Random shots around the web:
- Radley Balko now has a home at the Washington Post. Interestingly, he’s billed as an “Opinion Blogger” rather than an “Opinion Writer” like the columnists featured at the top of the Opinions page. (In fact, he doesn’t appear anywhere on that page as I write this.) Radley plays it like an old-school blogger too: He starts with an Introduction explaining his background and what he’ll be trying to do with the blog, and then a few hours later he follows up with a substantive post about the rollback of forfeiture reforms in Utah. And then later a piece about exposing corrupt prosecutors. And a list of links. You can find his bio page — and more importantly, a Radley-specific RSS link — here.
- A Jesse Walker post about the old COINTELPRO scandal gives a hilarious example of the FBI’s technique for trying to disrupt dissident political organizations: Socialism is Gay.
- I’m sure the folks at the U.S. Centers for Disease Control do lots of good work, but it’s hard to take them seriously when they fret that Americans drink excessively, given that they’ve defined excessively to include consuming more than 3 drinks for women or 4 for men on a single occasion or any drinking by anyone under the legal drinking age.
- Spotted this a while ago and just kept thinking about it: With my limited legal knowledge, I can’t quite follow the main point nidefatt is making here about the Oregon Supreme Court’s ruling on implied consent in DUI investigations. His post did, however, contain the phrase “right to an administrative hearing.” I’m pretty sure that “right to an administrative hearing” is the “cheese food” of due process.
hahaha
I was expressing my annoyance that the courts tend to bend logic to uphold a DUI conviction. In that case, the defendant tried to paint the court into a corner by arguing that certain parts of their implied consent warning were unconstitutional under the Oregon constitution. The Court decided that because the warning used the word “may” instead of “will,” and because they were sure that such unlawfully obtained tests could be used in civil proceedings, the implied consent warning was perfectly fine. The problem with that warning, and implied consent, is that they are premised on the idea that either (1) everyone that wants to drive gives up their right under the Fourth Amendment, and that’s bullshit, and (2) that you can threaten a person with a fine and loss of their driving privileges to get them to “consent” to a test that would otherwise require a warrant. That’s like going to a person’s home and saying “let us in or be fined 500 dollars.” For my clients, who never see that much money in one place, such a law would mean the end of the Fourth Amendment.
But you’ll never see a law like that, because this kind of madness only goes on in the post-apocalyptic landscape of DUI law.
Thanks for the explanation. I remember “implied consent” from when I took driver’s ed in high school, so I figured that by now it was pretty much settled law. Disturbing and unnecessary law, to be sure, but pretty much accepted everywhere.
Yes, well it is law everywhere, whether or not it is settled is questionable. All of those laws relied on the Supreme Court’s ruling in Schmerber v. California. It was believed at the time that if an officer thought you were under the influence, there were exigent circumstances, and so a warrant was unnecessary. So if you refused to do the breathalyzer, you were essentially refusing a lawful order and the government could arrest you right there for obstructing. Instead, they came up with the administrative hearings and civil punishments, which are great sources of revenue.
When McNeely came down and said “No,” the question everyone asked was what does this do to implied consent? And the Supreme Court even references implied consent and says state’s have that to rely on, but that is of course dicta, meaning it is not authoritative/the law/worth much.
But the point remains- without a warrant now, those searches are unconstitutional. So telling a person “accept this search or lose the right to drive for a year and pay 250 (or whatever)” is essentially coercing them to abandon their rights. This is the battle I am fighting, though the lower courts have thus far told me that the government could, if it wanted, use the same scheme to force its way into my home. Stay tuned.