Thursday, October 30, 2008

We're the Only Ones Who Won't Take "No" for an Answer Enough

If you drink and drive this weekend, Austin police say they will find proof through your breath or your blood. You can't refuse because this coming weekend will be a "no refusal weekend" in Austin. [More]
And if we declare it, it must be so: It's the law! Well, hell, guys, if a "No Fifth Amendment weekend" is good, a "No Fifth Amendment week" would be even better! How about "Suspend ALL Your Rights Month," or better yet... The last time I heard the "can't refuse" line, it was coming from a celluloid organized crime boss, which, if you think about it, makes sense. When they start claiming supreme authority over your blood, it sounds like Austin "Only Ones" are bent on ushering in "The Year of Living Dangerously." [Via Brian F]

11 comments:

Anonymous said...

"Chief Acevedo says the city-wide “no-refusal” policy could become permanent if this weekend's test-run catches more drunk drivers."

Permanent Constitution-Free Zone.

Anonymous said...

Evidamndently Chief Acevedo has never seen how enthusiatically I and other can refuse.

Anonymous said...

couldn't help myself, I hate traitors. Here is my email to this asshole.:

Just who the Goddamned Hell do you think you are, you cretin?

Where did you get your authority to suspend the Constitution?

Who died and made you God?

You have a standing invitation to try to rob me of my citizenship. If you have the guts to answer this I will send you my real 100% 911 address.

You are definitely someone who has no damn business with any kind of authortity whatsoever. I can't begin to tell you how much contempt I hold traitors to the nation, such as yourself, in.

Anonymous said...

You are an inspiration, Mr. Arrow.
The time is very near. I would not want to be an Austin METER ENFORCEMENT DRONE. These ideas will, of course, surface everywhere eventually ("If you have nothing to hide, why not?" and all that comradely crap.
Sic semper tyrannis. They have been warned. Repeatedly.

Anonymous said...

First David, I apologize for the length of this comment but I did get two responses and responded to them.
I thought it would be of interest.
here we go:
***********************************
From: APD PIO
Sent: Thursday, October 30, 2008 7:57 AM
To: 'sawders1@hughes.net'
Subject: RE: apd3 - No refusal weekend



Mr. Sawders,



I’m not sure if you meant to direct your questions to any specific person but I am going to forward your e-mail to the commander over the Highway Enforcement Division so that he may respond to your questions. You do not need to send me your address.

**********************************

Sergeant Richard Stresing

Austin Police Department

Public Information Office

(512) 974-5017
***********************************

On Oct 30, 2008, Donald.Baker@ci.austin.tx.us wrote:

Mr. Sawders:



The Fourth Amendment to the Constitution of the United States of America provides for reasonable searches and seizures as long as they are supported by a warrant based on probable cause. The “no refusal” initiative is based on the issuance of a search warrant issued by a magistrate that orders the seizure of a blood sample as evidence of the criminal offense of driving while intoxicated. The process is not a new one. Several law enforcement agencies across Texas have been collecting blood sample evidence in the same manner for several years.



Our first preference is for drivers arrested for driving while intoxicated to submit a breath sample. However, if the person refuses to provide a breath sample then a search warrant for the blood sample will be requested to a magistrate. The Texas Transportation Code, Sec. 724 has the statutory language for the implied consent laws of the State of Texas. I hope this helps clarify the purpose and legal basis for our initiative to help keep our motorist and pedestrians safer on our roadways.



If you have any questions regarding the specifics of the “no refusal” program you may contact me by email or by phone (974-5294).





Commander Donald Baker

Highway Enforcement Command
***********************************

My reply:

Are you aware that "implied consent" is what is known as a "legal fiction". Don't take my word for it, ask any lawyer or judge. Legal fiction means, it isn't true but for our purposes we will pretend it is. That is commonly what is called a lie everywhere else.

I don't like drunk drivers, but I rate them higher than I do public servants who have designs to be our masters. Now you and I both know that there are penalties in place for refusing to provide samples of breath or blood if and when a field sobriety test is failed by a motorist. That subject can be taken directly to jail, and in many jurisdictions failure to comply carries the same penalties as a drunk driving conviction. I do not know that it applies in your jurisdiction, but I assume it does as Texas is not a rights friendly state, despite the braggadocio of your mythical independence and tough individualism meme.

The real reason for this policy is simple, you want the job to be easy. Otherwise law enforcement may actually have to do the work to gain a conviction. Yeah, that requires more steps, and entails more work than just running roughshod over innocent and guilty alike. Too bad. Find another line of work.

