Drunk drivers, ‘those people,’ Nice Rides, shaved heads, and Scandinavians (5 x 8 – 10/31/13)

1) THE CHOICE THAT’S NO CHOICE AT ALL

In a state where one out of every seven drivers has a conviction for driving under the influence, we rather expected more debate over last week’s Minnesota Supreme Court ruling (which I wrote about here) that police don’t need warrants to extract urine or blood to determine whether drivers are drunk or stoned.

At issue is the state’s implied consent law. Technically, you have a “choice” whether to submit to testing. If you do, of course, it can be used against you in court. If you don’t, under the law, you could be charged with a crime. What kind of a choice is that? The law was based on the assumption that people would delay making the choice until they sobered up.

After the ruling, the anonymous public defender who writes the blog, Not for the Monosyllabic, wrote a scathing review of the decision:

This ruling is so off-base it’s insane. If being arrested, handcuffed, transported to a police station, and then told to consent to a test or face a criminal charge isn’t a coercive situation, it’s hard to imagine what is. This undermines the very idea that consent has to be voluntarily given in order to be valid. It guts that whole concept, because now it’s going to be nearly impossible to argue that a suspect was coerced into consenting to a search, short of the police beating the suspect or something completely outrageous like that. Threats of new, separate, and additional criminal charges aren’t coercive, apparently.

That sent several us to Twitter to discuss the post and the decision again, so our PD friend writes more today:

So far, the arguments at the district court level are precisely that–the government cannot condition a privilege on agreeing to a warrantless search, as that violates a person’s right to be free from unreasonable searches and seizures. While there is certainly more argument to be made in a straight test refusal case than there was in Brooks, the language of Brooks seems to shoot the test refusal cases argument right in the heart. Although the Court determined that Brooks consented in his cases, this language is problematic for test refusal and implied consent cases, as the Court clearly believes that conditioning a privilege on a waiver of your constitutional rights is completely reasonable and not at all problematic. Because, as I previously noted, the Court missed that whole thing about being charged with a separate crime for test refusal and why that’s different than just losing your license temporarily.

Of course, it is problematic, because exactly where does this end? There are lots of privileges we have as citizens. Will they all be conditional on waiving your constitutional rights so that it’s easier for law enforcement to “catch the bad guys?” It’s a slippery slope till we are at a place where you must consent to allow officers into your home or otherwise search your personal items or lose a privilege (AND in Minnesota, be charged with a whole separate crime for extra fun!).

What case might eventually reach the court that will better test the state’s implied consent law? I couldn’t help but notice this line in yesterday’s story about Jonathan Markle, who was sentenced to probation and ordered to give 100 speeches about the death of his daughter, who died when the SUV he was driving drunk plunged through the ice of Lake Minnetonka:

Markle plans to appeal an earlier ruling of Quam’s, in which the judge found that drawing Markle’s blood was constitutional and the test results were admissible evidence, according to Chuck Laszewski, spokesman for the Hennepin County Attorney’s office.

Related: We The People Are Being Misled: The Truth About Constitutional Amendments (WBUR’s Cognoscenti).

2) “THOSE PEOPLE”

Jennifer Ball of Minneapolis, who writes on the Scary Mommy blog, was helping on a food drive at her child’s school recently. Collections were going well, she said. The bins were full of things like rice pasta, artichoke hearts packed in seasoned oil, gluten-free crackers, olive tapenade and quinoa.

“The parents at this school are amazing,” she said.

That’s when a woman walking by added, “Those people won’t know what most of that is. I mean, really, quinoa?”

Jennifer is one of those people, it turns out. She visits a food shelf.

I visited the food shelf a total of 5 times in about 11 months. I only told one friend. I told my kids, and when I did, I expected them to laugh, or get angry, or embarrassed. They didn’t do any of those things. They helped me put the groceries away, and they did so quietly, not saying much other than the occasional exclamation of “Yum!” or “Gross!”. I can recall for you, on command, most of the meals I made with food shelf goodies. Oven roasted chicken with quartered rosemary potatoes. Turkey chili. French toast. More mac and cheese than I care to admit. One of my favorites was an organic risotto, flavored with mushrooms and olive oil.

She wanted to tell the woman with the condescending comment off, of course. But she didn’t.

