Recently, the NTSB proposed lowering the DUI BAC threshold to .05 from the current .08 number. See Mike M. Ahlers, Tougher drunk-driving threshold proposed to reduce traffic deaths, CNN on-line, May 13, 2013. It claims that this lower number will reduce deaths. No doubt. So will making guns “illegal.” So will banning swimming pools. So will banning tobacco products. So will outlawing all gas power cars and replacing them with horse-drawn carriages. The fact is that life is risk. There are many things we do that seem stupid and even life threatening to ourselves and others (consider NY Mayor Bloomberg’s attempt to ban all sugary drinks more than 16 ounces), but few of those activities are as demonized as alcohol.
Consider a few statistics…
“Not only did the number of people killed in drunk driving crashes in 2011 (9,878) drop by 2.5 percent from the number killed in 2010 (10,136), but this decline outpaced the 1.9 percent decrease in overall highway deaths.” MADD, Drunk Driving Deaths Fall Below 10,000, Dec. 10, 2012.
“From 2005-2009, there were an average of 3,533 fatal unintentional drownings (non-boating related) annually in the United States — about ten deaths per day. An additional 347 people died each year from drowning in boating-related incidents.” CDC info page on drowning deaths.
“In the United States in 2009, 205,974 people were diagnosed with lung cancer, and 158,081 people died from it. CDC has a number of programs for preventing and controlling lung cancer.” CDC Lung Cancer Deaths info page.
Only 1/3 of all traffic fatalities were caused by drunk drivers. Impaired Driving: Get the Facts, CDC.
Hence, if we really wanted to stop death we’d stop another 20,000 by banning all driving, or perhaps lower the speed limit to 20 MPH. Swimming pools are death pits, so lets save 3500 lives a year by outlawing them, too. Ban tobacco and save 200,000 lives a year. I’d dip my toe in the gun control debate, but the Second Amendment makes it clear that this issue was settled over 200 years ago. I’m willing to sacrifice lives to maintain our other freedoms.
What’s my point? Simple. From a practical standpoint, it takes approximately 3 beers consumed within 2 hours to get to the current limit of .08 BAC. See Clemson Redfern Health Center BAC info page. Hence, only 1.5 will get someone to .05. I already advise my clients who have been arrested for DUI to also not drink AT ALL if they are driving. Officers profile prior offenders, so you’ve got a target on your back once that first DUI hits you. This new proposal compels me to give the same advice to those who have never faced the nightmare of a DUI arrest and prosecution.
1.5 drinks. That’s it. It’s not a question of whether you’re impaired. You could be sober as a rock and still get a DUI if you’ve only had 1.5 drinks. This is a simple matter of Big Brother legislating alcohol out of society. Forget social drinking. Forget drinking wine at the restaurant. It’s too risky. 1.5 drinks. Forget bars staying in business. Sure, some who read this may be okay with the above outcomes, but it seems to me that our finite resources should be spent on things that are more important. Sure, 10,000 deaths is tragic, but how many more heinous crimes will go uncontested with police chasing down sober .05 BAC drivers? Shouldn’t the money to be spent on enforcing such laws be spent on eradicating cancer?
In Kansas and many other states we are facing major budget shortfalls. Here, the legislature has refused to impose prison time for repeat felony DUIs. They serve 12 months in county jails not prison. The reason is simple. If such offenders were sent to prison there would be no space left for rapists, murderers, drug dealers, etc. My informal survey of judges and prosecutors tells me that the .05 threshold would multiply the local jail problem tenfold. The state budgets for treatment and housing DUI offenders would be overwhelmed. To be frank, I think part of their objection is that they drive at the .05 level, and they know that if they aren’t drunk after consuming 1.5 drinks then neither are the people they’d be forced to prosecute and convict.
The good news is that most state legislators aren’t married to MADD like they once were. Thus, it is likely they will consider all the above points as well as a few of their own and not implement this ridiculous standard.
As Ben Franklin put it, “Those willing to sacrifice freedom for security deserve neither.” He was probably drinking a large mug of beer and smoking a pipe full of tobacco when he said it.
Who has woe? Who has sorrow?
Who has strife? Who has complaining?
Who has wounds without cause?
Who has redness of eyes?
Those who tarry long over wine;
those who go to try mixed wine.
Do not look at wine when it is red,
when it sparkles in the cup
and goes down smoothly.
In the end it bites like a serpent
and stings like an adder.
Your eyes will see strange things,
and your heart utter perverse things.
You will be like one who lies down in the midst of the sea,
like one who lies on the top of a mast.
