It boggles the mind to see the lengths to which the judiciary will help the executive obtain yet another conviction of the political crime of drunk driving. [See my earlier Drunk Driving Exceptions to the
Constitution and to the Law, http://capmotion.blogspot.com/2011/02/drunk-driving-exceptions-to.html.]
As those of you who have followed the McNeely discussions and have read the case know, one of the issues [which I think is a non-issue] is whether the suspect "consented" to the chemical test. To me, there is no consent when something is taken incident to arrest, which is the first component of a Schmerber search. Then, if the person is told that the law "requires" him/her to submit to a chemical test, that, of course, ends the discussion, along the well-established lines of Bumper, Bracamonte, etc.
I just lost a McNeely motion where the evidence was that the cop told the arrested suspect several times he was "required" and "mandated" by law to submit to a test; the sergeant then came in and said the same thing; the suspect refused a chemical test; they hogtied him, handcuffed him to a rail, came at him with a needle, and only then did he say "ok, I'll take a breath test." The judge, whose constitutional duty is to protect individuals from out-of-control government [Federalist 78], found that chemical sample to have been obtained...BY CONSENT! [Of course, the DMV Nazis deem it a non-consent, refusal!]
That judge exemplifies the position of the rapists of old who maintained that "the female must resist to the utmost of her ability, and such resistance must continue till the offense is complete," absent which there is consent to the sexual assault! Are you kidding me???/! This is outrageous.
This was a submission to authority, quite overbearing authority at that, and it cannot be deemed even approaching consent, and I suspect the judge [an ex-DA - what else!] knows it.
Needless to say, interlocutory appeal looms.
We have lost our way, and darkness surrounds us and is closing in.
As those of you who have followed the McNeely discussions and have read the case know, one of the issues [which I think is a non-issue] is whether the suspect "consented" to the chemical test. To me, there is no consent when something is taken incident to arrest, which is the first component of a Schmerber search. Then, if the person is told that the law "requires" him/her to submit to a chemical test, that, of course, ends the discussion, along the well-established lines of Bumper, Bracamonte, etc.
I just lost a McNeely motion where the evidence was that the cop told the arrested suspect several times he was "required" and "mandated" by law to submit to a test; the sergeant then came in and said the same thing; the suspect refused a chemical test; they hogtied him, handcuffed him to a rail, came at him with a needle, and only then did he say "ok, I'll take a breath test." The judge, whose constitutional duty is to protect individuals from out-of-control government [Federalist 78], found that chemical sample to have been obtained...BY CONSENT! [Of course, the DMV Nazis deem it a non-consent, refusal!]
That judge exemplifies the position of the rapists of old who maintained that "the female must resist to the utmost of her ability, and such resistance must continue till the offense is complete," absent which there is consent to the sexual assault! Are you kidding me???/! This is outrageous.
This was a submission to authority, quite overbearing authority at that, and it cannot be deemed even approaching consent, and I suspect the judge [an ex-DA - what else!] knows it.
Needless to say, interlocutory appeal looms.
We have lost our way, and darkness surrounds us and is closing in.
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