This Is Likely Perfectly Legal, Because No Alcohol Is Involved

Sean Symons videotaped this texting driver.  The driver continued to text even after coming to a stop, apparently oblivious what had happened.  He hit two cars.

I'm not sure what state this is, but likely the most this driver will get is a ticket for reckless driving and that's only because there is videotaped evidence he was texting.  Had he been drinking it could have been felonious aggravated DUI with mandatory prison time, tens of thousands of dollars in fines and attorney fees, loss of driving privileges for at least five years, and a lifetime criminal record.

Groups like MADD focus entirely on drinking (as few as a couple beers) and driving, while they ignore what are arguably just as dangerous activities:  speeding, aggressive driving, distracted driving, drowsy driving, dangerous police chases, older drivers who have impaired vision or reflexes, poorly trained drivers, operating a vehicle with poor brakes or tires, improperly loading vehicles, unsafe towing practices, and dangerously designed cars.

When a MADD leader was asked about how traffic fatality statistics involving cell phone use compared to those involving drunk drivers, he tellingly replied "I have absolutely no idea, nor do I care." On CNN's Crossfire, the President-elect of MADD refused to discuss cell phones and the traffic fatalities they cause. She said "We're not here to talk about cell phones. We're here to talk about alcohol." Following more questions about how cell phones impair driving, the MADD leader snapped "I'm not going to talk about cell phones." Similarly, a MADD lobbyist was quoted on the program as saying "I don't care about deaths from cell phones."  (MADD Pushes for New Measures. CNN Crossfire, aired June 28, 2002.)

Perhaps MADD's lack of concern for deaths caused by cell phone results from the fact that the Cellular Telecommunications Industry Association (CTIA) gave free wireless phones to MADD chapters throughout the country along with free airtime. As the President of MADD exclaimed, "This is a tremendous shot in the arm for our organization."  (Bouvet, S. CTIA joins MADD to Aid Victims of Drunk Drivers with Phones, Airtime (Mothers Against Drunk Driving) CTIA press release, January 19, 1998; Sundeem, M. Cell Phones and Highway Safety: 2002 State Legislatures Update. Denver, CO: National Council of State Legislatures, 2002.)
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This Is Not A Form Of Brainwashing--The Pledge of Allegiance

"If it was good enough for the founding fathers, it's good enough for me."

—Sarah Palin, as quoted in a 2006 Alaska gubernatorial race questionnaire after being asked whether the phrase "under God" in the pledge of allegiance is offensive. Just days after she was selected as John McCain's running mate, the old questionnaire surfaced on political blogs across the U.S., with pundits pointing out that the Alaska Governor doesn't seem to know her American history. The pledge of allegiance wasn't written until 1892, and the phrase "under God" wasn't added until the 1950s.

The ideals represented in the U.S. Constitution and Bill of Rights written by the founding fathers constitute one of the noblest endeavors at self governance ever attempted.  I have nothing but the highest regard for them.  People (especially Glenn Beck and his ilk) should take the time and effort to learn them.

The original pledge of allegiance, which first appeared in the September 8, 1892 issue of "The Youth's Companion," and a month later recited in schools across the nation read:

I pledge allegiance to the Flag 
and to the Republic for which it stands:  
one Nation indivisible, 
with Liberty and Justice for all.

In was in the beginning of the Cold War anti-communism movement in the U.S. that the words "under God" were added to the Pledge. On June 14, 1954, then U.S. President Dwight D. Eisenhower signed a bill into law adding the phrase, declaring "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty" (Act of June 14, 1954, ch. 297, 68 Stat. 249).

I pledge allegiance to the Flag 
of the United States of America, 
and to the Republic for which it stands:  
one Nation under God, indivisible, 
with Liberty and Justice for all.

Under California law, “every public elementary school” must begin each day with “appropriate patriotic exercises.” Cal. Educ. Code Ann. §52720 (West 1989). The statute provides that “[t]he giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy” this requirement.

Newdow I-IV:  Does The Pledge of Allegiance Violate The Free Exercise and Establishment Clauses?

On June 26, 2002, an atheist father in California objected to the Pledge being taught in his daughter's school and sued the School District, arguing that the addition of under God was an unconstitutional endorsement of religion.    The complaint sought a declaration that the 1954 Act’s addition of the words “under God” violated the Establishment and Free Exercise Clauses of the United States Constitution, as well as an injunction against the School District’s policy requiring daily recitation of the Pledge.  This court found that the pledge did not violate the Establishment or Free Exercise Clauses.