“They struck me,” you will say, “but I was not hurt;
they beat me, but I did not feel it.
When shall I awake?
I must have another drink.”
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I’ve known some very nice people. I’ve also known some rather surly characters. Some of the nice ones were (and are) successful. Some not so successful. The same thing can be said about the surly types. Donald Trump seems really nice, and he’s also really rich. Steve Jobs, sadly, appears to have been pretty surly when he didn’t like someone’s ideas. He was also really rich. So, if wealth is what you want, you can get it being nice or surly.
But I’ve discovered something over my years as a prosecutor and defense attorney. Jurors don’t like surly. They adore nice.
This week I am in the midst of another jury-trial heavy phase of my law practice. I’ve had 10 jury trials in the last twelve months. That’s more than you’d imagine. Most lawyers are lucky (or cursed, depending on their attitudes…surly?) to be in jury trial once every three months, so this has been a remarkably litigious year for my clients and me. I had a trial two weeks ago…NOT GUILTY! And another this week…NOT GUILTY! (Both were DUI trials, by the way.) I have another coming up the middle of December (I’m prosecuting for a municipality then, so will be going for a guilty verdict!). These last two trials taught me something very valuable. As I said above, Jurors don’t like surly.
Here’s what happened. In the first trial the deputy was surly from the get go (the incident was recorded on video). I can’t share details due to attorney-client privilege, but let’s just say that nature called and the deputy put the call on hold, even though there were clear extenuating circumstances that should have compelled him to be nice and allow the defendant to avoid embarrassment. In fact, shoot forward two weeks, and that’s exactly what the nice deputy did for the other defendant. After that first trial’s NOT GUILTY verdict, the prosecutor and I talked to the jurors. They unanimously did not appreciate the attitude (meanness/surliness) of the deputy. Fortunately for the defendant, not only was he mean in the field, but he had a really cocky, know-it-all attitude on the witness stand. The defendant, on the other hand, took the stand and was very humble and nice, and talked and walked as well then as the night of his arrest. Still, it was clear that had the deputy been nicer the outcome might have been different.
I’m happy he was surly.
Now for this week’s trial. That deputy was courteous and nice to the defendant on the night of her arrest (it was recorded on video, too). There were other circumstances there that I believe compelled the jury to find her NOT GUILTY (e.g., the video showed ok though not perfect driving through a construction zone, and she wore 5-inch high heels and didn’t have coordination issues when not performing “unnatural human acts”), but the comments from the jurors were night and day compared to the previous trial. They had nothing negative to say about the latter deputy’s attitude. They did think that what he saw on the video was different than what they saw (credibility?), but didn’t focus on him being a jerk like the other trial.
They thought the first deputy was a jerk. The second was “just doing his job.”
As my grandmother put it, “you can catch more flies with honey than vinegar.” So true. Officers who are courteous and polite with defendants and jurors tend to be more persuasive during jury deliberations even though they never enter the jury room.
By the way, I’ve adopted a combative attitude with witnesses in the past. This accomplishes two things. One, it puts the witness on the defense and he will likely weasel his way around the question. Two, it makes jurors hate me, which is not good for the client. Nice is a much better examination style. Nice attorneys get more helpful answers and endear themselves to juries (or at least don’t tick them off!). Hence, “what’s good for the goose (witness) is good for the gander (attorney).” If I’d been perceived as a jerk in these trials it would have likely cancelled out the officers’ surliness and the clients might have lost.
So there it is. Average, everyday people (including engineers, teachers, counselors, salesmen) prefer nice. If they prefer nice, so should we. So let’s be nice. It’s a really good time of year to adopt such an attitude.
If you find yourself in need of representation in a domestic, criminal, traffic, estate planning, or business matter, call me at 316-262-2331. Two NOT GUILTY verdicts in a row! I’m on a roll and would love to help you, too.
Copyright © 2012 Kevin Mark Smith
In Byrd v. Kansas Dept. of Rev., No. 101,189 (October 26, 2012), the Kansas Supreme Court held that although an officer must certify that he served a defendant with the DC-27 (that’s the DUI test failure or refusal certification form), he doesn’t have to be the one who mails the form to the defendant. Hmm. This begs the question how he can certify it as served when he can’t say for certain when it was mailed. Such a nonsensical ruling compels me to reply as my daughters often do. Whatever.
Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn
GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop
Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20
CO: A pat down solely for officer safety was unreasonable
A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation
New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin
Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A
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Grassroots Alert: Vol. 19, No. 43 10/26/2012
Federal Court Wrongly Upholds Ban on Young Adults’ Handgun Purchases
The NRA is deeply disappointed in Thursday’s ruling by the Fifth Circuit U.S. Court of Appeals, which upheld the federal law that bans dealer sales of handguns to law-abiding adults between the ages of 18 and 20.
With “Supporters” Like This, What Amendment Needs Enemies?
Yesterday, in a New York Daily News commentary, Rep. Carolyn McCarthy (D-N.Y.) paraphrased President Obama’s most insincere campaign talking point with a direct quote from Brady Campaign propaganda, saying “You can support the Second Amendment” by imposing “common sense” gun control laws. In particu
Whistleblower Sues Time, Inc. Over “Fast and Furious”
We reported recently that a key “Fast and Furious” whistleblower, John Dodson had called on Fortune Magazine to retract a story on the scandal that the Department of Justice Inspector General’s report showed to be full of inaccuracies.
With Just 11 Days Until Election Day, Make Sure You’re “All In!”
In 11 days we will go to the polls in what will almost surely be the most important election of our lifetimes. We all know that a second term for President Barack Obama would threaten the rights of gun owners in numerous, far-reaching ways. In last Tuesday’s presidential debate, President Obama sa
With Election Day Looming, Gun Controllers State Their “Case”
There are only 11 days remaining before this year’s elections and gun control supporters haven’t had a novel idea since we can’t remember when, so longtime gun control advocates Dan Webster, Jon Vernick and Steve Teret of the (New York City Mayor Michael) Bloomberg School of Public Health at Johns H
CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail
A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.
N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking
Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W
SeattlePI.com: “Irate crowd greets Seattle Police drone plan”
SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo
CA2: Violation of state jurisdictional law not Fourth Amendment issue
Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec
Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”
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OH12: Informant communicating with cop during drug transaction with defendant was RS
Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio
computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”
computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your
NJ.com: “N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case”
NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi: Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devic
NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN
From NACDL: NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Mar
12-year-old girl defends herself from home invader, The Oklahoman, Oklahoma City, Okla. 10/19/12
12-year-old Kendra St. Clair was at home alone in Durant, Okla. when a man began banging on the front door. Frightened, Kendra called her mother at work, who told her to retrieve a .40-caliber pistol and to hide in the bathroom closet. Kendra complied, and after calling 911, heard the criminal break
NRA vs. Bloomberg
The National Rifle Association (NRA) has been saying for the past two years that President Obama would ban guns if given a second term. Mr. Obama had been careful to pretend otherwise until last week’s debate, when he let slip his intention to ban certain types of firearms. That has sparked a renewe
Lawmakers demand update on ‘Fast And Furious’ personnel
Two Republican lawmakers investigating the botched gun trafficking operation known as Fast and Furious say they aren’t finished yet.In a letter obtained by NPR, Sen. Charles Grassley, R Iowa, and Rep. Darrell Issa, R Calif., are demanding an update on personnel actions taken by the Bureau of Alc
Canada: National gun owner database lives on despite registry repeal, angering some
Seven months after the federal long gun registry was repealed in every province but Quebec, a small but vocal faction of gun owners is feeling deeply betrayed by the Conservative government.A registry of gun owners — if not their specific weapons — remains in force under federal licensing provisio
Private arms in Vietnam
With robbers increasingly resorting to violence, city residents with no confidence in the police are arming themselves in self defense.
CA11: Handcuffing on the ground at gunpoint not necessarily an arrest
Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 2012 U.S. App. LEXIS 21995 (10th Cir. October 22, 2012): By contrast, the officers in this case acted rea
GA: Evading DUI roadblock with abrupt movement RS
Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 2012 Ga. App. LEXIS 856 (October 18, 2012).* Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that inves
E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith
Pre-Jones GPS was not suppressed because of the officers’ good faith. United States v. Robinson, 2012 U.S. Dist. LEXIS 151257 (E.D. Mo. May 24, 2012): In light of the Supreme Court’s opinions in Knotts and Karo, as interpreted and applied by the Ninth Circuit in Pineda-Moreno, the Seventh Circuit i
Reason.com: “Little-Known Device Raises Big Fourth Amendment Implications”
Reason.com: Little-Known Device Raises Big Fourth Amendment Implications: On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As t
IN: Leaving turn signal on alone not evidence of impairment
Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).* Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 486
Time to Read Ayn Rand? [PJMedia.com]
If you want to understand the ideas of one of today’s most important thinkers—and enjoy a moving literary experience—there’s no better time to read Atlas Shrugged than right now. This essay was published at PJMedia.com. Read it here.
