The Q&As during the McNeely hearing before the U.S. Supreme Court two weeks ago are a bit alarming. Justice Sotomayor [I think - might have been Kagan] said she has read Schmerber backwards and forwards and cannot find the "special facts" cited there as the reason for the warrantless venal stabbing and blood draw for the DUI arrest. [Remember that stabbing one with a needle is assault with a deadly weapon, against which government agents have limited defenses.] And Scalia, and several others, assumed that FSTs have some scientific reliability, and hence from them a cop can develop probable cause to submit to a warrant-signing magistrate to get a quickie warrant, implying that there is no reason for warrantless blood draws, unless there is no magistrate available.
Uh..., HELLO: the "special facts" are clearly stated in Schmerber, and McNeely reiterates and highlights them as the support for its ruling, which is now before the supes. The special facts are the arguable evanescence of alcohol in the system PLUS the time delay created by the investigation of the accident PLUS the time delay associated with taking the defendant to the hospital for his accident injuries. If my law clerk could not see that, he/she would be fired.
And there is no peer-reviewed scientific correlation between an individual's performance on FSTs and impairment by alcohol [unless, maybe, one knows the baseline for the person being tested]. And an appellate lawyer who also tried DUI cases would know that.
So, it is scary that a supreme court justice cannot see what is right there; and it will be a bit troubling in my later DUI attacks on FSTs, where I have my criminalist accurately decree there is no established correlation between FSTs and impairment, when the supreme court has assumed away the point against us [without clarifying objection by the appellate counsel ] as the launchpad for this new litigation.
Moreover, the not-objected-to, and even conceded, claims, by several justices, of the supposed calamitous dangers of DUIs perpetuates a myth on which the MADD has based its neoprohibitionist agenda that ignormuses in the legal arena have signed onto for decades to justify demonizing those accused of DUI. Most accidents are not caused by provably drunk drivers, and most provably drunk drivers do not cause accidents, which is why the "alcohol-related [deaths, accidents, etc.]" category was created by MADD, and embraced and spread by NHTSA.
Yep, it is true the USSC are not "supreme" in their intellectual and constitutional insights but only in the finality of their pronouncements. Liberty is protected, if at all, by a thin and eroding reed in this Republic.
321 years ago we had the Salem Witch trials, wherein 17 women, one man, and a dog were put to death on no lesser quality of "evidence" used now to convict people of DUI, both prosecutions fanned by the same sort of hysteria. The more we "advance," the more we stay the same.
Uh..., HELLO: the "special facts" are clearly stated in Schmerber, and McNeely reiterates and highlights them as the support for its ruling, which is now before the supes. The special facts are the arguable evanescence of alcohol in the system PLUS the time delay created by the investigation of the accident PLUS the time delay associated with taking the defendant to the hospital for his accident injuries. If my law clerk could not see that, he/she would be fired.
And there is no peer-reviewed scientific correlation between an individual's performance on FSTs and impairment by alcohol [unless, maybe, one knows the baseline for the person being tested]. And an appellate lawyer who also tried DUI cases would know that.
So, it is scary that a supreme court justice cannot see what is right there; and it will be a bit troubling in my later DUI attacks on FSTs, where I have my criminalist accurately decree there is no established correlation between FSTs and impairment, when the supreme court has assumed away the point against us [without clarifying objection by the appellate counsel ] as the launchpad for this new litigation.
Moreover, the not-objected-to, and even conceded, claims, by several justices, of the supposed calamitous dangers of DUIs perpetuates a myth on which the MADD has based its neoprohibitionist agenda that ignormuses in the legal arena have signed onto for decades to justify demonizing those accused of DUI. Most accidents are not caused by provably drunk drivers, and most provably drunk drivers do not cause accidents, which is why the "alcohol-related [deaths, accidents, etc.]" category was created by MADD, and embraced and spread by NHTSA.
Yep, it is true the USSC are not "supreme" in their intellectual and constitutional insights but only in the finality of their pronouncements. Liberty is protected, if at all, by a thin and eroding reed in this Republic.
321 years ago we had the Salem Witch trials, wherein 17 women, one man, and a dog were put to death on no lesser quality of "evidence" used now to convict people of DUI, both prosecutions fanned by the same sort of hysteria. The more we "advance," the more we stay the same.
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