Monday, June 05, 2006

Another Amendment Out The Window...

Thanks to our esteemed Supreme Court, police now have a free pass to enter your home without a search warrent if you are suspected of DUI.


(AP) SAN FRANCISCO Police may enter Californians' homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures.

The 6-1 decision follows similar rulings in about a dozen other states. A dissenting justice said the majority handed authorities a "free pass" to unlawfully enter private homes and arrest people without warrants.

Under the Fourth Amendment, authorities are prohibited from entering a home and making an arrest without a warrant unless so-called "exigent" circumstances are present. Those include "hot pursuit" of a fleeing felon, imminent destruction of evidence and the risk of danger to the police or other persons inside or outside of a house, among others.

In this case, Justice Marvin Baxter wrote that the loss of evidence at issue was obtaining a measurement of the suspect's blood-alcohol level. Baxter added that a contrary ruling would allow "the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol -- or to claim to have done so -- or when the suspect evades police capture until he or she is no longer intoxicated."

This shouldn't suprise anyone really. SCOTUS has been routinely pissing away our Constitutional rights in the name of "temprance" since 1983.

What really galls me about this is the double standard when it comes to preserving evidence. When you blow into that little machine and it spits out an arbitrary number such as .08 or .21 which is supposed to mean you are drunk -- regardless of bodyweight, tolerance, or the inconvenient fact that you haven't had anything stronger to drink than a glass of milk -- the breath sample is expelled from the machine into the outside air, preventing any further examination of that evidence. No one convicted of DUI based on a breathylizer reading is convicted on the actual evidence but a report that the evidence once existed. I'm no lawyer but that strikes me not only as hearsay but hearsay from a machine!

By the way, most breathylizer machine manufacturers do offer a kit to allow the machine to preserve the breath sample. It's very inexpensive but very few law enforcement agencies, if any, have actually ordered it for use in the field.

But the same flimsy bit of "evidence", which is discarded at the scene and not available during a trial is now justification for police to enter a home without a warrant.

The case concerned the 2003 Santa Barbara arrest of Daniel Thompson, whom a neighbor suspected was driving drunk and notified authorities. They found a parked car matching the description the neighbor provided and went to the front door of the adjoining residence during a summer evening.

The door was open and a woman said the car's driver was asleep. Moments later, Thompson walked by the officers and they entered the house and arrested him. The neighbor confirmed it was the person she suspected of driving intoxicated and throwing an empty vodka bottle out the car door.

Thompson's blood-alcohol level was 0.21, almost three times the legal limit for driving. He was convicted and handed a three-year suspended sentence. He appealed.

A state court of appeal tossed the conviction, saying Thompson's constitutional rights were violated. The Supreme Court reversed, saying the lower court misapplied search-and-seizure precedent.

So even if this guy's BAC (not his actual BAC but a machine generated claim of what his BAC was) was appropriate to prove that he was drunk, that's all it proves. The guy was drunk in his own home. The only evidence that he was driving under the influence was the neighbor's complaint. That too is hearsay. This case shouldn't have even gone to a grand jury, much less the Supreme Court.

I think it's pretty clear what this flagrant violation of constitutional rights, which, but for one dissenter, has been fully enabled by the Supreme Court, means. It means that at any time, and with the flimsiest of justification, the police can enter your home illegaly, arrest you, and effectivly convict you for drinking in your own home.

The hatchet-wielders are winning, people!

And in case I didn't mention it before, never, EVER, take the breathylizer test if you are pulled over. It's better to let them take you to jail and lose your license for six months or whatever than to be coerced into incriminating yourself. Although from the look of this case, the courts will soon be able to convict you no matter what and it won't matter.

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