Maybe It Should Be The Law, But It Isn't

Over two years ago, I wrote a post called “The Implied Consent Fallacy”. In the essay I objected to the legal fiction that everyone knows they are consenting to give a breath or blood test when asked by the police, simply by virtue of applying for and accepting a Texas Driver’s License.

Semi-anonomous first time reader “Jason” weighed in recently with this comment:

It's a good law. Bottom line, don't drive after consuming alcohol.

Simple enough, why don't they get it? Too bad there are attorney's [sic] who defend these people of lower than average intelligence.

Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:

Driving after consuming alcohol is illegal…

and that therefore,

You deserve to have your license suspended…

even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.

Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.

One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.
 

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Jason Wiederstein - April 2, 2009 5:54 PM

Sorry for that poorly placed apostrophe...I was making a plural, not a possessive. I went to business school, not liberal arts, etc. And besides infantry Marines are not taught those things; my skill set is less tangible. Therefore I appreciate you speaking slowly for this dumb grunt.

Keep spouting your rhetoric...you couldn't defend anyone if you didn't believe it (although its hard to believe you actually do...but maybe I've watched too much TV!)

I realize you have to have a BAC of .08 or higher. As an MP I've administered FSTs (plural, not possessive, thanks Jaime)and arrested them for being higher.

But thanks for defending those wealthy enough to afford it. Where would we be right now if it weren't for Ted Kennedy? They don't even open the door for his attorney, he just slithers right under it!

Jamie - April 3, 2009 8:38 AM

Jason:

Thanks for stopping back by. (I mean that - blogging is best if it's a conversation, even if you and I end up agreeing to disagree.)

One quick note on the point about grammar - perhaps that was an unfair dig at you. Perhaps. My point was that you seemed so upset at people with lower than average intelligence, so I felt compelled to tease a little about that.

And I do "believe it" - if by that you mean I believe the United States constitution insists that certain important protections and safeguards are needed to prevent a government from randomly deciding who it should throw in jail.

But back to the original post you commented on, and the original missed point, that actually dealt with a civil matter - the ALR hearing - and again, was a criticism of the implied consent theory.

It's a crock. You didn't know that you were agreeing to give breath or blood anytime when asked by a polcie officer when you signed up for a driver's license; and neither does anyone else.

Jason - April 3, 2009 8:48 AM

Uh, yes I did. We covered that in Driver's Ed. I took it in 1995 at Bryan High School.

(and BTW, thanks for calling me on that. Grammar and spelling are my biggest pet peeve!)

Jamie - April 3, 2009 8:58 AM

Fair enough. You knew.

I'm a fiar bit older than you, and it wasn't covered when I took it. Should be a defense for someone that didn't know, right?

Also, not everyone takes Driver's Ed, and it might be true that not every DE class covers that.

Let's say I can show my client never took Driver's Ed (it's not required) - you're in agreement then that if someone was never made aware of something that it's silly to "pretend" they knew that very thing and then punish them for not acting accordingly?

Jason - April 3, 2009 9:35 AM

You're right. But it happens all the time with mortgages, credit cards, etc. Maybe the State should do a better job of creating awareness before people obtain a license. At least then they ponder it before signing on the dotted line. Then when the get arrested they think "Oh yeah, I did agree to that."

Wouldn't be good for your business though!

I just dislike drunks and dislike drunk drivers even more.

Landon - April 4, 2009 12:43 AM

I have a response to Jason's endless banter!

You seem very ignorant to think that people who drive after a drink are "people of lower than average intelligence". Alcohol doesn't make a person less intelligent, as you should already know, alcohol limits your ability to make good judgments, therefore the judgment that was made to drive was compromised to begin with. It's people such as you, who present themselves in a manner, that just prove their inability to maintain "intelligent" conversation!

You didn't get the gist of what was said, but took what you wanted from it and ran with it! I have never had a DUI, but it certainly wouldn't make me any less of a person because of a lack in judgment.

I don't condone drinking and driving by any means, but I certainly wouldn't judge people for the profession they choose or the choices they made, because I leave that up to God! You should try doing the same!

Why not try being a little more compassionate and a little less narcissistic and make this world a better place by starting on your less than perfect behavior! Let's talk about all the damaged Marines out there who kill their wives, beat their children and so on.

Just because you were a Marine and were an MP doesn't make you a better person. You probably joined the Marines because you had nothing else to do and they were the only people that would take you!

As far as the credit, mortgage s statement you made has no relevance in regards to drinking and driving. If you choose to max your credit out because you need to keep up with the Joneses, that is you in a very coherent state of mind unlike drinking.

I wouldn't want the government to control my spending, but I also have exceptional judgment on how to use credit! People in glass houses should never throw stones!

