[ARCHIVED THREAD] - Implied consent (Page 1 of 4)
Posted: 5/15/2013 8:47:42 PM EDT
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Most if not all states have an "implied consent" law. Basically it says that if an officer pulls you over and suspects DUI you are required to submit to a breathalyzer, blood or urine test. If you choose to not submit to the test you lose your license for a period of time regardless of whether you are eventually convicted or not of any offense.
I'm having a hard time seeing how this passes constitutional muster, can someone help me? |
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If you want a solid well reasoned justification that really makes it all okay....forget it.
If you want the tortured logic that states use to get away with it....get ready for your head to hurt. ETA this link Excellent Law review article dealing with the tortured logic |
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they say driving is a privilege not e right yep, you don't have a right to drive on a public roadway and endanger the lives of others by being intoxicated. In most states you sign agreeing to the implied consent. You do not have to submit to any roadside tests but then you're taking a ride. |
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Let me be clear that I don't want drunk people driving. But I also don't want my rights infringed. Is there a way we can enforce DUI laws without violating people's 5th amendment rights? Yes. But not nearly as easily as if driver's can be compelled to give evidence against themselves. Essentially, MAD and other groups applied sufficient political muscle to shoe horn this system in on us. As you correctly pointed out no one is in favor of drunk driving and we can therefore only rely upon the good judgment of our politicians, etc...  to protect us from additional encroachment on our liberties.
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| What you are looking for is in case law and individual state laws not the constitution. There's the issue of forced blood draws (4th amendment) now requiring a warrant even in implied consent states but that only adds about 20 minutes for a telephonic warrant and much higher court fees for the defendant. Either way you're gonna loose if you get caught drinking and driving. NTSB is now suggesting a national BAC of .05 which will take a few years to implement but is on the horizon. |
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Its pretty simplle really, despite common belief (that the gov is perpetuating to people with no legal right to be in this country) you do not have a protected right or any right at all to drive, they have no obligation to issue you a license to begin with and can stack requirments on it.
They cannot compel or in anyway force you to submit to the test without a warrant which is highly unlikely unless you are suspected of great property damage, injury, or death. You have the right to refuse them otherwise. The state reserves the ability to take back the license that you were issued for this and many other reasons. Seems atleast one of the four I've been licensed in had me read and sign a consent form, or maybe that came with the CDL. Further, in some states the DMV can hold hearings not bound by court rulings, at which you will not be allowed to testify on your behalf. For example, court dismisses case, at a seperate later hearing dmv takes license for a period of time and requires classes, SR22, etc before they will reinstate. Its this part that really pisses me off. |
I have no sympathy for driving while intoxicated be it alcohol or any inebriating substance.  Really if you cannot make it home then sleep it off - easier said than done for some people though...; however I don't drink so my opinions may be biased.
p.s., I would rather have blood drawn than undergo a breath test, but that's just me. |
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they say driving is a privilege not e right yep, you don't have a right to drive on a public roadway and endanger the lives of others by being intoxicated. In most states you sign agreeing to the implied consent. You do not have to submit to any roadside tests but then you're taking a ride. You always had the right to free travel - up until courts started allowing states to require drivers licenses & they took that right away - but nobody put a stop to it. Now you are forced to pay for roads that you may not have the privilege of using. Then NY & CA (of course) got involved with DWI laws (setting the intoxication limit at 0.15%) - then the activists got involved & started lobbying lawmakers until they lowered the numbers (which they are still trying to do - they won't be happy until the send you to jail for having over a 0.0001% BAC). Of course, that created another problem (how to enforce it) so they wrote some more unconstitutional laws taking away your 4th & 5th amendment rights by calling it "implied consent". (The fact of the matter is that you are not intoxicated at 0.08% and you are not impaired at 0.04%. If you were, then you would see flaming wrecks on the news every Friday & Saturday night because 25% of the drivers out there are over 0.08% when the bars close. It's nothing more than a giant money maker and an excuse to pay thousands of cops millions of dollars in overtime to fuck with drivers all night long when the roads are almost empty.) |
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The choice between keeping your driver's license or giving evidence against yourself is hardly a free and voluntary choice without coercion. In states, like mine, where if you refuse the test they will use your refusal against you as evidence in court it is even more of a farce.
