This is a couple years old but probably not widely known. I also just posted it in response to a Chit Chat thread, but I figured it might inspire some more interesting discussion over here.

"Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.

...

As it does in all states and the District, Virginia's drunken driving law states that, for anyone with a .08 or higher reading on a breath test, "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense."

Prosecutors point out that Virginia's law creates a "rebuttable presumption," meaning the defendant has the opportunity to prove it wrong. But O'Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense."

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/26/AR2005102602572_pf.html

12/7/2008 3:36:33 PM

and yet we still have all these DWI/DUI arrests

obviously we dont care about the constitution when social pariahs are out driving drunk

12/7/2008 4:12:21 PM

Responsible drunk driving is a civil liberty.

12/7/2008 7:22:20 PM

I wasn't drinking and driving, I drank before I drove.

[Edited on December 7, 2008 at 7:52 PM. Reason : -]

12/7/2008 7:52:30 PM

How is it "innocent until proven guilty" if they run a breathalyzer? To me, the breathalyzer proved they were guilty...

It's like catching someone red-handed.

12/7/2008 8:20:39 PM

Driving is not a RIGHT, its a privilege, Therefore when you accept a license you are agreeing to certain stipulations. Sure you have the right to refuse an intox test, but that means you must give up your license for a year and one month.

12/7/2008 9:48:10 PM

so does O'Flaherty allow field sobriety tests to be used in his court as evidence of/against DUI? they are a much more "direct" way of testing sobreity

12/7/2008 10:42:11 PM

Quote :

"How is it "innocent until proven guilty" if they run a breathalyzer? To me, the breathalyzer proved they were guilty..."

:palm face:

12/7/2008 11:18:26 PM

being responsible is awesome

12/8/2008 12:17:55 AM

yeah, I'm not sure how you can have a law that says "doing X assumes guilt for Y." That does seem blatantly unConstitutional

12/8/2008 12:22:06 AM

for those who have never considered the accuracy of a breathalyser:

Quote :

"Blood alcohol tests assume the individual being tested is average in various ways. For example, on average the ratio of BAC to breath alcohol content (the partition ratio) is 2100 to 1. In other words, there are 2100 parts of alcohol in the blood for every part in the breath. However, the actual ratio in any given individual can vary from 1300:1 to 3100:1, or even more widely. This ratio varies not only from person to person, but within one person from moment to moment. Thus a person with a true blood alcohol level of .08 but a partition ratio of 1700:1 at the time of testing would have a .10 reading on a Breathalyzer calibrated for the average 2100:1 ratio."

Quote :

"Breath alcohol testing further assumes that the test is post-absorptive—that is, that the absorption of alcohol in the subject's body is complete. If the subject is still actively absorbing alcohol, his body has not reached a state of equilibrium where the concentration of alcohol is uniform throughout the body."

- Wikipedia

too lazy to find an authoritative source for this claim, but anecdotally habitual consumers of alcohol with a tolerance for the effects are less impaired at the same blood alcohol content than infrequent consumers

the presumption of guilt at .08 thus allows the prosecution to disregard many scenarios of reasonable doubt

12/8/2008 4:03:27 AM

Quote :

"Driving is not a RIGHT, its a privilege"

...typical authoritarian talk.
Doing ANYTHING UNDER THE SUN, that does not infringe on or harm someone else's person, property, liberty, or right to the same..... (the libertarian principle)
...is a civil liberty.

The government doesn't get to pick and choose what is and isn't a civil liberty. Now, you could say something about public vs. private roads, but that's a different issue. If I own a car, and want to drive it on my private property, or on the private property of someone who has given their permission, then IT IS MY INALIENABLE RIGHT to do so. (Again, as long as it doesn't violate the libertarian principle)

As for public roads, yes, the government can certainly place context-appropriate rules in place, but most, if not all, of these rules are already covered by existing laws (don't damage anyone's property, don't deny other's liberty, etc.) However, the government, under absolutely no circumstances, should enact and enforce unconstitutional laws. DWI/DUI is an unconstitutional law, because it shifts the burden of proof to the defendant, not to mention one is arrested despite the complete lack of harm. One could even argue that speeding shouldn't be a crime, per se.
[/legalize reasonable danger]

