Fair DUI Debates Federal Prosecutor

Thanks to Jeff Van Treese for having us on with former federal prosecutor David Weinstein. We talked about checkpoints in some detail including the flyer. The conversation is below:

Share Button

18 thoughts on “Fair DUI Debates Federal Prosecutor

  1. Joe

    Let me first say… I would NEVER hire Mr. Weinstein as my defense attorney!!! He’s stuck on the wrong side of the aisle.

    Warren… Mr. Weinstein claimed that just by having a driver’s license, one has already agreed to road side tests including nystagmis, counting, walking on one foot…. etc. Is this true? Is there a legal distinction between pre-arrest and post arrest testing? Can’t we refuse all pre-arrest testing???

    Thanks,

    Joe

    Reply
    1. wredlich Post author

      If you watch me during the video you’ll see I took out my license. I disagree with his interpretation.

      On the front (not the back) it says: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”

      The key is the last three words. The tests are only required by law if the officer first has the appropriate basis to get there. Usually they rely on things like impaired speech, impaired motor coordination, and smell of alcohol. If you take those away it’s a lot harder for the officer to get the encounter to that level.

      Reply
    2. wredlich Post author

      As for pre-arrest testing, I’ll give the classic lawyer answer: It depends.

      In general I would say you are correct that you can refuse all such tests, but it does depend to some extent on the state and there can be consequences.

      In NY if you refuse a “preliminary breath test” (a handheld breath device) that is usually a traffic violation – i.e. it’s illegal to refuse. I actually recommend that most people blow in that device because the numerical result can’t be used against you (at least in NY and FL). If you blow a low number the cop might let you go.

      For the field sobriety exercises (or tests), I generally recommend most people not do them. They are complete nonsense. A cop with a few hours of training doing opthalmological and neurological testing on the side of a road with flashing lights and tractor trailers driving by? Please. Show a doctor how the tests are done and watch them start laughing.

      Reply
    3. Rattlerjake

      Absolutely BULLSHIITE! Signing the Driver’s Licenses does nothing but verify your receipt of the license. Secondly, freedom of travel on roads is a RIGHT as a sovereign of your state and country, and government has done the same thing with driving that they are doing with guns, requiring individuals to meet UNCONSTITUTIONAL requirements and infringing on your right to free travel by stopping and detaining and/or searching you or your vehicle without you having committed any crime! Traffic stops and checkpoints are nothing more than a “witch hunt” to do several things, including generate revenue for the state/county, and establish and maintain control of the people. Most driving laws are NOT laws but are RULES, big difference. Those RULES are designed to make make driving safer and organized.

      To expand on that answer, the Constitution and the bill of rights that accompany it does not mention ‘driving’ as the term and concept was not invented yet. It does however mention “Personal Liberty” and “Personal Liberty” as defined by the constitution was: “the right to move about at will from place to place therein and to have free ingress thereto and egress therefrom” put another way, by another court “To the extent that the right to travel derives from our constitutional concepts of personal liberty.”

      Courts have reviewed these questions many times, such as:
      • Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all these requirements that are known as the rules of the road. The right of the people to the use of the public streets of a city is so well established and so universally recognized in this country, that it has become a part of the alphabet of fundamental rights of the citizen. While the tyranny of the American system of government very largely consists in the action of the municipal authorities, this right has not yet been questioned or attempted to be abridged. There can be no question, then, but that a citizen riding on a bicycle in that part of the street devoted to the passage of vehicles, is but exercising his legal right to its use, and a city ordinance that attempts to forbid such us of that part of the public street would be held void as against the common rights (Swift v City of Topeka 32 Kan. 671~674 (1890))
      • Personal liberty, which is guaranteed to every citizen under our Constitution and the laws made in pursuance thereof, consists of the right of locomotion – to go where on pleases, and when, and to do that which may lead to one’s business or pleasure, one may travel along the public highways or in public places. These rights, which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land (Pinkerton V. Verberg 78 Mich. 573 (1889)
      • The right to make use of an automobile as a vehicle of travel along the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling by some other vehicle (House v Cramer 112 N.W.3 (1907)
      • The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees of which the citizen may not be deprived without due process of law. Berberian v Lussier 139 A.2d 869 (1958) & Schecter v Killingsworth 380 P.d; 93 ariz 273 (1963)
      • The right to operate a motor vehicle [an automobile] upon the public streets and highways is not a mere privilege. It is a right or liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions. Adams v. City of Pocatello 416P.2d 46; 91 Idaho 99 (1966)
      • The right of a citizen to travel upon the public highways includes the right in so doing to use ordinary and usual conveyances of the day; and under the existing modes of travel includes the the right to operate an automobile thereon, for the usual and ordinary purposes of life an business. The rights aforesaid, being fundamental, are constitutional rights. Teche Lines v Danforth 12 So.2d 784 (1943)

