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Nobody Expects the [SCOTUS] 5-4 Decision! (Read the OP)
I don't think a series of decisions that I vehemently disagree with (and would call "bad" because I feel their effects are disastrous) would be able to compare to a decision that is one of the primary reasons our country had a years long civil war that killed so very many people. The Korematsu decision to allow the Japanese internment camps is also hard to top, losing out to Dred Scott because of that whole civil war thing. Plessy v. Ferguson allowed the state to mandate segregation, hard to beat that. Heck I'd put the decisions from the Insular Cases pretty high up the list (obviously not first or second, but a strong case could be made for third) because it doesn't make any sense that territories like American Samoa do not have birthright citizenship.
It's pretty much the case that, before the Warren court, the entire SC's legacy was one of fucking with progress. The only reason some Chiefs from before Warren could be rated as better than Roberts is because they just didn't get nearly as much on their plate back then. Fewer chances to screw up.
If SCOTUS goes 0-2 on Shelby County and Fisher, is the Roberts court the worst court of all time? Dred Scott, Korematsu, and Plessy are worse decisions, but the body of work from this court is incredible in the sheer amount of zero jurisprudence garbage.
Dred Scott more or less made the Civil War inevitable. They'd have to do way more than this to come close.
I think one could argue in terms of multiple decisions over time making it a worse overall court then one really bad one.
Combining CU, Shelby, Hobby Lobby, and a possible negative ruling in Fisher still isn't enough, IMO. And the Roberts court has some positive marks on the ledger as well.
I don't agree mostly because I don't think Dredd Scott is on the level you are claiming. The formation of the US made the Civil War inevitable, Dredd Scott was just probably the most horrible single SCOTUS decision. The US didn't need the SCOTUS to make the north and south fundamentally incompatible.
Dress Scott made containment of slavery impossible. Same as the Kansas-Nebraska Act undermining the Missouri Compromise. Those things made any attempt at peaceful abolition impossible rather than just unlikely.
Dred Scott made containment of slavery impossible. Same as the Kansas-Nebraska Act undermining the Missouri Compromise. Those things made any attempt at peaceful abolition impossible rather than just unlikely.
Containment was never really on the plate though. None of the reasonings against or for slavery could sustain a perpetual containment argument. And the South clearly would not accept a peaceful end to slavery. No, things were going to break one way or another.
The best argument for Dred Scott not being a causative event is that the South, not the North, started the war. Yet at the same time Dred Scott gave the South, and not the North, much more power within the peaceful solution space[I.E. it made it more likely that slavery would spread]. Maybe if the North had drafted up letters of secession and righteous conquering i can see Dred Scott having the cause you're claiming. But that didn't happen. As much as revisionists want to talk about the War of Northern Aggression it was the South who left because the North elected Lincoln. If Dred had been been issued the opposite then the conditions which pushed the South to leave would have been pushed forward.
That's a simplistic view of history. Dred Scott had a whole bunch of after effects.
Lincoln feared Taney would make the abolition of slavery unconstitutional:
Put this and that together, and we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits. ...We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State.
Hell, Lincoln only became a national figure because of the Lincoln-Douglas debates, a major issue in which was... what to do about Dred Scott. He's definitely never elected President without it, for a whole host of reasons.
It was the final split for the Northern and Southern Democrats, who could not run a unity candidate against the Republicans in 1860 as a result. The Southern Democrats decided that what Lincoln feared was what needed to happen while Northern Democrats who, led by Stephen A. Douglas had pushed for popular sovereignty in the territories. Now that was gone and Douglas tried to thread a needle by saying territories could just elect legislatures that would pass laws that would basically make slavery impossible to enforce:
Those police regulations can only be established by the local legislature; and if the people are opposed to slavery, they will elect representatives to that body who will by unfriendly legislation effectually prevent the introduction of it into their midst. If, on the contrary, they are for it, their legislation will favor its extension. Hence, no matter what the decision of the Supreme Court may be on that abstract question, still the right of the people to make a Slave Territory or a Free Territory is perfect and complete under the Nebraska bill. I hope Mr. Lincoln deems my answer satisfactory on that point
Needless to say, this pissed off the Southern Democrats.
