Time: Thu Dec 04 19:37:59 1997
To: GovtAware-L@Citadel.net
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Reasonable Force (fwd)
Bcc: sls

This "implied consent" doctrine flies directly
in the face of numerous Supreme Court rulings
on the nature of fundamental Rights, and waivers
of those Rights.  An excellent one is Brady v. U.S.,
which explains the high standard which must be
attained before a waiver of any fundamental Right
can be a competent waiver.  Applications for driver's
licenses and/or car registrations do not constitute
competent waivers of fundamental Rights.  Waivers
of fundamental Rights must be knowingly intelligent
acts, done with sufficient awareness of the relevant
circumstances and likely consequences.  The short-hand
we use is:  

  KIV:  knowing, intentional, and voluntary.


/s/ Paul Mitchell,
Candidate for Congress

copy:  Supreme Law School

At 08:54 PM 12/4/97 -0500, you wrote:
>This is a reply I received from a post I sent to another list, concerning
>the California Highway Patrol using "reasonable force" to obtain blood
>samples from suspected drunk drivers.
>IMHO, the obvious contradictions are with the forth and fifth amendments to
>the constitution. I have serious doubts about the concept of implied
>consent when giving up one of your constitutional rights. Can anyone think
>of any other situations where this concept applies?
>>Date: Thu, 04 Dec 1997 05:49:47 -0800
>>To: "Gary L. Tyler" <gtyler@sparc1.castles.com>,
>>        David M Sampson <sampson@inetworld.net>, sla@inet1.inetworld.net,
>>        ralph@inetworld.net (Ralph "The Burr in there Pants" Radovich),
>>        ewolfe@involved.com, Z1@mindspring.com
>>From: Jeff Huber <jeffh@hdo.net>
>>Subject: Re: Reasonable Force
>>Content-Length: 6266
>>At 02:48 AM 12/4/97 -0600, Gary L. Tyler, by way of David M Sampson, wrote:
>>>I just caught a little of this on the radio the other day and wondered if
>>>anyone on the list knew more about it.
>>>It seems the California Highway Patrol is going to be given, (or has been
>>>given) authority to use "reasonable force" to obtain blood samples from
>>>suspected drunk drivers. Sure seems to be fourth and fifth amendment
>>>violations involved in this. Any information and\or comments are
>>An article about the situation, from the Sacremento Bee, follows 
>>my comments.
>>Currently in California, if you are getting a license for the 
>>first time, or when doing a renewal that requires you to actually 
>>come in and take a written test, you are required to sign the 
>>application for the license or renewal.
>>Part of the "fine print" on that document, is an explicit 
>>agreement whereby you consent in advance, to take a blood, 
>>breath, or urine test, if requested to do so by the police.
>>You can't get the license without agreeing to that, and giving 
>>your SSN. I know, I tried.
>>It sucks mightily, but the fact is, that this talk about forcing 
>>people, is only an issue for those with older licenses, or those 
>>without licenses. If you have a recently received or renewed 
>>license, then it's a moot point because you allready gave consent.
>>Of course, I believe that the requirement is absolutely illegal, 
>>but then again, I believe that requiring a license in the first 
>>place is illegal.
>>Here's the article:
>>Sacramento Bee
>>November 25, 1997
>>              Tests to be required in DUI arrests
>>                       By Yvonne Chiu
>>                      Bee Staff Writer
>>All suspected drunken drivers arrested in the Sacramento area will
>>take a blood alcohol test under a "no refusal" policy to be announced
>>today by the Sacramento County District Attorney's Office and the
>>California Highway Patrol.
>>The policy -- in effect for about two months but being publicly
>>announced at the start of the holiday season -- allows CHP officials
>>to use "reasonable" force, if needed, to obtain a blood sample for
>>The "no refusal" policy was instituted in an effort to reduce the
>>number of alcohol-related traffic fatalities -- which totalled 29 in
>>the county last year, officials said.
>>The policy is supported by the state vehicle code, which says that
