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DUI Checkpoints Redux, 2018-2019

This being a big celebratory or holiday weekend, there are going to be DUI checkpoints all around this weekend, and people need to understand that they are contra-constitutional and can be fought.  Don't allow yourself to be victimized by this "fish-in-a-barrel" assault by grant-seeking police. 

With new block grant money funding the regime from afar, people need to prepare themselves again for those pesky DUI checkpoints, because those liberty infringement devices are increasingly the rage in local law enforcement.

Checkpoints are not popular among police agencies because they are effective, because statistically they are not.  They are popular with the agencies only because they are funded by grant funds from Sacramento, that come from Washington, DC, that had been taken from us back here; it is a big, costly circle that your and my money has traveled with which to then screw over you.

We hear the state and the feds are virtually broke, but they have money to invade your liberties with this repressive regime. The grant system is one of the greatest evils in public policing, because grants are essentially a political bounty for pressing certain types of cases; the merit of the case does not matter; the filthy lucre funding its processing drives the affair.  And nowhere is the evil more manifest than in drunk driving, DUI, DWI, or whatever label.

One visiting judge was so hysterically [and irresponsibly] opposed to calling the crime “drunk driving” that he commanded that the term not be used in his court, even though the courts of appeal and supreme court calls the subject matter “drunk driving,” as does the index labeling in the state Legislature published Vehicle Code.  He required attorneys to refer to MADD in his courtroom “Mothers Against Drinking Drivers,” even though that is not their title!  Moreover, drivers who are "drinking" are not a menace, nor lawless.

MADD, the lineal descendants of the Women's Christian Temperance Union of old, which gave us Prohibition and the 18th Amendment, are furious that the 21st Amendment repealed Prohibition, but their neo-Prohibitionism is even more dangerous than its ancestor oppression.  They have, with phony statistics and threats of placard-laced demonstrations, conned or intimidated legislators, judges, DAs, and cops into increasing harshness regarding drunk driving, and so all of those agents of our nation "conceived in liberty" lose their soul in the evil bargain, because much of what is pressed is based on fraud and victimization and misrepresentation.

Now, MADD has a booth erected at some of the checkpoints to make sure their vision of government oppression to serve their religio/political agenda is carried out faithfully.  I wonder if a booth of Constitution truth-tellers would be welcome at those sites too, or if we would be arrested for “obstructing” what passes for “justice” these days?  I inquired once if I could erect such truth-spreading booth and was told by the officer supervising the evil regime that I could not – they know the arrest and convict based on lies and truth would upset their profitable applecart.

The MADD propagandists are so daunting that they have demanded, and some Courts have genuflected, that all people convicted of DUI attend a MADD class on top of the statute dictated rehabilitation classes required of all who are thus convicted.

Of course, if the Framers' will be done, civilian jurors should be protecting accusees from this sort of [and other] governmental overreaching, but jurors have increasingly surrendered their intended independence and have come to believe that their government is good, reliable, trustworthy, and to be heeded.  Yeah, idiotic as it sounds, people on juries cannot seem to see, or do not want to believe, the corruption in their very presence, and in their collective names.

Perhaps their own sense of security would be lessened if they came to understand how corrupt their government is in these things, but their lack of institutional skepticism has dangerously undermined the very foundation of our jury trial system. It is to be recalled that the independent power of juries, improperly denoted "jury nullification" now, was embraced by the Founding Fathers to be the ultimate protection of the individual against oppressive governments of all branches, executive, legislative, and judicial. In the Founders' mind the jury had the duty to disregard the law and facts and do justice!

But now, if a judge says that the jury must follow the law and cannot nullify a prosecution because of their own perceptions of the wrongfulness of what is happening to the accused, the jury thinks that the judge is speaking the truth - that the jury does not have that power.  But that "nullification' power" [about which I have written elsewhere in this blog] is to protect us against judges as well as against the executive and legislature!!!!!  What would you expect them to say.  If our enemies on the battlefield say we cannot shoot them, do we demur and put down our guns???/!  Stand up and be a real juror, or go home and watch soap operas and make way for jurors with guts!

At the same time that we see an emergence of lip service to Framers' intents, such as with the Tea Party and other superficial “originalism”-advocating groups, we inconsistently see a diminishment in faithful attention to the standards undergirding the Republic. The truth of the matter is that government makes a bundle from drunk driving, between the block grant moneys from DC, to the penalty assessments on the fines [now about 400% of the base fine, if not more, some of which goes to build and improve courtrooms to house the “neutral” judges handing out the fines!], to the various fees, to the costs of the rehabilitation programs, to the need for more DAs and judges to try the matters.

