Friday, December 31, 2010

Checkpoints and Drunk Driving/DUI; New Years Eve and Weekend, and in General

One of my recurring concerns is about DUI checkpoints, a government project that would have made Heinrich Himmler foamingly and giddily excited, but which makes James Madison spin in his grave.

There are going to be several in this area over the New Year’s weekend, all funded by monies shipped here from Sacramento, which was shipped there from D.C., which was shipped there from taxes stolen from you and me back here: the money made a costly round-trip, engorging the pockets of bureaucrats on its lengthy and circuitous journey.

The checkpoints are rationalized as helping with what bad-minded sorts want a na├»ve public to believe is a drunk driving problem.  One problem with that is that there is no drunk driving “problem.”  The percentages of accidents actually caused by drunk drivers is so low that MADD inspired their governmental patrons to concoct a new descriptive category, which sounds menacing, but which is deceitful.  The real statistics have to do with “alcohol-related” accidents, deaths, incidents, etc., and that sounds like drunk driving, and its stats are deceptively admixed with drunk driving so that you believe drunk driving is a problem. 
However, alcohol-related accidents have nothing to do with who caused the accident, what the condition of the person was who caused the accident, what the condition of any driver was in any accident, nor the nature of the accident.  A drunk pedestrian falling in front of a car driven by a sober driver = alcohol-related accident; a sober driver plowing into a lawfully stopped car whose driver has alcohol in his system but who did nothing wrong = alcohol-related accident; a sober driver with drunk Uncle Harry in the back seat sucking on an open beer when the wheel falls off of the moving car causing it to wreck = alcohol-related accident.  Those and many other similar incidents, not caused by a drunk driver, are used to jack up the statistics to serve MADD’s neo-prohibitionist political agenda, and the court system has learned that the penalty assessments from DUI fines are a golden goose for their out-of-control budgets, so judges generally get on board the DUI tyranny train.
There is one use for those checkpoints that is other than the handsome revenue the courts and related systems make from DUI arrests and convictions, and that is probably the most important and least discussed reality.  The checkpoints show the public that “The Man” is in charge, is all around, is empowered to stop us, grill us, smell our breath, and let us leave or not, when and if He chooses.  This roadblock tyranny is a characteristic of a police state, and we indisputably have become one.  You can stop it, if you rise up and decide to do so, but most people only believe in popular sovereignty and individual liberty as a civics book nostrum, and not as a part of daily, political life.
The Framers would not have tolerated liberty infringements without particularized suspicion based on observed evidence, as Justice Thomas has made clear, but, ironically, Thomas is really the only true originalist on the Supreme Court right now.
But as for DUI generally, if you are stopped, either at the checkpoint, or otherwise pulled over, be polite, hand over documents if asked to do so, and say nothing.  Whether you are in the position to have been given your Miranda rights or not [erroneously believed to apply only after formal arrest, about which more at another time], you never, ever have to talk to the cops, and you should never do so.
Yeah, yeah, you think it will help to be “cooperative.”  Be cooperative by being polite.  It never, ever helps for you to supply evidence against yourself, or against others, to government.  Or, well, it does help – it helps the government obtain easy convictions and favorable stats.  But it never helps the accused.  Government is not your friend, when investigating crimes it suspects you committed. Do not respond when you are asked if you have had anything to drink, where you are coming from, where you are going.  You may ask if you are free to leave, and if the cop says no, tell him you want whatever citation he is going to give you, but say nothing about any facts, of your conduct, of your car, of your condition, etc.  Notice if there is a video camera installed on the dash or window of the cop car.
If you are told you are suspected of DUI, do not perform any of the pre-arrest performance tests, including the pre-arrest hand-held breath test.  That pre-arrest breath device, called the PAS, is to forensic alcohol analysis what Bernie Madoff is to stock investments.  
If you are arrested, you will be given a choice of blood or breath.  Generally take breath, unless the test is being administered within about 45 minutes of drinking.  If you choose breath, they then have to advise you of your right to a back-up test of blood or urine.  The latter they often and purposely fail to do.  Ask for urine test; they usually won’t give it to you, the failure of which could help at trial, if you have any jurors who understand their role.
Then shut up.  Say nothing more, except for answering routine booking questions.
As for the pre-arrest performance tests, the field sobriety tests, or FSTs, there are some things all should know, over and above the fact that you should not submit to them.
No reputable, neutral scientist, including the developer of the only three that have any arguable validity [and she is assuredly not neutral!], has ever found that there is a scientific correlation between any such tests and impairment by alcohol for trial purposes.
So, no person stopped for suspicion of drunk driving should ever submit to the FSTs.  They are to impairment what goat-entrails reading is to truth, and they are a trap for the unwary, because no one can perform them.  For instance, I can’t walk a straight line, heel to toe, on my best day, and I don’t drink alcohol. Putting heel-to-toe is an unnatural maneuver and movement of the body.  Query the legitimacy of ascertaining if your normal abilities are thrown off by alcohol ingestion by having you perform an unnatural task!  You are programmed for failure.  [“Oh, my government wouldn’t do that to me.”  Think again!]
But when you “fail” at a task that a cop says signifies to him impairment, jurors, who are supposed to be skeptics about government, too often fall for the story, hook, line, and sinker.  It is as if I were to say “I have never seen a person who was not drunk be able to stand on his head and whistle the Battle Hymn of the Republic; Fred could not stand on his head and whistle the Battle Hymn of the Republic; therefore, my opinion is that Fred is drunk.”  Good God!
Drunk driving is a political crime, and make no mistake about it.  But as with all political crimes, it can be fought, if you retain the right attorney.
We, obviously, are the best attorney for you, if you are snagged for drunk driving, or for DUI, or for anything else, in the Inland Empire, Riverside County, San Bernardino County, Palm Springs, Banning, Indio, Desert Hot Springs, Coachella Valley, Blythe, Joshua Tree, Yucca Valley, Needles, Victorville, or anywhere within 150 miles of Palm Springs.
Don’t let your entry into the New Year be marred by a conviction for drunk driving, but an arrest for drunk driving does not guarantee a conviction, unless you represent yourself or retain the wrong attorney.