Frederick Douglass saw it as an abhorrent decision, but one with a silver lining:
The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience ... [But] my hopes were never brighter than now. I have no fear that the National Conscience will be put to sleep by such an open, glaring, and scandalous tissue of lies ...
Douglass was right. The decision radicalized the North and the Republicans, who previously had been for containment, against slavery and the South for it, which really did make the war inevitable.
The idea that your vote is a moral statement about you or who you vote for is some backwards ass libertarian nonsense. Your vote is about society. Vote to protect the vulnerable.
This doesn't change the fact that the South was not gonna accept abolition, which is what makes the Civil War inevitable. Unless you think the US was still gonna have slavery today.
I don't think it would have been likely for slavery to end without shots being fired. Only way I could see that happening is a British led moral/imperialist (slavery cut their profits) crusade against the practice, which was part of how slavery ended in Brazil.
Of course, the result of that was an overthrow of the government by the former slaver holders sooo
Mostly I'm saying Dred Scott was a major reason, probably the major reason, why the Civil War started in 1861 as opposed to some other time. So on top of its moral shittiness, it also failed in its political goal, which was to end the slavery debate.
The idea that your vote is a moral statement about you or who you vote for is some backwards ass libertarian nonsense. Your vote is about society. Vote to protect the vulnerable.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
hold your head high soldier, it ain't over yet
that's why we call it the struggle, you're supposed to sweat
Yeah, I think we would have had a civil war without Dred Scott. I'll agree, it probably accelerated the timeline for a confrontation, but without it, we'd still have a civil war, probably later than 1865.
Though I'm going to argue that Citizens United is probably damn close to being in the top three and it might get placed there because that decision was fucking damaging and we're starting to see that damage manifest itself. Hell, that one may actually result in violence down the line given human history of wealthy elites fucking over the masses.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Plus the reason it said it didn't have jurisdiction was that descendants of Africans couldn't be citizens (which under current scientific understanding is all of us).
“Reject your sense of injury and the injury itself disappears.”
― Marcus Aurelius
Yeah, I think we would have had a civil war without Dred Scott. I'll agree, it probably accelerated the timeline for a confrontation, but without it, we'd still have a civil war, probably later than 1865.
Perhaps if the court had simply concluded it lacked jurisdiction and left it at that (or even found in favor of Scott) then the issue is a bit less rancorous, Lincoln/Douglas and the election of 1860 go a bit differently, and it takes the southern states a bit longer to conclude that they can't get their way democratically. But the fundamental economic reason for the war (free soil vs. slavery in the territories) wasn't something that was going to go away even if Dred Scott were decided more artfully.
hold your head high soldier, it ain't over yet
that's why we call it the struggle, you're supposed to sweat
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Must be thinking of a different one then. I thought I remembered a decision recently where the dissent from RBG was basically "They say it's unconstitutional but never cite which part of the constitution it violates."
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
I don't really get the question; there was not (afaik) really a question that the court had jurisdiction in Shelby.
I don't like the majority decision in the case but at least the court was appropriately addressing the facts; the court in Dred Scott basically said "we don't think we really have the authority to hear this case... but anyway, we're gonna rule on a bunch of tangentially-related policy."
hold your head high soldier, it ain't over yet
that's why we call it the struggle, you're supposed to sweat
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
I don't really get the question; there was not (afaik) really a question that the court had jurisdiction in Shelby.
I don't like the majority decision in the case but at least the court was appropriately addressing the facts; the court in Dred Scott basically said "we don't think we really have the authority to hear this case... but anyway, we're gonna rule on a bunch of tangentially-related policy."
They basically said that it violated the 14th, but didn't really explain how.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
The 4th protects you from unreasonable search and seizure. It seems easy to rule that sobriety tests are entirely reasonable and as such, refusing one is not protected.
It's like, if the govt shows up with a warrant, and you refuse the search, then you can be arrested and (I think) charged. Saying that you can't be charged for refusing a lawful search would be pretty far out there so the case to me seems to hinge on whether or not the search is legal.
And well, sobriety tests for people operating high speed multi ton objects seems like an entirely reasonable thing.