      These along with another 114 pages of cases like this are quoted from “The right to travel”, by Charles Weisman (ISBN: 1-929205-09-0); this book examines the right of travel and the encroachment of government to limit that right. It also addresses the question of a “Drivers License” with cases that show it is unlawful to require one.*

      * Please note: courts will reject these arguments (most times without comment), Police will arrest you for making them (as noted below) and juries will ignore them as they have been trained to surrender their rights by government demand.

      Reply
  2. Thomas

    First off, our state of reasoning to have or to be required to have a “Drivers License” in the first place is baseless. Please reference the several cases decided by the Supreme Court that come down on the side of the “Right” of the people to “Travel” on the roadways unmolested. Stare decisis should be the focal point of those cases. Driving is considered a privilege in which the state makes the people believe that they are beholden to have to obtain permission from them to be able to move freely about on the roadways. How absurd of a notion. If you look back at the older Blacks law dictionaries, you will find that “Driving” is defined as being involved in “Commerce” on the roadways. (Basically conducting business) such as a baked goods delivery truck. People have the RIGHT to travel and are not required to have to obtain a license for permission from a State Corporation to travel freely. Governments, which are all incorporated are all corrupt entities using the drivers license scam to Control the masses into submission. Please feel free to comment and debate the Truth with me. I would love to go over the cases from the Supreme court to finally lay this Right to Travel issue to Rest. Versus mommy and daddy telling you that you are required to have to have permission to do a thing (S)words have meaning and power. (S)words can be used to control you, deceive you and enslave you and your minds. If anything, its Lawyers or shall I say Attorneys that know that words have different effects and meanings. Hence, the wording of the Fair Dui Flyers. Attorney = To twist and turn.. Latin.

    Reply
    1. Rattlerjake

      It is my understanding that you can beat most basic traffic violations based on the fact that your driver’s license treats you as an “employee” of the state, and that is why your name is CAPITALIZED. Signing you driver’s license is not agreeing to anything, it is simply signing that you received it, and that you never agreed to any contract with the state.

      Reply
      1. Donald

        Signing you driver’s license is not agreeing to anything, it is simply signing that you received it, and that you never agreed to any contract with the state.
        Really. Says who? When we obtain a license what we do without knowing it IS, we ARE acknowledging that we are accepting a privilege from Government & NOW we ARE subject to Governments rules, regulations, & OTHER requirements, e.g., Registration, license tags, Insurance,etc. A License is defined as, permission by a “Superior Authority to do something that would otherwise be illegal without the license. NOW, if we are Bus drivers, Taxi Cab Drivers, etc., THEN we DO need a license, otherwise, NO. BUT the system is so fouled up, the powers that be are trained to think a license is required for practically everything. It’s an EXTORTION RACKET.

        Reply
    2. George

      Thomas:
      My study and research indicates that freedom to travel is a right, and that only commerce is regulated…the difficulty I have is this: where and how can we enforce this right, so that we won’t be tazered by a law enforcement officers, held in jail by a judge, and further harassed by the judicial system, and even imprisoned if we are found driving after an incident ‘without a license’? Many have “shot themselves in the foot” by attempting many ‘sovereign’ ideas that sound good, sound lawful, etc, but when put to the test, cannot deliver one out of the hands of the powers that be: Something that only works in a few places or with a few parties is not very reassuring.

      Reply
  3. Joe

    Thanks for the response Warren.

    I’m in NJ and have been arrested at a checkpoint in Elmwood Park NJ. I was sober and refused to speak to the officer. I was promptly arrested in a parking lot on Rt 46. The arresting officers later realized I was sober when we got back to the station. ooopps!

