Whatever Happened to the Bill of Rights?

Information courtesy of getmadd.com

"The average man does not want to be free. He simply wants to be safe."
---H.L. Mencken

Whatever Happened to the Bill of Rights?
Updated to reflect more freedom restrictions on May 5, 2005

Note: This article contains a lot of statements that sound unbelievable. After reading it please check out the links to other pages which provide further evidence of its veracity. (There will be some differences in the laws from state to state.)

Freedom sometimes gets put on the back burner when we think "safety" on emotionally charged issues that may affect innocent children. Many Constitutional safeguards have been weakened or ignored in the supposed effort of protecting our kids.

This is especially true when it comes to drunk driving. Legally drunk is now a Blood Alcohol Content (BAC) of just .08. Previous legal limits were .15, then .12 and most recently .10. Two to three drinks may put you over the limit depending on your size, so the social drinker may be a drunk driver even if he show no visible signs of impairment.

Alcohol laws fall under powers reserved for the states according to the 10th Amendment. Well, they used to. The new .08 law is a federal mandate. The states don't have to adopt it if they don't mind losing millions of dollars in federal money each year. Blackmail is such a nasty word, call it an incentive.

DUI (Driving Under the Influence) is a per se law. All states have it. You can count backwards flawlessly while hopping on one foot, walk a tightrope between two police cars and pass every field sobriety test in the book. It doesn't matter. The .08 BAC per se law says you are legally drunk if you breathe a .08 into the little machine. End of argument.

Ok, you say. Drunk is drunk. You have to set the mark somewhere. Well, what if you blow a .06? You're legal, right? Not necessarily. If you show any sign of "impairment" in the officer's opinion--bloodshot eyes, slurred speech, fumbling with your license--he can arrest you for DUI. Some states set .05 and below as a limit. Others do not. Here is the law in Tennessee: Strictly speaking, a driver can register a BAC of .00% and still be convicted of a DUI. The level of BAC does not clear a driver when it is below the presumed level of intoxication.—Tennessee Driver Handbook & Driver License Study Guide.

You see, when you are arrested, you are usually charged with two crimes. The first is "driving under the influence", the second is "driving with a BAC of .08". This is not double-talk or double jeopardy, as that would be unlawful under the 5th Amendment. So if you are convicted on one count or both counts, the punishment is the same. It does give the police a second chance to get you, in case the judge throws out the breath test.

Still not concerned? You are a careful driver--never had an accident. The police won't have any reason to stop you because the 4th Amendment guarantees freedom from search and seizure without probable cause. There is no probable cause for the police to routinely stop you at a roadblock to look for criminal activity; whether it be drugs, weapons or terrorists. The Supreme Court said so. Yes they did. (News update, February, 2005: Now the Court says it is ok for dogs to sniff your car for drugs at a routine traffic stop.)

However, the police can stop you at a roadblock to check your breath alcohol level and arrest you. "We will not allow a man or woman to leave [a roadblock] knowing they have consumed alcohol," said Officer William Berger at a federal government sponsored sobriety checkpoint kickoff rally. We now have a new crime. Curiously missing in his statement are the words drunk or impaired.

Back to the Supreme Court: The rationale of our learned Justices was that because the drunk driving problem is so out of control, this little intrusion into your privacy is warranted. They didn't consider driving drunk a "criminal activity" when the ruling was made, so there was no conflict with their other rulings.

Is this a big deal? Well, the law started out in 1990 with many safeguards and specific procedures to minimize "fright" (the Supreme Court's word) and inconvenience to the American citizen. One provision was the motorist's right to avoid the checkpoint by turning around before entering. That was 1990. Today, about half of the states consider this maneuver reason enough to chase you and pull you over. Another provision was to highly publicize when and where the checkpoints would be held. This is now adhered to only sporadically, mainly before certain holiday weekends. Checkpoints were supposed to be held at times when most drunks are on the road--typically just after midnight. Georgia recently held one at 8 AM. None of the motorists were found to be drunk. What a surprise! Finally, the checkpoint was supposed to be a large, highly visible event, to avoid "fear and surprise" (the Supreme Court's words again). Now the NHTSA is recommending that police departments scale down the number of officers per checkpoint from twelve to less that six. The reason: police overtime is costly so a greater number of smaller checkpoints is better. The arrest rate is generally below 1%, so it has never been a fruitful or profitable venture. Like the good old-fashioned speed traps, it does raise some money for the local government and the feds subsidize the roadblocks to make it a win-win for the local pols.

MADD is lobbying Congress for more money to expand the subsidies to the local police. The goal is to stop 93 million motorists each year. In the future we may see real efficiency: single officer roving checkpoints. It has a nice ring to it, doesn't it. Just stop anyone at anytime--without any suspicion. The erosion of freedom is like the ozone layer--you don't notice it until it's gone.

There are plenty of ways to spot drunk drivers. Weaving down the highway is probable cause. So are about twenty other signs that a driver may be drunk. The checkpoints are a concession to a steady bombardment of exaggerations, voodoo math and emotional speeches by MADD and its anti-alcohol friends. Still illegal in some states, MADD is now working to make checkpoints mandatory by petitioning Congress to withhold money from states that still disallow them.