Edit: and the alternative structure is actualy more unreasonable. Because the test is refused the police officer with reasonable suspicion of inebriation must arrest the suspect and wait for a warrant? That is more unreasonable than just performing the search! Basically the only way this works is if you think that a police officer who pulls someone over on suspicion of drunk driving (or has that suspicion after a stop) has to let anyone who refuses the test go and then follow them until they get a warrant? Ridiculous.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
the majority say that the VRA violates the 14th because it treats different parts of the country differently, and that congress hasn't done enough to show that's still necessary. The problem with it is that the court didn't make clear why the VRA was 'appropriate legislation' in 1965 but not in when congress reauthorized it in 2006. The implicit question the majority leave unanswered is what about congress' enforcement power changed that caused the section 4 formulae to be inadequate.
hold your head high soldier, it ain't over yet
that's why we call it the struggle, you're supposed to sweat
0
AstaerethIn the belly of the beastRegistered Userregular
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Given it's your driver's license that's unconscionable. It should be the right of prima nocte over the licence holder.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Cant can't grant things not in possession of one of the parties or participate in illegal activities. Such a contract would not only be granting something that the original has no right to give, but also constitute prostitution. [though technically this would be negated due to congressional binding]
So such act would not be unconstitutional (as far as i can read it) except insomuch as standard contract law is a constitutional issue.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Cant can't grant things not in possession of one of the parties or participate in illegal activities. Such a contract would not only be granting something that the original has no right to give, but also constitute prostitution. [though technically this would be negated due to congressional binding]
So such act would not be unconstitutional (as far as i can read it) except insomuch as standard contract law is a constitutional issue.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Because it's not a search - it's testifying against yourself. We might as well demand that citizens submit to fingerprint analysis during a traffic stop.
---
I haven't looked into this case yet - is this something to do with DUI checkpoints? Or merely refusing a breathalyzer?
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Doesn't it become unreasonable the minute I need to be coerced to comply. I wonder what would happen if someone invented a way to test BAC using a radar gun.
“Reject your sense of injury and the injury itself disappears.”
― Marcus Aurelius
Path of Exile: themightypuck
0
ShivahnUnaware of her barrel shifter privilegeWestern coastal temptressRegistered User, Moderatormod
edited December 2015
I'm 50% sure I could invent something like that, but it'd cost like ten thousand dollars and still only work at close range
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Cant can't grant things not in possession of one of the parties or participate in illegal activities. Such a contract would not only be granting something that the original has no right to give, but also constitute prostitution. [though technically this would be negated due to congressional binding]
So such act would not be unconstitutional (as far as i can read it) except insomuch as standard contract law is a constitutional issue.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Because it's not a search - it's testifying against yourself. We might as well demand that citizens submit to fingerprint analysis during a traffic stop.
No, no it's not. Fingerprint analysis is not even remotely similar to a breathalyzer. It's not even a test. How can you fail at fingerprints?
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Cant can't grant things not in possession of one of the parties or participate in illegal activities. Such a contract would not only be granting something that the original has no right to give, but also constitute prostitution. [though technically this would be negated due to congressional binding]
So such act would not be unconstitutional (as far as i can read it) except insomuch as standard contract law is a constitutional issue.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Because it's not a search - it's testifying against yourself. We might as well demand that citizens submit to fingerprint analysis during a traffic stop.
---
I haven't looked into this case yet - is this something to do with DUI checkpoints? Or merely refusing a breathalyzer?
Its refusing a breathalyzer (or in one case a blood test, there are three cases)
And no, a breathalyzer is a search, its not testifying. You're not saying anything.
edit: The reason a fingerprint analysis is not a reasonable search is that a fingerprint search cannot lead to evidence you've committed the crime for which the officer has reasonable suspicion of you committing. A breathalyzer can.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Doesn't it become unreasonable the minute I need to be coerced to comply. I wonder what would happen if someone invented a way to test BAC using a radar gun.