>>driving a motor vehicle gives implied consent to testing for alcohol
>>and drugs if one is arrested on suspicion of driving under the
>>Under the new policy, those arrested on suspicion of drunken driving
>>are offered a choice of giving a blood, urine or breath sample for
>>testing. Drivers who refuse are taken to a centralized testing
>>facility in downtown Sacramento.
>>There, a medical technician will draw a blood sample with a CHP
>>supervisor present and a number of officers assisting.
>>CHP spokesman Mike Berndl said the use of force means officers can
>>apply a reasonable amount of pressure to hold down the suspect, who
>>most likely would be put in handcuffs and lying face down on a padded
>>"We don't want to get into anything like chokeholds, using our batons
>>or striking the person," Berndl said. The agency also is considering
>>videotaping each time force is used, he added.
>>Dorothy Ehrlich, executive director of the American Civil Liberties
>>Union, said she was not familiar enough with the "no refusal" policy
>>to comment.
>>A driver is considered legally intoxicated with a blood alcohol level
>>of 0.08 percent or greater.
>>Last year, 6,293 DUI arrests were made in Sacramento County, and
>>4,804 arrests have been made this year through October. Berndl said
>>about 10 percent of those arrested have refused to take the test.
>>The Department of Motor Vehicles reported that 610 Sacramento County
>>residents lost their licenses last year stemming from refusals to
>>take tests, Berndl said.
>>Some drivers in the past have refused to take a test and escaped
>>criminal prosecution because of a lack of evidence. The new policy
>>will substantially increase the chance of a successful prosecution,
>>said Berndl.
>>"This is to let people know before they choose to get in the car --
>>before they have too many drinks -- they will be caught and they will
>>be prosecuted with scientific evidence of their condition," said Pat
>>Marlette, spokesman for the District Attorney's Office.
>>Representatives of Mothers Against Drunk Driving will be at today's
>>announcement ceremony.
>>Since the policy was adopted locally some two months ago, CHP
>>officers from the north area -- the portion of Sacramento County
>>north of the American River -- have brought in about 10 people who
>>refused tests. After being read the law and seeing officers standing
>>by, all submitted to the test, Berndl said.
>>"We're not aware of a case where we had to apply physical force," he
>>said. "If at all possible, we like to do it peacefully."
>>Several state court decisions in recent years have upheld the right
>>of law enforcement to use reasonable force to draw blood, Marlette
>>Before the policy, all felony drunken driving cases -- those
>>involving accidents or prior convictions -- required testing. Refusal
>>to take a test was an option in misdemeanor cases.
>>But the DMV automatically suspends a motorist's license for at least
>>a year if the driver refuses to take a test. The suspension is longer
>>depending on prior convictions.
>>Nineteen CHP divisions throughout the state have a similar policy,
>>including those in Contra Costa County, Modesto, Riverside, San
>>Francisco, Santa Barbara, Santa Cruz and Truckee.
>>Berndl said Contra Costa County instituted the "no refusal" policy in
>>July 1991 and has not had any complications or lawsuits stemming from
>>the use of force. He said force has been used several times to make a
>>driver comply with the testing. In one case, he said, officers
>>abandoned the effort in order to avoid the use of excessive force.
>>"We're going to make sure that nobody is going to get hurt. That's
>>our goal," he said.
>>-Jeff Huber.
>>The Eclectic WEB: http://ipf.simplenet.com
>>Htmlscript Applications Page: http://ipf.simplenet.com/hts_samples/
>	Twas brillig and the slithy toves did grye and gimble in the wabe.
>	All mimsy were the borogoves and the mome rath outgrabe.
>	And hast thou slain the Jabberwock, my son?
>			Lewis Carroll
>				Gary L. Tyler
>			    (gtyler@castles.com)
>			(http://vader.castles.com/gtyler/)
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