June 21, 2024
Supreme Court Has The Opportunity To Declare That Driving A Right Not Merely A Privilege
By Andrew T. Geisler
Supreme Court 800x450 1
One of our Law Clerks, Brandon Hellwig, from our Syracuse office, looks into a some current Fourth Amendment cases heading up in the Supreme Court.

This article is a follow up to the analysis of the current Fourth Amendment cases: Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi, which are currently pending before the United States Supreme Court. The immediate issue presented in these cases involves the constitutionality of laws that make it a crime to refuse a warrantless test of one’s breath or blood aimed at determining blood alcohol content. However these cases present another issue, one lurking in the shadows of the jurisprudence contained in both sides’ arguments. That issue is whether or not driving is a fundamental right.

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution, or have been found under Due Process. Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional. Strict scrutiny means that the law infringing on a fundamental right is “necessary to achieve a compelling governmental interest”. Examples of fundamental rights not specifically listed in the Constitution include the right to marry, the right to privacy, and most importantly for this discussion, the right to interstate travel.[1]

Although the Supreme Court has found that the right to interstate travel is a fundamental right, it has not gone so far as to say that driving it’s self is a fundamental right. This has meant that States have been largely unfettered in their ability to enact legislation that restricts, regulates, and revokes citizens’ ability to drive. This could soon change.

The Opportunity
The drivers in the cases Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi are arguing that states cannot charge an individual with a crime for refusing a blood or breath test that was conducted without a warrant. They essentially state that this action constitutes an unreasonable search, because it is severely intrusive, does not fall within any of the exceptions to the Fourth Amendment warrant requirement, and cannot be justified as reasonable given the fact that there is nothing stopping the government from simply obtaining warrants for these tests.

The States, specifically North Dakota and Minnesota have offered multiple rationales justifying their laws. The States argue: a blood or breath test for the presence of alcohol falls within the warrant exception of “search incident to arrest”; or in the alternative that the breath and blood tests are not actually searches; and lastly, that these blood and breath tests, if indeed are searches, are not unreasonable, and thus not covered by the Fourth Amendment. All of these rationales are premised on the fact that the ability to drive a vehicle is not a right, but a privilege, and is therefore not subject to the full protections of the Constitution.

Therefore, the Court has two options in approaching these cases. It can rule on each argument individually resulting in piece-meal precedent, which would ultimately lead to further challenges, or it can once and for all declare that in today’s society driving is a fundamental right. It seems logical to classify the right to drive as a fundamental right for a number of reasons. In many rural states such as Minnesota and North Dakota being able to drive is essential in order to get to work, school, the grocery store, and medical appointments because of the lack of public transportation. Our society is fast moving due in large part to the innovation of the automobile, it follows then that every person has an inherent right to be able to drive an automobile, free from arbitrary interference on the part of the government.

If the court declares that driving is a fundamental right, then all the States’ arguments essentially fail. This is because of the fact that a fundamental right is afforded more protection than a privilege, what driving is currently classified as. Thus, the government would need to show that it has a compelling interest in conducting breath and blood tests on drivers, in doing so without a warrant, and in charging those who refuse with a crime. Public safety on the roadways (the interest the governments of North Dakota and Minnesota are offering currently) will likely suffice as a compelling interest to be able to conduct the breath and blood tests, but will certainly not suffice as justification for doing the tests without a warrant, and will not suffice for charging those individuals who refuse with a crime. There is nothing stopping the government from getting warrants for these tests, furthermore, warrants serve as a safeguard because they are issued by a judge. The judge, when issuing a warrant ensures that probable cause exists and that the action sought by police is sufficiently tailored and not over-broad. This type of safeguard is essential when dealing with a fundamental right. Lastly, it is doubtful that the Supreme Court would uphold a law, which charges someone with a crime, for failing to give a breath or blood sample, when the purpose of that sample is to otherwise deprive them of the fundamental right to drive. Holding otherwise would be to punish citizens for not willingly helping the government deprive them of a fundamental right.

What Would Happen In New York If Driving Was A Fundamental Right
Unlike Minnesota and North Dakota, in New York, when a driver refuses a breath or blood test, they are not charged with a crime. But, upon refusal, a driver’s license is immediately suspended pending a hearing. If the arrest and stop of the vehicle were proper, then the hearing judge need only determine by a preponderance of the evidence that the driver actually refused. Preponderance of the evidence is the lowest standard of proof that exists in our judicial system. Furthermore, the normal rules of evidence do not apply at these refusal hearings, meaning the judge is free to admit or deny whatever evidence they choose. The low standards associated with these types of hearings make it extremely easy for judges to find a refusal. Once a valid refusal is found, a driver’s license is revoked for one year.

