| "DRIVING IS YOUR RIGHT AND NOT A PRIVILEGE" |
If you are ever pulled over, use this document to defend your rights if required
to do so, which is usually always.
 
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Interesting read concerning the laws of travel for drivers in the USA, stories, information, court cases, and much much more
as you will see. Some can be skipped through if you like the meat of reading, others may get more out of it then that and dive into it.
Grab some coffee, sit down and enjoy the things you may of never known about until now.
People can gather the information and have their own opinion of what is wrong
and right. This information is backed up by posted cases in real courts.
We don't expect you to read this entire page, So just read what is interesting and useful to you. We do advise that this page has
all backed up cases of information for example: It WILL PROVE to you with genuine Court vs. People type proof that driving is your
RIGHT and not the Privilege like you have been trained to think. This is clearly explained by Justice Tolman a Supreme Court Justice
from Spokane Washington. You will never think that driving is a privilege again among many other valuable items and that is just
the start of YOUR RIGHT TO TRAVEL.
There is something here for everyone and once your grabbed by your curiosity & interest, you'll probably read longer.
It has come to our attention from reading information on a couple Web Pages, the Freedom page or Due Process page, that the US Constitution
has been avoided by the US Federal Government & the State Governments by using invisible contracts on Americans by deceit &
fraud. Please READ the information posted on this page or move to an area below that best fits an experience or even a confrontation
in your life. It may take some time but if you don't finish, that's OK. This information is probably the most important in educating
yourself and before you end up paying a fine, sit in jail, Get a speeding ticket and best of all...your first line to an Officer
of the law when he tries to convince you that you have to do something that is purely a violation of rights.
The Liberty to Use the Common Ways
WASHINGTON STATE RESIDENTS:
Before starting, Washington State residents please download and read the
following case information for your state's laws. 1986 SPOKANE v PORT case.
Washington State Travel Law including the 1986 SPOKANE v PORT case
documentation.
WA travel
IN BRIEF - TABLE OF AUTHORITIES, CONSTITUTIONS
Constitution for the United States of America,
Amendment 9 16.1 Constitution of the State of Florida Article I I, II
Const. Law, 329 and corresponding Am. Jur. [2nd] 12 Am.Jur. [1st] Const. Law, Sect.573, p.269 16 Am.Jur. (2nd), Const. Law, Sect.70
25 Am.Jur. (1st) Highways, Sect.260 25 Am.Jur. (1st) Highways, Sect.427, p.717 CASE HISTORIES Allen vs. City of Bellingham, 163
P. 18 American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200 Bacahanan vs. Wanley, 245 US 60 Barney vs. Board
of Railroad Commissioners, 17 P.2d 82 Barbour vs. Connolly, 113 US 27, 31 Blair vs. Broadmore, 93 SE 532. Boon vs. Clark, 214 SSW
607 Boyd vs. United States, 116 US 616. Chicago Motor Coach vs. Chicago, 169 NE 22 City of Dayton vs. DeBrosse, 23 NE.2d 647, 650;
62 Ohio App. 232. Cohens vs. Meadow, 89 SE 876 Connolly vs. Union Sewer Pipe Co., 184 US 540 Crandall vs. Nevada, 6 Wall 35, 46
Cummins vs. Homes, 155 P. 171 Davis vs. Massachusetts, 167 US 43 Dennis vs. Moses, 52 P. 333 Ex Parte Dickey, (Dickey vs. Davis),
85 SE 781 Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592 Hale v. Hinkel, 201 US 43, 74-75. Hadfield vs. Lundin, 98
Wash 657l, 168, p.516 Hurtado vs. California, 110 US 516 International Motor Transit Co. vs. Seattle, 251 P. 120 Kent vs. Dulles,
357 US 116 (1958) Lafarier vs. Grand Trunk R.R. Co., 24 A. 848 Ligare vs. Chicago, 28 NE 934 Locket vs. State, 47 Ala. 45 Mehlos
vs. Milwaukee, 146 NW 882 McCulloch vs. Maryland, 4 Wheat 316 Miranda vs. Arizona, 384 US 436, 491 Miller vs. U.S., 230 F. 486,
489 Mulger vs. Kansas, 123 US 623, 661 Newbill vs. Union Indemnity Co., 60 SE.2d 658. Northern Pacific R.R. Co. vs. Schoenfeldt,
213 P. 26. O'Neil vs. Providence Amusement Co., 108 A. 887. Packard vs. Banton, 44 S.Ct. 256 Panhandle Eastern Pipeline Co. vs.
State Highway Commission, 294 US 613 Parlett Cooperative vs. Tidewater Lines, 164 A. 313 Parks vs. State, 64 NE 682 People vs. Henderson,
218 NW.2d 2, 4 People vs. Smith, 108 Am.St.Rep. 715 Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290 Riley vs. Carter,
79 ALR 1018 Riley vs. Laeson, 142 So. 619 Robertson vs. Department of Public Works, 180 Wash 133, 147 Rosenblatt vs. California
State Board of Pharmacy, 158 P.2d 199, 203 Slote vs. Examination, 112 ALR 660 Snerer vs. Cullen, 481 F. 946 State vs. City of Spokane,
186 P. 864. State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487 State vs. Johnson, 243 P. 1073 State vs. Strasburg, 110 P. 1020
Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140 Simon vs. Craft, 182 US 427 Simons vs. United States, 390 US 389
Ex Parte Sterling, 53 SW.2d 294 Teche Lines vs. Danforth, Miss., 12 S.2d 784 Tiche vs. Osborne, 131 A. 60. Thompson vs. Smith, 154
SE 579 Washington A.G.O. 59-60 No. 88, p. 11 Watson vs. Memphis, 375 US 526 Western Electric Co. vs. Pacent Reproducer Corp., 42
F.2d 116, 118. Willis vs. Buck, 263 P.l 982. Yick Wo vs. Hopkins, 118 US 356. LAW DICTIONARIES Bergh Business Law 25.1, 55.1.4,
61, 63 Bouvier's Law Dictionary 5.1, 9.3, 9.4, 9.5, 14.1, 25.3, 27, 28, 29.1, 71.1, 88, 92.1, 93 Century Dictionary, p.2034. Woodward
Quasi Contracts 9 72 Black's Law Dictionary, 5th ed. ENGLISH LANGUAGE DICTIONARIES Webster Unabridged Dictionary 9.1
The "most sacred of liberties" of which Justice Tolman spoke was personal liberty. The definition of personal liberty is:
"Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected
by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution,
which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable
Rights, as sacred as the Right to private property...and is regarded as inalienable." 16 C.J.S., Constitutional Law, Sect.202, p.987.
"Personal liberty largely consists of the Right of locomotion -- to go where and when one pleases -- only so far restrained as the
Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public
highways and to transport his property thereon, by horse drawn carriage, wagon, or automobile, is not a mere privilege which may
be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness.
Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways
or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's
Rights, he will be protected, not only in his person, but in his safe conduct." [emphasis added] II Am.Jur. (1st) Constitutional
Law, Sect.329, p.1135. ....and further... "Personal liberty -- consists of the power of locomotion, of changing situations, of removing
one's person to whatever place one's inclination may direct, without imprisonment or restraint unless by due process of law." 1
Blackstone's Commentary 134; Hare, Constitution__.777; Bovier's Law Dictionary, 1914 ed., Black's Law Dictionary, 5th ed.
Justice Tolman was concerned about the State prohibiting the Citizen from the "most sacred of his liberties, " the Right of movement,
the Right of moving one's self from place to place without threat of imprisonment, the Right to use the public roads in the ordinary
course of life.
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation
(charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There
is a difference between a corporation and an individual. The United States Supreme Court has stated:
"...We are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that
the latter has no right to refuse to submit its books and papers for examination on the suit of the State. The individual may stand
upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract
is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to investigation, so
far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing there from, beyond the protection
of his life, liberty, and property. His Rights are such as the law of the land long antecedent to the organization of the state,
and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are the refusal
to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes
nothing to the public so long as he does not trespass upon their rights.
"Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public.
It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its
charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved
right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly
to hold that the State, having chartered a corporation to make use of certain franchises, could not in exercise of its sovereignty
inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and
papers for that purpose." [emphasis added] Hale vs. Hinkel, 201 US 43, 74-75.
Corporations engaged in mercantile equity fall under the purview of the State's admiralty jurisdiction, and the public at large
must be protected from their activities, as they (the corporations) are engaged in business for profit.
"...Based upon the fundamental ground that the sovereign state has the plenary control of the streets and highways in the exercise
of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a place for the prosecution of
a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the
streets in the usual way and the use of the streets as a place of business or a main instrumentality of business for private gain.
The former is a common Right, the latter is an extraordinary use. As to the former the legislative power is confined to regulation,
as to the latter it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the
prosecution of its business as such is not a right but a mere license of privilege." Hadfield vs. Lundin, 98 Wash 657l, 168, p.516.
It will be necessary to review early cases and legal authority in order to reach a lawfully correct theory dealing with this Right
or "privilege." We will attempt to reach a sound conclusion as to what is a "Right to use the road" and what is a "privilege to
use the road". Once reaching this determination, we shall then apply those positions to modern case decision.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda
vs. Arizona, 384 US 436, 491. ...and... "The claim and exercise of a constitutional Right cannot be converted into a crime." Miller
vs. U.S., 230 F. 486, 489. ...and... "There can be no sanction or penalty imposed upon one because of this exercise of constitutional
Rights." Snerer vs. Cullen, 481 F. 946.
Streets and highways are established and maintained for the purpose of travel and transportation by the public. Such travel may
be for business or pleasure.
"The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental Right
of which the public and the individual cannot be rightfully deprived." [emphasis added] Chicago Motor Coach vs. Chicago, 169 NE
22; Ligare vs. Chicago, 28 NE 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect.163. ...and..."The Right of the Citizen
to travel upon the public highways and to transport his property thereon, either by horse drawn carriage or by automobile, is not
a mere privilege which a city can prohibit or permit at will, but a common Right which he has under the right to life, liberty,
and the pursuit of happiness." [emphasis added] Thompson vs. Smith, 154 SE 579.
So we can see that a Citizen has a Right to travel upon the public highways by automobile and the Citizen cannot be rightfully deprived
of his Liberty. So where does the misconception that the use of the public road is always and only a privilege come from?
"...For while a Citizen has the Right to travel upon the public highways and to transport his property thereon, that Right does
not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose no person
has a vested right to use the highways of the state, but is a privilege or a license which the legislature may grant or withhold
at its discretion." State vs. Johnson, 243 P. 1073; Hadfield, supra; Cummins vs. Homes, 155 P. 171; Packard vs. Banton, 44 S.Ct.
256; and other cases too numerous to mention.
Here the court held that a Citizen has the Right to travel upon the public highways, but that he did not have the right to conduct
business upon the highways. On this point of law all authorities are unanimous.
"Heretofore the court has held, and we think correctly, that while a Citizen has the Right to travel upon the public highways and
to transport his property thereon, that Right does not extend to the use of the highways, either in whole or in part, as a place
of business for private gain." Barney vs. Board of Railroad Commissioners, 17 P.2d 82; Willis vs. Buck, 263 P.l 982. and... "The
right of the citizen to travel upon the highway and to transport his property thereon, in the ordinary course of life and business,
differs radically and obviously from that of one who makes the highway his place of business for private gain in the running of
a stagecoach or omnibus." State vs. City of Spokane, 186 P. 864.
What is this Right of the Citizen which differs so "radically and obviously" from one who uses the highway as a place of business?
Who better to enlighten us than Justice Tolman of the Supreme Court of Washington State? In State vs. City of Spokane, supra, the
Court also noted a very "radical and obvious" difference, but went on to explain just what the difference is:
"The former is the usual and ordinary right of the Citizen, a common right to all, while the latter is special, unusual, and extraordinary."
and... "This distinction, elementary and fundamental in character, is recognized by all the authorities." State vs. City of Spokane,
supra.
This position does not hang precariously upon only a few cases, but has been proclaimed by an impressive array of cases ranging
from the state courts to the federal courts.
"the right of the Citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business,
differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain in the
running of a stagecoach or omnibus. The former is the usual and ordinary right of the Citizen, a right common to all, while the
latter is special, unusual, and extraordinary." Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781. ...and... "The right of the Citizen
to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common
right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.
It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel,
includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary
purpose of life and business." Teche Lines vs. Danforth, Miss., 12 S.2d 784; Thompson vs. Smith, supra.
There is no dissent among various authorities as to this position. (See Am.Jur. [1st] Const. Law, 329 and corresponding Am. Jur.
[2nd].)
"Personal liberty -- or the right to enjoyment of life and liberty -- is one of the fundamental or natural rights, which has been
protected by its inclusion as a guarantee in the various constitutions, which is not derived from nor dependent on the U.S. Constitution...
It is one of the most sacred and valuable rights [remember the words of Justice Tolman, supra.] as sacred as the right to private
property...and is regarded as inalienable." 16 C.J.S. Const. Law, Sect.202, p.987.
As we can see, the distinction between a "Right" to use the public roads and a "privilege" to use the public roads is drawn upon
the line of "using the road as a place of business" and the various state courts have held so. But what have the U.S. courts held
on this point?
"First, it is well established law that the highways of the state are public property, and their primary and preferred use is for
private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature
may prohibit or condition as it sees fit." Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140, and cases cited; Frost
and F. Trucking Co. vs. Railroad Commission, 271 US 592; Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290; Parlett
Cooperative vs. Tidewater Lines, 164 A. 313.