Halbrook: Louisianans’ right to bear arms needs more protection
Amendment 2 will strengthen the Louisiana Constitution to ensure that such abuses never recur. It states: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” The courts say the existing guaran
Oklahoma gun owners looking forward to new carry rules
Senate Bill 1733, signed by Gov. Mary Fallin on May 15, amends the Oklahoma Self Defense Act to allow the open carrying of a firearm with a license and a few restrictions. After the bill goes into effect on Nov. 1, the more than 140,000 Oklahomans with a handgun license will no longer be required to
Philadelphia: City published personal information of some gun owners
Lawrence isn’t a violent felon or a stickup artist with a lengthy rap sheet. He’s not a drug dealer holding down the corner with a Glock tucked in his waistband, or a straw purchaser selling guns to street thugs.He’s a Philadelphia church pastor and a robbery victim who routinely carries large sums
Cal.6: Defendant’s detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later
Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the descr
NC: No answer at front door knock and talk doesn’t justify going to back door
Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2
VI: Unlawful arrest doesn’t deprive court of jurisdiction to try the case
Defendant’s stop was valid but arrest for a misdemeanor that didn’t happen in the presence of the officer was invalid, but that does not require suppression of the observations he was under the influence nor prevent the prosecution. People v. Norton, 2012 V.I. LEXIS 49 (Super. Ct. October 15, 2012).
E.D.Pa.: PC as to car overcomes Gant
Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).* Substantially corroborated information from a citizen informant provided probable
CA11: No standing in another person’s drug house
Defendant’s asserted standing in the house searched was because he had drug money in the safe. It was somebody else’s place used for cocaine production. This was governed by Carter. United States v. Rivera-Pabon, 2012 U.S. App. LEXIS 21725 (11th Cir. October 18, 2012).* Defendant was stopped for a
NE: Defendant’s succeeds in showing IAC on failure to move to suppress
Defendant succeeds in showing that the justification for the traffic stop, a cracked windshield, did not support it. A mere cracked windshield is not a traffic offense because the driver’s view is not obstructed. Also, it did not indicate that the vehicle had been involved in an accident. Therefore,
LATimes: Manson follower lawyer-client recordings from 1969 subject of search warrant or court order now stayed
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CA4: Officers had reasonable cause to believe defendant at home for entry under Payton
Officers had reasonable cause under Payton to believe that defendant was hiding in his own house. The SWAT team showed up for a misdemeanor arrest because of defendant’s 100 prior arrests and numerous convictions for violent crime. After a lot of looking, he was found hiding in a return air duct und
D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession
There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012): Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment rig
E.D.Mo.: Gang officers can conduct a traffic stop; pretext argument fails
The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25,
S.D.Fla.: Lesson about specificity motions to suppress; inspecific motion held against defendant’s credibility on the search
The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain): Jimenez admitted at the hearing that he assented to Veloz’s request
S.D.Ill.: Threat to get a warrant was not spurious, so consent valid
Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).* Courts s
CA2: Rare federal habeas win on Fourth Amendment
The state court’s upholding a lineup as not a product of a Fourth Amendment violation was found to be an unreasonable application of Supreme Court precedent justifying habeas relief. The case cites and credits a wealth of material about the vagaries of eyewitness identification. Young v. Conway, 201
Grassroots Alert: Vol. 19, No. 42 10/19/2012
Louisiana Governor Bobby Jindal Endorses “Yes on 2″!
Louisiana Governor Bobby Jindal stands with the National Rifle Association and expresses his support for Amendment 2 to the Louisiana Constitution to protect the gun rights of Louisiana citizens. Read his reasons for strengthening protections to your fundamental Right to Keep and Bear Arms in this
Outrage of the Week: UK Retailer Caves to Anti-Hunting Extremists
In late August, the radical UK-based animal rights group, Animal Aid, launched a campaign to force British bookstores and newsstands to relegate hunting and shooting publications to the top shelf of magazine racks and prohibit their sale to anyone under the age of 18. In a press release, Animal Aid
2012 Firearms Law Symposium a Great Success
The 2012 “Firearms Law & The Second Amendment Symposium” was held on Saturday, October 13, 2012, in Philadelphia, PA. Sponsored by The NRA Foundation, the annual symposium focused on recent developments in our nation’s courts regarding the Second Amendment, as well as topics that c
Pennsylvania: Legislature Fails to Act on Important Firearms Preemption Legislation
Despite the fact that nearly fifty local governments have enacted illegal gun control ordinances in violation of the current state firearms preemption law, the Pennsylvania Legislature failed to act on important reform legislation that would have addressed this problem.