Newdow then appealed.  In June 2002 a 3-judge panel of the 9th Circuit Court of Appeals ruled that "(1) the 1954 Act adding the words ‘under God’ to the Pledge, and (2) [the Elk Grove School District's] policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause [of the Constitution]". Newdow v. U. S. Congress, 292 F. 3d 597, 602 (CA9 2002) (Newdow I).

The Elk Grove School District appealed the decision to the U.S. Supreme Court which, in June 2004, refused to hear the case stating that Michael Newdow "[lacked] standing to bring this suit in federal court."

On September 14, 2005, U.S. District Court Judge Lawrence K. Karlton again denied Dr. Newdow's standing.  However, he affirmed the standing of the new plaintiffs who were represented by Dr. Newdow.  Bound by the 9th Circuit's previous ruling, Judge Karlton once again held "that the school district's policy with regard to the pledge is an unconstitutional violation of the children's right to be free from a coercive requirement to affirm God. . ..  [T]he school districts' policies violate the Establishment Clause."    The opinion continues;"

"The recitation that ours is a nation 'under God' is not a mere acknowledgement that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase 'one nation under God' in the context of the pledge is normative," the court said in its decision.

 

"To recite the pledge is not to describe the United States; instead it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice and -- since 1954 -- monotheism," the court continued. "A profession that we are a nation 'under God' is identical ... to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god.'"

Newdow's estranged partner, now a fundamentalist, appealed, and argued that their daughter was a Christian who believes in God and has no objection either to reciting or hearing others recite the Pledge of Allegiance, or to its reference to God. Newdow v. United States Congress, 313 F.3d 500, 502 (9thCir. 2002) (“Newdow II”).  The court affirmed it's original holding.  

The reaction was strong.  President George W. Bush said that the court's decision was "ridiculous." Senate Majority Leader Thomas A. Daschle described it as just nuts." House Majority Whip Tom DeLay called it "sad" and "absurd." Senator Robert Byrd labeled the judges "stupid." The Senate unanimously approved a resolution in support of the Pledge. Members of the House of Representatives gathered on the front steps of the Capitol recite the Pledge en masse. After the 9th Circuit rejected a petition to review the decision en banc the following February, the panel stood by its holding but issued an amended opinion.  Newdow v. United States Congress, 328 F.3d 466 (9th Cir.2003) (“Newdow III”).

In the months following the court's decision, Attorney Generals from all 50 states filed papers asking the Supreme Court of the United States to review the decision, 49 of which joined a legal brief sponsored by Oklahoma Attorney General Drew Edmondson and Idaho Attorney General Lawrence Wasden. California filed a separate brief, also urging the Supreme Court to hear the case.

In 2004, the Supreme Court heard Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, (2004), an appeal of the ruling, and rejected Newdow's claim on the grounds that he was not the custodial parent, and therefore lacked standing, thus avoiding ruling on the merits of whether the phrase was constitutional in a school-sponsored recitation. 

(Justice Thomas in his dissent wrote that "[t]he text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments."  For Justice Thomas, an official State religion would apparently be constitutional.)

Almost immediately the Becket Fund, a religious group, led a group of plaintiffs and appealed the 9th Circuit's original ruling in the U.S. Court of Appeals for the 9th Circuit. Newdow v. United States Congress, 383 F. Supp. 2d 1229 (E.D. Cal. 2005) (“Newdow IV”). On Mar. 11, 2010, the court published its opinion upholding the constitutionality of the teacher-led recitation of the Pledge of Allegiance by students in public schools. The 2–1 majority found that the recitation did not constitute an establishment of religion prohibited by the United States Constitution.

So, we are back to where we started.  However, I'm sure we haven't see the end of this.  Of course my opinion, as an atheist, is that any law that espouses any religion is a violation of the Establishment Clause.  To have my government force me to acknowledge the existence of a supernatural being for which there is zero evidence seems crazy and, certainly, deeply offensive.  But then again, the government is also forcing me to go to A.A. meetings where I'm coerced into holding hands and saying the Lord's prayer, too.

D.U.I.--The Punishment Does Not Fit The Crime

I'd like to make this perfectly clear:  When I consumed too much alcohol and operated a motor vehicle I broke the law.  Specifically, I broke the criminal law, which is defined as the body of rules that defines conduct that is prohibited by the state because it is held to threaten, harm or otherwise endanger the safety and welfare of the public, and that sets out the punishment to be imposed on those who breach these laws.   I could  have caused an accident that night in which someone got hurt.