So what is a privilege to use the roads? By now it should be apparent even to the "learned" that an attempt to use the road as a
place of business is a privilege. The distinction must be drawn between...
1.Travelling upon and transporting one's property upon the public roads, which is our Right; and...
2.Using the public roads as a place of business or a main instrumentality of business, which is a privilege.
"[The roads]...are constructed and maintained at public expense, and no person therefore, can insist that he has, or may acquire,
a vested right to their use in carrying on a commercial business." Ex Parte Sterling, 53 SW.2d 294; Barney vs. Railroad Commissioners,
17 P.2d 82; Stephenson vs. Binford, supra.
"When the public highways are made the place of business the state has a right to regulate their use in the interest of safety and
convenience of the public as well as the preservation of the highways." Barney vs. Railroad Commissioners, supra.
"[The state's] right to regulate such use is based upon the nature of the business and the use of the highways in connection therewith."
Ibid.
"We know of no inherent right in one to use the highways for commercial purposes. The highways are primarily for the use of the
public, and in the interest of the public, the state may prohibit or regulate...the use of the highways for gain." Robertson vs.
Dept. of Public Works, supra.
There should be considerable authority on a subject as important a this deprivation of the liberty of the individual "using the
roads in the ordinary course of life and business." However, it should be noted that extensive research has not turned up one case
or authority acknowledging the state's power to convert the individual's right to travel upon the public roads into a "privilege."
"Therefore, it is concluded that the Citizen does have a "Right" to travel and transport his property upon the public highways and
roads and the exercise of this Right is not a "Privilege." "
Learn to ask the proper questions of a government employee, and you may win!!!!
Whatever the charges are, know the answers before asking the questions, this way you can get them disqualified.
Questions :
How long were you in the academy?
Were you trained in the proper application of the law?
As an officer enforcing the vehicle code, are you not required to know and understand the meanings and proper application of such
law?
Officer, do you have personal knowledge of the meaning of the term (vehicle code) as it is defined in the law you were taught to
enforce?
OBJECTION (by the prosecution)
Your Honor I am attempting to lay a foundation to establish that the officer has been improperly trained, is biased, is involved
in a civil conspiracy to deprive me of my property and lacks personal knowledge, and therefore is an incompetent witness as it relates
to the issue before the court.
Proceed
In the academy how may hours were you trained in the proper application of the vehicle code, and were you taught that it applied
to everyone without exception?
Were you taught that the Vehicle Code is a special law with general applicability and not a general law applying to everyone?
Do you have personal knowledge of the meanings of the terms DRIVE, RESIDENT, OPERATOR, DRIVER, MOTOR VEHICLE, VEHICLE. as those
terms are defined and used in the state that created the vehicle code? NO?
NO? - then you are stating that you do not know the legal meanings of the laws that you are enforcing
Were you taught that the vehicle code applies to all commercial activities?
(if no) does the vehicle code apply to commercial vehicles?
(if yes) was I involved in any commercial activity at the time you stopped me.
Any time an objection is raised, you should take exception and explain to the judge that the foundation that you are laying is important
to your defense.
After all the questions are asked that you feel are necessary and or you have laid the proper foundation,
then!!!!
Your Honor, I move the court to strike all testimony by this officer, as he has stated on record that he does not understand the
laws that he is enforcing, and as such is biased, and is incompetent to be a witness.
How To Beat Your Next Ticket
Beat Your Ticket
By Philip Reed Photos By Scott Jacobs
My rearview mirror exploded with blue and white lights. I glanced down at my speedometer -- I was pushing 80 mph. But the cars around
me were going about the same speed. Could this cop really be pulling me over?
I carefully navigated my way across six lanes of traffic. I pulled over on the shoulder and waited, my heart pounding. Moments later
the motorcycle cop's helmeted face appeared in the passenger window.
"License and registration, " he said, raising his voice over the roar of the traffic. "What's the problem?" I asked. "You were doing
80 in a 65-mile-an-hour zone." He disappeared before I could argue the point.
Busted.
I sat there fuming, thinking of the money this would cost me, the increased insurance premiums or the cost and time to attend traffic
school. And for what? Going 80 miles per hour on the 405 Freeway in Los Angeles where speeds routinely reach 80 and even soar into
the 90s? No way was I a reckless driver, the kind you see threading the needle between a tractor-trailer truck and a school bus.
Those guys deserved tickets, not me.
Still, I was--Busted.
When the cop returned I tried a few excuses on him.
Me: I was going with the flow of traffic.
Cop: You passed three cars while I was behind you.
Me: Maybe I was speeding, but I couldn't have been going 80 -- not in this little gas/electric hybrid Honda Insight.
Cop: I followed you for a half mile. If you had seen me and slowed down, I wouldn't ticket you.
Me: I'm vulnerable in this little car and need to keep up with traffic.
Cop: You should drive slower and more carefully in a small car.
Obviously, he'd heard it all. I signed the ticket with a shaky hand and surrendered to my fate. But wait! Other drivers at Edmunds.com
had received tickets and beat them. I could do the same thing. I would fight my ticket.
A few days later, I shared this story with Walt Meyer, a friend of mine who is a freelance writer and also teaches at a comedy traffic
school. I told him I was going to fight my ticket.
"You'll lose, " he said.
"Why? I was going with the flow of traffic, " I whined.
"Oh, so there was a road sign saying 'Go with the flow'?"
Jeez, and I thought he was my friend.
"If you really want to try to fight your ticket, read 'Beat the Cops' by Alex Carroll, " Meyer said. "But you'll probably lose anyway."
I ordered the book through Carroll's Web site and read it. And for the first time since seeing those blue and white lights I felt
a glimmer of hope. The book describes how the author got 16 tickets in a short time and was able to nullify 10 of them. He eventually
wrote his book based on what he learned.
Even more interesting was the writer's perspective. Unlike traffic cops, who make you feel like a serial killer for speeding, the
book states that the majority of tickets are issued to generate money for government municipalities. Insurance companies benefit
from traffic tickets, too, raising your rates when your driving record shows a moving violation. The National Motorists Association
claims that costly radar guns are donated to police departments by some insurance carriers to encourage them to write more speeding
tickets.
Finally, I was getting somewhere in this process. I called Carroll and told him the details of my traffic stop.
"A speeding ticket based on pacing is the hardest kind to beat, " he said.
"Pacing" is when a police officer follows you and checks your speed by looking at his speedometer. Speeding tickets can also be
issued based on an officer "estimating" your speed -- this is nothing more than a cop watching you and guessing how fast you are
going.