[Edited on December 8, 2008 at 7:26 AM. Reason : usa #1]

12/8/2008 7:25:23 AM

a few things

Quote :

"so does O'Flaherty allow field sobriety tests to be used in his court as evidence of/against DUI? they are a much more "direct" way of testing sobreity"

Field tests are skewed towards gaining a conviction, they don't actually prove a thing. There are about 90 some odd things a cop is supposed to look for when they give a FST and if you miss more than two you're said to be intoxicated. One time i had nothing to drink and a cop pulled me because of a headlight and he made me do the tests and then told me i failed so i had to blow. They are complete and utter bullshit and are only used as a means to provide evidence for the cop when at trial.

Quote :

"How is it "innocent until proven guilty" if they run a breathalyzer? To me, the breathalyzer proved they were guilty... It's like catching someone red-handed."

If you pull out 50 dollars from your ATM but it says you withdrew 5000 should you be able to get yoru money back, or since a machine says you did withdraw 5000 should it be automatically irrefutable? Trial by machine isn't always a sound course of action, they can be wrong. In fact the police use a Intoxzlyzer 5000 to do their 'official' breath screening and there are other newer models out than this one. clearly it wasn't an infallible machine or they otherwise wouldn't have replaced it. Also the information that Tiberius cited is important here.

Quote :

"Doing ANYTHING UNDER THE SUN, that does not infringe on or harm someone else's person, property, liberty, or right to the same..... (the libertarian principle) ...is a civil liberty."

This isn't entirely correct. its only a civil liberty if it is granted to you by the constitution. people do have liberties that exist which are not granted by the constitution but those which we frequently recognize as civil liberties are often misconstrued and are actually inalienable rights or liberties. barry goldwater explains this best. That being said i can't say that driving under the influence is a civil liberty, but i can say that having the presumption of innocence before guilt and putting the burden of proof on the prosecution is one. Therefore this current means of test is unconstitutional.

I also consider roadblocks to be unconstitutional as they allow for violation of the fourth amendment

Quote :

" * Fourth Amendment – Protection from unreasonable search and seizure. 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. "

and in some ways i think they affect the fifth amendment as well, as do i believe that the immediate suspension of the license for 30 days does as well.

Quote :

"nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;"

12/8/2008 9:26:14 AM

Quote :

"its only an officially recognized civil liberty if it is granted to you by the constitution."

??? I'll have to read up on Goldwater's take on this. I tend to agree with him.

Quote :

"I also consider roadblocks to be unconstitutional as they allow for violation of the fourth [and fifth] amendments"

Quote :

"i believe that the immediate suspension of the license for 30 days does as well [violate the fifth amendment]"

I agree 100%.

12/8/2008 9:34:52 AM

^^i was being sarcastic with my comment about field sobriety, it is obvious that field tests are an even worse way to judge whether some one is under the influence, however they are a "direct" way to test, but completely subjective.

i believe that if you are driving on your private property you do not need a license to operate a motor vehicle, the government certainly can't force you to have one.

^^ i agree with your point about roadblocks; I take issue with your argument that automatic suspension goes against the 5th. please point out which point of the amendment, a drivers license is:
life, liberty or property. Note that a drivers license is certainly not your life, the license is in fact the governments, the only possible argument is liberty; however, you have not been detained, and are free to use other modes of transportation, you just can't operate a vehicle legally.


I would love to have a completely objective standard, and I do believe that more studies should be done to look at having a sliding scale of BAC based on weight.

12/8/2008 12:42:59 PM

Quote :

"its only a civil liberty if it is granted to you by the constitution"

Well then, thank God for Amendment IX:

Quote :

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

12/8/2008 1:11:17 PM

^^

more or less i believe it violates you in regards to

Quote :

" without due process of law;""

you have not been convicted of the crime you have been said to have committed. but i will concede that my position is, in part, rash. when i began to think of it more in detail i started thinking about people who are held in jail before a court date and justified that with they have the option for parole. people do have the option to receive a temporary license in the month of their restriction so one can say they have not been violated in this regard should they choose to do that path. but i still feel that the system using a system where the machine's reading is enough to convict you with no other grounds dangerously flirts with eroding conviction without due process of law.