It was stupid and irresponsible and I deserve punishment.  I am genuinely remorseful and ashamed of my actions.  I would like nothing more than to assure society that this will never happen again and take any appropriate, reasonable punishment for my actions.  However, I feel the punishment for DUI is too severe, ineffective, and misguided.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.

• Retribution is the idea that criminals ought to be punished in some way and made to suffer.  This is "eye for an eye" idea (although the Old Testament was actually preaching moderation here--take no more than an eye.)  
• Deterrence is punishment aimed at preventing the same crime from reoccurring, either individual (individual deterrence) or by society at large (general deterrence).  It's often very hard to prove a particular punishment has a deterrent effect.  I.e., capital punishment certainly has a specific deterrent effect (the criminal is dead and won't recommit the crime), but experts are conflicted over whether it has a general deterrent effect.
• Incapacitation is simply keeping the criminal physically separated from society to prevent future harm.
• Rehabilitation is transforming the criminal into a valuable, productive member of society.
• Restitution is repaying any damages to individuals that were harmed in the committing of the criminal act.

Punishment for a DUI is certainly retributive.  Posted bond, fines, costs, and license reinstatement fees. In addition, you may have to pay probation fees, the cost of mandatory drug and alcohol assessment and counseling, and the cost of any associated monitoring like an ignition interlock device or continuous alcohol monitoring, lost work time, and attorney fees. You can also expect to pay much higher automobile insurance rates, often for years after your license is reinstated.  Illinois is one of the few states providing an official estimate of average DUI costs. The typical Illinois DUI conviction costs the drunk driver $14,660.

The severe retributive punishment is certainly an individual deterrent.  Most offenders I met were not aware of the retributive costs of a DUI prior to their arrest, and, when combined with society's acceptance of drinking, and lack of information of what a DUI arrest entails, indicates that there exists little general deterrent effect.

Punishment for a first offense DUI in New Hampshire results in loss of license for six months.  This is a form incapacitation.  For second offense DUI's some state impose prison sentences.

Rehabilitation is a component of DUI punishment, though it is neither a significant nor effective one, and this is the issue which prompted me to create this blog.  First, all offenders are assumed, and later, diagnosed to be alcoholics by Licensed Alcohol and Drug Counselors, or LADCs.  In some states they are called Certified Alcohol and Drug Counselors, or CADCs.  In New Hampshire to be a LADC all you need is a high school diploma or G.E.D. and completion of a certification program.  The certification program consists of 270 hours of training, followed by 6000 hours of "supervised alcohol and drug abuse work experience."  There are tons of online schools available.

The problem with LADCs is that most, if not all, of them in New Hampshire are former alcoholics who espouse religion-based recovery programs such as Alcoholics Anonymous.  They are "true-believers" in A.A. and the power of Jesus to cure your "disease."  All the ones I've met have been of below-average intelligence, hateful, and on a power trip.  They see an alcoholic in everyone.  They have succeeded when they get you to admit that you are an alcoholic (I've actually seen a devious grin form on a LADC upon someone's "breaking.").  Then they require that you join and take part in AA as part of your "aftercare."

This is not rehabilitative.  AA has been shown to be largely ineffective.  Multiple studies have shown that the success rate of AA and NA (Narcotics Anonymous) are between 3-7%.  According to Harvard Medical School, the spontaneous remission rate for alcoholism is 5%.   Nor is imprisonment rehabilitative.  Placing DUI offenders in cells with violent criminals is a recipe for breeding more violent criminals.  (Note:  In prisons, AA attendance is often used as an implied condition of good behavior early parole, even though the explicit requirement of AA for this purpose has been ruled unconstitutional.)

In addition to being ineffective, Alcoholics Anonymous is faith-based and relies entirely on one's belief in a higher power to cure oneself of alcoholism.  A staple of the A.A. meeting is holding hands at the end and chanting the Lord's Prayer in unison.  The higher power, make no mistake, is Jesus.  AA is a evangelical organization, and almost all (85-93%) of the alcohol treatment programs in the U.S. that D.U.I. offenders are mandated to attend are based on AA.  And after attending alcohol treatment programs, many, like myself, are required to attend months of AA meetings in order to get my license back.  This is unconstitutional.  It violates the Establishment Clause of the 1st Amendment which states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

This was the First Amendment.  In other words, it's what the founding fathers thought was the most important right of an American citizen--to be free of Federal Laws that in any way establish religious activity or inhibit religious activity.  The Fourteenth Amendment, enacted in 1868, allowed the courts to eventually prohibit similar State laws:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law"

The first Supreme Court case incorporating the Establishment Clause of the First Amendment as binding upon the states through the Due Process Clause of the Fourteenth Amendment was Everson v. Board of Education, 330 U.S. 1 (1947).  Since then, it is unconstitutional for any State to enact laws that coerce or inhibit religious activity.