Should driving be found to be a fundamental right however, the nature of these hearings and the penalties associated with refusing a chemical test would change. It is certain that if driving were a fundamental right, any hearing held in regard to a test refusal would need to conform to the normal rules of evidence, and would be governed by a higher standard of proof such as clear and convincing evidence or beyond a reasonable doubt. Criminal trials, which can result in a deprivation of life, liberty, and freedom, are held to the standard of beyond a reasonable doubt.

It is also a possibility that if driving were classified as a fundamental right, that refusing a blood or breath test would result in no penalties at all, depending on how the Supreme Court chose to treat the right. The Court could conceivably hold that, refusing to give the government evidence against you, which will be used to infringe or take away a fundamental right, cannot be punished. Ultimately this would be the best result, and would best reflect the values set forth in the Constitution of New York and the United States.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for DWI Team DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.
https://dwiteam.com/supreme-co....urt-opportunity-decl

Constitutional on how to set-up State Assemblies & Grand Jury Class, Every Sunday @:

20 PM MST
10 PM PST
30 PM CST
40 PM EST
50 PM AST
(Canada)
5:30 PM NST
(Canada)

This is going to be an ongoing class every Sunday at the same time.

The class will help you understand the Constitution, so you can apply it to your daily life and reclaim (revendicate) the promise of the Declaration of Independence (without ambiguities) to assure liberty and justice.

The Author of the brand new just released book, “They be Pirates Matey!”will be leading the class. The book was originally written to be the manual for Constitutional Sheriffs on how to do their job. It has since expanded into an understanding of the Constitution guidebook.

https://our4thbranch.org/they-be-pirates-matey/

Some of the topics that will be covered include:

The Declaration of Independence that we are endowed by our Creator with certain
“unalienable Rights”, (un-alien-able rights) among these are “Life, Liberty,
and the pursuit of Happiness”

Primary functions of government; securing, protecting, and defending our unalienable rights, ensuring “do no harm”, being lawful and ensuring justice.

Our existing government is not aligned with the intentions of freedom, equality, and justice established by the founders of the U.S.A.

The first paragraph of the 1776 Declaration of Independence provides us with a remedy. https://www.archives.gov/found....ing-docs/declaration

Telegram Group:

https://t.me/stateassemblies

State Assemblies is inviting you to a scheduled Zoom meeting.

Every Sunday at 20 PM MST

Join Zoom Meeting

https://us04web.zoom.us/j/8939....493212?pwd=O1rHD6QcM

Meeting ID: 893 949 3212
Passcode: 123456
One tap mobile
+13126266799,,8939493212#,,,,*123456# US (Chicago)
+16465588656,,8939493212#,,,,*123456# US (New York)

Dial by your location
+1 312 626 6799 US (Chicago)
+1 646 558 8656 US (New York)
+1 301 715 8592 US (Washington DC)
+1 346 248 7799 US (Houston)
+1 720 707 2699 US (Denver)
+1 253 215 8782 US (Tacoma)
Meeting ID: 893 949 3212
Passcode: 123456
Find your local number: https://us04web.zoom.us/u/foYB7kyQ5

This is NOT an opinion.

This was the ruling of The United States Supreme Court shortly after the “civil war” in Ex parte Milligan, 71 U.S. 2 (1866) which yet stands to this day: “ Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution in case of emergency....

” Section 98 therefore, ANYONE who declares the suspension of constitutionally guaranteed rights (to freely travel, peacefully assemble, earn a living, freely worship, etc.) and or attempts to enforce such suspension within 50 independent, sovereign, continental United States of America is making war against our constitution(s) and, therefore, we the people. They violate their constitutional oath and, thus, immediately forfeit their office and authority and their proclamations may be disregarded with impunity and that means ANYONE; even the governor and President.

Pay very close attention to the details of the private person making arrests in Ohio.

If one is on the brink of arresting someone else, they should know that there are four conditions that must be present to make detaining an individual a lawful act.

Before arresting anyone, you must have a reasonable belief—or, better yet, have seen the act go down—that they committed a felony.

Second, you can only detain the suspect until the police can furnish an arrest warrant. This can be done fairly quickly—usually, within a matter of hours.

At the start of the arrest, you must tell the detainee that you intend to detain them and why you are doing it.

Fourth, you have to either transport the detainee to a court or judge that can make a determination about the act committed, or hand them over to a law enforcement officer. Once at the court, you will be required to file an affidavit—wherein you will swear under penalty of perjury that the facts present at the time of arrest show that a citizen’s arrest was justifiable.

ORC 2935.04
When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.