The fiscal corruption underlying DUI investigation and enforcement would make Bernie Madoff look like Mother Teresa in comparison.

“But what of the dangers of drunk driving?”  Garbage!  The system, at the insistence of the pushy harpies from MADD, have created the category of “alcohol-related [accidents, deaths, incidents, etc.]” in place of drunk-driver-caused [same],” because the incidence of those things being actually “caused” by drunk drivers is miniscule, and that truth would undermine their political agenda.  But an incident gets entered into the stats as being “alcohol-related” if a sober driver hits a drunk pedestrian; if a sober driver's drunk uncle in the back seat is thrown out when the car flips over because its tire fell off; if a drunk driver is sitting lawfully at a light and a sober driver negligently or intentionally runs into him; etc.: that category, “alcohol-related,” has nothing to do with who caused what.  Yet those “alcohol-related” stats are the ones that supply the pneumatic numbers that make everyone go nuts about drunk driving.

Drunk driver caused accidents are in single digit %-ages, which would not help the MADD harpies, nor the block grant ghouls, nor the legions of government employees and private service-providers who profit from DUI enforcement and prosecution and conviction.

So, what of checkpoints – they are legal, are they not?  Well, it all depends on what you mean by “legal.”  Do you mean have politician judges said they are okay these days, or would the Framers have tolerated them?  The Framers would not have tolerated such a suspicionless invasion of privacy.  As Justice Clarence Thomas, a student of the Constitution whose scholarship on the subject is almost as faithful and pure as mine, has opined, “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.”

But, you see, most judges, even up to and including the U.S. Supreme Court, are politicians; few are scholars, and even fewer are faithful to the founding principles. And those politician judges have decreed that a “properly” erected and run[!] checkpoint is “legal,” just as other politicians have found it beneficial to set up the scheme in the first place, just as other judges in earlier times found “separate but equal,” and preemptive imprisonment based on race, and property ownership in human beings legal and constitutional.

But even the checkpoints that have passed constitutional muster have to be properly erected and executed; "DUI checkpoints" are not per se legal; warrantless liberty infringements are still per se illegal, absent justification being carried by the government.

On one of my too brief and infrequent appearances on a television news program, the anchor closed by asserting that the Supreme Court has ruled that checkpoints are "lawful."  That is a gross overstatement; so gross in its overstating the issue as to constitute a misstatement.  A specific regime of conduct and standards must faithfully be adhered to, or they are flatly unconstitutional, as we have proven time and time again. That anchor is no longer employed - anchors away, so to speak!

Then too, the fact that judges say something is okay to serve transient political interests is no more a guarantee of correctness than would the reading of the Bible by the late Osama Bin Laden make him a Methodist.

But, again, even in the result-oriented constructs by modern political judges, the checkpoints do have to be properly erected and run, and very few are, and hence the fruits of their operations are suppressible, if attacked by a knowledgeable and experienced attorney, even under the watered down constitutional standards of the neo-Prohibitionist judges.

But beware, if/when you go through them.  First off, watch, look, and listen, and if you see one ahead, turn off; that is legal, provided you don't make an illegal u-turn or go up over a curb or something of the sort.  Don't give the constabularial ghouls the opportunity to tell you to stop, tell you to wait, tell you to go, tell you to blow into their hands, command you to answer questions, etc.  And, you see, that is part of what is going on here.

Cops like the checkpoints, whether they get any arrests out of them or not, because they then have the chance to play “we're the Man; we're in charge of your freedom” to the citizens thus stopped and inconvenienced and harassed.  This is an exemplar of police statism, not public safety.

The fact of the matter is that communities that do not receive these grant funds do not do checkpoints on their own dime, because across-the-board dragneting of that sort gives miniscule results for the efforts expended.  There might be 500-800 citizens stopped at checkpoints while going about their business, and from that will come only 1-3 DUI arrests, if that many; a recent three checkpoints stopped 2500+ cars and got 6 DUI arrests out of them.  2500 cars could translate to 2500-10,000, or more, citizens arrested in their otherwise free movements to serve this political show.  Every police chief worth his stars [and some wear five, like General of the Army Douglas MacArthur!] will confess that saturation patrols are far, far more effective in apprehending the few true drunk drivers than are checkpoints.

