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Preview of Drunk "Driving is a Political Crime"

I am working on an update of previous presentations about the clear fact that drunk driving is a political crime, and I am writing here and in this way merely to whet your appetites for what's to come in the next couple of weeks.

There are those who have been providing services of representing people on drunk driving accusations who have no appreciation for the fact that drunk driving is a political crime.  I have previously cataloged the drunk driving exceptions to the Constitution, and to various evidentiary and statutory and customary norms, many times, but people just don't get it [or maybe don't want to get it].

If an area of prosecution sees a wide-spread, and widely accepted and enforced, standard of pro-power detours around legal norms designed to protect individuals, that is a political crime. In drunk driving, we see extravagant exceptions to 4th, 5th, 8th Amendment, and due process standards, which seem to grow more extravagant as time goes by.

We see the executive pressing the envelope of liberty protections and  judges enabling that envelope-pressing so dramatically that one thinks the exceptions must be written into the Constitution somewhere.  It is not.

We see evidence foundation issues, especially scientific foundation matters, appallingly disregarded by the Courts, which increasingly allow pseudoscience, indeed voodoo science, to be admitted at trial against the accused so blatantly that one comes to think that centuries-old evidence admissibility rules no longer exist.

We see legislators falling all over themselves to enact increasingly rigid and ruthless and constituent-fooling measures against those accused of, and convicted of, drunk driving that it almost makes one suspect that no one in the hallowed halls of the legislature realizes that the 21st Amendment repealed the 18th.

We see legislated reactionary restrictions on judicial discretion regarding sentencing not seen in any other area of misdemeanor law.  If you intentionally hit someone in the head with your fist after having been convicted of such twice before, you can be sentenced to summary probation and a minimal fine.  If you are found guilty of driving with .08% BAC, without endangering or hitting anyone, after having been similarly convicted for a similarly uninjurious driving offense, a judge must give you a minimum of 120 days in jail plus other harsh penalties [some of which are not considered penalties, even though they sound like it, look like it, act like it, and hobble you like it].

We see cops pretending that they "have to" arrest you and throw you in jail if evidence supports a DUI arrest, even though that is legally false, and that they "have to" hold you until you sober up [even though that is constitutionally illegal, if you have been cite-released, as most misdemeanor arrestees are].

We see judges scolding defendants for their danger to the community even if they are acquitted or cut loose because of an illegal arrest, while never scolding the cops for the illegality of the arrest or for the wrongfulness of their drunk driving claims.

We see the system genuflecting to the demands of the self-regarding propagandists and lobbyists in DUI [MADD, and SADD, and other religio/moralistic pressure groups of the such] far, far more than in any other area of criminal law, and some judges are incredibly giving those found guilty of drunk driving a term of probation that requires them to attend a propaganda class by MADD, whose close-to-illicit political pressure came to rest on the defendant and stripped him of his liberty in the first place.

Richard Erwin, the late and respected Pubic Defender of Ventura County and the pro-liberty guru who sounded the clarion call to wake people up to the politics of drunk driving prosecutions, once famously and insightfully commented that there is “no danger of a fair trial in a drunk driving case.”  That was over 30 years ago, and things have gotten worse rather than better for those accused of drunk driving.

Even thought federalism dictates that regular criminal code conduct is to be decided by the states, state-by-state, the federal government has taken over much of the standards for drunk driving and it decrees certain requirements regarding drunk driving, on the threat of withholding state highway funds. If you or I made such demands on our neighbor, we would be guilty of extortion; if the national government does the same thing to the state governments, it is labeled "public safety."

Make no mistake about it - drunk driving is a political crime, and we shall spell that out with more particularity at a later time.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987

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