“I like quinoa,” she said.

“Well yes, of course,” the woman replied. “You’re not one of those people.”

3) A BUMPY RIDE

Nice Ride Minnesota, the people who put the bikes-for-rent at locations all around the Twin Cities, has sued the Canadian company that provides the hardware for the bike-share program.

The company in Montreal, in a classic display of linguistic gymnastics, acknowledges it’s having liquidity problems but blames it on strong international sales.

Nice Ride wants to expand its system and The Atlantic’s Cities blog sees trouble ahead:

For metro areas like Washington, D.C., Chicago, and Minneapolis-St. Paul, which rely either not at all or much less heavily on corporate sponsors to fund their bike-share systems, questions surrounding PBSC’s continued financial viability remain. Nice Ride Minnesota’s filing this week is unlikely to be the last we hear about problems that some of the world’s largest bike-share systems are having with their main equipment supplier.

Nice Ride had a breakthrough year in the Twin Cities in 2013, with the number of people hopping on a bike up 9 percent over 2012.

Related: Bike helmet mandate for all sought by pediatricians (CBC News).

4) SHAVE FOR THE CURE IN ST. CLOUD

Last month, Margaret Vos, the retired director of St. Cloud State University Atwood Memorial Center, was asked if she’d take part in Shave for the Cure, an event to raise awareness and money for breast cancer. A few hours after saying “yes,” she was diagnosed with breast cancer, the St. Cloud Times reports.

5) HOW SCANDINAVIAN ARE WE?

Sturdy, blonde, and Scandinavian. That’s what many people think of when you say Minnesota. How different are we, really? TPT’s new series, “Are You MN Enough,” tackles the question.

Bonus I: Part of me wants to have a life simple enough that I can make getting quoted the highlight of my day, and life, apparently.

Bonus II: And for this one, I have no words. San Diego State’s annual Halloween game.

Bonus III: Why Are Kids Who Get Less Candy Happier On Halloween? (NPR)

Bonus IV: N.Y. School Bus Driver Saves Suicidal Woman From Jumping; Students Cheer.

http://youtu.be/I0bDgbc0sIw

TODAY’S QUESTION
Does voting support a broken political system?

WHAT WE’RE DOING

Daily Circuit (9-12 p.m.) – First hour: Immigration reform makes strange political bedfellows.

Second hour: Heroin use in Duluth.

Third hour: One of America’s most popular living poets, Billy Collins, discusses his new collection of poems “Aimless Love.”

MPR News Presents (12-1 pm): MPR’s Laura McCallum moderates St. Paul mayoral debate with Chris Coleman and Tim Holden.

The Takeaway (1-2 p.m.) – The little-known cost of war: the devastating consequences that burn pits have on soldiers.

All Things Considered (3-6:30 p.m.) – MPR hosts the final debate in the St. Paul mayor’s race between incumbent Chris Coleman and his primary challenger, Tim Holden. MPR’s Curtis Gilbert will wrap it up.

Forty years ago, a movie frightened audiences out of their wits. The director says the trick was that The Exorcist had a long, suspenseful build up. It took almost an hour before the really scary stuff began. NPR considers the Exorcist at 40 and a conversation with the man who made it.

  • John O.

    #1) Don’t drink and drive (larger legal issue notwithstanding).

  • Wade

    “…one out of every seven drivers has a conviction for driving under the influence…”

    Where did you find this stat?

    • Department of Public Safety. I’ve verified it and written about it before. I first heard the stat in a City Pages article about 4 years ago. I didn’t believe it, which is why I checked. We drink a lot.

      • kevinfromminneapolis

        I first heard it from a lobbyist. My jaw hit the fairway as we were playing golf at the time.

      • Wade

        Wow. That is wild.

      • TJ Swift

        The statistic doesn’t necessarily mean you drink a lot, it means A) You are accused of drinking a lot and B) You get convicted of drinking almost every time you’re accused of it.
        Intrusions into the 4th amendment are only one of many footpaths that DWI laws have trod over our constitution.
        For instance, what of the fact that the quasi-criminal “conviction” in civil court, which the DPS is almost 100% guaranteed to win after a meeting the legal burden of a “preponderance of the evidence”, to revoke your drivers license is admissible against you as evidence of a prior criminal offense in criminal DWI cases pending against you then, or brought against you in the future.