Thank the Lord that there are not an abundance of men like you in this world, because it would be such a horrible place! Thank God for forgiveness and may anyone who is judged by you be blessed ten-fold in their life here on Earth and in Heaven! God Bless!

Pastor Mike - April 4, 2009 2:33 AM

The bottom line is , brothers and sisters - is that driving is a PRIVELEDGE . . . NOT a "RIGHT "

Those opposed to mandatory DUI checkpoints , have every "RIGHT" to surrender their drivers license .

God Bless you all .

pastor Mike

Jason Wiederstein - April 10, 2009 9:56 AM

Landon - endless banter? You wrote a novel there son! More craven drivel from a clueless civilian. You realize the closest you'll come to greatness is this conversation?

Because of men like me, you grew up speaking English, not German or Japanese. So piss off. I've never paid for sex or an oil change and I've never driven a car after getting drunk. If I can do it so can everyone else, I'm not that exceptional, just disciplined.

Glad to discuss - jwiederstein1@satx.rr.com

Jamie - April 10, 2009 10:18 AM

OK, Jason. We get it... no prostitution or DWI in your past (or, of course, your future).

One quick question: ever commit the crime of Hubris?

(And thanks for sending folks like Pastor Mike over here. Looked at his webpage, and I'm pretty sure he came via your link on togetherweserved.com.

It's a sign-in only site, so I couldn't see the thread itself, but I appreciate it.

Blogging is about starting - and maintainng a conversation, so I'm all for keeping this going.)

ML - April 10, 2009 11:53 AM

Where does all this hostility come from?

This issue is very simple: Jamie objects to a law that drivers must submit to alcohol testing, even though they are not clearly made aware of their consent when they apply for a driver's license. Jason objects, not to Jamie's opinion, but to his profession.

Jason, we all appreciate your service to this country, but while you no doubt fought hard to protect our constitutional rights, Jamie does the same thing. The government makes mistakes and criminal defense lawyers keep them in check. Many constitutional provisions protect the rights of those accused of crimes and I'm sure you wouldn't criticize those.

Pastor Mike similarly attacks, not Jamie's argument, but the people he defends. That's not very compassionate.

I don't drive drunk and I never will. But I like living in a country where, if the government accuses me of driving drunk, people like Jamie will be there to defend me. Stop attacking the man and start formulating good arguments.

Landon - April 10, 2009 12:13 PM

Are you serious, Jason? Where does Wiederstein come from? I'm guessing it isn't English?

You didn't teach anyone anything, because real men who serve don't portray themselves as you do. It's usually people who lack in their own life that have to behave the way you do!

A clueless civilian, huh? You underestimate me! Oh and greatness I have, unlike you and your ever-lasting need to put people down to make yourself feel better, I choose to open my mind and know that people do make mistakes as they are human and not behave like some "dumb grunt" who obviously couldn't be a real man and stay in the Marines.

You did your four years just to say you were a Marine, but the truth is you didn't fight in 9/11 or any other war, as I'm guessing you are around 31 or so from the previous comment mentioned.

You are a loser at this game we call life, as you haven't seemed to get one yet! Keep trying to explain yourself, but unfortunately you will never be anything more then what you are now, a "has been", disgruntled, Marine, who is no longer a part of anything, therefore has to find conversations like these to fill the empty void in your less than average life!

Wow, what an example you are, I would hate to be your
kid(s)! Go back to working as an underwater basket weaver and leave the real world to those who choose to make it better rather than destroy it! Please comment back, I just love the challenge to converse with an inept loser such as yourself!

P.S.

I also grew up before you, so it would be you that has a lot to learn "son". You're still wet behind the ears, so go find your mommy's teat and suck on it!

Jamie, I don't know how you do your job, because there has to be times you have to go up against men like Jason and all their psychobabble bullshit! It just shows you why the need for Lawyer's exist, so they can put people like Jason in their place!

Landon - April 10, 2009 12:53 PM

Jamie, you are not going to believe this. You are up against the smartest guy on the planet. Do you know what Jason's profession is? I googled his name and it's amazing what you can find out about someone.

Mr. Big Talkin', I know it all, Jason is...are you ready....a construction worker!

He is a project manager for a construction company and that my friend is what he went to school for! I am laughing so hard right now that I think I just pissed myself.

Jamie you must know that when you go up against the mighty construction workers of America, you may tend to fill inferior, so beware!!! Ahahahahahahah

I'll have to come back later. I'm beyond amused and must go shit it out! Jamie, thanks for the comedy show with this character because I haven't laughed this hard in a long time!

Michael - April 10, 2009 2:20 PM

I guess one reason it's fun to pick on other posters' grammar, or misspelling, is that there's such a strong correlation between people who can't write and people who can't argue logically. Pastor Mike's inability to spell privilege or to avoid predicate commas is a useful predictor that his argument -- the Fourth Amendment does not apply to privileges even though the text contains no such qualification -- suffers from a similar intellectual bankruptcy.

