Challenging an unconstitutional law

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macdabby

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I am in california and I believe one of the traffic laws to be against the constition, as well as discriminatory against certain people. I want to "sue" the state to have this law removed due to its unconstitutionality, but i have no idea how to go about that. I'd like to do it without a lawer - i realize this may be difficult, but i think if I can figure out where i need to do it and what paperwork i need to submit, the rest I can handle. (i haven't lost an argument to this day)

i think what i need to do is sue california in a local federal court? i also read somewhere that just the filing charges could be 30k to 50k? man that's a lot of bread.
 
And how are YOU harmed by this law?
 
arrested

I was arrested and this law allows the police to use discriminating and unproven evidence against me. i looked up the numbers and over 100k people are arrested for one closely related law, and this law serves to convict them without the police having sufficient evidence to prove that they actually are guilty. every single state has a law almost identical to this one, but only one state has found it unconstitutional so far, and that was only in one case and i believe it was a decision made so that it wouldn't set precedence for others. conviction of this law is a misdemeanor.

i haven't been arraigned yet, but for a court to deem the law unconstitutional would i have to prove it in my defense? is the only way to challenge it to be harmed by it? if i get california to recognize it in the local supreme court and find me not guilty, how can i prevent the rest of the country from ever using this law? and is the only way to get it to be recognized federally for me to lose and have to appeal it all the way up to a federal or supreme court?
 
what i've found out so far ...

So it appears I can
1) sue the city for enforcing an unconstitutional law as a violation of civil rights
2) sue the city also for an officers action which was standard procedure for his department but a violation of rights by a previous supreme court decision
3) sue the officer for causing an accident as a result of his actions outside of his departments procedures and policies.

But that doesn't get the law removed from the state, it doesn't make the police stop arresting people for this law in my state, and it doesn't stop them from doing it in other states.

It looks like I can't sue the state for a law that violates civil rights because it is not "a person" - otherwise i would need to file a civil suit in federal court

i guess at this point my questions are:
1) should i sue the city (instead of the state) in federal court because the city's policy violated my civil rights by acting on this law?
2) would this get this law to be recognized nationally as unconstitional?
3) could i join the officer as a defendant to that federal case? - although it's not federal subject matter - it is the same incident
4) can i just walk into a federal court and tell them i want to file a civil suit, or is there some special procedure that i must do that the clerks are "unable to provide legal assistance" with? (im sure i can figure this one out, the first 3 are more important)


if anyone has any suggestions or even a little bit of information - it would be greatly appreciated.
 
What law are you referring to? I'm curious.
 
The .08 Law. It basically says that if you have a really weak alcohol tolerance, you can get trashed and still drive, while people a really high alcohol tolerance can be .10, show no signs of impairment, and be guilty of DUI. It discriminates against people with a higher tolerance to alcohol. And the purpose of this law is to set a gauge of whether a person is too impaired to drive, but rules out the need for any other evidence to show that they were actually impaired - for example if all field sobriety tests are passed, the driver wasn't off balance, wasn't driving recklessly or out of control or in any way that was unsafe
 
So is this your fancy way of saying you're an alcoholic and you're sorry you got caught?
 
exactly

i had a feeling something like that was coming - i could get sexist and say "only a woman would respond like that - aren't they supposed to be sensitive" but that would be a discriminating statement against you

if there are any intelligent people out there that may have an answer to my question, i would be very grateful

thank you
 
Most people, including women aren't sensitive to those who put themselves and others in danger by getting behind the wheel of a car after drinking.

A Judge in VA may have ruled the law unconstitutional in their state but it doesn't work that way in CA.

CA Supreme Court takes a much different view and supports the very concept of designing laws to increase conviction rates.

People v. Bransford

FYI, my years of legal experience (most of it dealing specifically with the effects of drunk driving) are pretty well backed up with years of emergency medical experience and I really just think you gotta bend over and take this one like a man (might be what you'll be doing anyway if there is jail time involved).

By the way, what's the difference between a terrorist and a female lawyer? You can negotiate with a terrorist.
 