Wisconsin: Join NRA and other pro-freedom groups for food and fellowship in Green Bay
Join NRA and other pro-freedom groups for food and fellowship in Green Bay, as we make calls and organize our efforts to support pro-gun candidates.
The Biggest Threat in an Obama Second Term
There are many ways a second term for President Barack Obama threatens the rights of gun owners. He wants to bring back the 1994 semi-auto ban; his administration has already imposed an illegal registration scheme on certain rifle sales; and there is no way to know how far he would go to use his ex
Obama Calls for Gun Bans, But “Nanny B” Wants More
In Tuesday’s presidential debate, President Obama said that he supported a ban on “assault weapons” and implied that he supports restrictions on “cheap handguns” too. No surprises there. As detailed on www.GunBanObama.com and www.GunBanFacts.com, Obama supported banning both types of firearms and m
22-year-old woman defends herself against armed home invaders, NBC DFW, Dallas, Texas 10/18/12
A 22-year-old woman was at home alone in Dallas, Texas when a pair of home invaders, at least one of whom was armed, kicked in the front door. After retrieving a gun, the woman spotted the criminals as they were headed to the second floor of the house. The woman opened fire on the home invaders, str
NRA’s new offensive against Obama
Chris Cox on CNN discussing the danger Barack Obama poses to Second Amendment rights.
Louisiana: Gov. Jindal on gun rights
This November, I am proud to join the National Rifle Association in support of Amendment 2 to the Louisiana Constitution to protect the gun rights of law abiding citizens, let me tell you why.
New Mexico parks consider respecting Right-to-Carry
The state is considering allowing people who have a license to carry concealed guns to bring their weapons into New Mexico state parks.
Right-to-Carry permit holders speak out at CU-Boulder gun forum
A University of Colorado discussion about guns on campus changed course Wednesday as at least a half dozen people in the audience identified themselves as students with concealed weapon permits and defended their right to bring firearms to school.
Alabama: Legislators file bills to allow employees firearms in vehicles
Legislation has been pre filed in the Alabama House and Senate that would prevent employers and property owners from establishing policies that would prevent workers from transporting and storing firearms and ammunition in their vehicles.
Chicago’s Cook County wants tax on bullets to pay for healthcare
If approved by the Cook county commission, the nation’s third most populous county could be the first major metropolitan area in the nation to impose a tax as a form of gun control.
New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning”
New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning” by Christopher Rutledge Jones, 63 S.C. L.Rev. 925 (2012): MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows a user to perform mobil
ATTENTION New Mexico Concealed Handgun Licensees: Update on Important Rule Change Allowing Concealed Carry in State Parks
Yesterday, the State Parks Division of the New Mexico Energy, Minerals and Natural Resources Department held a public hearing to accept input on proposed amendments to Section 18.104.22.168 of the New Mexico Administrative Code, which includes a removal of the current ban on concealed handgun licensees
Illinois: Proposed Cook County Budget Will Penalize Gun Owners By More Than Doubling The Cost Of Ammunition
Today, Cook County Board President Toni Preckwinkle announced a 2013 budget plan that will penalize, through taxation, all purchases of firearms and ammunition in Cook County. If adopted, this proposal would impose a tax of a nickel per bullet and $25 for each firearm purchased, ultimately amountin
CA6: Violation of state S&S law irrelevant to Fourth Amendment analysis
Any failure of state officials to comply with state search and seizure of arrest law is meaningless in federal court under the Fourth Amendment. Here, Tennessee law required an original and two copies. One was missing. United States v. Beals, 2012 U.S. App. LEXIS 21389, 2012 FED App. 0360P (6th Cir.