12/8/2008 1:52:16 PM

Quote :

"I also consider roadblocks to be unconstitutional as they allow for violation of the fourth amendment "

I do not have a problem with FST or using breathlyzers as evidence for a DUI conviction but I think road blocks are completly fucking fascist and heinous actions by our law enforcements. If a driver is swerving in the road, barreling 90 mph down Western, or is operating a vehicle in some other dangerous way than hopefully an officer on patrol will witness this action and take the guy to jail.

On the other hand if i'm driving the speed limit going straight as an arrow down the road but with a 0.10 BAC, I will have to face the music if i screw up and damage property or hurt someone, but I find it shitty to be handed a DUI just b.c the cops are bored and put up a road block at some random intersection.

To me this is like if cops start randomly searching houses to find people doing illegal drugs. This is a violation of the 4th amendment. Of course some facist asshat will argue that if you are not doing illegal drugs than you have nothing to worry about if the Gestapo search your residence for pot or coke.

12/8/2008 3:53:40 PM

I know that out here in California, officers have to post the location of DUI checkpoints in the newspaper and allow a clear and identified turn before the checkpoint, in which officers will not follow anyone who decides to detour / turn around. That way if somebody drives through the checkpoint they are doing so "willingly" i.e. consenting to the search.

12/8/2008 4:26:14 PM

thats seems fair to me. we really need to get something like that instated in NC. someone go get busted so they can set a precedent.

12/8/2008 4:33:15 PM

Delaware v. Prouse

the Court says LE can conduct checkpoints. Its not just bored cops abusing rights. I also agree w/ driving being a privilege and not a right. IRRC, the highways were built for the military. Since we aren't moving troops across the country, the government is saying we can use their highways as long as we abide by their rules.

[Edited on December 8, 2008 at 5:51 PM. Reason : fhfh]

12/8/2008 5:48:32 PM

um, *if* that were to be a concern, it would only apply to Interstates. are you saying then its okay to drive drunk on state routes, and local arterials?

anyhow, today's military doesn't need your I-40 to transport troops and supplies. in case you haven't heard, the military's tactical and logistic capability has changed a bit since Eisenhower's day.

12/8/2008 6:33:26 PM

I just read through the Delaware v. Prouse decision, and while it certainly allows for checkpoint type stops, it allows them in an apparantly narrow circumstance:

"stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. 26 Questioning of all oncoming traffic at roadblock-type stops is one possible alternative."

it would appear, that a checkpoint could be used to check license and registration, but they could not look around your car, and you certainly do not need to speak during one. of course i still believe that the justices were wrong in allowing them in the first place seeing as how their reasoning for allowing them is that they are not as scary as spot checks

12/8/2008 6:34:35 PM

During any type of checkpoint an officer can look through (the windows) of your car. Its plain sight.

Prouse v. Delaware might not have been the best case to cite. However, I think many people on this site have more issues w/ License/Registration Checking Stations than a full blown DWI Checkpoint. Though a DWI checkpoint can include a checking station.

[Edited on December 8, 2008 at 7:13 PM. Reason : fdjfs]

12/8/2008 7:12:35 PM

The thing that bothers me in this case is that the judge is interpreting the law on a level outside of his authority. it's one thing for him to decide that a set of actions doesn't fit the bill for a given crime. it's entirely another for him to say "I'm gonna let this guy go because this thing is unConstitutional." Seems to me that this is judicial activism almost at its worst. And while I agree with his reasoning and rationale, I can't agree with him being his own Supreme Court. It just isn't sitting well with me. I would agree with him, however, if he were citing precedent from a higher court. Maybe someone more knowledgeable on this subject can enlighten us all

12/8/2008 9:26:23 PM

^ whatever
everyone knows u are a fascist....

12/8/2008 10:00:49 PM

^^

Do you even know what judicial activism is or are you just throwing out terms you heard on law and order? judicial activism can only take place if a judge is making a decision that isn't based around the constitution and is rather an extension of his personal beliefs. making a decision based on his interpretation of the constitution is exactly what he should be doing. id you're a citizen of the US you should be proud of his actions and if you're an republican/libertarian/independent with a passion for liberty then you should be all over this.