        • But we do drink a lot. The Upper Midwest is among the booziest in the nation.

  • kennedy

    Re #1: Choosing to drive a car is assuming responsibility. It is the responsibility of the driver to be licensed and insured, and to ensure that car and driver are fit for driving. If the vehicle is operated in a way that breaks the law or causes an accident, it is reasonable to examine the vehicle and the operator to verify fitness.

    • BReynolds33

      And they could certainly prove that reasonableness by obtaining a warrant, no? Seems like a simple step that prevents a government intrusion in other aspects of life. We can’t pick and choose where the Constitution applies.

      • ironkitten

        It’s not snap-your-fingers simple, and you know it, despite what you see on Lay & Order. Judges do not just wait around in their chambers for lawyers to show up with warrants to sign. And yes, my dad is a judge, so I do know what I’m talking about.

        • BReynolds33

          And the Constitution isn’t there to make the job simple. Look up the debate when the DNR wanted to continue to be able to enter ice fishing houses without a warrant. It’s nearly the same argument. The DNR said it was too much of a hassle to get a warrant, and evidence could be destroyed by the time they did. Judges didn’t care. The Constitution doesn’t care.

          I didn’t mean to make it seem easy. That’s why I used the word simple. Simple and easy rarely work together.

          As much as I hate drunk drivers and wish to see them punished harshly, I value the Constitution more, and it says they need a warrant. Simple, easy, or otherwise.

          • One of the things that’s most fascinating to me is that the Constitution per se is rarely cited in constitutional questions. Instead, precedent in previous cases is cited. In a convoluted way, at least to me, our nation is as much founded on court cases about the constitution as it is the literal constitution.

            The question of implied consent is an interesting one, based on the assumption that you agree to be tested and to give your bodily fluids in exchange for being given your driver’s license and/or renewing your tabs.

            Just one question: Who here saw that in writing and/or otherwise agreed to that? And where is it stipulated when applying for either that this is, in fact, the case?

          • BReynolds33

            Absolutely agree. I actually wanted to be a Constitutional lawyer for awhile in college. Then I realized it had little to actually do with the Constitution. I was disappointed, to say the least.

            My guess is that if you were ever to get someone on the record about your question, they would tell you that it is in the law, and ignorance of the law is not an excuse.

            My question would be, if you were to take one of the men who started the Revolutionary War, bring him to today (save for the shock of technology), what would he think of the government being able to extract bodily fluids at their discretion, in exchange for your “privilege” to move about the state freely? It is almost trite at this point, but those men killed for much less intrusion on their liberty.

          • kennedy

            Minnesota statute 169A.51

            I can’t even pretend I knew that before looking it up.

          • That tells me it’s the law but not when it was presented to me. How can I imply consent if that which I consent to is not revealed to me at the time I accept the responsibilities of driving in MN? Is it in the driver’s license manual they give to people?

          • kennedy

            First, implied consent is fairly common knowledge. It is on page 87 of the Minnesota Drivers Handbook. I don’t know where else it may be published besides the law. When I was learning to drive, drunk driving was a major topic. Implied consent was part of the discussion.

            Second, lack of familiarity with the law does not grant immunity from the law.

          • I’ll stipulate that it’s ‘common knowledge” among at least 1 in every 7 drivers. :*)

  • MikeB

    I see 1 and 2 related, as it pertains to people’s reactions to the law/life condition. If you are one of “those” people who get pulled over, who cares about your rights? You deserve what you get, even though you are coerced by force of law. Don’t complain.

    If you are one of “those” people who need to go to a food shelf, who are you to even think about a healthy meal, let alone such fancy food as quinoa. They do not deserve it. Don’t complain.

    It is the attitude that if we don’t experience it ourselves or someone we know, it’s not really a problem. Maybe we are too busy to empathize or see things from another view. More people use food shelves that we care to admit. And are drunk driving rates are too high but we do not want to ask why.

    On Bonus IV, if it were adults on the bus, rather than cheer the bus driver who SAVED A LIFE, they would have scorned the woman was going to jump, as one of “those” people inconveniencing our daily lives

  • BReynolds33

    1) Did the US Supreme Court rule against breath tests without warrant? Would that not apply here?