I have some experience with this crap. For a ten week period I was stopped every morning of the week on my way home and given field sobriety tests, all in a few block radius of a local bar that I had to pass on the way home. I never failed one of them, yet in a 70 day period, I was stopped 70 times, often by the same officers. Always the same lame excuse for stopping me, "You appeared to be weaving back there a little bit, so we need to check it out. Which was always bullshit.

Now we also know something else don't we? We know that you will not contact a magistrate and say "We have detained Joe Doaks and have reason to believe he was intoxicated while driving. He has refused a breathalyzer or to supply a blood sample, so we need a warrant pursuant to the fourth amendment." No, we both know your officers will be hitting the streets with blank warrants except for a signature. Sorry fellow, but that lends itself to too much abuse. It isn't as though law enforcement's record regarding abuse of the public is a sterling record. Simply put, I don't trust you to do it rightly, or even lawfully.

Were you to do so, you would detain only those who give you legitimate cause for a stop, then should a refusal or failure of field sobriety test occur you would transport him to the jail and then get your warrant to search his person for evidence. But that's too hard isn't it? And not at all efficient in raising revenue if your officers must actually appear before the magistrate and do it properly. Just think how much more revenue that officer could generate if all he had to do was write the detainee's name on the heretofore blank warrant and arrange transportation to the testing site. Up to that point the citizen most assuredly does have the right to refuse. But, that just doesn't satisfy your ego for someone not to submit just because you say so.

So you see, you have legal recourse to counter a recalcitrant detainee that you rightfully believe to be intoxicated, provided of course, your allegations are based in fact and not just a fishing expedition.

Also, I don't buy the official line that you're just trying to protect the public. Been there, saw how much Austin PD and Department of Safety cares about protecting the public. Uh huh! Right there in Austin, Tx.

I was passing through Austin one night behind someone in a pickup truck who was weaving from grass to grass all the way through the city on the interstate, nobody dared try to pass him. There were calls on the CB radio and cell phones to law enforcement advising them of the situation by myself and others. Many others. At one off ramp I spotted a patrol car sitting at an intersection just off the highway. I exited, left my vehicle and personally advised that particular officer of the situation. At this point the drunk or sick driver could not have been more than a mile ahead of where we were right then. Nothing was done, I was told to leave. The officer just sat there as I left.

Shortly, I again caught up with the weaving pickup truck and followed him another 32 miles, until he finally exited and went west. So please don't give me that crap about protecting the public. As I stated above, I just don't trust you to do the job you swore to do, nor do I trust you do it, when forced to it, without abusing the power bestowed upon you.

I do however appreciate your much more polite courtesy than I employed with my original email. I just want us all , including law enforcement, to play by the rules. And what was in the press release quoting Chief Acevedo definitely did not make even a nod in that direction. That was the person to whom I was responding.

Charles Sawders

Adam said...

Someone named 'roundrocker' commented on the article at about 8:00am EST today: "Maybe Cheif Acevedo should make sure that his officers are trained on the proper adminstration of the test. Being that he is from California where all the latest and greatest police tools come from." Gotta love the irony. Although I think this is kind of unfair to all of the superb police tools in Chicago...and Boston...and Miami...and New York...and...

W W Woodward said...

Unfortunately, In Texas,and, from what I understand, in other states as well a person arrested for DWI?DUI has no constitutional rights. He has no right to counsel, he doesn't have to be read his Miranda warnings, He can refuse a breath test and, if he does, a fill-in-the-blanks search warrant for the person's blood is completed by the arresting officer, FAXed to a "cooperative magistrate" signed, and then FAXed back to the arresting officer who then with assistance from his fellow officers will hold the arrested person down while an EMT or paramedic assigned to the police department for the no-refusal weekend will forcibly use a syringe to take a sample of the arrested person's blood.

And there is nothing the arrested person can do about it. No recourse! You have just been victimized by "due process". All perfectly legal and constitutional.
The SCOTUS says so. Welcome to the USSA. And a big thank you to MADD.

Anonymous said...

Oh, but there is a recourse. Just not an officially sanctioned one.

Anonymous said...

DISCLAIMER: I AM NOT A LAWYER; THIS IS NOT LEGAL ADVICE

Prologue: I researched and wrote this before seeing the reply to Straightarrow's message. Cmdr. Baker's reply suggests something other than the procedure described in the statutes--the presence of a warrant addresses at least some of the limitations set forth in the Texas Constitution. I guess APD doesn't want to be hassled defending warrantless arrests. However, my Excellent Adventure inside the Texas code has only reinforced my belief that these practices compel people to self-incriminate.

--

What a can of worms. Connecticut has "implied consent"; when you get a driver's license, you are consenting to future chemical tests for controlled substances. The Connecticut Driver's Manual also states that, "If you refuse to take a test, your operator's license will be suspended for at least six months or possibly more, depending on the number of prior offenses on your driving record and on your age." Texas also has "implied consent" laws on the books. I suspected that the mechanisms are similar, so I decided to take a look.