    The officer ended up lying on the police report (issued 2 weeks later) after he realized the arrest was probably unlawful. DUI (at the time of the arrest) became obstruction (when I got the report). He must have had a chat with his own lawyer and felt concerned enough to lie.

    Warren… Why should the police have time to contact THEIR lawyers and union reps before they type that report? I didn’t even have time to blink. Why are we as citizens not atleast entitled to a police report the same day as we leave the station??

    It was found during discovery that the police tape went went ‘missing’, ooopppsss again! I think that Radley Balko is right on the money when he talks about changing police camera policy. (If the tape goes missing, then the benefit of the doubt should go to the defendant not the officer!!!)

    Unfortunately, I had to learn first hand that some cops will do anything when their backs are against the wall… Especial in Elmwood Park, NJ.

    Anyway… this is a great site Warren. Keep up the good work and keep those TV interviews coming.

    -Joe

    Reply
  4. Jeff Van Treese

    I just wanted to say it was great having Warren on the show. I really enjoyed moderating this debate and Warren is a real pioneer in the legal field for creating this flyer. I would also like to thank David Weinstein for appearing on the show and offering his opinion on driver licenses and the appropriateness of using the flyer. Some thoughts on the debate over this flyer:

    1. I am disturbed by the reference to the 4,5,6th Amendments as a “loophole.” Even if you disagree on the prudence of using the flyer, the Bill of Rights is the supreme law of the land and no part thereof should ever be characterized as a loophole or technicality. To be clear, David Weinstein did not refer to the Bill of Rights as a loophole.

    2. The flyer states that the driver will comply with all clearly stated lawful orders. This is not a refusal to roll down the window, but simply a statement that the driver will only do so if ordered. Not volunteering to do something and refusing to do something are very different things. David Weinstein expressed his concern that the officer may not read this line or overlook it and may therefore interpret this as a refusal. This is something to consider, especially for those drivers not comfortable with confrontation. However, this concern does not change the fact that use of the flyer is legitimate as everyone has the right to remain silent. If officers truly have the authority to make you roll down your window, they can order you to do so. If and when this scenario occurs, the extent of sobriety checkpoints may be tested in the courts, which could lead to a landmark ruling on an area of constitutional law that is not entirely clear at this point.

    Reply
  5. Ben

    Great interview! I got the same reaction as Mr. Redlich did after Mr. Weinstein responded to his question, “You think the system is fair?” lol! It is NOT fair at all! The system is completely stacked against you at virtually ever turn.

    I have also found another so called “loop hole” that the courts have done to another so called “guaranteed” constitutional right. Lewis v. United States, 518 U.S. 322 (1996). According to this ruling, if you are charged with a crime that carries a maximum sentence of six months or less then you are NOT entitled to a fair and speedy trial by a jury. WTF OVER!?!?

    So the courts have taken it upon themselves to ratify the 6th, 7th, & 14th Amendments WITHOUT the approval of congress, three-fourths of the states, and/or the president. WOW!! They did the same to our 4th Amendment Right in Michigan Dept. of State Police v. Sitz 496 U.S. 444, (1990). and there are bunch more of these “loop holes” the courts have done to other Constitutional Rights too.

    Reply
    1. Rattlerjake

      The biggest problem is that they create so much “law” that no one can keep up with it much less it’s constitutionality. It is a scam created to maintain control over the population, keep a stream of money coming in to the state and fed, and keep the legal profession alive. The majority of these laws are punishing the people for something they “might” do, when the Constitution clearly states you have to have caused injury to someone or their property.

      Reply
      1. Ben

        @ Rattlerjake

        Precisely! Which then raises an all important question that I and others have been asking for years and never once got an answer. What evidence, and/or witnesses, do they rely on to prove, beyond a reasonable doubt, that the constitution and laws apply to me or anyone for their jurisdiction to be implemented? No victim no crime right?

        Reply
  6. Donald

    While the tyranny of the American system of government very largely consists in the action of the
    municipal authorities, this right has not yet been questioned or … < I cut & pasted this from the webpage. Where can I go, or what do I have to do to see the remainder of it ? HELP ANYBODY !!!

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *