Tom King notes Mayor Bloomberg’s latest crusade, carrying while intoxicated, and much like the Florida Loophole in Pennsylvania, it seems to be much ado about nothing. But it’s my opinion that the state making carrying while intoxicated is constitutional, and within the state’s police powers. But looking at the New York bill, I notice a major problem:

Field Testing. Every person who possess a firearm, rifle or shotgun which has been brandished, displayed, outside a holster, discharged, or otherwise used (other than in the person’s home, at an indoor or outdoor shooting range, or in an area where hunting is permitted with with weapon), or which is possessed, displayed or discharged in violation of any provision of this chapter shall, at the request of a police officer, submit to a breath test to be administered by the police officer.

This can be done with driving because operating a motor vehicle on the public roads is a privilege. Having a drivers’ license is your agreement to consent to being tested for alcohol. You can still refuse, but you lose your license to operate a motor vehicle on public roads. Police can’t force you to give a breath or blood sample. That’s a violation of the fourth amendment.

In this case, Bloomberg is conditioning the exercise of one constitutional right on surrendering another. This is not acceptable.

7 thoughts on “CWI”

  1. Feels weird knowing I live in a state that already has stricter laws than what Bloomberg is pushing for. Here in MI you can’t be in possession of a pistol with a BAC over 0.02.

    Lawyer that gave the legal portion of my last CPL class said there was a case in MI where they nailed a guy for firing a warning shot while drunk. He did end up shooting the guy next which was ruled OK as it was self defense.

    ‘Course that “warning shot” was fired straight up in the basement of an after-hours bar. With three stories of people above him. That probably didn’t help his case any.

  2. In Idaho we have forcible blood draws for DUI suspects who refuse to voluntarily give breath or blood samples. While we have a CWI prohibition of sorts (18-3302B), the definition of “under the influence” isn’t explicitly codified, nor does it come with mandatory provision for evidentiary testing.

  3. In Texas it is even worse because the Intoxicated standard is an either or situation.

    2) “Intoxicated” means:
    (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the
    body; or
    (B) having an alcohol concentration of 0.08 or

    The first part makes it nearly impossible to argue that even a single drop of alcohol isn’t a problem, much less a single drink.

  4. Why do I think there will be a black letter exemption for police, and an exemption in practice for politicians?

  5. It’s been known for some time that there is an exception to the 4th amendment in cases of DWI. At least as far as some courts think of it. Note what Link P said above. It’s not only Idaho. Really, it’s come down to the point where you can be strapped down to a table and have blood forcably taken from you.

  6. One might demand every elected official must pass a breath test and blood test for illegal substances before voting on any law, tax hike, or pay raise….

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