No, it does not. For instance, police can search your glovebox if its unlocked, or may frisk you if they stop you on the street (to check for weapons). Because the potential for weapons makes such a search reasonable. You cannot refuse those searches and as they are also legal you are being "coerced" into complying.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Pithy response, but not a good analogy at all and I think you know that. Anyway that's the status in my state, there has been recent movement here in the courts here on whether the warning when someone says they want to refuse a breath test is coercive or not.
Driving and duii stuff has a large caselaw history in federal and state case law and I didn't have time to look more into the current scotus cases today but I can try to post tomorrow.
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Cant can't grant things not in possession of one of the parties or participate in illegal activities. Such a contract would not only be granting something that the original has no right to give, but also constitute prostitution. [though technically this would be negated due to congressional binding]
So such act would not be unconstitutional (as far as i can read it) except insomuch as standard contract law is a constitutional issue.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Because it's not a search - it's testifying against yourself. We might as well demand that citizens submit to fingerprint analysis during a traffic stop.
---
I haven't looked into this case yet - is this something to do with DUI checkpoints? Or merely refusing a breathalyzer?
Its refusing a breathalyzer (or in one case a blood test, there are three cases)
And no, a breathalyzer is a search, its not testifying. You're not saying anything.
edit: The reason a fingerprint analysis is not a reasonable search is that a fingerprint search cannot lead to evidence you've committed the crime for which the officer has reasonable suspicion of you committing. A breathalyzer can.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Doesn't it become unreasonable the minute I need to be coerced to comply. I wonder what would happen if someone invented a way to test BAC using a radar gun.
No, it does not. For instance, police can search your glovebox if its unlocked, or may frisk you if they stop you on the street (to check for weapons). Because the potential for weapons makes such a search reasonable. You cannot refuse those searches and as they are also legal you are being "coerced" into complying.
OK but if that is the case, why is drawing blood different from checking a glovebox? I think it is pretty clear that jamming a tube down my throat is different from snapping a picture from distance. Not that I know anything about actual jurisprudence.
“Reject your sense of injury and the injury itself disappears.”
― Marcus Aurelius
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Doesn't it become unreasonable the minute I need to be coerced to comply. I wonder what would happen if someone invented a way to test BAC using a radar gun.
No, it does not. For instance, police can search your glovebox if its unlocked, or may frisk you if they stop you on the street (to check for weapons). Because the potential for weapons makes such a search reasonable. You cannot refuse those searches and as they are also legal you are being "coerced" into complying.
Okay... hang on. I'm pretty sure you're wrong on this. Without probable cause they're limited to what's in plain sight in your car. Opening a compartment is a search, and requires cause/warrant. Locking it isn't relevant.
Stop and frisk was shut down by the courts as well iirc.
Edit: And that reminds me of the bullshit that is dogs trained to provide probable cause. Or more specifically, that there is literally no level of evidence that will make a court accept that a dog may be signalling because it was told to.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Doesn't it become unreasonable the minute I need to be coerced to comply. I wonder what would happen if someone invented a way to test BAC using a radar gun.
No, it does not. For instance, police can search your glovebox if its unlocked, or may frisk you if they stop you on the street (to check for weapons). Because the potential for weapons makes such a search reasonable. You cannot refuse those searches and as they are also legal you are being "coerced" into complying.
Okay... hang on. I'm pretty sure you're wrong on this. Without probable cause they're limited to what's in plain sight in your car. Opening a compartment is a search, and requires cause/warrant. Locking it isn't relevant.
Stop and frisk was shut down by the courts as well iirc.
Edit: And that reminds me of the bullshit that is dogs trained to provide probable cause. Or more specifically, that there is literally no level of evidence that will make a court accept that a dog may be signalling because it was told to.
Stop and frisk was shut down but not frisk. You're confusing "have no reason to stop" to "have a reason to stop, such can frisk"
I believe that the same logic supports wingspan searches for cars on stop rather than arrest*(auto's have another specific exception as well but that requires reasonable suspicion )
Nothing prevents a state from having more strict laws/policy, but that is the federal structure as far as i can tell.
OK but if that is the case, why is drawing blood different from checking a glovebox? I think it is pretty clear that jamming a tube down my throat is different from snapping a picture from distance. Not that I know anything about actual jurisprudence.