ORC 2935.06

A private person who has made an arrest pursuant to section 2935.04 of the Revised Code or detention pursuant to section 2935.041 of the Revised Code shall forthwith take the person arrested before the most convenient judge or clerk of a court of record or before a magistrate, or deliver such person to an officer authorized to execute criminal warrants who shall, without unnecessary delay, take such person before the court or magistrate having jurisdiction of the offense. The officer may, but if he does not, the private person shall file or cause to be filed in such court or before such magistrate an affidavit stating the offense for which the person was arrested.

ORC 2935.07

When an arrest is made without a warrant by an officer, he shall inform the person arrested of such officer's authority to make the arrest and the cause of the arrest.

When an arrest is made by a private person, he shall, before making the arrest, inform the person to be arrested of the intention to arrest him and the cause of the arrest.

When a person is engaged in the commission of a criminal offense, it is not necessary to inform him of the cause of his arrest.

ORC 2921.12
(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:

(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation;

(2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation.

( Whoever violates this section is guilty of tampering with evidence, a felony of the third degree.

ORC 2933.52
(A) No person purposely shall do any of the following:

(1) Intercept, attempt to intercept, or procure another person to intercept or attempt to intercept a wire, oral, or electronic communication;

(2) Use, attempt to use, or procure another person to use or attempt to use an interception device to intercept a wire, oral, or electronic communication, if either of the following applies:

(a) The interception device is affixed to, or otherwise transmits a signal through, a wire, cable, satellite, microwave, or other similar method of connection used in wire communications;

(b) The interception device transmits communications by radio, or interferes with the transmission of communications by radio.

(3) Use, or attempt to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know that the contents were obtained through the interception of a wire, oral, or electronic communication in violation of sections 2933.51 to 2933.66 of the Revised Code.

( This section does not apply to any of the following:

(1) The interception, disclosure, or use of the contents, or evidence derived from the contents, of an oral, wire, or electronic communication that is obtained through the use of an interception warrant issued pursuant to sections 2933.53 to 2933.56 of the Revised Code, that is obtained pursuant to an oral approval for an interception granted pursuant to section 2933.57 of the Revised Code, or that is obtained pursuant to an order that is issued or an interception that is made in accordance with section 802 of the "Omnibus Crime Control and Safe Streets Act of 1968," 82 Stat. 237, 254, 18 U.S.C. 2510 to 2520 (1968), as amended, the "Electronic Communications Privacy Act of 1986," 100 Stat. 1848-1857, 18 2510-2521 (1986), as amended, or the "Foreign Intelligence Surveillance Act," 92 Stat. 1783, 50 U.S.C. 1801.11 (1978), as amended;

(2) An operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose, or use that communication in the normal course of employment while engaged in an activity that is necessary to the rendition of service or to the protection of the rights or property of the provider of that service, except that a provider of wire or electronic communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks;

(3) A law enforcement officer who intercepts a wire, oral, or electronic communication, if the officer is a party to the communication or if one of the parties to the communication has given prior consent to the interception by the officer;

(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act;

(5) An officer, employee, or agent of a communications common carrier providing information, facilities, or technical assistance to an investigative officer who is authorized to intercept a wire, oral, or electronic communication pursuant to sections 2933.51 to 2933.66 of the Revised Code;

(6) The use of a pen register in accordance with federal or state law;

(7) The use of a trap and trace device in accordance with federal or state law;

(8) A police, fire, or emergency communications system to intercept wire communications coming into and going out of the communications system of a police department, fire department, or emergency center, if both of the following apply:

(a) The telephone, instrument, equipment, or facility is limited to the exclusive use of the communication system for administrative purposes;

(b) At least one telephone, instrument, equipment, or facility that is not subject to interception is made available for public use at each police department, fire department, or emergency center.

(9) The interception or accessing of an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public.

(1 The interception of a radio communication that is transmitted by any of the following:

(a) A station for the use of the general public;

(b) A governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including a police or fire system, that is readily accessible to the general public;

(c) A station operating on an authorized frequency within the bands allocated to the amateur, citizen band, or general mobile radio services;

(d) A marine or aeronautical communications system.

(11) The interception of a radio communication that relates to a ship, aircraft, vehicle, or person in distress.

(12) The interception of a wire or electronic communication the transmission of which is causing harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of that interference.

(13) Other users of the same frequency to intercept a radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of that system, if the communication is not scrambled or encrypted.

(C) Whoever violates this section is guilty of interception of wire, oral, or electronic communications, a felony of the fourth degree.

Just thought I’d share some interesting FACTS about cases and motions I have personally pending in various courts and jurisdictions…

#welcometoworldbreakerhulkmode