[Edited on December 9, 2008 at 9:28 AM. Reason : parties]

12/9/2008 9:28:19 AM

ummm. I'm not sure that you get my point. My point is that this guy isn't in the position to be saying what is or isn't Constitutional. It simply isn't his job to do so. As far as I can tell, judicial review of US Constitutional situations applies only to the US Supreme Court, not some random judge in podunk Virginia. And that, of course, is if you even believe judicial review is legitimate in the first place.

And, judicial activism is totally about a judge's personal beliefs, whether they are in line with the Constitution or not.

Don't get me wrong, I agree with his point, but I don't think he is in the position to be throwing out cases like this.

12/9/2008 6:58:57 PM

Quote :

"Sure you have the right to refuse an intox test, but that means you must give up your license for a year and one month."

That isn't what he's arguing, though.

He's saying that, for several reasons, just because the breathalyzer records a .08 reading when you blow into it doesn't mean that you are impaired by alcohol.


but yeah...not many people are gonna go to bat for this, and not many people give a shit what's Constitutional and what's not, other than cherry-picking when it suits their agenda.

12/9/2008 9:39:18 PM

Quote :

"It simply isn't his job to do so. As far as I can tell, judicial review of US Constitutional situations applies only to the US Supreme Court, not some random judge in podunk Virginia."

Uh... circuit courts routinely rule on Constitutional issues all the time. Granted, the Supreme Court is the big enchilada of the federal courts system, and hence the final arbiters of constitutionality, but they are far from the sole arbiters.

Quote :

"And that, of course, is if you even believe judicial review is legitimate in the first place."

Well, if you have a problem with that, you may want to revisit Marbury v. Madison - something 200 years' worth of Congresses haven't seen fit to amend away.

Quote :

"And, judicial activism is totally about a judge's personal beliefs, whether they are in line with the Constitution or not."

Again, no.

http://en.wikipedia.org/wiki/Judicial_Activism

Quote :

"Judicial activism is a pejorative term for the misuse of judicial power and is a neologism for the older classical term "board judicial review." The most common connotation is subjective, in which the speaker condemns judicial decisions that, in the view of the speaker, are directed at reaching a predetermined outcome based on the political convictions of the judges without regard to the speaker's view of the U.S. Constitution, written law or legal precedent. A second connotation, slightly less common, characterizes judicial decisions based on an objective statistical measurement of the rate at which a tribunal of the unelected judicial branch overrules the determinations of the elected legislative and executive branches. For either connotation, the antonym would be judicial restraint."

Judicial review is not the same thing as "judicial activism."

[Edited on December 10, 2008 at 12:03 AM. Reason : link]

12/10/2008 12:02:54 AM

Quote :

"And, judicial activism is totally about a judge's personal beliefs"

Hmmm, your quote:

Quote :

"The most common connotation is subjective, in which the speaker condemns judicial decisions that, in the view of the speaker, are directed at reaching a predetermined outcome based on the political convictions of the judges without regard to the speaker's view of the U.S. Constitution, written law or legal precedent."

Kind of sounds the same, doesn't it? Good work, fool.

Quote :

"Judicial review is not the same thing as "judicial activism.""

Who the fuck ever said it was? Nice try, fool.

Quote :

"Uh... circuit courts routinely rule on Constitutional issues all the time"

Maybe so, but they are actually charged with doing this. Moreover, they do so in a specific case and then have it apply to all others, instead of just going willy-nilly with whatever case comes in front of them and not making a ruling on the issue itself

12/10/2008 6:55:52 AM

Quote :

"Maybe so, but they are actually charged with doing this."

yes.

Quote :

"The most common connotation is subjective, in which the speaker condemns judicial decisions that, in the view of the speaker, are directed at reaching a predetermined outcome based on the political convictions of the judges without regard to the speaker's view of the U.S. Constitution, written law or legal precedent.""

i think you missing the part that is in bold. its saying that the judge does this out of their own personal beliefs and without basis provided by the constitution or some other decision established as a precedent.

Your comment was

Quote :

"And, judicial activism is totally about a judge's personal beliefs, whether they are in line with the Constitution or not."

Notice what you said at the end. By definition its not judicial activism if the constitution is used for the basis of the decision. Based on what you're saying any time a judge happened to agree with an issue on moral/political/etc grounds then his ruling is automatically judicial activism regardless if the constitution was the basis for his decision or not.

now take what i said and then compare that to the definition. then put it in contrast with yours and let us know which one is more in line with the definition.