So, if you are coming upon a checkpoint, first try to avoid it by turning off onto a side street, in a controlled fashion.  If you get stuck in one and get approached by the police, have your license, registration, and proof of insurance information readily available, and hand them over when asked [without fumbling], and say you do not want to talk, period.  You don't have to talk; you don't have to say where you are coming from or going to or whether you have had anything to drink, nor should you, ever.  Politely decline to say anything.  You do not have to be given your Miranda rights before you are free not to talk – you are always free not to talk, and you should enjoy that war-won freedom; and the police do not need to give you your Miranda rights before what you blab unwisely about can be used against you, unless or until you are actually in custody – then they have to advise you of your right to remain silent and to an appointed lawyer.  I am advising you now: shut up and say you want an attorney.  It never, ever helps to talk to the cops.

They make money from arresting you; they make nothing from letting you go, and they will not. If they then shunt you over to the investigation line, have controlled operation of your vehicle, be polite, but answer no questions, say nothing, and do not perform any objective symptoms [field sobriety] tests – you have a right to refuse, and politely do so, on advice of counsel, this counsel!

Those “objective symptoms” tests are not “objective” anyway; they are subjectively judged by the cop administering them, and once he decides to give them to you, he has decided to arrest you, with the tests merely used to ratify his fixed decision.  If anyone tries to suggest later that you did not perform those tests because you must have felt guilty, your position always must be that you did not do them solely because a knowledgeable attorney told you they are invalid, unreliable, and a trick to make innocent people look guilty; you know they have no validity, which is the only reason why you declined to participate.  One of the field sobriety tests is the hand-held breath device.  They have to tell you of your right to refuse that test, and you always should refuse it: those junk meters are to blood alcohol percentages what tea leaf reading is to truth, and many of them can be manipulated by the operator to give false high readings.

If you are arrested, of course, you have to submit to a breath or blood test, upon demand of the officer.  Ask for blood [I used to recommend breath, and then a back-up urine test, which is your right; but Justice Alito recently manufactured, purposely and maliciously, a new constitutional doctrine making breath tests harder to attack during pretrial motions.]  Then say nothing else.

Again, anything you say to the police can and will be used against you, either in the order you said it, or in any order that helps their case.  The cops are not there to help you.  They are there to put DUI cases together and to advance their power-expanding agenda.  They make money by putting cases together; they make no money by being nice to you and letting you go, so they will not.  Ever.

Checkpoints are tyranny, DUI arrests and convictions are the product of evil maneuvers by purposeful people, and all aspects of both the stop and of the prosecution are fightable.  Do not cave in, or else evil people will thereby be emboldened to harass others.

If you get arrested, the cop will give you a pink sheet of paper, which is your temporary license: the arrest has triggered a presumptive suspension, which will activate 30 days after the arrest, if you do not call DMV within 10 days of the arrest and ask for a hearing.  Do NOT wait for the criminal case to be filed; that ten days is a hard and fast rule, so unless you are going to immediately hire counsel, make the call yourself, or a four or twelve months suspension will be triggered automatically, and solely by your failure to call within ten days of your arrest.

If you do get snagged at the checkpoint and arrested, there are things to be done, if you have the right lawyer.  Call me [760-228-0027].  Anybody who has passed the Bar exam can represent people accused of drunk driving, which is no guarantee that they are competent or knowledgeable, and most charlatans will convince you to plead guilty; few of us are skilled enough and motivated enough and gutsy enough to stand with you against the drunk driving political combine [police, DAs, judges, legislators, rehabilitationists, probation officers].

Getting the right lawyer can be costly, but not as costly, in the long run, as all of the manifold downsides of a drunk driving conviction. If you need brain surgery, submit not to a mere physical therapist just because the latter is superficially cheaper.  We are the brain surgeons in this [and other criminal] matter[s]].  [And if you needed brain surgery, you would not take an electric drill and start auguring into your own skull either - you are not competent to represent yourself in this complex area of criminal litigation.]

One troubling side note here is the recent penchant for high-profile people [actors, politicians, sports figures] to plead guilty to drunk driving, even on low BACs, on advice of "celebrity" counsel who have no knowledge of DUI law and facts, which is irresponsible and idiotic because that sends a message to motorists that the allegations cannot be fought and won, and to jurors that anyone with a BAC over .08% in government-created evidence should just fall on their sword and plead guilty.

There are all sorts of fightable issues in drunk driving, not the least of which is that a governmentally maintained and possessed breath device that reads .08% or .19%  does not mean that is an accurate BAC at any time, nor that it reflects what the BAC was at time of driving.

The biggest fight for liberty here is against the politically manufactured prejudice in the public about the subject, not against the highly suspect and manipulated and concocted evidence. 

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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