. The first thing which should give one pause, if he has any sort of familiarity with the views of the Framers of the Constitution, is that “the judges are stealing the will of the majority” types of arguments are constitutional hokum. The Framers set up a constitutional, representative democracy just so pure majority will would not carry the day; so that majorities could not tyrannize or oppress minorities, and the vehicle for preventing such was the proper application of constitutional law by judges. Quite bluntly, the Framers did not trust majorities!

Judicial review did not grow from latter-day “activist judges” working some tyrannical, evil, oligarchical will to strip the majority of their right to govern; instead it is part of the discussion of the Framers when designing the judicial branch, and it is discussed most helpfully in Federalist 78: the judges were expected to “void” laws that violate the Constitution.

The process of judicial review involves a judge laying a challenged enactment beside the Constitution and deciding if, and how tightly, it fits. And that is what happened with Proposition 8, the anti-same sex marriage state constitutional amendment. Apart from the wisdom of amending the constitution by popular plebiscite [idiotic notion], the substance itself, laid next to the Constitution, spilled outside of the boundaries of the Due Process Clause and the Equal Protection Clause of the 14th Amendment, and hence it is void.

Before one takes issue with that observation, one should read the 136 pages of the ruling, and most negative critics have not. Indeed, most negative critics know little about the Constitution – they are generally driven by emotion, sprinkled with banal and superficial spoutings about Christology. It should be noted that the KKK burns a “Christian” cross to make their point and they pretend the Bible supports their perverse prejudices, and most Christological opponents of same-sex marriage are quite indistinguishable from the KKK in that regard. It should be noted that Christ, who brought to Earth a New Covenant, eliminating some of the harshness of the Old Testament standards and preaching “love they neighbor,” never said anything against gays or gay marriage; He said much, however, against divorce and adultery!

Here, the institution of marriage is deemed [by cases long before this one] to involve a fundamental right, which is in the realm of substantive due process of the 14th [and 5th] Amendment. Moreover, treating similarly situated people differently implicates equal protection values of the 14th Amendment. If government wants to invade the fundamental rights arena, there must be strict scrutiny of the measure. The burden is on government, where strict scrutiny is the standard, and the government must show that there is a compelling state interest, and that the measure is narrowly tailored to address that interest, and it must have involved the least restrictive means to address that interest.

So, as some of the absurdists pose, prohibiting marriage to a dog or one’s sister or to more than one spouse could easily pass the strict scrutiny test and the measure would be illegal. But one cannot say the same of same-sex marriage, and that is largely because the proponents of the prejudiced position did not carry the burden that there is a compelling interest in illegalizing same-sex marriage – they failed in the factual showing, they failed the strict scrutiny test, which generally dooms constitutional litigation.

Then, we recall from famous footnote 4 of Carolene Products, that government action that singles out for negative treatment discrete and insular minorities triggers equal protection analysis. That analysis can run on one of three tracks, the strict scrutiny track, the intermediate scrutiny track or the rational basis track. On the rational basis track, the least restrictive, the burden is on the side attacking the measure to show that the measure is not rationally related to a legitimate governmental interest. Here, the opponents, marshaling impressive authorities, revealed that factually, and with an historical context that might have evolved away, there was not even a rational basis supporting Prop. 8; the court did not need to entertain strict or intermediate scrutiny analysis, because factually the measure failed on any track.
One of the critical equal protection issues here is that if George wants to marry Fred; he cannot: he must be Georgina to do so. Yet George and Georgina are of equal rights in all other pertinent respects. Nothing lucid in the law can treat George and Georgina differently, especially when the subject is a fundamental right.

It is interesting that the same pro-Prop. 8 sorts who lament the death of majority rule they think is represented by the injunction against the measure are the same sorts who were gleefully celebrating the two Second Amendment cases that threw out anti-gun legislation, which was also installed by a “majority,” and they were likewise thrilled by the Virginia federal court attack on “obamacare” from three weeks ago, likewise installed by a “majority.” Their biased skirts are showing with those expressed inconsistencies.

Judge Walker’s observation, when he refused to issue a stay pending appeal, that the intervenors have no standing to press the appeal [which I proclaimed on the air a week before he and the pundits mentioned it!] will, I think, carry the day. Intervenors, who are really officious intermeddlers in others’ affrays, are like lampreys on the belly of the shark: they travel so long as the shark swims, but when the shark stops, they have to stop too. Intervenors have no independent stake in this case, and if the court of appeals is faithful to Article III standards, it will dismiss the appeal. Of course, I never presume that Courts will be faithful to the Constitution nor to the law, but hope remains eternal.