Quote :

"judicial activism can only take place if a judge is making a decision that isn't based around the constitution and is rather an extension of his personal beliefs."

12/10/2008 9:56:54 AM

Quote :

"Kind of sounds the same, doesn't it? Good work, fool."

Only to an idiot. Try it again:

Quote :

"The most common connotation is subjective, in which the speaker condemns judicial decisions that, in the view of the speaker, are directed at reaching a predetermined outcome based on the political convictions of the judges without regard to the speaker's view of the U.S. Constitution, written law or legal precedent."

Quote :

"Who the fuck ever said it was? Nice try, fool."

Quote :

"it's entirely another for him to say "I'm gonna let this guy go because this thing is unConstitutional." Seems to me that this is judicial activism almost at its worst."

Making a ruling on constitutionality is the definition of judicial review.

Have you ever once thought about, I don't know, stopping and thinking before you hit "Post Reply!" Really?

Quote :

"Maybe so, but they are actually charged with doing this. Moreover, they do so in a specific case and then have it apply to all others, instead of just going willy-nilly with whatever case comes in front of them and not making a ruling on the issue itself"

Uh, no more explicitly than the Supreme Court is. So it's rather odd to have someone who complains about judicial review by the Supreme Court have no problem with it by inferior courts.

Besides which, what the devil do you think this judge was doing, aside from ruling over the constitutionality of a specific case?

[Edited on December 10, 2008 at 10:34 AM. Reason : .]

12/10/2008 10:34:09 AM

haha. "without regard to X" and "whether or not it is X" are functionally equivalent. ESPECIALLY when I said that it was based on personal beliefs. Nice try, fellas.

Quote :

"By definition its not judicial activism if the constitution is used for the basis of the decision."

However, just because it is in line with the Constitution does NOT mean that the judge based a decision on said document. If he rules against something based on his beliefs and never considers any Constitutional implications, is it still not judicial activism? That was, you know, my freaking point. You talked out your ass, now admit it.

Quote :

"So it's rather odd to have someone who complains about judicial review by the Supreme Court have no problem with it by inferior courts."

You see, this is what we call a "strawman." Nowhere did I say I was OK with the SC exercising judicial review. As well, nowhere did I say I was OK with any other judge exercising it.

Quote :

"Besides which, what the devil do you think this judge was doing, aside from ruling over the constitutionality of a specific case?"

He's not exactly ruling on it on specific cases if he simply throws out every single dui that comes his way. And, again it's not his position to do so. Would you be OK if a county judge decided that it was OK for a guy to steal from you, because he thought it was allowed by the Constitution? Would you be OK if a stupidly-low-level judge ruled a law against shooting people in the head unConstitutional? Of course not. The examples are absurd, of course, but the point is made by them: this judge is NOT in the position to be making such decisions. The only thing I can say he did right, based on my knowledge of the scenario, was making it so that several cases could go to higher courts in order for them to rule on the Constitutionality of the law.

12/10/2008 5:40:48 PM

Quote :

"However, just because it is in line with the Constitution does NOT mean that the judge based a decision on said document. If he rules against something based on his beliefs and never considers any Constitutional implications, is it still not judicial activism? That was, you know, my freaking point. You talked out your ass, now admit it."

Where, pray tell, was this "freaking point" made?

Your original point was, to wit, that he was making decisions based upon Constitutionality - something which was outside of his pay grade. This is not the same thing as judicial activism. It may be something, and it is clearly questionable whether a county judge is the proper authority to be exercising judicial review with regard to federal law, but it is not the same thing as judicial activism.

JA has a very specific definition, one which you happened to get wrong. Three times, now.

Quote :

"You see, this is what we call a "strawman." Nowhere did I say I was OK with the SC exercising judicial review. As well, nowhere did I say I was OK with any other judge exercising it."

You said that, "they [circuit courts] are actually charged with doing this [exercising judicial review]." To which I pointed out that they are no more so explicitly authorized to do so than the Supreme Court is. Therefore it's rather odd to point out that they are somehow charged to do so explicitly when you deny this fact for the Supreme Court.