Friday, December 17, 2010

Keep Your Mouth Shut, Redux

I repeat this and elsewhere, because people just don't get it.  So, I will repeat this over and over in various venues, because when people do not seem to get the message, they accordingly injure themselves and their families and their friends by shooting their mouths off.  I keep having clients come to my office for help regarding their arrest for this and that, and over 95% of the time they have, upon being apprehended by the police, confessed to a major component of what becomes the charge, or they have allowed searches which gave up the evidence being used against them, or they say something that gets a loved one in trouble, and I ask why.
And I have a new spin on the problem.  My clients know full well what I mean about not talking to the government, about the exposure of them and their family to things that will injure them and their families, and yet the dumbest thing I have ever witnessed along that line happened two weeks ago.
A client’s spouse thought he knew better than anyone about how his wife’s case should proceed, and he wanted the Payton Place atmospherics which led up to the problem, which are unrelated to the narrow charge, to be known, thinking [or not] that the government would just cave in and say “Gosh, now that you have told us how bad a witness is, we will let you off the hook.”  Uh---WRONG!
So, this intermeddler authors an incredible story about all of the history leading up the alleged crime, which includes an admission of the crime[!], and has his wife sign it, and then faxes it to the DA!!!!
On my next appearance, when I am answering ready for the preliminary hearing, the DA says, in court, “I have additional material for Mr. Kennedy.”  “Huh?,” I inquire.  “It’s from his client.”
When I saw what was stupidly sent to the DA by my client’s husband, Vesuvius itself was mild compared to me!
Do not think you know better than your lawyer [especially if I am that lawyer!] how to handle a case, and do not think sharing tidbits and morsels with the government will help your case.  Once the government has decided to prosecute, it is like a pit-bull with a cow bone – it will not let go.
We fought a Revolution partially to keep government out of our houses and out of our mouths, and yet people continue to blab to the cops when confronted.  I ask why, and the answer is always a variation on “I thought I had to,” or “Well, he’s the man,” or some such contra-constitutional inanity.
You do not ever need to talk to the cops.  You do not ever need to consent to searches.  And you should never do so.  NEVER.  In the 1,000s of cases I have had in my career, it never, ever, once helped the accused’s situation to talk to the cops.  NEVER!  Why do you do it?
“Uh…, I had nothing to hide.” That is not the point.  First off, they used it against you, so you should have hidden it.  And secondly, it is part of our scheme, part of the thing we shed blood over, that the burden is government’s, and the default position is with the individual and in the direction of liberty.
Once you start talking, the cops are very deft in making you say what they need for their report and theory of the case.  The interrogation techniques in vogue now play on the same psychological devices perfected by Nazi interrogators in the 30’s.  You will eventually say what they want to fit their theory, so just shut up.
It NEVER, EVER HELPS.  “Uh…, but I am a honest person…, I don’t want to lie.”  I didn’t say lie; I said don’t say anything.  Government is not your friend when investigating crimes [or, indeed, most times]; it is only its own friend.
And the admonition against talking to the cops includes asking questions as well as answering them.  If you ask, they can answer, then you will respond, and you think you are helping yourself, until the response comes back to haunt you.  Just shut up.                                           
You’ll occasionally hear the comment that it is important to enforce the criminal law. It might be important, but it is not the ultimate value in this Republic.  Preserving Liberty is the ultimate value, and liberty is defined as the absence of governmental involvement, coercion, or “help.”  Enforcing criminal law, like disposing of garbage, is important, but it was never the ultimate value in the Framers’ minds, contrary to what some statists masquerading as constitutional originalists claim. The supposed heightened and trumping value of enforcing criminal law has been allowed to creep into our psyche by purposeful sorts who have been inching us toward police statism since the founding of the Republic.
And on the point about talking to cops about others, if you think that you can snitch off others and then undo the damage, like turning off a water faucet, think again – once you let loose the dogs of governmental vengeance, you are no longer a controlling party – you are then a mere witness, and you cannot undo what you have begun.  So, tread carefully before you call the cops on friends or family, for domestic violence or other criminal law matters; they will not show up just to quell the situation. They will show up with the idea that someone is going to jail, and someone will, and you will not be able to control the matter, and your family or friendships will be irreparably injured by your hasty call to “The Man.”  Irreparably.
You’ll occasionally hear the comment that it is important to enforce the criminal law. It might be important, but it is not the ultimate value in this Republic.  Preserving Liberty is the ultimate value, and liberty is defined as the absence of governmental involvement, coercion, or “help.”  Enforcing criminal law, like disposing of garbage, is important, but it was never the ultimate value in the Framers’ minds, contrary to what some statists masquerading as constitutional originalists claim. The supposed heightened and trumping value of enforcing criminal law has been allowed to creep into our psyche by purposeful sorts who have been inching us toward police statism since the founding of the Republic.
And on the point about talking to cops about others, if you think that you can snitch off others and then undo the damage, like turning off a water faucet, think again – once you let loose the dogs of governmental vengeance, you are no longer a controlling party – you are then a mere witness, and you cannot undo what you have begun.  So, tread carefully before you call the cops on friends or family, for domestic violence or other criminal law matters; the cops will not show up just to quell the situation. They will show up with the idea that someone is going to jail, and someone will, and you will not be able to control the matter, and your family or friendships will be irreparably injured by your hasty call to “The Man.”  Irreparably.