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I bet you support the illegal search and seizure of laptops coming across the border too. I know what the view is, and I don't believe it's in line with the constitution. Things change. Is there a law that says you can't drive within 48 hours of the smallest sip of alcohol? That's as dumb as saying you can't drive in the car with your ex. Yah, you might get in a fight, which would cause you to get angry, and drive recklessly. And you would be caught and cited for reckless driving. The point is that your BAC does not cause you to drive stupidly. You don't drink to .079 and drive fine and then one more drop magically takes you to .08 and all of the sudden you can't stand up. The issue with a drunk driver is that he is unable to drive. If your BAC reads 98% and you're able to drive, why shouldn't you be able to drive? The .08 law used to be higher, and there are people who still can't drive with .02. It's an arbitrary number that has no true bearing on your ability to drive. People constantly try to lower it because they don't think anyone should be able to drink ANYTHING because they don't know how to judge their own ability to drive safely, especially after drinking. And if they were caught and let go because they were able to drive safely, they might just come back next week a little bit more drunk and crash into something. Yes these are all valid reasons for WANTING these laws to be so strict and in place, but the laws themselves are reckless and unconstitutional. If we keep allowing this, the next thing we are going to do is start sending people to life sentences for attempted murder just because they say they hate somebody - that's usually the first step isn't it? But no crime has been committed, and nobody was harmed.

And actually the Virginia case where it was declared unconstitutional, from my understanding, was for a completely different reason.

I'm not defending drunk drivers, some people get way too drunk to drive, and they do hurt people. But we can't punish everyone for the same reason that we shouldn't punish a hunter for carrying a gun, while we should punish some thug standing on the corner of city street with a gun. There actually is a likelihood that this person with the gun will end up hurting someone, while the hunter is just trying to hunt.
 
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Fairfax County, Virginia General District Court Judge Ian O'Flaherty threw out at least two cases that presumed a driver was intoxicated merely because his blood alcohol level was over 0.08 after being stopped. His ruling, delivered from the bench found that Virginia law effectively presumed the automatic guilt of the defendant and was designed to ensure conviction. The law denies the ability of defendants to present scientific evidence that could suggest that some individuals are intoxicated at different blood alcohol levels and that one's blood alcohol content can rise as time passes.

Is that not the same thing?
 
Close ... in addition to the fact that your presumed guilty, it allows others who are guilty and should be convicted to avoid conviction. I would say my argument is more of a civil rights discrimination thing. Not to mention that the breathalyzer test itself discriminates against many people with many different medical issues - and it not a good gauge for ones TRUE BAC.
 
You never answered my question, are you a firm believer that every law ever written in US law is a just law?
 
I apologize, I did not seen the question, bad habit of skimming everything I read for things I'm looking for specifically.

No, I do not believe that every law is a just law. There are LOTS of laws I think are ridiculous. However, I believe that the DUI law is a law that needs to be in place for the safety of the offender and others on the road.
 
Fair enough - we agree on that. I believe it needs to be there, but I believe it needs to be adjusted to be fair to safe drivers regardless of BAC. Some people are bad drivers - even sober.
 
I understand what your saying about the .08 rule being an arbitrary number. A field sobriety test should be the determining factor to a persons ability to drive.
 
The per se statute was not derived at arbitrarily, nor is it unconstitutional. Since there is ample medical evidence to show that a person is more than sufficiently impaired to safely operate a motor vehicle with a BAC of .08 or higher, the state (both at the national and local levels) has opted to set that as the national per se level.

You are free to spend all the money you want to challenge the per se statutes, but you will find - upon consultation with attorneys - that the matter is well-settled law and well within constraints of the Constitution.

But, if you have the money or the capability to do it yourself, you have the right to pursue any manner of legal redress you wish.

- Carl
 
1) In a 1992 Report to Congress, NHTSA recommended that all States lower the illegal per se level to .08 for all drivers 21 and older.

2) As of 3/1994: 45 States, the District of Columbia, and Puerto Rico have enacted laws that set a lower level of .08 BAC.

3) In 1998, as part of the Transportation Equity Act for the 21st Century (TEA-21), a new Federal incentive grant was created to encourage States to adopt a .08 BAC illegal per se level.

4) In 2000, Congress passed the DOT Appropriations Act of FY 2001, adopting .08 BAC as the national illegal limit for impaired driving. The statute provides that States that do not adopt a conforming .08 BAC law by October 1, 2003, will be subject to a withholding 2 percent of certain highway construction funds.

The information above was gathered from this link : http://www.nhtsa.dot.gov/people/injury/New-fact-sheet03/fact-sheets04/Laws-08BAC.pdf

I have my doubts that the .08 bac law will be ruled unconstitutional because preventing drunk driving is a legitimate exercise of a states police powers.
 
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