DUI Officer: Would you like to lose you license (job, home, etc...) or would you like to give evidence against yourself (possibly resulting in your conviction for DUI (perhaps face the loss of job, etc...) SOL Driver:
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they say driving is a privilege not e right yep, you don't have a right to drive on a public roadway and endanger the lives of others by being intoxicated. In most states you sign agreeing to the implied consent. You do not have to submit to any roadside tests but then you're taking a ride. You always had the right to free travel - up until courts started allowing states to require drivers licenses & they took that right away - but nobody put a stop to it. Now you are forced to pay for roads that you may not have the privilege of using. Then NY & CA (of course) got involved with DWI laws (setting the intoxication limit at 0.15%) - then the activists got involved & started lobbying lawmakers until they lowered the numbers (which they are still trying to do - they won't be happy until the send you to jail for having over a 0.0001% BAC). Of course, that created another problem (how to enforce it) so they wrote some more unconstitutional laws taking away your 4th & 5th amendment rights by calling it "implied consent". (The fact of the matter is that you are not intoxicated at 0.08% and you are not impaired at 0.04%. If you were, then you would see flaming wrecks on the news every Friday & Saturday night because 25% of the drivers out there are over 0.08% when the bars close. It's nothing more than a giant money maker and an excuse to pay thousands of cops millions of dollars in overtime to fuck with drivers all night long when the roads are almost empty.) what did you blow? 
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Which part of the constitution does it infringe upon? Privileges & immunities, search and seizure, self-incrimination... Quoted:
Let me be clear that I don't want drunk people driving. But I also don't want my rights infringed. Is there a way we can enforce DUI laws without violating people's 5th amendment rights? Nope. So just give up just a few of your rights "for the children" - there's no way that could possibly go wrong.
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It's not an implied consent, you explicitly consented when you got the license. No different than the .gov pointing a gun at your head and demanding you sign a contract to exercise your rights. Quoted:
Its pretty simplle really, despite common belief (that the gov is perpetuating to people with no legal right to be in this country) you do not have a protected right or any right at all to drive, they have no obligation to issue you a license to begin with and can stack requirments on it. They cannot compel or in anyway force you to submit to the test without a warrant which is highly unlikely unless you are suspected of great property damage, injury, or death. You have the right to refuse them otherwise. The state reserves the ability to take back the license that you were issued for this and many other reasons. Seems atleast one of the four I've been licensed in had me read and sign a consent form, or maybe that came with the CDL. Further, in some states the DMV can hold hearings not bound by court rulings, at which you will not be allowed to testify on your behalf. For example, court dismisses case, at a seperate later hearing dmv takes license for a period of time and requires classes, SR22, etc before they will reinstate. Its this part that really pisses me off. Pretty much the same way they'll be taking everyone's guns eventually... |
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The choice between keeping your driver's license or giving evidence against yourself is hardly a free and voluntary choice without coercion. In states, like mine, where if you refuse the test they will use your refusal against you as evidence in court it is even more of a farce. DUI Officer: Would you like to lose you license (job, home, etc...) or would you like to give evidence against yourself (possibly resulting in your conviction for DUI (perhaps face the loss of job, etc...) SOL Driver: If I pointed a gun at you & demanded you sign a contract - the contract would be unenforceable. This SHOULD be no different.