1) Breathalyzers do not shove anything down your throat, unless technology has backslid quite a bit
2) Drawing blood is invasive (in a number of ways) and, since you're not a xenomorph, your veins do not potentially contain a deadly weapon. You can however, hold a weapon in your glovebox, and since its within reach, may retrieve and use said weapon. Like a stop on the street, where an officer is allowed to pat you down to make sure you don't have a weapon (and then may search further if they feel what they think may be one) an officer is allowed to check places within reach, given that its reasonable to retrieve and that the person is a place where they may have stored a weapon. So keep your glovebox locked[then its no longer reasonable for you to retrieve a weapon from it] if you don't want it searched**
*A general wingspan search is basically "we arrested the guy, did he stash any evidence before we got to him, so we can search what is within reach". This is "we're stopping the guy does he have a weapon he can grab"
**Basically never keep anything you don't want found in your car. Because holy lord car exceptions are big.
+1
GatorAn alligator in ScotlandRegistered Userregular
Dred Scott is a singularly bad decision in court history because it's awful for a variety of reasons; the policy outcome was terrible (IMO probably inevitable, but still), but it's also one of the worst examples of dicta in American legal history. The court found that it had no jurisdiction, then proceeded to rule on the merits anyway.
Which is a major difference between Scott and Korematsu; the latter decision, though heinous, established (ironically) good jurisprudence in instituting the strict scrutiny standard.
Citizens United has two major howlers as a basis for its legal reasoning: corporations are (literally) people and a panglossian view of corruption. Dred Scott has, like, ten howlers (and I'm not using "ten" in a figurative sense).
+5
TraceGNU Terry Pratchett; GNU Gus; GNU Carrie Fisher; GNU Adam WeRegistered Userregular
Refusing a breathalyzer, drunk or not, ends up with your license being revoked automatically for (I believe) 1 year in NYS. Don't know about how other states deal with it.
Add to the fact that breathalyzers often are not correctly calibrated by the cops and have an error of margin regarding the number it gives (that is ignored) and can be set off by things like chewing the wrong sort of gum or eating the wrong type of food before blowing into it and most of those things aren't maintained properly or cleaned properly then yeah you're not just testifying against yourself you're testifying against yourself with a handicap basically.
Refusing a breathalyzer, drunk or not, ends up with your license being revoked automatically for (I believe) 1 year in NYS. Don't know about how other states deal with it.
Add to the fact that breathalyzers often are not correctly calibrated by the cops and have an error of margin regarding the number it gives (that is ignored) and can be set off by things like chewing the wrong sort of gum or eating the wrong type of food before blowing into it and most of those things aren't maintained properly or cleaned properly then yeah you're not just testifying against yourself you're testifying against yourself with a handicap basically.
In NYS at least you can insist on a blood test. I mean, you're now going to be taken by the police to the hospital where they draw your blood but you do have that right.
Refusing a breathalyzer, drunk or not, ends up with your license being revoked automatically for (I believe) 1 year in NYS. Don't know about how other states deal with it.
Add to the fact that breathalyzers often are not correctly calibrated by the cops and have an error of margin regarding the number it gives (that is ignored) and can be set off by things like chewing the wrong sort of gum or eating the wrong type of food before blowing into it and most of those things aren't maintained properly or cleaned properly then yeah you're not just testifying against yourself you're testifying against yourself with a handicap basically.
In NYS at least you can insist on a blood test. I mean, you're now going to be taken by the police to the hospital where they draw your blood but you do have that right.
Depending on the area you were arrested in you might wind up having to pay the bill for the blood test.
Refusing a breathalyzer, drunk or not, ends up with your license being revoked automatically for (I believe) 1 year in NYS. Don't know about how other states deal with it.
Add to the fact that breathalyzers often are not correctly calibrated by the cops and have an error of margin regarding the number it gives (that is ignored) and can be set off by things like chewing the wrong sort of gum or eating the wrong type of food before blowing into it and most of those things aren't maintained properly or cleaned properly then yeah you're not just testifying against yourself you're testifying against yourself with a handicap basically.