HI follows minority rule on inevitable discovery
Hawai’i reaffirms it follows the minority view of inevitable discovery and concludes that an unlawful search incident could not be justified as inevitable discovery of a coming jail inventory search of the person because it was speculative that the contraband would have been found then. State v. Rod
E.D.La. avoids PC on CSLI warrant, deciding only GFE applies
Without determining the merits of probable cause for cell site location information, the court applies the good faith exception alone. United States v. Hardrick, 2012 U.S. Dist. LEXIS 147940 (E.D. La. October 15, 2012): Because this Court holds that the good-faith exception to the exclusionary rule
Stand Your Ground Task Force Hears From Second Amendment Leaders in Jacksonville, FL
Yesterday, the Governor’s Task Force on Citizen Safety and Protection, commonly called the “Stand Your Ground Task Force” met for presentations by Second Amendment Organizations: National Rifle Association, Unified Sportsmen of Florida and Florida Carry, Inc. In the previous Task Force meetings, pr
Vietnam vet detains home invader, WITI Milwaukee, Wis., 10/16/12
After going to bed early, a homeowner in Kenosha County, Wis. was awakened around 8:30 p.m. by a suspicious noise. The homeowner retrieved a .22-caliber pistol, went to investigate and found a burglar in his basement. The homeowner shouted to the home invader, “I got a weapon. It’s loaded. I’m prepa
NRA sharpens political attack on Obama
The NRA, which endorsed Republican presidential nominee Mitt Romney earlier this month, has been very vocal about trying to defeat Obama in November.”Some gun owners took Obama at his word four years ago, when he said he wouldn’t take their guns away,” said Chris W. Cox, executive director, NRA’s In
NRA seizes on Obama’s support for gun ban
The National Rifle Association, jumping on President Obama’s new and firm support for a Clinton style assault weapons ban, is stepping up its attack on the president in Ohio, Virginia, Florida and Wisconsin with a new “we told you so” theme.
Obama’s big gun slip
President Obama is in a fix over firearms. He needs to win undecided voters in the swing states to be re elected, but these areas are largely pro gun. So after years of trying to dodge the issue, Mr. Obama let it slip in Tuesday’s presidential debate that he’d push a gun ban in a second term. It’s a
Obama comment stirs up gun-ban opponents
The National Rifle Association is using President Obama’s favorable reference to the assault weapons ban as a pro Mitt Romney rallying cry to gun owners in swing states.During Tuesday night‘s second presidential debate at Hofstra University in Hempstead, N.Y., the president “gave law abiding hunters
Chicago official proposes bullet tax
Cook County Board President Toni Preckwinkle will submit a budget proposal Thursday that calls for a tax of a nickel for each bullet and $25 for each firearm sold in the nation’s second largest county, which encompasses Chicago.
Louisiana could strengthen gun rights
Louisiana would have the strongest gun rights law in the United States if proposed constitutional amendment No. 2 wins voter approval Nov. 6.“The right to keep and bear arms is a fundamental right. It deserves the highest protection of law,” said state Sen. Neil Riser, R-Columbia, proposition sponso
Business Insider: “Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy”
Business Insider: Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy by Michael Kelley: On Oct. 31, the U.S. Supreme Court will hear two cases from Florida about drug-sniffing dogs that will either affirm or weaken the constitutional privacy rights of Americans. Rulings f
NYTimes.com: “First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy”
NYTimes.com: First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy by Joseph Goldstein: Charles E. Bradley stood outside his fiancée’s fifth-floor apartment at about 5 p.m., the agreed-upon time, and began drumming on the door, he testified Tuesday, re-creating the sound in
The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age
The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age by Min Choi: In the old days – and even now, as Occupy Wall Street exemplifies – people took to the streets to protest. But as technology evolved, new forms of demonstrations appeared. One such form is hacking t
Wayne LaPierre: Obama will go after guns if he wins
NRA Executive Vice President Wayne LaPierre appeared on Fox Business’ Varney & Co. to warn American gun owners of the threat a second term for Obama poses to the Second Amendment.
Obama would seek to revive semi-auto ban
Democratic President Barack Obama and Republican presidential candidate Mitt Romney engaged in a rare tussle over gun control on Tuesday, and Obama opened the door to pushing for a ban on assault weapons if he wins a second term.
Ex-justice urges next Congress and president to restrict the Second Amendment
Former Supreme Court Justice John Paul Stevens demonstrated the importance of America’s upcoming presidential choice as he spoke Monday to the Brady Campaign to Prevent Gun Violence. Justice Stevens told the assembled gun grabbers of the urgent need for Congress to adopt laws restricting the right t
Issa statement on DOJ’s assertion that Court does not have jurisdiction in ‘Fast and Furious’ legal action
Today, Oversight and Government Reform Committee Chairman Darrell Issa issued the following statement on the Justice Department’s request for dismissal of legal action requiring the production of subpoenaed documents related to Operation Fast and Furious.
Florida: Gun rights advocates testify before task force
Former National Rifle Association president Marion Hammer told the task force that there is no need to change the law. But she said recommendations were needed to make sure the law is applied and interpreted consistently.”The law codified the right to self defense that most people believe are in pla
UK: No shooting magazines for sale to under-14s
Country sports enthusiasts are furious at a decision by Britain’s biggest newsagent to ban children from buying shooting magazines after a campaign by animal rights activists.