And, once again, if you have a problem with judicial review, I'd suggest taking it up with Marbury v. Madison.

Quote :

"He's not exactly ruling on it on specific cases if he simply throws out every single dui that comes his way. And, again it's not his position to do so. Would you be OK if a county judge decided that it was OK for a guy to steal from you, because he thought it was allowed by the Constitution? Would you be OK if a stupidly-low-level judge ruled a law against shooting people in the head unConstitutional? Of course not. The examples are absurd, of course, but the point is made by them: this judge is NOT in the position to be making such decisions. The only thing I can say he did right, based on my knowledge of the scenario, was making it so that several cases could go to higher courts in order for them to rule on the Constitutionality of the law."

How exactly do you suppose that case law gets to the Supreme Court - sprung from the head of Zeus in full battle armor?

One could reasonably argue that issues of the constitutionality of federal law are best handled in federal courts, and likewise with state law being handled in state courts (whereupon the only issue thus being when state law conflicts with federal law, which by definition would put it in federal court). Ergo, one could still argue that by deciding issues of federal law, he was operating out of his pay grade.

This still is not the same thing as judicial activism. Furthermore, case law has to start somewhere. This court is probably not the right place; a federal court would be. But how else do you suppose cases of constitutionality get heard?

12/10/2008 6:05:29 PM

Quote :

"they [circuit courts] are actually charged with doing this [exercising judicial review]." To which I pointed out that they are no more so explicitly authorized to do so than the Supreme Court is. Therefore it's rather odd to point out that they are somehow charged to do so explicitly when you deny this fact for the Supreme Court."

And yet, it's a strawman because I never said I agreed with said charge. I simply note that such courts are traditionally where such things occur. Thus, it's a strawman. Nice try.

Quote :

"One could reasonably argue that issues of the constitutionality of federal law are best handled in federal courts, and likewise with state law being handled in state courts (whereupon the only issue thus being when state law conflicts with federal law, which by definition would put it in federal court). Ergo, one could still argue that by deciding issues of federal law, he was operating out of his pay grade. This still is not the same thing as judicial activism. Furthermore, case law has to start somewhere. This court is probably not the right place; a federal court would be. But how else do you suppose cases of constitutionality get heard?"

You must be arguing with someone else at this point. The passage to which you quoted me was not a defense for this being an example of judicial activism. It was, however, me trying to explain part of my resistance to this judge's actions. And, you frankly parrot those concerns in your response to it. I can see, however, how that might not have been clear, as there was no clear transition.

Quote :

"Where, pray tell, was this "freaking point" made? Your original point was, to wit, that he was making decisions based upon Constitutionality - something which was outside of his pay grade. This is not the same thing as judicial activism. It may be something, and it is clearly questionable whether a county judge is the proper authority to be exercising judicial review with regard to federal law, but it is not the same thing as judicial activism. JA has a very specific definition, one which you happened to get wrong. Three times, now."

I think you are trying to make all of comments mean that I think this is an example of judicial activism. The first comment on the matter certainly says so, and in my mind I can see how it is an example of it, though it is a stretch. Much of my later response has NOT been related to this case, but rather argued from hypotheticals. That much should be obvious. As such, the definition I gave of JA is functionally equivalent to the other ones given in this thread. Stop pissing over nothing.

As for how this case might be an example of JA, to me the biggest part of it is that the judge is, as you say, acting above his pay-grade, and doing so without precedent. If he were making such a ruling based on precedent, I'd be far more accepting of his "right" to do so. Yet he seems to be trying to set precedent here, and that doesn't make me comfortable. If you would read my original post, you'll note that I asked for more informed opinions as to what the judge actually can do. I didn't ask for the flame-fest started by http://IRTrollCat.

12/10/2008 6:20:25 PM

Quote :

"And yet, it's a strawman because I never said I agreed with said charge. I simply note that such courts are traditionally where such things occur. Thus, it's a strawman. Nice try."