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I don't agree mostly because I don't think Dredd Scott is on the level you are claiming. The formation of the US made the Civil War inevitable, Dredd Scott was just probably the most horrible single SCOTUS decision. The US didn't need the SCOTUS to make the north and south fundamentally incompatible.
Containment was never really on the plate though. None of the reasonings against or for slavery could sustain a perpetual containment argument. And the South clearly would not accept a peaceful end to slavery. No, things were going to break one way or another.
The best argument for Dred Scott not being a causative event is that the South, not the North, started the war. Yet at the same time Dred Scott gave the South, and not the North, much more power within the peaceful solution space[I.E. it made it more likely that slavery would spread]. Maybe if the North had drafted up letters of secession and righteous conquering i can see Dred Scott having the cause you're claiming. But that didn't happen. As much as revisionists want to talk about the War of Northern Aggression it was the South who left because the North elected Lincoln. If Dred had been been issued the opposite then the conditions which pushed the South to leave would have been pushed forward.
Lincoln feared Taney would make the abolition of slavery unconstitutional:
Hell, Lincoln only became a national figure because of the Lincoln-Douglas debates, a major issue in which was... what to do about Dred Scott. He's definitely never elected President without it, for a whole host of reasons.
It was the final split for the Northern and Southern Democrats, who could not run a unity candidate against the Republicans in 1860 as a result. The Southern Democrats decided that what Lincoln feared was what needed to happen while Northern Democrats who, led by Stephen A. Douglas had pushed for popular sovereignty in the territories. Now that was gone and Douglas tried to thread a needle by saying territories could just elect legislatures that would pass laws that would basically make slavery impossible to enforce:
Needless to say, this pissed off the Southern Democrats.
Frederick Douglass saw it as an abhorrent decision, but one with a silver lining:
Douglass was right. The decision radicalized the North and the Republicans, who previously had been for containment, against slavery and the South for it, which really did make the war inevitable.
Of course, the result of that was an overthrow of the government by the former slaver holders sooo
Mostly I'm saying Dred Scott was a major reason, probably the major reason, why the Civil War started in 1861 as opposed to some other time. So on top of its moral shittiness, it also failed in its political goal, which was to end the slavery debate.
that's why we call it the struggle, you're supposed to sweat
Though I'm going to argue that Citizens United is probably damn close to being in the top three and it might get placed there because that decision was fucking damaging and we're starting to see that damage manifest itself. Hell, that one may actually result in violence down the line given human history of wealthy elites fucking over the masses.
Plus the reason it said it didn't have jurisdiction was that descendants of Africans couldn't be citizens (which under current scientific understanding is all of us).
― Marcus Aurelius
Path of Exile: themightypuck
that's why we call it the struggle, you're supposed to sweat
Perhaps if the court had simply concluded it lacked jurisdiction and left it at that (or even found in favor of Scott) then the issue is a bit less rancorous, Lincoln/Douglas and the election of 1860 go a bit differently, and it takes the southern states a bit longer to conclude that they can't get their way democratically. But the fundamental economic reason for the war (free soil vs. slavery in the territories) wasn't something that was going to go away even if Dred Scott were decided more artfully.
that's why we call it the struggle, you're supposed to sweat
Didn't the Roberts court do this with the VRA ruling? They called the thing unconstitutional but never actually said what part of the constitution it violated.
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The 14th Amendment. It treated the citizens of different states differently.
Obviously most everyone here disagrees, but it's at least a coherent argument.
Must be thinking of a different one then. I thought I remembered a decision recently where the dissent from RBG was basically "They say it's unconstitutional but never cite which part of the constitution it violates."
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Except for the presence of bail-out and bail-in provisions. Along with making the default no preemptive protection of the franchise, barring an Act of Congress, rather than extending it universally.
Anyway, for pending decisions, I'm of mixed feelings about the DUI one. Refusing to take a test is not itself evidence of guilt and shouldn't be a criminal act. At the same time, efforts to reduce drunk driving when it is more difficult to demonstrate impairment is an important piece of public safety.