According to Carroll, there are three ways to beat a ticket: 1. The cop doesn't show up for court 2. You exploit a technicality
(such as a problem with the patrol car's speedometer) 3. You have a good argument for extenuating circumstances (you are speeding
to get your pregnant wife to the hospital)
This reminded me of a story a friend told me. He was driving down a canyon road when he struck a bird, which became lodged under
the windshield wipers. His daughters were in the car with him and they began screaming hysterically. He sped up to dislodge the
bird and, at that moment, was pulled over for speeding. When he told this bizarre story to a judge, the ticket was dismissed.
My pacing ticket didn't fall easily into any of Carroll's three categories. The only technical angle to exploit was to prove that
my speedometer was malfunctioning. I spoke to Edmunds.com's technical editor and he told me the speedometer might in fact be wrong.
My heart jumped. "I think it's actually a little low, " he said.
Another tactic Carroll describes is to delay the trial to a time when the ticketing officer can't come to court. He suggested I
call the station house where my California Highway Patrol officer was based and find out when he was on vacation, or what his days
off were. This could be done by calling over a number of days to find out when he was working. Then, when I extended my court date,
try to schedule it for a day that he wasn't on duty.
Other strategies might include requesting the officer's notes written on the back of the ticket hoping there is something there
which is inaccurate.
I decided to extend the date of my trial to increase the chances the officer wouldn't appear in court. As I attempted to do this
I made an alarming discovery. You can request only one postponement (called an "extension") and it must be requested 10 days before
your trial date. This is stated in very small print on the ticket, and it doesn't really make sense. I mean, you're more apt to
have a scheduling conflict arise at the last minute rather than 10 days earlier. But this is the way the law is written so I was
committed to the assigned trial date.
However, I still had one ace in the hole. If the ticketing officer did show up, and my defense was falling on deaf ears, I could
quote California Vehicle Code 41501 allowing me to attend traffic school. But -- and this was important -- I should make a photocopy
of the law because some judges weren't familiar with it.
"If it looks like you're going to lose, say, 'Your honor, I see that you're very busy here. I will cite CVC 41501 and take traffic
school, '" Meyer told me.
With this backup plan in mind I set about creating a reasonable sounding argument. But I had to get busy. My court date was in three
days. Copyright 2001 by Edmunds.com, Inc. All rights reserved.
Beat Your Next Ticket -- Part II
By Philip Reed
On the day of my trial for a speeding ticket I arrived outside traffic court in West Los Angeles to find about 30 people milling
around, waiting for the doors to open. At the other end of the corridor, the police officers who had issued the tickets had gathered.
I noticed that these two groups didn't mingle at all.
When the doors finally opened (45 minutes late) we all filed into the courtroom. The police officers sat on one side of the room
while the ticketed motorists sat on the other.
I had prepared for my day in court in several ways: I wore a coat and tie I had read several books about presenting cases in traffic
court I had drawn a diagram of the area where the traffic stop occurred I had copies of the California Vehicle Codes relevant to
my case
The only thing I was lacking was a compelling argument to prove that I wasn't speeding. I mean, I was speeding and there were no
real technicalities I could exploit to contradict that. My strategy was to wait until the last possible moment, hoping the ticketing
officer didn't show up, and then, if he did make an appearance, invoke California Vehicle Code 41501 stating my right to go to traffic
school.
The judge finally appeared and told us that he would be reading off our names. If we were prepared to proceed to trial, we should
respond by saying, "Ready." The judge sternly warned us that this was our last chance to opt for traffic school. If we went to trial
and lost, there would be points on our license. If we took traffic school now our sins would be forgiven.
Surveying the room, the judge then said to one of his clerks, "You know, I saw a lot of officers downstairs. Let them know we're
starting now." The clerk disappeared. This, and several other comments showed that the judge was trying to scare us into taking
traffic school rather than tying up the court with a trial.
The judge then began reading our names. In several cases, the defendant answered, "Ready, " and the police officers responded by
saying, "The people are ready." The judge set these case files to one side for trial. But in over half of the cases there was no
response from the police. In other cases the police responded by saying, "Officer doesn't remember, " and the case was dismissed.
In one case, the judge got no response when he called the police officer's name. He told his clerk, "Check downstairs. I know I
saw the officer down there." This case file was set to one side, and the defender slouched in his seat, muttering an obscenity.
The people whose cases were dismissed usually said, "All right!" and left the courtroom with a spring in their step.
When my name was called I responded with a confident, "Ready!" The judge then called out the police officer's name. I held my breath.
He called it again. No response. The judge glanced over the case and said, "People unable to proceed. Case dismissed. Watch your
speed."
I left the courtroom feeling a load was lifted, and joined the other celebrating ex-offenders in the corridor.
As I walked back to my car, I realized that I had won in a number of ways:
The charges were dropped and my $77 fine would be returned No points would be put on my license My insurance premiums would not
go up I wouldn't have to spend the money or time on traffic school.
All of these benefits were the result of taking the time to go to traffic court.
Several days later a friend of mine had a different experience in court. So far this year my friend has beat two tickets and lost
two. The two tickets he successfully challenged were for speeding based on radar and were given to him by California Highway Patrol;
the two he lost were from city police departments for non-speeding moving violations. In this particular case he was ticketed for
failure to come to a complete stop at a stop sign. He went to court in West Los Angeles and waited for the entire afternoon for
the chance to argue his case.
My friend reported that the judge in his courtroom was like a flamboyant game show host. When he ruled in favor of the driver, he
seemed to share in the excitement of the moment by boisterously proclaiming, "Looks like you won't be going to traffic school! And
we'll even be mailing you your money back!" But when he ruled against the motorist he became sarcastic and abrupt.
The order of the events in the trials were: 1.The officer described the circumstances under which he issued the ticket 2.The judge
asked the officer follow-up questions about the case 3.The defendant told his or her side of the story 4.The judge questioned the
defendant and referred further questions to the officer.
In some cases, the defendant was allowed to tell his story only to discover that the officer had shot a video of the traffic stop.
These cases always went against the driver.
When my friend was stopped he had asked the police officer: "Are you saying that I blew off the stop sign completely?" The officer
said, "No. You just rolled through it." But in court, the cop told a different story.
The officer described the location where he was parked and stated that he had an unobstructed view of the intersection. He then
told the judge that my friend had gone through the stop sign at 15 mph. The judge then asked, "What's the error factor in your speed
estimation certification?" The officer said it was "plus or minus 3 mph."
When it came time to issue a ruling, this judge used this fact against my friend. He said, "Assume for a minute that the officer
had been having a bad day. That still means you were going at least 9 mph. Suppose he was having a really, really bad day. That
still means you were going 6 miles an hour."
My friend felt that he had learned an important lesson from this trip to court. Since the police officer presents his side of the
story first, you should try to anticipate what he will say and create your strategy accordingly. Clearly, this officer had presented
what he thought would be an ironclad story to refute someone trying to say that they didn't "roll" through the intersection. If
he had said that my friend had gone through the intersection at 5 mph without stopping, that 3 mph variation in his speed estimation
certification would be cutting it pretty close.
This brought up another important point. Walter Meyer, a traffic school instructor and freelance writer who lives in San Diego,
Calif., said that if the case hinges on your word versus the police officer, the judge will usually rule in favor of the officer.
This is because police officers are perceived as experts in traffic rules. Furthermore, Meyer said, "The judge knows that he can
walk out the door of the courthouse and find a dozen people breaking the traffic laws." This leads to an attitude of "guilty until
proven innocent" at least in traffic court.
This was echoed by my friend who had some advice for anyone going to try his or her case in traffic court: "Make sure your case
is based on concrete evidence and don't rely strictly on what the officer said at the time of the traffic stop. Don't just go in
there and say, 'I didn't do it.'"
For example, one woman who successfully challenged her ticket convinced the judge that the stop sign she supposedly ran was resting
on a concrete pylon that was too low to see. She brought photos to court to show the judge and her case was dismissed.
Although my case was dismissed, I still had one important step. Experts advise that you contact the DMV and get a copy of your driving
record to make sure your dismissed case hasn't inadvertently wound up on your license. While the clerical error is the court's fault,
you could be the one spending a night in jail.
As my friend and I discussed our experiences we agreed that there was very little reason not to go to traffic court. There was some
chance that the officer wouldn't show up and your case would be dismissed. If the officer did appear, you could always opt for traffic
school at the last minute. Furthermore, some speeding tickets (most notably radar tickets) can be challenged on a technicality.
Other tickets can be dismissed by presenting evidence such as diagrams or photographs.
It's important to take a larger view of this whole subject. The police write many tickets knowing that the motorist will simply
pay their fine by mail hoping to put the whole incident behind them. Other offenders will choose traffic school. Only a small group
of motorists will ask for a trial in traffic court. And an even smaller number will actually go to trial. Clearly, if everyone went
to traffic court, the system would become overburdened and collapse. So, if you feel your ticket was unwarranted, ask for your day
in court you could walk out a winner.
Copyright 2001 by Edmunds.Com, Inc. All rights reserved.
http://www.saf.org/pub/rkba/Legal/KennedyCSPAN.htm
SC Lustice Kennedy on the Constitution
[In response to student question:]
Justice Kennedy: "Of course, weapons in schools has emerged as a problem of tremendous concern to students, to teachers, to parents,
to the society at large. And it's a serious problem and we_must_do something about it. In the initial instance, who has been charged
with enforcing and making legal policy? State officials, local officials, school boards, school principals, school experts. And
courts will always give them a substantial amount of deference. They're on the front lines, they're on the front, and they're going
to have to cope with the difficult problems that this presents. I wonder if what you had in mind is a case called United States
v. Lopez, or Lopez v. United States. Does anybody [here] know what that case is? I was wondering if you had that in mind in your
question.
[Recognizes student] What is that case?"
Student: "It was a case where Lopez had a gun at school, and the Supreme Court had to rule as to whether they [Congress] could make
a federal law banning guns from all campuses."
Justice Kennedy: "There was a federal statute, enacted by the_Congress of the United States_and signed by the President that made
it unlawful to possess a weapon or to have a weapon within a thousand yards of a school, or in a school, of course. And this Court
declared that law unconstitutional._ [rhetorically] Does this mean that the Court_wants_guns in schools? What possibly was in the
Court's mind when they made this decision? [recognizes student] Yes."
Student: "I think it's possible that they would prefer that schools are under local jurisdiction, and the state jurisdiction, rather
than the national."
Justice Kennedy: "You would say the courts_prefer_that. Are you happy with the verb you used? Is that your final answer?"
[laughter]
Student: "Possibly not."
Justice Kennedy: "Do we rule under the Constitution by what we_prefer?_"
Student: "No. Absolutely not."
Justice Kennedy: "So you want to amend your answer slightly."
Student: "I think I would perhaps."
Justice Kennedy: "How would you amend it?"
Student: "The courts... well, education is normally under the jurisdiction of the states."
Justice Kennedy [repeating]: "Education is normally under the jurisdiction of the states."
Student: "...therefore the courts would state that that's where it should stay?"
Justice Kennedy: "And the Court felt, _determined, _in this case and it was a closely divided case, it was five to four, as I recall.
The Court held that the federal government had exceeded its power by acting_itself_to enact legislation to prevent guns in schools.
[rhetorically] Does this mean that they thought guns in schools were a good idea? The underlying principle that drove the decision
is what... as you've indicated?"
Student: "Whether the jurisdiction was state or national."
Justice Kennedy: "This was a very important case on federalism. This was one of these cases, instances when I'm going to ask a question
and I don't want to convey a false impression: 'Who cares about the states anyway? What do they need the states for? Some states
are a little slow... they don't have really great laws on guns in schools... why doesn't the Congress do it? What difference does
it make? Who cares?' Somebody from the Bell School [Washington, D.C.]. I'm sure if you're from the District of Columbia you may
have a different opinion about that.
[Laughter]
Justice Kennedy: "'Why do we need states anyway?'"
Student: "I think as a country we decided the states would be one way to maintain local authority."
Justice Kennedy: "Why... you know what's going to happen now..."
[Laughter]
Justice Kennedy: "Why do we want local authority?"
Student: "Well we learned all our lessons from King George and the gang..."
Justice Kennedy: "What did King George and his cronies teach us about local authority?"
Student: "Well, the colonists didn't have any local authority, and they weren't happy about it, and a lot of their rights were taken
away. And when we wrote the Constitution they decided one way to maintain the rights of the people would be to establish states
that could make their own decisions on a smaller scale than a national government."
Justice Kennedy: "One of the things that I want you to remember in thinking about the Constitution is that our Constitution has
a certain design, a certain structure. There are some architectural features to our Constitution, and one of them is federalism.
The Framers, because of their experience with tyranny under English rule, decided that local government, local control, was very
important for liberty. And so they established this idea of federalism. Now, federalism is something that our students, our people
at large, don't think about often enough, and I don't think the Congress thinks about it often enough. Federalism is a very important
principle. Federalism rests on the proposition that it is wrong for you to delegate so much power, so much authority over your own
lives to a remote_central_power in Washington that you lose all democratic control. Now we were talking earlier about the Constitution
changing. The Framers of the Constitution didn't think about modern transportation, they didn't even know what steam engines were,
steamboats were just coming into play, obviously not jet airplanes, and internets, and a nationwide telecommunications system. And
yet, we have an obligation to preserve, and protect, and defend the principle of federalism they designed and to make it work in
a modern world. And you should ask yourself whether or not: A. the people of the United States, B. the people who study the Constitution,
C. the Congress of the United States think often enough about the consequences of their actions for a federal system. You could
hear political science professors get up and tell you that 'federalism is outmoded, we should abolish it. New Hampshire, Rhode Island
have two votes in the Senate just like the state of California does. What is the reason for this? How can we justify it?' You must
understand that federalism is part of the dynamic of freedom that the Framers insisted upon, that the Framers designed. This was
the most brilliant political theory breakthrough of many centuries, this was the Framers' unique contribution to political science
--the idea that you have two loyalties, two responsibilities, two obligations, to two governments, to the United States as the national
government, and to the state. If you break into a bank, you're going to be prosecuted by the state and the federal government, because
you're violating both laws. If you rob the mails, you're going to be punished by the United States. You have a direct obligation
to the United States. You also have a direct obligation to your state. What were the Framers talking about, that_two_governments
gives you more freedom than one? I mean, how does this work? How do you get more freedom if you have two governments than if you
have one? Somebody who hasn't had a chance to talk yet... we've covered it in part. Yes." [recognizes student]
Student: "Perhaps because having two governments keeps the power balanced, so that one doesn't go only to everyone, and becoming
maybe the whole power of ruling over people. So having two governments will, like, balance this power and giving more freedom to
the people."
Justice Kennedy: "Yes, I think that's the core of the principle, that two governments somehow keeps a balance. How does that work?
Take the example of guns in schools."
Student: "Well, like, keeping the power, between like, well like for example in many other countries that only have the one ruler,
it keeps the people restricted from their freedom for doing whatever they want. So having two governments, one giving one law, and
the other giving the other law. Having these two powers balanced means that the people can, like, be neutral, and have a more freedom
of doing what they think is right for them. So having two governments, the opinion of the people can keep them balancing, and not
allow one to take the whole power."
Justice Kennedy: "We have more... I think that's a well stated answer... we have more opportunity for people to make choices as
to what their government ought to do. And there are many ways of controlling guns in schools, there are many different policies.
And our Court had held that under that particular statute --perhaps there could be a statute designed a different way-- but under
that particular statute, the federal government had just overreached its powers. The federal government, believe it or not, is a
government of limited powers. [smiling] Now in this day and age, of our global military responsibilities, of our national economy,
of our national transportation system, of a national banking system, it's hard to think of how the federal government's power is
limited. But it's very, very important to recognize that federalism is part of the structure of the Constitution, and that the structure
of the Constitution is the reason our Constitution has lasted. I teach in Europe every year, a law course, an international law
course, and have students many of whom come from the United States, and they love Europe. They see cathedrals and ancient castles,
and marvelous paintings that are hundreds, sometimes thousands of years old, and they think 'oh well, America is kind of new, we're
a young nation..." But I tell them, remember, your Constitution is the oldest working constitution in the world. It's lasted. Now
there are constitutions around the world today that are written in very, very beautiful inspiring language, perhaps you might even
think more inspiring than our own, but they're not worth the paper they're written on. Because there's no political structure, there's
no political tradition, there's no tradition of liberty and freedom to guarantee that they exist. And federalism is one of the neglected
subjects of the American political discourse. And the school gun case was a way for this Court to teach that, to tell the people
'be careful about thinking that the government in Washington solves everybody's problems.' That's not the design of the Constitution.
Now, newspaper writers tell me that federalism doesn't get people too excited. It's not an exciting issue, and yet it's part of
the features of the Constitution. And when you go back to your classroom I want you to ask yourself, and ask your students, 'What
are the other elements of the architectural design of the Constitution?' What are the other structural components of our Constitution?
What are the elements of our governmental design that distinguishes our constitution from others?' Federalism is one, and there
are others, and you can talk about that when you get back to your classes. Other questions... that was kind of a long answer to
the guns in school question, but it was a good question, and one that helped me." [later]
Student: "Regarding your comments earlier about how the Constitution does or does not change with the times --about the Second Amendment,
the language of the Second Amendment is often subject to debate, particularly regarding the language about a 'well regulated militia',
and how, being that you talked about global involvement with our military, it's clearly not... it's clearly obsolete. So what is
the Supreme Court's opinion, how does it interpret the language of the Second Amendment, in regards to 'well regulated militia'
and the necessity of it today? Especially particularly with a rise in gun violence in schools, and everything, the need and the
necessity for the Second Amendment."
Justice Kennedy: "Again, our lower courts are just beginning to confront the terms of the Second Amendment, to see what it means
in the context of gun control. There are going to be some years of litigation and debate on that before it comes to the [Supreme]
Court. I do think that it's wrong to say that the Constitution is going to change with the times. The times will illuminate the
meaning of the Constitution. And the Constitution must be interpreted in a way so that in modern times it is preserved. Be very
careful about saying that the Constitution changes. Remember this, too. The Constitution lasts only so long as it's respected by
the people. It's just a piece of paper --in one sense. It's the meaning of our nation, in another sense. But every generation has
to learn it all.. over.. again. Democracy isn't inherited. It's not something that's in your genes. It's taught... and it's learned.
And when the Court decides a case, under the Constitution, people can understand the Constitution in the context of their own times.
The Constitution isn't some dusty old document. When we had the flag burning cases, whether or not it's permitted under the First
Amendment to burn a flag in order to make a point. I thought it was a very important teaching lesson. Because there are a lot of
people who didn't like flag burners, that get infuriated that this magnificent symbol of our country would be trashed by a bunch
of hoodlums. Who likes that? On the other hand, it was a good lesson, to show that the First Amendment demands that you acc... tolerate
certain views that you don't like. It was a good civics lesson for our country, to show how the First Amendment works. And we'll
have more difficulty... and I think after our decision, people began to think about the First Amendment in a different way. So when
decisions come out you should be very careful to remember what the Court is doing is trying to preserve the traditions and the values
and the principles of the Constitution in a world that is changing very, very fast. And this is difficult to do."
A fla case - right to drive
Source = http://www.cs.cmu.edu/~karl/govt/driver/fl-brief.text
Another victory against "licensed" "driving".
The following is the email I received from a correspondent who took the Washington driver brief, modified it suitably for his state
(Florida), and went into court with it.
He won.
No surprise, to many of us. Note, e.g., the substitution of Florida's definition of "drive" at the appropriate point in the brief,
and how it relates to "traffic" and other important verbiage.
He has agreed to placement of this modified brief in my web pages, on the condition that his name be removed -- apparently, he doesn't
feel any desire to be publicly identifiable in web pages of this sort. So I have done; if you have a burning need or desire to contact
this person, drop me a note and I will forward to him, single-blind. If he wants to chat with you, he will respond directly.
His intro paragraphs are below, followed by the modified brief. --karl ________________
To let everyone know how the case turned out. I was looking at $810.00 in fines and court cost and 2 mo. in jail. I bargained out
with a no-contender plea $150.00 in court cost and judgment of guilt withheld.