Actually I have a hard time considering this a strawman since he is not intentionally misrepresenting a position of yours that was stated in a way such that it could be more easily refuted or to distract others from the real issue at hand as a means of influencing them nor did he take quotes of yours out of context as a means to misrepresent your position.. you said it yourself in the quote above. you never said you agreed with the supreme court being charged to carry out this action. However, it could easily be taken that evaluating the constitutionality of an issue is the job of the supreme court as an implied position of yours when you said

Quote :

" I can't agree with him being his own Supreme Court. It just isn't sitting well with me. I would agree with him, however, if he were citing precedent from a higher court."

So while nothing you explicitly stated is being addressed those which were implicit have been addressed soundly and without misrepresentation. So while it may be an unfortunate misunderstanding of your position that was concluded based on what has been said it does not manage to meet the grounds for a strawman.

Quote :

"haha. "without regard to X" and "whether or not it is X" are functionally equivalent. ESPECIALLY when I said that it was based on personal beliefs. Nice try, fellas."

I agree that they can be similar, but its the context in which they're used that can separate them. In your definition of judicial activism you said

Quote :

"And, judicial activism is totally about a judge's personal beliefs, whether they are in line with the Constitution or not."

Which means that an incident is judicial activism if a ruling is in alignment with the political beliefs of the judge regardless if his decision was reached solely based on the constitutionality of the issue at hand or not. This point of view precludes any decision from being oft practiced judicial review should the evidence lend to a decision the judge shares on matters of law.

There is a distinction between that and

Quote :

"are directed at reaching a predetermined outcome based on the political convictions of the judges without regard to the speaker's view of the U.S. Constitution, written law or legal precedent."

where a judge examines does not base his decision through evaluation of the constitutionality of the subject at hand and instead without examination solely reaches a verdict based on what his preexisting beliefs were. This action would amount to judicial activism, while the previous scenario based on your definition of the term is not.

Quote :

"However, just because it is in line with the Constitution does NOT mean that the judge based a decision on said document. If he rules against something based on his beliefs and never considers any Constitutional implications, is it still not judicial activism"

I agree with this section. However first you'd have to first prove that the judge was biased in his decision. which i don't think has been proved, as of yet, by anyone. furthermore i believe that this position is more an evolution of your beliefs that manifested through discussion as opposed to your "freaking point" which was that the actions at hand were examples of judicial activism.

Conversely, do you believe that earnest judicial review can be executed in a situation where a judge has a point of view on an issue yet makes a verdict based on the constitutionality of the issue that happens to coincide with their point of view? If the answer is no then we can understand why you would see judicial activism where others would see review.

Quote :

"Would you be OK if a county judge decided that it was OK for a guy to steal from you, because he thought it was allowed by the Constitution?"

Now these exaggerations meant to over simplify our points are good for an example of a strawman since it would be quite improbable that such an event could be seen as allowed by the constitution and since potential conflicts to the constitution with this issue are easy to spot.

12/11/2008 11:16:37 AM

is there any chance we could get back to discussing the validity of the interpretation rather than the meanings of "judicial activism" and "judicial review"

12/12/2008 1:36:35 PM

It's much easier to talk about something else rather than accept the fact that you have no real input on the topic at hand.

See, I just did it?

12/12/2008 2:07:09 PM

there is so much stupid in this thread it hurts my brain to read it

12/15/2008 3:21:28 PM

Not to encourage dumbasses in being dumbassed... but there is a little checkbox on the form you fill out when they take you back to the station (pre-blood testing.) In Raleigh at least, and you have the option to call someone to witness the test to insure that it's unbiased.

Supposedly they will wait up to an hour for said person to show up. This is second hand, so keep that in mind.

12/15/2008 4:15:00 PM

^its 30 minutes and that person being there doesn't verify the accuracy of the machine.

12/15/2008 4:17:34 PM

It's not about the accuracy of the machine. It's about buying your body the 30 minutes.

12/15/2008 4:21:01 PM

headdesk.

Quote :

"call someone to witness the test to insure that it's unbiased."

My point is that they can't ensure the test in unbiased because them being there doesn't verify the accuracy of the machine.

12/15/2008 4:54:55 PM

Legally you're calling someone to witness the test. IE: Ensuring that it is in fact (insert name here) who was tested. Not the accuracy of the test, but that the test wasn't done improperly, evidence planted, etc.

But practically the point is to delay the test as long as possible, thus ensuring the lowest possible B.A.C.