    2) I have never been to a food shelf in my life, nor ever really been close to needing to, and I have no idea what quinoa is. I must be one of those people.

    • KTN

      The Court ruled last term in Missouri v. Mcneely, that blood drawn by the police without a warrant was unconstitutional even with exigent circumstances (alcohol dissipating in the blood stream).

      • BReynolds33

        That’s what I thought. Interesting that a judge in Minnesota thinks he can over rule the US Supreme Court.

        • Not just *A* judge. A panel of judges. But, if you go back and look at the oral arguments in this case (a link to the original story I wrote), you’ll see that Justice Gildea kept asking the atty about how this case relates to McNeely. It was an interesting discussion.

          I still think the panel was inviting a better case to test the law, although I’m not aware of any legal scholars who agree with me.

          • BReynolds33

            Got it. Makes sense. I guess, without knowing all the facts, it seems to me they are just asking for it to go to Federal court.

    • The Supreme Court ruled in a case in Missouri — or Kansas,. PD pointed out that it basically laid waste to MN’s law. Except that it apparently didn’t.

      • BReynolds33

        Should be interesting to see how it plays out. I wonder if the MN judge even knew the US Supreme Court had already ruled on this.

        • KTN

          Sure they knew, but the ruling in Mcneely was narrow, and focused on exigent circumstance.
          From the opinion.
          “And though a blood test conducted in a medical setting by trained
          personnel is less intrusive than other bodily invasions, this Court has
          never retreated from its recognition that any compelled intrusion into
          the human body implicates significant, constitutionally protected
          privacy interests. Finally, the government’s
          general interest in combating drunk driving does not justify departing
          from the warrant requirement without showing exigent circumstances that
          make securing a warrant impractical in a particular case”.

          • Gildea kept asking the attorney at the arguments, “are you challenging IC based on McNeeley?” And the lawyer said something like “I hope you come around to that, but no.”

            I just think there were things about this case — actually giving consent in three separate stops, for example — that made it a poor test.

  • Brad K

    You think it’s bad driving a car? Try flying an airplane. After any accident (even if another plane taxis into yours on the ground) you are required by law to submit urine and blood samples, which check for all manner of drugs both legal and illegal. Refuse and your certificate is revoked, no questions asked, in an administrative (not criminal) court.

    If you get a DWI in a car, you will lose your pilot’s certificate for at least six months (if your BAC was below 0.15%) or for at least five years (if your BAC was 0.15% or higher, or you refuse the test). I’m not talking about airline pilots here; this is for people who use airplanes to go places the way you use your car. The rules for commercial pilots are more draconian.

  • Eric Chandler

    Bonus I had the same effect as watching an episode of Cops. It made me feel better about myself.

  • Kassie

    #5) So NO ONE they interviewed knew what pickled herring or Midsommar was? Really? My German Grandfather ate pickled herring. It is available in every grocery store. Come on.

    I agree with the premise, we aren’t all Scandinavian. Even when we look at the first immigrants that came to Minnesota we see French, German, and Irish, among others. Native Americans were here long before those groups, obviously, and we also had a number of African Americans, Latinos, and Asians as early settlers. There were (and are) Scandinavian communities, but at no time were they the only settlers in this state.

  • Guest

    It’s amusing the lengths we go with our laws and our practices to trick ourselves into thinking we’re “cracking down” on the harmful effects of drinking alcohol.

    • Dave

      What’s your solution?

  • Christin

    Regarding #2:
    I read that post on Facebook the other day (I love scary mommy). Then I came across this poignant post; perhaps NewsCut readers will enjoy it as well.
    “The Logic of Stupid Poor People” http://tressiemc.com/2013/10/29/the-logic-of-stupid-poor-people/

  • Jenzi

    OMG, I LOVE that you gave a shout-out to Jennifer Ball’s blog post about “those people”!! Full disclosure here: I have known Jennifer since eighth grade and she has always been a very wonderful person…but even if we didn’t have that history as friends, she would STILL be my favorite blogger. This is one of her best, most incisive and insightful posts EVER and I’m so so glad to see her get recognition by MPR for it!