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they say driving is a privilege not e right yep, you don't have a right to drive on a public roadway and endanger the lives of others by being intoxicated. In most states you sign agreeing to the implied consent. You do not have to submit to any roadside tests but then you're taking a ride. You always had the right to free travel - up until courts started allowing states to require drivers licenses & they took that right away - but nobody put a stop to it. Now you are forced to pay for roads that you may not have the privilege of using. Then NY & CA (of course) got involved with DWI laws (setting the intoxication limit at 0.15%) - then the activists got involved & started lobbying lawmakers until they lowered the numbers (which they are still trying to do - they won't be happy until the send you to jail for having over a 0.0001% BAC). Of course, that created another problem (how to enforce it) so they wrote some more unconstitutional laws taking away your 4th & 5th amendment rights by calling it "implied consent". (The fact of the matter is that you are not intoxicated at 0.08% and you are not impaired at 0.04%. If you were, then you would see flaming wrecks on the news every Friday & Saturday night because 25% of the drivers out there are over 0.08% when the bars close. It's nothing more than a giant money maker and an excuse to pay thousands of cops millions of dollars in overtime to fuck with drivers all night long when the roads are almost empty.) what did you blow?
I blew a 0.04% once at Bragg. MP said, "Do you know what this means?" I said, "Yeah, it means I'm not fuckin' drunk." He said, "No, only 2 more beers & you would be drunk." Sorry, I don't have any DWI's or DWAI's - but I have been stopped & harassed a few times. |
| The best thing about implied consent is that it continues to keep me busy with lots of clients and is paying for my kids to go to college. While these things are good for me and my practice they are not necessarily any good at all for protection of liberty in this country. IMO, the ever diminishing store of liberty that we still possess must be guarded as jealously as possible whether MAD, or PETA or Mayors Against Gun Violence like it or not . |
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Which part of the constitution does it infringe upon? You have read the Constitution past the 2nd right? Read the 9th and apply. Where did the citizens cede the right to the Government to this right? Obviously it is a state's issue and unless the people gave the state that right in their respective Constitution, it is an infringement. So show us where the people ceded the right to drive and thus it became a privileged to be granted by the government. That is how this is supposed to work. You don't seem to know that. 
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I have no sympathy for driving while intoxicated be it alcohol or any inebriating substance. Really if you cannot make it home then sleep it off - easier said than done for some people though...; however I don't drink so my opinions may be biased.
p.s., I would rather have blood drawn than undergo a breath test, but that's just me. Its got nothing to do with making it home, being a safe aware driver, reaction times, or any of the other things that MADD and the gov would like you to believe if that were the case so many DUIs would not be found from ridiculous stops such as dim license plate lights, not signaling long enough, not remaining on the brakes at an intersection, REDDI reports over a half hour old, and checkpoints. Passing the stupid human tricks would override the field breathilizer. And 90% of genuine equipment violations wouldn't strangely appear from 2200-0300 in many areas. No they'd be overwhelmingly initiated by stops for irratic driving, accidents, failure to maintain lane integrity, and other blatantly obvious signs of intoxication, but allot of people can drink to .08BAC and operate their vehicle just fine, so the police have to adapt to and find or even make up cause for a stop/contact. I'd even go so far as to say some drivers right around .08 still drive better than many stone sober people, but for some reason as long as their not grossly speeding, or not wearing their seatbelt no one gives a shit about sober bad drivers and often they get cut loose at night when its found their sober. It's revenue and/or grant money, LEOs love grant money, they're not dropping it to .05 for your protection, some if not all .08 jurisdictions will charge and sometimes prosecute even well below, like .03 because you have a balance problem, or say something stupid like "I couldn't do that sober", and if they don't prosecute they still take your license immediately, and likely impound your shit, they don't wave reinstatement or impound fees for you. Bring drugs into it and its a total mess, how does one conclusively demonstrate that a individual in currently under the influence when trace stays in the system for days, weeks, months? Ah yes the officer's checklist, hint: some (many?) don't even watch you do it, they just check the boxes. Anyone that says its not about money is an idiot, it may not be directly for the gov, though I find that difficult to accept, but there's an entire industry that's grown around DUIs and its a fuckin goldmine. |
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Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. |
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Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. I love this argument since it works so well with a city adding an implied search consent clause to a building permit. Would that be OK? Explain the difference in the two. |
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If someone is implying something, someone else is assuming it.