Ok, you have been stopped at a sobriety checkpoint. Do you have the right to consult your lawyer before you say or do something that might be used against you? Sorry, no Miranda rights, here. You must decide on the spot. Do you agree to take possibly incriminating tests and give possibly incriminating answers or not. "You have nothing to hide. do you?" If you are in the gray "social drinker" BAC range, you probably don't know the answer to this question.

The 5th amendment against self incrimination doesn't seem to be helping you here. FYI: the reading on the portable breath tester is not admissible as proof of being drunk in court. The machines are not considered reliable enough. Your refusal to take the test is admissible as evidence however. Some say that judges equate refusal as proof, but that's another story. Either way, if you have reached this point, chances are you are going downtown. And this is not TV where you get taken to the station for questioning or further study: you are arrested for "suspicion of DUI".

At the station you will be asked to take another breath test on a larger, admissible-as-evidence-in-court machine. Hopefully it will be the new state-of-the-art model that has eliminated all of the problems inherent in the older state-of-the-art model. You are still waiting to be read your Miranda rights and would like to speak to your lawyer. Sorry, no lawyer. Blow into the tube or suffer the consequences.

Back to the 5th Amendment, we all remember the clause, "nor be deprived of life, liberty, or property, without due process of law. Forget it. Guess what happens if you refuse to take this breath test? Your drivers license is taken and shredded on the spot and you have just earned a one year suspension. Even if you are found not guilty of the DUI, you can't drive for a year. This is not fiction! You have just been tried and convicted without a hearing or a trial.

Albuquerque, NM has just passed a law that immediately impounds you car if you are arrested for suspicion of drunk driving. No conviction, no due process; as required by the 5th Amendment. MADD says "no problem" and the police and mayor agree.

After all this, now you may get to exercise your 6th Amendment right and call your lawyer to find out what mistakes you've made so far. By the way, the air from your lungs, the evidence that might put you in jail, is not required to be saved.

And forget about a jury trial. Most states don't allow this 6th & 7th Amendment right in DUI cases as the state loses money when a DUI goes to a jury trial. But they do allow MADD to sit in on non-jury court proceedings, and according to MADD literature, "Affect the outcomes of DWI cases where volunteers who court monitor cases can effectively increase the likelihood of convictions and there by decreasing the likelihood of dismissal." Equal justice for all, influenced by MADD.

In some states the judge (who acts as the jury) is required to view the evidence "in a light most favorable to the prosecution," and must allow no challenges by the defense to possibly inadmissable evidence." Again, this is only in DUI cases--so far.

Finally the issue of cruel and unusual punishment comes up. This is the 8th Amendment, and a gray area it is. Is 6 months in jail, a $5000 fine and 12 month driver's license suspension cruel and unusual for an offense that according to the Supreme Court is not a violent crime and isn't even "criminal activity"? That's the law in most states for a first offense with no accident or injury. Most states also limit or restrict plea-bargaining in DUI cases and the MADD court watchers are there to exact the maximum punishment for those souls that MADD calls "violent criminals." It appears that they disagree with the Supreme Court on the definition of criminal and violent.

Everyone agrees--laws that get drunk drivers off of the highways are good. People who kill, injure and cause property damage must be punished. But let's take a look at the freedom issues, here. What other crime has so many special rules--all at the expense of freedom? The penalties are for a violent crime when in most cases there is no violence, no injury and no accident. Laws written out of anger, the pursuit of vengeance or to promote the morality of special interest groups seldom stand the test of time. The first Prohibition of alcohol lasted only 13 years. This is why the intimidation by the MADD court watchers is so important to their cause.

Each year there are over 1.5 millions arrests for DUI. Many judges are resisting the MADD pressures and realize that putting all of these people in jail would be economically disastrous and morally absurd. The first offender ends up thanking the judge for only putting him in jail for 48 hours and only fining him $300 and only suspending his license for 6 months. Of course there is still the 200-300% increase in auto insurance when he is allowed to drive again and the Victim Impact Panel (VIP) classes that he may be required to attend and pay for. Funny thing, the classes are run by MADD. They received $3.4 million in 2003 from the people who they helped arrest in the first place.

As the arrest rate rises with the new lower "legally drunk" levels, there is hope that some sanity will return to our state and national Congresses who are responsible for these laws. Someday they will recognize that MADD and the NHTSA have their own self-serving agendas and that they don't serve or protect the freedoms of American public.

Justice Clarence Thomas, hardly a liberal, stated, "I rather doubt that the Framers of the Fourth Amendment would have considered "reasonable" a program of indiscriminate stops of individuals not suspected of wrongdoing." For some reason the ACLU has not take up the cause yet.

The MADD WebPage has prewritten letters to you Congressman supporting their position. They are very efficient in their lobbying efforts. If you agree with their position, informing your Congressman is easy. If you are troubled with the overzealous approach to lawmaking delineated in this article, then for now, you have to write your own letter. Do it.

The above article is NOT meant to be legal advice. Each state has its own variations of the above stated laws. Be sure to know your rights in your state and become aware of its specific laws before drinking and driving.

"Security is when everything is settled. When nothing can happen to you. Security is the denial of life."---Germaine Greer