E.D.Mo.: Wiretap provided RS for continuing stop
Officers had reasonable suspicion for defendant’s stop and continuing it based on wiretap information well before the stop. His consent thereafter was voluntary. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).* Defendant’s Franks challenge fails–there were two o
OH2 reverses three
Officers did a knock-and-talk at defendant’s girlfriend’s house where defendant was spending the night. The trial court erred in holding the defendant lacked standing as an overnight guest, and the case is remanded for reconsideration of the motion to suppress. State v. Winston, 2012 Ohio 4743, 2012
M.D.La.: Consent to search of driver doesn’t extend to passenger’s luggage
Defendant was in a car with another that was stopped by the police, and the driver gave consent to search. The driver’s consent did not apply to separate luggage in the car that belonged to the passenger, and the officer told defendant that the driver consented so he was searching. The passenger’s s
E.D.Mo. declines to follow majority rule: No Davis good faith for GPS
Disagreeing with the majority of cases and following the minority view, the Davis good faith exception is not applied to pre-Jones GPS use. United States v. Robinson, 2012 U.S. Dist. LEXIS 147793 (E.D. Mo. October 15, 2012): But I do not read Davis that broadly, and do not agree that the Davis good
D.Neb.: No right to be arrested at the earliest possible time
Defendant has no right to be arrested only at the earliest possible time. Officers can watch and let the situation develop to see what else happens. United States v. Davis, 2012 U.S. Dist. LEXIS 145849 (D. Neb. September 21, 2012)*: Law enforcement officers had informant information indicating the
Michigan Legislature Returns Tomorrow for One-Day Session and Continues to Delay Vote on Pro-Gun Bills
As previously reported here by the NRA-ILA, the Michigan State Police is still trying to defeat House Bill 5225, legislation that would eliminate the state handgun “permit-to-purchase” and registration requirements in Michigan. This important legislation is currently pending consideration by the st
Colorado: CU Leadership Meeting About Your Gun Rights Tomorrow!
University of Colorado at Boulder (CU) officials will be meeting for a second time to discuss how the state Supreme Court ruling in March will apply to on-campus policies. The Supreme Court clearly and decisively ruled that the University’s gun ban was in violation of the Colorado concealed carry la
70-year-old woman scares off home invader, The Register-Herald, Beckley, W.V. 10/12/12
A 70-year-old woman was asleep in her Fayette County, W.V. home, when she was awakened by her burglar alarm. After arming herself with a .38-caliber revolver, the woman went to investigate. When she found the burglar, the criminal punched her in the face. The woman responded by firing at the home in
S.D.Ga. adopts Fourth Amendment de minimus standard
Extending a stop by a minute for other questions was not a Fourth Amendment violation (adopting the de minimus standard, without calling it that). United States v. Burrows, 2012 U.S. Dist. LEXIS 146695 (S.D. Ga. October 11, 2012). A brief handcuffing during a stop just for the frisk and then unhand
D.Nev.: No standing to challenge GPS on car
Defendant did not own or was driving the vehicle on which the GPS device was placed, so he lacked standing to challenge the GPS placement. United States v. Smith, 2012 U.S. Dist. LEXIS 147866 (D. Nev. July 24, 2012). Defendant’s house was subjected to a search warrant for multiple burglaries, and a
GA: Thermal imaging is not a proper basis for a search warrant under state law, but PC otherwise exists
A thermal imaging warrant violated Georgia state law because search warrants can only be for “tangible evidence.” There was, however, plenty of probable cause for a search of the house based on everything else known before that, so the search would not be suppressed. Brundige v. State, S11G1821 (Ga.
CU-Boulder to host second campus forum on Right-to-Carry
Top University of Colorado leaders will hold a town hall meeting Wednesday afternoon to hear concerns from faculty, staff and students in light of a Colorado Supreme Court ruling that struck down the school’s gun ban.The event will be from noon to 1 p.m. Wednesday in the Aspen Rooms in the Universit
Mississippi: DeSoto supervisors refine firearms ordinance
DeSoto County supervisors Monday continued to refine a proposed firearms ordinance governing a new recreational parks and greenway system, and the board continued a public hearing on the proposal to Nov. 19.
Justice Dept. seeks dismissal of House suit seeking documents on Operation Fast & Furious
The Justice Department on Monday night sought dismissal of a lawsuit by a Republican led House committee demanding that Attorney General Eric Holder produce records about the botched law enforcement probe of gun trafficking called Operation Fast and Furious.