I'd love to hear an officer say that a suspect implied that he agreed to have his entire house searched and that he never actually gave consent. Though now that I think about it, I'm sure it would fly.  
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Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. In almost every agreement I have signed there is a section about how if one portion is illegal, that the law will preside, but that the rest of the agreement would stand. Just because its signed, doesnt make it legal. If I convince someone to sign a contract giving me full authority over their life, actions and body as I see fit, making them my slave is it legal? I my contact not binding? I thought the constitution did not apply to such agreements... |
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Quoted: Quoted: Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. I love this argument since it works so well with a city adding an implied search consent clause to a building permit. Would that be OK? Explain the difference in the two. There is no argument, I simply stated what is fact. You can "what if?" all the live long day. It doesn't change the fact that when you sign, you agree to the terms of issuance. |
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Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. I love this argument since it works so well with a city adding an implied search consent clause to a building permit. Would that be OK? Explain the difference in the two. There is no argument, I simply stated what is fact. You can "what if?" all the live long day. It doesn't change the fact that when you sign, you agree to the terms of issuance. Just because you agree to it, it doesnt make it legal. |
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Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. I love this argument since it works so well with a city adding an implied search consent clause to a building permit. Would that be OK? Explain the difference in the two. There is no argument, I simply stated what is fact. You can "what if?" all the live long day. It doesn't change the fact that when you sign, you agree to the terms of issuance. Just because you agree to it, it doesnt make it legal. agreeing to it is like telling the cop "yes you can search my car" |
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Nothing unconstitutional about it. Read the form when you apply for or renew your drivers license. Your signature on the form is an agreement to the terms of issuance. One of those terms is that you consent to the tests. Refusing to consent after the fact is a violation of the terms you originally agreed to. A violation of a contract, so to speak, but with both criminal and civil penalties. If you are unconscious or otherwise incapacitated, the fact that you have a drivers license implies that you agree to the test of blood, breath or urine. That is what implied consent means. I love this argument since it works so well with a city adding an implied search consent clause to a building permit. Would that be OK? Explain the difference in the two. There is no argument, I simply stated what is fact. You can "what if?" all the live long day. It doesn't change the fact that when you sign, you agree to the terms of issuance. Just because you agree to it, it doesnt make it legal. agreeing to it is like telling the cop "yes you can search my car" Consent to search can be rescinded at any time. What makes this different? What makes it legal? ETA why is there criminal punishment for a civil infraction? |
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Most if not all states have an "implied consent" law. Basically it says that if an officer pulls you over and suspects DUI you are required to submit to a breathalyzer, blood or urine test. If you choose to not submit to the test you lose your license for a period of time regardless of whether you are eventually convicted or not of any offense. I'm having a hard time seeing how this passes constitutional muster, can someone help me? Basically, a drivers license is an administrative function of the state, a priv the state gives a person. So it comes down to "If you don't play by our rules, we will take what we have given you." Now, one might have a counter point if in that state the Constitution of that state is so written that a drivers license is a no restriction issue item......but as that DL's are so low on the totem pole, I don't think anyone has bothered with that. Basic point: having a DL is not a constitutional right. ____________________________________________________________________________________________________________________________ ("How can you just let it ring?"--CJ "The telephone has no Constitutional right to be answered."--Justice Stone, (w,stte), "First Monday in October") |
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Basically, a drivers license is an administrative function of the state, a priv the state gives a person. So it comes down to "If you don't play by our rules, we will take what we have given you." Now, one might have a counter point if in that state the Constitution of that state is so written that a drivers license is a no restriction issue item......but as that DL's are so low on the totem pole, I don't think anyone has bothered with that. Basic point: having a DL is not a constitutional right. Not having a DL impedes your constitutional right to free travel. |