The U.S. Constitution in the 4th Amendment prohibits law enforcement from conducting “unreasonable search and seizures” in the areas we consider private—including our own bodies!  Of course, law enforcement wants to search because they’re looking for evidence of the crime to use against you in court.  For instance, if police come to your house and find a dead body, they’ll want to search your house for evidence of the killing: a gun, knife, etc.

In a DUI case, the police search when they take a breath sample or a blood test.  These tests reveal the presence of alcohol/drugs in your blood stream—which is evidence of your guilt about the crime.

So, how can the police do this legally?  Don’t we all have the right to privacy guaranteed in the Constitution?

In criminal cases, the general rule is the police must get a search warrant signed by a judge before they can legally search us.  There are exceptions, however to the requirement for a warrant.  For instance, one of them allows police to pat search suspects for “the safety of the officer.”  If they feel something suspicious, like a hidden gun, they are allowed to search further and remove the gun—which can now be used as incriminating evidence in court against the person even if that wasn’t the original reason the police stopped the suspect.

Back to DUI and your right to privacy.  The breath test will definitely give police evidence to prove you’re driving under the influence.  Why don’t the police have to get a search warrant before forcing the driver to take the breath test?  (In Minnesota where I practice law, if you refuse to give the breath test, that is also a crime!!)  How can they pry into you life and privacy?

Many challenges to this warrantless search have been raised in the courts, arguing that as in other criminal cases the police should be required to get a warrant before you give a breath test.

Even though jail can be the penalty for DUI, your right to privacy is shoved to the side.  The courts have always treated DUI crimes differently than other crimes.  The underlying difference is that possessing a driver’s license is a privilege not a right.  Therefore, the constitutional safeguards that protect our right to privacy, don’t always apply to DUI crimes as they do to other crimes.

What do you think?  Is this fair?

The post DUI and Your Right to Privacy appeared first on Colin T. Nelson.

I know lots of people, who claim to be experts, are predicting all kinds of things.  In my own opinion, no one knows which way the court will decide.  Without writing pages about this topic, keep in mind a few things:

1.  The power of the Supreme Court to declare legislation unconstitutional is not given to them in the Constitution.  In the famous case of Marbury v. Madison, the Supreme Court decided on its own that it had the inherent power to decide if legislation was unconstitutional.  As a country, we often need a final decision on many critical national issues so we have, over the years, allowed the Supreme Court to exercise this power until it’s almost as if the Constitution gave them the power originally.

2.  The decisions of the court are extremely political–in the back rooms.  By that, I mean since we have an odd number of justices, the Chief Justice’s job is to forge a majority opinion in which he often has to “horse trade” various issues or points with several opposing factions until a consensus is reached.  I expect for a controversial issue like Obamacare (it’s actually a huge, complex law), there will be lots of back room compromising.

3.  In the past, conservatives have accused the court of being “activist” in the sense they don’t follow the law but, instead, create new law.  It seems to me that both political parties accuse the court of this–unless the court decides something in their favor.  Remember the presidential election between Bush and Gore and how the vote in Florida was critical?  The U.S. Supreme Court stuck its nose into a state issue and made a decision.  Since the country wanted an answer to the election, we accepted their meddling.  Conservatives, happy with the result, never accused that court of “activism”, even though they went beyond their jurisdiction to decide a state problem, not federal.  Or the other example is Roe v. Wade which drives conservatives crazy because the court “found” the right of privacy in the Constitution, even though it’s never specifically mentioned.

4.  Historically, once a person is sworn-in for life as a Supreme Court justice, they can do what they want.  Former prosecutor and Republican Chief Justice Earl Warren is the best example of a person who changed his position on criminal justice dramatically once he got on the bench.  These present justices may vote differently than people expect them to do.

What do you think?

Keep reading about my new book…

***Don’t forget to check out my new book, Fallout which will be released on June 1, 2012.***  More about it in later posts!!

The post What will the Supreme Court decide about Obamacare? appeared first on Colin T. Nelson.

Is that legacy “beating” us now?

After 9/11, the White House and Congress (both parties) passed sweeping legislation which gave our investigatory agencies new powers of intrusion into our lives.  Most people felt these new laws were necessary to discover intelligence and information that terrorists could use against us.  I’m certain that in many instances, the new laws and procedures used by U.S. security agencies worked as the Congress intended.  They also created a massive new system of counterterrorism with huge budgets and more people.

This concerns me because:

1.  The fear that we all felt after 9/11 caused us, as a country, to give our own security agencies more power  to probe into our personal lives much easier.  As an example, the restrictions on wire-tapping and other means of gaining private information were relaxed under the idea of “warrantless surveillance.”  All these laws still remain on the books and are used by the government.  How do we know they won’t be used against innocent citizens under the guise of investigating terrorism?

Think of the internment laws used against innocent Japanese-Americans during the heightened fear of WWII.  In retrospect, we are all embarrassed by these actions and can see clearly how fear drove the Congress and public to enact laws that went much too far in combating internal security risks.

And think of how intrusive and scary the IRS can be…these new laws give the U.S. security agencies a lot more power.

2.  The “War on Terror,” by definition, will go on indefinitely.  Does that mean these intrusive laws will be on the books indefinitely? Have we given-up significant portions of our privacy for ever?  These rights of privacy are uniquely American and I hate to see them compromised.  They protect us from a too-powerful government.  The new laws allow more warrantless surveillance tactics–could these be used against innocent people rather than terrorists?  Who defines what a “terrorist” is?  Will this go on forever?

So, in a way, has bin Laden achieved something more than perhaps he even intended?  Have we Americans given-up our democratic rights of privacy and civil liberties because of the fear he caused?  I hope we never see another attack on our shores, but if that happens will we pass more laws giving-up even more of our privacy?

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