12/15/2008 5:34:20 PM

I am pretty sure it's an hour, and there's also a bathroom they'll let you use to induce vomiting and chug water take a piss

12/17/2008 11:33:12 AM

Quote :

"I am pretty sure it's an hour, and there's also a bathroom they'll let you use to induce vomiting and chug water take a piss"

its only 30 minutes. i've had to be a person's witness so i'm well aware of the situation at hand. its 30 minutes and that includes their 20 minutes observation period. so its only ten extra minutes than you would have had additionally.

we were on falls of the neuse near 540 when we were pulled and it was only 40 minutes from when we were pulled to the end of the 30min limit when i needed to be there so not even an hour start to finish.

inducing vomiting and drinking water wouldn't help you at all. the alcohol content is measured by reading particles from your lungs and neither of those two events would change that. alternatively they could check your blood if you so chose, but that still isn't going to help you out. the only thing that would change things for you is time.

12/17/2008 11:47:42 AM

Quote :

"inducing vomiting and drinking water wouldn't help you at all. the alcohol content is measured by reading particles from your lungs and neither of those two events would change that."

Inducing vomiting would prevent the alcohol remaining in your stomach from being metabolized, while drinking water would aid in expelling the alcohol you've already consumed. It will probably only affect measured BAC by .01-.02, and only that much if you took the earliest opportunity you were given to do so...

Do you honestly think the alcohol on your breath isn't affected by what you consume? How the fuck do you think the alcohol "particles" find their way to your lungs in the first place?

12/17/2008 12:29:49 PM

Quote :

"Inducing vomiting would prevent the alcohol remaining in your stomach from being metabolized"

This much is correct. however given that most people will have been in custody for a while and would not have been drinking while in the car the majority of what will be absorbed by test time will already be in you and the induced vomiting will have negligible effect.

Quote :

"while drinking water would aid in expelling the alcohol you've already consumed."

you're not taking a piss test. drinking water isn't going to remove the alcohol from your blood or increase the rate in which it is metabolized and then excreted. furthermore the water that you intake will not be absorbed into your blood in any sufficient amount by the time you get breathalzyed.

Quote :

"It will probably only affect measured BAC by .01-.02, and only that much if you took the earliest opportunity you were given to do so..."

you have no means of quantitatively supporting these claims. these numbers are all just speculation and you have no basis for them. you're clearly grasping for straws at this point. read what i wrote above. any diminished result would be negligible. a .01 or .02 change would be 12 - 25% of the legal limit which is asinine to even consider.

Quote :

"Do you honestly think the alcohol on your breath isn't affected by what you consume? How the fuck do you think the alcohol "particles" find their way to your lungs in the first place"

The alcohol on your breath is affected by what you consume, but that isn't what they measure. what they measure is lung particles. there is a big difference here. for example my breath may smell like bananas but my lungs may not. if i rinse with mouthwash it will no longer smell like bananas by this change in breath doesn't change whats coming from my lungs.

The point is it measures whats in your lungs. It gets in your lungs through your blood and water particles in your blood aren't absorbed into your lungs the way that alcohol is absorbed. even if they were the way the machine is set up is to bounce light off of alcohol particles specifically, so other ones are not supposed to be able to interfere with it. I can't say that they don't for sure (e.g. cigarette smoke) but they aren't supposed to.

the point is your conclusion is flawed on many principles. weren't you the one who got pissed at the thread being derailed anyways?

12/17/2008 2:12:01 PM

Quote :

"you have no means of quantitatively supporting these claims. these numbers are all just speculation and you have no basis for them. you're clearly grasping for straws at this point. read what i wrote above. any diminished result would be negligible. a .01 or .02 change would be 12 - 25% of the legal limit which is asinine to even consider."

I have yet to see you cite a single source in two page-long retorts, and you accuse me of not supporting claims? The anecdote I provided was based on my personal experience, and the numbers I presented represented a measured difference under similar circumstances as being discussed. I even INDICATED that my numbers were "probable" rather than factual, whereas you've yet to indicate anything of the sort about this elaborate argument that you've seemingly pulled out of your ass. A small sample size, one could argue, but until you've got something other than your strongly held opinions to respond with, I would chill with the accusations and find yourself a point...

12/19/2008 1:48:51 PM