I do believe the jurisdiction brief on travel worked. We both know I could have won but time is money and there was no reason to
go to court if the record will not show guilt. Below is a copy of the brief: ________________
In the County Court in and for County of , State of Florida
BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION
TABLE OF AUTHORITIES
CONSTITUTIONS
Constitution for the United States of America, Amendment 9 16.1 Constitution of the State of Florida Article I I, II
STATUTES
Florida Statute Chapter 322 DRIVERS' LICENSES
Florida Statute CHAPTER 318 DISPOSITION OF TRAFFIC INFRACTIONS
Florida Statute CHAPTER 316 STATE UNIFORM TRAFFIC CONTROL Title 18 USC 3116 C.J.S., Constitutional Law, Sect.202, p.987
Const. Law, 329 and corresponding Am. Jur. [2nd]
12 Am.Jur. [1st] Const. Law, Sect.573, p.269
16 Am.Jur. (2nd), Const. Law, Sect.70
25 Am.Jur. (1st) Highways, Sect.260
25 Am.Jur. (1st) Highways, Sect.427, p.717
CASE HISTORIES
Allen vs. City of Bellingham, 163 P. 18
American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200
Bacahanan vs. Wanley, 245 US 60
Barney vs. Board of Railroad Commissioners, 17 P.2d 82
Barbour vs. Connolly, 113 US 27, 31
Blair vs. Broadmore, 93 SE 532.
Boon vs. Clark, 214 SSW 607
Boyd vs. United States, 116 US 616.
Chicago Motor Coach vs. Chicago, 169 NE 22
City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232.
Cohens vs. Meadow, 89 SE 876
Connolly vs. Union Sewer Pipe Co., 184 US 540
Crandall vs. Nevada, 6 Wall 35, 46
Cummins vs. Homes, 155 P. 171
Davis vs. Massachusetts, 167 US 43
Dennis vs. Moses, 52 P. 333
Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781
Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592
Hale v. Hinkel, 201 US 43, 74-75.
Hadfield vs. Lundin, 98 Wash 657l, 168, p.516
Hurtado vs. California, 110 US 516
International Motor Transit Co. vs. Seattle, 251 P. 120
Kent vs. Dulles, 357 US 116 (1958)
Lafarier vs. Grand Trunk R.R. Co., 24 A. 848
Ligare vs. Chicago, 28 NE 934
Locket vs. State, 47 Ala. 45
Mehlos vs. Milwaukee, 146 NW 882
McCulloch vs. Maryland, 4 Wheat 316
Miranda vs. Arizona, 384 US 436, 491
Miller vs. U.S., 230 F. 486, 489
Mulger vs. Kansas, 123 US 623, 661
Newbill vs. Union Indemnity Co., 60 SE.2d 658.
Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26.
O'Neil vs. Providence Amusement Co., 108 A. 887.
Packard vs. Banton, 44 S.Ct. 256
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613
Parlett Cooperative vs. Tidewater Lines, 164 A. 313
Parks vs. State, 64 NE 682
People vs. Henderson, 218 NW.2d 2, 4
People vs. Smith, 108 Am.St.Rep. 715
Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290
Riley vs. Carter, 79 ALR 1018
Riley vs. Laeson, 142 So. 619
Robertson vs. Department of Public Works, 180 Wash 133, 147
Rosenblatt vs. California State Board of Pharmacy, 158 P.2d 199, 203
Slote vs. Examination, 112 ALR 660
Snerer vs. Cullen, 481 F. 946
State vs. City of Spokane, 186 P. 864.
State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487
State vs. Johnson, 243 P. 1073
State vs. Strasburg, 110 P. 1020
Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140
Simon vs. Craft, 182 US 427
Simons vs. United States, 390 US 389
Ex Parte Sterling, 53 SW.2d 294
Teche Lines vs. Danforth, Miss., 12 S.2d 784
Tiche vs. Osborne, 131 A. 60.
Thompson vs. Smith, 154 SE 579
Washington A.G.O. 59-60 No. 88, p. 11
Watson vs. Memphis, 375 US 526
Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118.
Willis vs. Buck, 263 P.l 982.
Yick Wo vs. Hopkins, 118 US 356.
LAW DICTIONARIES
Bergh Business Law 25.1, 55.1.4, 61, 63
Bouvier's Law Dictionary 5.1, 9.3, 9.4, 9.5, 14.1, 25.3, 27, 28, 29.1, 71.1, 88, 92.1, 93
Century Dictionary, p.2034.
Woodward Quasi Contracts 9 72
Black's Law Dictionary, 5th ed.
ENGLISH LANGUAGE DICTIONARIES
Webster Unabridged Dictionary 9.1
BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION
NOW, comes the Xxxxxx Xxxx Xxxxxxx, appearing specially and not generally or voluntarily, but under threat of arrest if he failed
to do so, with this "BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION, " stating as follows:
ARGUMENT
If ever a judge understood the public's right to use the public roads, it was Justice Tolman of the Supreme Court of the State of
Washington. Justice Tolman stated:
"Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons
and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through
lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by
more or less rapid encroachment." Robertson vs. Department of Public Works, 180 Wash 133, 147.
The words of Justice Tolman ring most prophetically in the ears of Citizens throughout the country today as the use of the public
roads has been monopolized by the very entity which has been empowered to stand guard over our freedoms, i.e., that of state government.
RIGHTS
The "most sacred of liberties" of which Justice Tolman spoke was personal liberty. The definition of personal liberty is:
"Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected
by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution,
which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable
Rights, as sacred as the Right to private property...and is regarded as inalienable." 16 C.J.S., Constitutional Law, Sect.202, p.987.
This concept is further amplified by the definition of personal liberty:
"Personal liberty largely consists of the Right of locomotion -- to go where and when one pleases -- only so far restrained as the
Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public
highways and to transport his property thereon, by horse drawn carriage, wagon, or automobile, is not a mere privilege which may
be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness.
Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways
or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's
Rights, he will be protected, not only in his person, but in his safe conduct." [emphasis added] II Am.Jur. (1st) Constitutional
Law, Sect.329, p.1135. ....and further... "Personal liberty -- consists of the power of locomotion, of changing situations, of removing
one's person to whatever place one's inclination may direct, without imprisonment or restraint unless by due process of law." 1
Blackstone's Commentary 134; Hare, Constitution__.777; Bovier's Law Dictionary, 1914 ed., Black's Law Dictionary, 5th ed.
Justice Tolman was concerned about the State prohibiting the Citizen from the "most sacred of his liberties, " the Right of movement,
the Right of moving one's self from place to place without threat of imprisonment, the Right to use the public roads in the ordinary
course of life.