After Your D.U.I. Arrest--What Happens Now?

You've been arrested for D.U.I.   What happens now?  A New Hampshire DUI is defined as two separate actions against you; a civil matter handled with the NH DMV (an administrative matter, really), and a criminal matter handled in the New Hampshire court system

Upon being released on bail, should you be that fortunate, you'll be given a yellow Defendant's copy of "The State of New Hampshire Judicial Branch Orders and Condition of Bail" or a "Bail Receipt."  At the top will be "State v. your name here." Yes, that's right, the plaintiff is the State, which represents the will of the majority of its residents. This form is also called a NHJB-2369 form, as indicated on the lower left corner in very fine print. On the second page of this form you will be told when and where your arraignment (scheduled court appearance) will be.  Alternatively, you will be informed of your arraignment date on a summons or complaint.  Your arraignment date is usually a couple months later.  You will also likely be told on the form to refrain from consuming alcohol. There will also be a Bail Commissioner's fee.

You will now have to get your impounded car back. In my case, it cost me nearly $500. Yes, that's right. Towing cost $200, "mileage" was $100, and "storage" was $200. I was just thankful to get my car back undamaged and without anything missing from it.

Enjoy your driving privileges while they last.  You might at this time start to become familiar with New Hampshire Criminal and Administrative Law.  It is important to begin to understand the complex legal labyrinth that you have entered.  If not you will be helpless.  You will need to read New Hampshire Revised Statutes Annotated (RSA) 265-A Alcohol and Drug Impairment, and the New Hampshire Code of Administrative Rules He-A 300, Saf-C 2800, and Saf-C 200. 

If you submitted to a post-arrest breath test, you undoubtedly already know your test result. The official result of your breath test appears on the pink Intoxilyzer 5000 Test Record that should have been given to you by the police prior to your release from custody. The official result is the number that appears to the right of "REPORTED VALUE."  Upon release from custody, your license will be taken and you will be issued a Temporary Driving Permit, which will expire thirty days from date of service.

If you submitted to a blood test, you will be notified by certified mail of the results of that test by means of a letter from the State of New Hampshire Department of Health and Human Services forwarded to you by the law enforcement agency that arrested you. It make take four to eight weeks, or more, for you to receive the results of your blood test, even longer if the police ask that your sample be tested for controlled drugs.  Upon release from custody, you will retain your license, but upon notice of results of an illegal B.A.C. you will be asked to immediately surrender it to the Department of Motor Vehicles.

If you refused to submit to a post-arrest chemical test requested by the police, the police will immediately take your license away and issue you a thirty day Temporary Driving Permit. You will also face an automatic Administrative License Suspension by the State of New Hampshire. The period of revocation is 180 days if your motor vehicle records show no prior convictions and no prior Administrative License Suspensions; if you have either, the revocation period becomes two years. By operation of New Hampshire law, this period of revocation cannot run at the same time as any other loss, meaning that your administrative license loss will be consecutive with any other New Hampshire suspension, including any loss you may receive in court if convicted of the underlying DWI charge.

During this time, the state prosecutor will be assembling all the evidence for its case against you: the B.A.C. determination, the police cruiser tapes, the police reports, etc... You, or your lawyer, may make a discovery request to obtain these before the day of your court appearance.

Next, you will receive the first of many letters from the State of New Hampshire Department of Safety, Division of Motor Vehicles. This first letter will state that:

"as a result of receiving a sworn report from a law enforcement officer alleging you submitted to a chemical test(s) that disclosed a drug/alcohol concentration in your system that met or exceeded the legal limit

all license/operating privileges are suspended/revoked for X months."

If you either refused to submit to a chemical test, or you submitted to one and it showed an alcohol concentration of .08 or more (.02 or more if you are under age 21), you face the loss of your New Hampshire driver's license or right to operate in New Hampshire under the Administrative License Suspension law (ALS). That loss may be for six months or two years, depending on your motor vehicle record.  My ALS was for nine months because I had four points on my driving record during the last three years (three points for a speeding ticket going 16-20 mph over the speeding limit, and one point for an expired inspection sticker).

If you submitted to a chemical test, the period of revocation will run at the same time as any other loss, meaning that your administrative license loss will be concurrent with any other New Hampshire suspension, including any loss you may receive in court if convicted of the underlying D.U.I. charge.  If you refused to submit to a chemical test, this period of revocation cannot run at the same time as any other loss, meaning that your administrative license loss will be consecutive with any other New Hampshire suspension.