Jamie - April 10, 2009 4:28 PM

Landon:

If I'm gonna call Jason on his ad hominem attack, I think I gotta call you on yours...

Being a construction worker doesn't invalidate someone's argument.

(However, as previously implied/stated, being illogical and off-topic does.)

Landon - April 10, 2009 8:26 PM

Jamie,
I apologize if I came across harsh toward construction workers,but by no means do I mean any disrespect to them. I was only making a point that Jason puts himself on a much higher pedestal then the rest of the population and criticizes everyone else for what they choose to be or do and he is merely just as " average, intellectually" as these people he so easily judged. It is completely off your original topic and I do apologize for that. But I was more replying to his ignorant statements, and I came across inappropriately in generalizing all construction workers and I shouldn't have. You are completely valid in calling me out.

Stacy - April 11, 2009 3:42 AM

I completely agree with Jamie, that people have gone off topic and have thrown in their own opinion rather than taking his argument for what it really is. But with that said, it's really hard not to steer from the topic when Jason wants to be demeaning with his responses. Landon may have made statements that were a little unruly toward construction workers, but I got what he was saying and didn't take it like you did. Jason had spouted off about how drunk drivers have "lower than average intelligence" and I took it as, Landon was stating that Jason presents himself to be superior to everyone else, when really he is just an "Average Joe" and not some Rocket Scientist looking down on everyone. When people are judgmental and condescending, it tends to spark emotions. To think that there are people who can be so ignorant and self indulgent in this world, especially with the way this country is today, is unbelieveable. Rather than respecting that we are all different, and understanding we all make mistakes, the world has to deal with pompous people like Jason, that judge, humiliate and disrespect human life. He attacks people for the work they do because that is all he has. He definitely doesn't prove his intelligence by stating his opinion, but you, Jamie, certainly prove it by stating a fact. Jason, in your next boredom sessions, when you are looking for people to attack, try reading a self help book instead, to help you with all your insecurities and lack of compassion for people less fortunate then you. I have never had a DUI, I have never paid for sex, but I must be honest, I have paid for an oil change!:) I'm so glad we cleared all that up Jason.
Jamie, I understand if you want to rip me a new one for going off topic, but people like Jason are the reason this world is so screwed up today and that isn't a fact, only my opinion. Have a great day!

Brian - May 20, 2009 4:18 PM

Thought I'd chime in on a few things... when I got my license in 1993 there was no Implied Consent Law in Texas (heck, I think at that time a passenger could even have an open container in the car) and, if I recall correctly, the few times since then that I have renewed my license there was no mention that renewing my license involved me agreeing to give implied consent to have my breath or blood taken.

Also, there was a time years ago when a person didn't need permission (ie. a state issued license) to drive their car. As our society has grown up around the use of the automobile it has become a necessary mode of transportation. Being that it is necessary then the State should not be in the business of denying people a basic right to functioning within the modern world. Driving a car is now as much a part of liberty and the pursuit of happiness as growing your own food is.

Jamie - May 20, 2009 4:31 PM

Brian:

You're right. Implied consent/ALR suspensions started in Texas in 1994 (September 1, I think - but I'm not sure).

Therefore, folks licensed before that weren't told, and didn't have to take a class to renew their licenses - just send in the fee.

Thanks for stopping by.

AP - February 20, 2010 6:56 PM

Texas law of DL suspension is about as heinous as cutting people's hands off for shop-lifting. A friend got a DUI and refused the breath test. My friend did not believe that the test was accurate, nor did he believe that the police would administer the test fairly (put their thumb on the scale). This resulted in an automatic suspension (subject to a bogus hearing a few weeks after the arrest)and the police immediately took posession of the license. He received a letter form DPS that the license would be suspended for six months or a year whether he was convicted of the offense or not. Then he paid $500.00 to a bondsman and $2,000 to a lawyer. It does get worse. His car was in impound and the cost to get it out was $450.00. But to get it out, he had to show the towing comapany a picture ID. The police had his only picture ID. And worse yet, his money and birth certificate, and $500.00 in cash were in the car. Towing company said that once the car was in their lot, they could not, by law, open-it-up and get anything out of it. Long story short, he could not get another picture ID for six weeks, and after all the storage and towing fees were totalled, the amount to get the car out was more than the value of the car , and he lost the car. A Driver's License or a DPS picture ID are essential just to have any quality of life - to get a job, to keep a job, to cash a check, to open a bank account, to rent a motel room, and on and on. A Driver's License is used, by necessity, for many purposes besides driving a car. My friend finally had the case dismissed, but only after it cost him his car, his house, his job, almost his family, and about $10,000 in cash. The nightmare all started with the suspension of his DL for failing to take the breath test. A high price to pay for a man who wasn't guilty of anything.

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