(The emphasis in the following is not original.)

The Texas Constitution, Article 1:

"Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself..."

(S.10 was truncated for brevity.)




The following is from Texas Statutes, Title 7:

"Sec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance."

Connecticut law ties consent to operating a motor vehicle within the bounds of the state--apparently this includes an unregistered vehicle on private land. It appears that in Texas, you give your consent by (involuntary) arrest. That seems to be in violation of Article 1, Sec. 9 of the Texas Constitution. In short, if you are arrested, you have consented, so it hinges on the arrest.




This leads me to the next question. What are grounds for such an arrest?

[Title 1.] "Art. 14.03. AUTHORITY OF PEACE OFFICERS.

(a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty... [of] offense under Section 49.02, Penal Code...

...and also...

(d) A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace."


It is the arresting officer's discretion whether or not a person is likely guilty. On suspicion of public intoxication, the officer is not limited by jurisdiction.




Any good judge will inform the jury--before a trial--that arrest is not proof of a crime. That is why the results of a field sobriety test are valuable to the prosecution. This is codified in law in Texas, like most other places:

[Title 1.] "Sec. 2.01. PROOF BEYOND A REASONABLE DOUBT. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial."




Considering the (presumably) strong constitutional safeguards against seizing a person and "compelling" him to provide incriminating evidence against himself, an examination of rules governing the use of a chemical test should be helpful:

"Sec. 724.012. TAKING OF SPECIMEN. (a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage Code."


So in the case of suspected public intoxication, it hinges on "reasonable grounds", which unfortunately aren't defined in Section 724.001 'DEFINITIONS' of the Texas Statutes. I have never been stopped for a DUI check in Texas. Do they ask all the pertinent questions about blood sugar, epilepsy or other afflictions? Is it legal to interrogate someone to reveal private medical history? Is it just me, or does it seem that whenever "reasonable" appears in law, either "unspecified" or "unlimited" is closer to the intended meaning?




What happens if one refuses to provide a specimen?

"Sec. 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer."

Ah, so one is not absolutely required to submit to testing. Let's take a look at the exceptions in Section 724.012(b):

"(b) A peace officer shall require the taking of a specimen of the person's breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;
"

The following offenses are listed in Chapter 49 of the Penal Code: PUBLIC INTOXICATION; POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE; DRIVING WHILE INTOXICATED; DRIVING WHILE INTOXICATED WITH CHILD PASSENGER; FLYING WHILE INTOXICATED; BOATING WHILE INTOXICATED; ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED; INTOXICATION ASSAULT; INTOXICATION MANSLAUGHTER;

That seems circular to me: a person may refuse the test, but not if he is intoxicated while driving... which is determined by the test. And let's not forget this:

[Penal Code] "Sec. 49.10. NO DEFENSE. In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense."

Hypoglycemic and taking cough medicine? OVER THE LIMIT; UNDER ARREST!




Finally, we have this gem, under Section 724.012(b):

"(b) A peace officer shall require the taking of a specimen of the person's breath or blood if...

(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily."


Good grief! At least in Connecticut we have this:

"(Sec. 14-227a) (b)(1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made;"

Death, Taxes... and what was the third one again?

"Sec. 724.014. PERSON INCAPABLE OF REFUSAL. (a) A person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn the consent provided by Section 724.011."

A Rohypnol Clause: implied consent to stick things in another person's body when that person is not responsive.




I am not particularly excited about being creamed by a pickled, anti-depressant-laden SUV driver with an aggressive attitude--which is a realistic possibility here in Connecticut--but I just can't see how this is legal. The law is set both in Texas and Connecticut so that refusal to take the test carries a much greater penalty than a first offense with a positive result. I believe that this equates to being "compelled" as mentioned in Article 1, Section 10 of the Texas Constitution. It's legal quick sand; if the officer believes you are intoxicated, there is no escape from the system without enormous personal cost.

So, yes, the entire landmass of Texas is a Constitution-free zone, and has been since at least 1995.

Anonymous said...

Also: Guess who was in the governor's office when this "implied consent" piece of shit was signed into law?

Anonymous said...

That is why I cringe every time I read or hear someone say how independent minded and tough Texans are. For the most part I have found them to be bragging sissies.

And I have lived there and had children there, of course, I've had children damn near everywhere.(everybody needs a hobby)

But I have found Texas to be very individual rights unfriendly and Texans to be on the average docilely compliant. I do wish people would quit using them as a good example of the liberty-minded.