After surrendering your license, you cannot drive. If you are caught driving you will be sentenced to 7 days in jail and an additional one year suspension/revocation of your license/operating privileges.

You may, in writing, request an administrative license suspension hearing within 30 days of your arrest if you refused a B.A.C. test or blew an illegal B.A.C., or within 30 days of receiving your Notice of Suspension from the Department of Safety/Motor Vehicles if you submitted to a blood test. It's difficult to prevail in these, though. The state (law enforcement)has the burden of proof by a preponderance of evidence that:

1. the officer had reasonable grounds to pull you over;

2. the facts on which the reasonable grounds were based;

3. that you were arrested properly;

4. that you either refused a B.A.C. test, or consented and were above .08;

5. that the officer advised you that refusal to the B.A.C. test would result in suspension of your license.

"Preponderance of the evidence" simply means "more likely than not." It is the lowest standard of proof.

If you decide to go for the hearing, you will definitely need an attorney, which will be expensive.

Next, your criminal court appearance. Yes...unfortunately, there's a lot more to come.

Former MADD President Arrested For D.U.I.--Oh, The Irony!

From the Gainesville Sun:

Former president of MADD arrested on DUI charge

By Cindy Swirko
Staff writer

Published: Thursday, February 24, 2011 at 11:58 a.m.
Last Modified: Thursday, February 24, 2011 at 11:58 a.m.

A former president of the defunct local chapter of Mothers Against Drunk Driving was arrested recently by the Gainesville Police Department on a DUI charge.

Debra Oberlin, 48, was arrested after she had difficulty on a field sobriety test. She registered a .234 and .239 on breath alcohol tests. Florida's legal limit for driving is .08.

Oberlin, a Realtor, had no comment when contacted Thursday by The Sun.

On Feb. 18 at 1:10 a.m., an officer spotted Oberlin driving erratically on Northwest 19th Street, swerving and crossing lanes, an arrest report states. Oberlin was pulled over in the 3600 block of Northwest 39th Avenue.

The officer wrote that Oberlin smelled of alcohol and had watery, bloodshot and dilated eyes. The report states that Oberlin told the officer she had four beers.

Gainesville's MADD chapter existed for several years in the 1990s before closing in 1996 because of lack of financial support. Oberlin was the chapter president for three years.

Oops!  What confuses me is why she lied and told the officer she had four beers.  That's more than enough to be over the legal limit (it takes only two).  And it certainly wasn't enough for the whopping .239 she blew.  I thought the president of MADD would be a little more knowledgeable about D.U.I. laws.  I hope she appreciates the strict punishment she'll get as a direct result of MADD's lobbying efforts.

My experience with the New Hampshire workers who run the Impaired Driver Intervention Programs (IDIP) suggest that they are mostly self-loathing, hateful, former alcoholic AA true-believers and religious fundamentalists whose mission it is to get you to admit that you are an alcoholic and get you to AA to find God and sobriety.  They are of low intelligence, gullible, rigid and inflexible thinkers, who are afraid of change.  They've been give some power by the state and want to flex it by bending you to their will and making you suffer as much as possible.

MADD, like AA, is a religious fundamentalist anti-alcohol movement.  The Women's Christian Temperance Union and the Anti-Saloon League spearheaded the constitutional prohibition effort. Groups such as Mothers Against Drunk Driving (MADD) assume that mantle today.  They are a neo-prohibitionist organization founded on self-righteous anger and grief.  MADD wants to eliminate alcohol consumption entirely.  The founding president of MADD, Candy Lightner, left in disgust from the organization that she herself created because of its change in goals. "It has become far more neo-prohibitionist than I ever wanted or envisioned," she says. "I didn't start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving."  MADD is now the most powerful anti-alcohol lobbying group in the country. 

There are many good sites that accurately describe MADD and which include citations to record.  One is Dr. David Hanson's "Mother's Against Drunk Driving:  A Crash Course in MADD."  I've also posted some in the margin on the right.  (In general, don't trust Wikipedia for information on powerful groups like MADD or AA.  Their multitudes are no doubt constantly editing the pages, putting forth what they want you to read.  Only trust pages that cite to reliable sources for their information.)

Perhaps I'm jumping to conclusions about the typical MADD member, but I doubt it.  When I look at Oberlin's mug shot, I see the same self-loathing, hateful, self-righteous, stupid stare I saw in all the people involved in New Hampshire's IDIP program.  It has been frightening and infuriating to be at the mercy of people like this.  Don't let it happen to you.  If it already has, read on and arm yourself for the battle ahead!