Virginia: Franklin County Board of Supervisors to Consider Repeal of Restrictive Gun Ordinance
Tomorrow, October 16 at 6:00 pm., the Franklin County Board of Supervisors will hold a public hearing to consider the repeal of an ordinance banning firearms at music and entertainment festivals in the county.
Starting July 1, 2012, Kansas DUI law took a dramatic turn for the worse. Benjamin Franklin said “Those willing to sacrifice freedom for security deserve neither.” The most heinous change in the law compels me to modify this somewhat. “Those willing to sacrifice unalienable rights for safety deserve neither.”
So what is the change that has me so incensed? First, consider what the DUI statutes prohibited before. See K.S.A. 8-1567. If you drove a motor vehicle when your blood/breath alcohol content was over, .08, you were guilty of a DUI. If you drove while under the influence of alcohol and/or drugs to the degree that you were incapable of safely operating a motor vehicle, you were guilty of DUI. The latter were for those under the influence of drugs or where a blood/breath alcohol test was unavailable or perhaps taken too long after the person drove the vehicle.
These laws make sense. They don’t require a person to waive their constitutional rights to prosecute. You could be deathly silent throughout the investigation, but as long as the officer can testify as to how bad your driving was, or how loopy you were acting, as well as other indicators being present such as odor of alcohol, bloodshot eyes, slurred speech, bad coordination, etc., you could be prosecuted. The State would have to prove “beyond a reasonable doubt” that you committed the crime.
Now all the prosecutor needs is “probable cause” to believe you were under the influence of alcohol, which is a much lower standard than “beyond a reasonable doubt,” and that you merely refused to take a breath/blood test. See Senate Bill 60, signed by Governor Brownback June 2012. Without the test, the refusal is enough to prosecute. As far as PC is concerned, it’s a very low burden. One person might find PC present merely based on a smell of alcohol and perhaps coordination issues that are related to the person’s unique health condition, such as muscular dystrophy. Another not even that much, a smell alone with a little weaving. Hence, it’s almost a non-issue. If the officer says he thought alcohol might be involved, the prosecutor will get past this small hurdle. If a person refuses, BAM, a strict liability offense without any intent element at all.
There are two amendments to the United States Constitution that apply.
The 6th Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The 5th Amendment provides that no person may be “compelled in any criminal case to be a witness against himself.”
This new law makes it a crime to withhold evidence that requires a warrant to obtain. See, e.g., State v. Jones, 279 Kan. 71, 106 P. 3d 1 (2005) (holding that breath test is invasive search that requires probable cause to obtain). Hence, if you demand that the police obtain a warrant, they can move on, charge you with a pseudo-DUI, and use your refusal as strict liability proof that you were driving under the influence…all because you exercised your constitutional rights to (1) demand a warrant, and (2) not incriminate yourself.
Want to guess why this legislation was pushed through? Judges didn’t like being awoken at night to sign off on search warrants to force blood tests of DUI suspects. Thus, to keep from inconveniencing judges we can now be prosecuted for exercising our unalienable rights. Maybe this will get overturned on appeal…BY JUDGES WHO DON’T LIKE GETTING AWOKEN AT NIGHT TO SIGN SEARCH WARRANTS. Hmmm.
In State v. Reese, No. 106,703 (Kan. App. August 10. 2012), the court considered retroactivity of a statutory change in the look-back period for DUIs. For background, before July 1, 2011, there was an unlimited look back for prior DUIs. This was important since a person who had lived as a saint for the previous 20 years before messing up and picking up a new DUI would still face a third or more lifetime FELONY DUI even if the previous two were twenty, thirty, or however long ago. This changed last year when the legislature amended K.S.A. 8-1567 to a ten-year look-back.
You might think that a court decision more than a year after the change might be mostly moot. However, we have a five-year statute of limitations in Kansas, so it’s not so moot with busy or backed up District and County Attorneys.
Anyway, In Reese the Appellate Court considered whether the ten-year look-back had to be applied retroactively. In other words, must the courts apply this substantive change in the laws to arrests that occurred BEFORE the ten-year look-back was implemented? Sadly, the court said no. “The fundamental rule regarding retroactivity of statutory changes is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.” Ibid. at Syl. 2. Since the statute does not say that it is retroactive, it only applies to crimes committed after its implementation, or July 1, 2011.
Of course, when it comes to DUIs, the best defense is a good offense. Put another way, don’t drink any alcohol whatsoever and drive!
It passed. It’s now a DUI-equivalent crime just to refuse the breath or blood test. Don’t refuse on your second or more DUI any more. Also, don’t drink and drive AT ALL. See this article.