Of course, the problem is that if refusing to allow officers to conduct a search can be criminalized, the 4th is meaningless. Now, the decrease of alcohol concentration over time does mean a test needs to be executed with some promptness to be meaningful... but that doesn't mean you can't have a magistrate judge designated as on call for handling these kinds of things to give quick turnaround on a warrant request (and really... odds are even if SCOTUS comes down as absolutely requiring a warrant before you can compel the test... it'll take a month tops before they're being rubber stamped in all 50 states).
Additionally, the depletion of alcohol content in the blood is a well-understood process. Even if there's some delay, you should be able to take multiple samples (if memory serves, it's an exponential curve, and so just taking two blood samples an hour apart should let you solve for an individuals rough decay rate and thus work backwards to concentration at time of stop). Whether you could convince a court to take that would be questionable (I'm not a biologist or a doctor, so I could be wrong about the consistency of the curve over a few hour period...).
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I don't really get the question; there was not (afaik) really a question that the court had jurisdiction in Shelby.
I don't like the majority decision in the case but at least the court was appropriately addressing the facts; the court in Dred Scott basically said "we don't think we really have the authority to hear this case... but anyway, we're gonna rule on a bunch of tangentially-related policy."
that's why we call it the struggle, you're supposed to sweat
They basically said that it violated the 14th, but didn't really explain how.
The 4th protects you from unreasonable search and seizure. It seems easy to rule that sobriety tests are entirely reasonable and as such, refusing one is not protected.
It's like, if the govt shows up with a warrant, and you refuse the search, then you can be arrested and (I think) charged. Saying that you can't be charged for refusing a lawful search would be pretty far out there so the case to me seems to hinge on whether or not the search is legal.
And well, sobriety tests for people operating high speed multi ton objects seems like an entirely reasonable thing.
Edit: and the alternative structure is actualy more unreasonable. Because the test is refused the police officer with reasonable suspicion of inebriation must arrest the suspect and wait for a warrant? That is more unreasonable than just performing the search! Basically the only way this works is if you think that a police officer who pulls someone over on suspicion of drunk driving (or has that suspicion after a stop) has to let anyone who refuses the test go and then follow them until they get a warrant? Ridiculous.
In my state:
The privilege of having a driver's license comes with the agreement you will take a breath test if arrested for duii. Refusal results in a fine and license suspension. Refusal can be used against you in court as long as you were read the proper warning language by the officer.
Refusal to take field sobriety tests can also be used against you, again only if the proper warning is given by the officer.
Unless the person consents, a warrant is needed for blood draws. Usually these allow one blood draw, not multiple ones. Judges are on call at night to process these warrant requests. If true exigencies exist blood can be drawn without a warrant (usually backed up later by a warrant authorized draw) - this usually comes into play at serious crash scenes.
I will read more about the scotus case and post more later, just wanted to throw out the current process in my state.
the majority say that the VRA violates the 14th because it treats different parts of the country differently, and that congress hasn't done enough to show that's still necessary. The problem with it is that the court didn't make clear why the VRA was 'appropriate legislation' in 1965 but not in when congress reauthorized it in 2006. The implicit question the majority leave unanswered is what about congress' enforcement power changed that caused the section 4 formulae to be inadequate.
that's why we call it the struggle, you're supposed to sweat
In my state, the privilege of having a driver's license comes with the agreement that the government has the right of prima nocte over your spouse. Some people say that's unconstitutional, but hey, driving is a privilege not a right.
Given it's your driver's license that's unconscionable. It should be the right of prima nocte over the licence holder.
Fucking crazy American laws.
Cant can't grant things not in possession of one of the parties or participate in illegal activities. Such a contract would not only be granting something that the original has no right to give, but also constitute prostitution. [though technically this would be negated due to congressional binding]
So such act would not be unconstitutional (as far as i can read it) except insomuch as standard contract law is a constitutional issue.
Frankly I am not sure how a breathalyzer is not considered a reasonable search in the first place. Its not invasive, its not time consuming, there is a legitimate government interest in keeping drunks not driving, you're participating in a non-protected activity which carries significant risk to livelihood of bystanders.
Because it's not a search - it's testifying against yourself. We might as well demand that citizens submit to fingerprint analysis during a traffic stop.
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I haven't looked into this case yet - is this something to do with DUI checkpoints? Or merely refusing a breathalyzer?
Doesn't it become unreasonable the minute I need to be coerced to comply. I wonder what would happen if someone invented a way to test BAC using a radar gun.
― Marcus Aurelius
Path of Exile: themightypuck
No, no it's not. Fingerprint analysis is not even remotely similar to a breathalyzer. It's not even a test. How can you fail at fingerprints?
Its refusing a breathalyzer (or in one case a blood test, there are three cases)
And no, a breathalyzer is a search, its not testifying. You're not saying anything.
edit: The reason a fingerprint analysis is not a reasonable search is that a fingerprint search cannot lead to evidence you've committed the crime for which the officer has reasonable suspicion of you committing. A breathalyzer can.
No, it does not. For instance, police can search your glovebox if its unlocked, or may frisk you if they stop you on the street (to check for weapons). Because the potential for weapons makes such a search reasonable. You cannot refuse those searches and as they are also legal you are being "coerced" into complying.
Pithy response, but not a good analogy at all and I think you know that. Anyway that's the status in my state, there has been recent movement here in the courts here on whether the warning when someone says they want to refuse a breath test is coercive or not.
Driving and duii stuff has a large caselaw history in federal and state case law and I didn't have time to look more into the current scotus cases today but I can try to post tomorrow.
OK but if that is the case, why is drawing blood different from checking a glovebox? I think it is pretty clear that jamming a tube down my throat is different from snapping a picture from distance. Not that I know anything about actual jurisprudence.
― Marcus Aurelius
Path of Exile: themightypuck
Okay... hang on. I'm pretty sure you're wrong on this. Without probable cause they're limited to what's in plain sight in your car. Opening a compartment is a search, and requires cause/warrant. Locking it isn't relevant.
Stop and frisk was shut down by the courts as well iirc.
Edit: And that reminds me of the bullshit that is dogs trained to provide probable cause. Or more specifically, that there is literally no level of evidence that will make a court accept that a dog may be signalling because it was told to.
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Stop and frisk was shut down but not frisk. You're confusing "have no reason to stop" to "have a reason to stop, such can frisk"
I believe that the same logic supports wingspan searches for cars on stop rather than arrest*(auto's have another specific exception as well but that requires reasonable suspicion )
Nothing prevents a state from having more strict laws/policy, but that is the federal structure as far as i can tell.
1) Breathalyzers do not shove anything down your throat, unless technology has backslid quite a bit
2) Drawing blood is invasive (in a number of ways) and, since you're not a xenomorph, your veins do not potentially contain a deadly weapon. You can however, hold a weapon in your glovebox, and since its within reach, may retrieve and use said weapon. Like a stop on the street, where an officer is allowed to pat you down to make sure you don't have a weapon (and then may search further if they feel what they think may be one) an officer is allowed to check places within reach, given that its reasonable to retrieve and that the person is a place where they may have stored a weapon. So keep your glovebox locked[then its no longer reasonable for you to retrieve a weapon from it] if you don't want it searched**
*A general wingspan search is basically "we arrested the guy, did he stash any evidence before we got to him, so we can search what is within reach". This is "we're stopping the guy does he have a weapon he can grab"
**Basically never keep anything you don't want found in your car. Because holy lord car exceptions are big.
Which is a major difference between Scott and Korematsu; the latter decision, though heinous, established (ironically) good jurisprudence in instituting the strict scrutiny standard.
Citizens United has two major howlers as a basis for its legal reasoning: corporations are (literally) people and a panglossian view of corruption. Dred Scott has, like, ten howlers (and I'm not using "ten" in a figurative sense).
Add to the fact that breathalyzers often are not correctly calibrated by the cops and have an error of margin regarding the number it gives (that is ignored) and can be set off by things like chewing the wrong sort of gum or eating the wrong type of food before blowing into it and most of those things aren't maintained properly or cleaned properly then yeah you're not just testifying against yourself you're testifying against yourself with a handicap basically.
In NYS at least you can insist on a blood test. I mean, you're now going to be taken by the police to the hospital where they draw your blood but you do have that right.
Depending on the area you were arrested in you might wind up having to pay the bill for the blood test.
Cite for your assertions about gum/food?