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation
(charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There
is a difference between a corporation and an individual. The United States Supreme Court has stated:
"...We are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that
the latter has no right to refuse to submit its books and papers for examination on the suit of the State. The individual may stand
upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract
is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to investigation, so
far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection
of his life, liberty, and property. His Rights are such as the law of the land long antecedent to the organization of the state,
and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are the refusal
to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes
nothing to the public so long as he does not trespass upon their rights.
"Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public.
It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its
charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved
right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly
to hold that the State, having chartered a corporation to make use of certain franchises, could not in exercise of its sovereignty
inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and
papers for that purpose." [emphasis added] Hale vs. Hinkel, 201 US 43, 74-75.
Corporations engaged in mercantile equity fall under the purview of the State's admiralty jurisdiction, and the public at large
must be protected from their activities, as they (the corporations) are engaged in business for profit.
"...Based upon the fundamental ground that the sovereign state has the plenary control of the streets and highways in the exercise
of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a place for the prosecution of
a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the
streets in the usual way and the use of the streets as a place of business or a main instrumentality of business for private gain.
The former is a common Right, the latter is an extraordinary use. As to the former the legislative power is confined to regulation,
as to the latter it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the
prosecution of its business as such is not a right but a mere license of privilege." Hadfield vs. Lundin, 98 Wash 657l, 168, p.516.
It will be necessary to review early cases and legal authority in order to reach a lawfully correct theory dealing with this Right
or "privilege." We will attempt to reach a sound conclusion as to what is a "Right to use the road" and what is a "privilege to
use the road". Once reaching this determination, we shall then apply those positions to modern case decision.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda
vs. Arizona, 384 US 436, 491. ...and... "The claim and exercise of a constitutional Right cannot be converted into a crime." Miller
vs. U.S., 230 F. 486, 489. ...and... "There can be no sanction or penalty imposed upon one because of this exercise of constitutional
Rights." Snerer vs. Cullen, 481 F. 946.
Streets and highways are established and maintained for the purpose of travel and transportation by the public. Such travel may
be for business or pleasure.
"The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental Right
of which the public and the individual cannot be rightfully deprived." [emphasis added] Chicago Motor Coach vs. Chicago, 169 NE
22; Ligare vs. Chicago, 28 NE 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect.163. ...and..."The Right of the Citizen
to travel upon the public highways and to transport his property thereon, either by horse drawn carriage or by automobile, is not
a mere privilege which a city can prohibit or permit at will, but a common Right which he has under the right to life, liberty,
and the pursuit of happiness." [emphasis added] Thompson vs. Smith, 154 SE 579.
So we can see that a Citizen has a Right to travel upon the public highways by automobile and the Citizen cannot be rightfully deprived
of his Liberty. So where does the misconception that the use of the public road is always and only a privilege come from?
"...For while a Citizen has the Right to travel upon the public highways and to transport his property thereon, that Right does
not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose no person
has a vested right to use the highways of the state, but is a privilege or a license which the legislature may grant or withhold
at its discretion." State vs. Johnson, 243 P. 1073; Hadfield, supra; Cummins vs. Homes, 155 P. 171; Packard vs. Banton, 44 S.Ct.
256; and other cases too numerous to mention.
Here the court held that a Citizen has the Right to travel upon the public highways, but that he did not have the right to conduct
business upon the highways. On this point of law all authorities are unanimous.
"Heretofore the court has held, and we think correctly, that while a Citizen has the Right to travel upon the public highways and
to transport his property thereon, that Right does not extend to the use of the highways, either in whole or in part, as a place
of business for private gain." Barney vs. Board of Railroad Commissioners, 17 P.2d 82; Willis vs. Buck, 263 P.l 982. and... "The
right of the citizen to travel upon the highway and to transport his property thereon, in the ordinary course of life and business,
differs radically and obviously from that of one who makes the highway his place of business for private gain in the running of
a stagecoach or omnibus." State vs. City of Spokane, 186 P. 864.
What is this Right of the Citizen which differs so "radically and obviously" from one who uses the highway as a place of business?
Who better to enlighten us than Justice Tolman of the Supreme Court of Washington State? In State vs. City of Spokane, supra, the
Court also noted a very "radical and obvious" difference, but went on to explain just what the difference is:
"The former is the usual and ordinary right of the Citizen, a common right to all, while the latter is special, unusual, and extraordinary."
and... "This distinction, elementary and fundamental in character, is recognized by all the authorities." State vs. City of Spokane,
supra.
This position does not hang precariously upon only a few cases, but has been proclaimed by an impressive array of cases ranging
from the state courts to the federal courts.
"the right of the Citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business,
differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain in the
running of a stagecoach or omnibus. The former is the usual and ordinary right of the Citizen, a right common to all, while the
latter is special, unusual, and extraordinary." Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781. ...and... "The right of the Citizen
to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common
right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.
It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel,
includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary
purpose of life and business." Teche Lines vs. Danforth, Miss., 12 S.2d 784; Thompson vs. Smith, supra.
There is no dissent among various authorities as to this position. (See Am.Jur. [1st] Const. Law, 329 and corresponding Am. Jur.
[2nd].)
"Personal liberty -- or the right to enjoyment of life and liberty -- is one of the fundamental or natural rights, which has been
protected by its inclusion as a guarantee in the various constitutions, which is not derived from nor dependent on the U.S. Constitution...
It is one of the most sacred and valuable rights [remember the words of Justice Tolman, supra.] as sacred as the right to private
property...and is regarded as inalienable." 16 C.J.S. Const. Law, Sect.202, p.987.
As we can see, the distinction between a "Right" to use the public roads and a "privilege" to use the public roads is drawn upon
the line of "using the road as a place of business" and the various state courts have held so. But what have the U.S. courts held
on this point?
"First, it is well established law that the highways of the state are public property, and their primary and preferred use is for
private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature
may prohibit or condition as it sees fit." Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140, and cases cited; Frost
and F. Trucking Co. vs. Railroad Commission, 271 US 592; Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290; Parlett
Cooperative vs. Tidewater Lines, 164 A. 313.
So what is a privilege to use the roads? By now it should be apparent even to the "learned" that an attempt to use the road as a
place of business is a privilege. The distinction must be drawn between...
1.Travelling upon and transporting one's property upon the public roads, which is our Right; and...
2.Using the public roads as a place of business or a main instrumentality of business, which is a privilege.
"[The roads]...are constructed and maintained at public expense, and no person therefore, can insist that he has, or may acquire,
a vested right to their use in carrying on a commercial business." Ex Parte Sterling, 53 SW.2d 294; Barney vs. Railroad Commissioners,
17 P.2d 82; Stephenson vs. Binford, supra.
"When the public highways are made the place of business the state has a right to regulate their use in the interest of safety and
convenience of the public as well as the preservation of the highways." Barney vs. Railroad Commissioners, supra.
"[The state's] right to regulate such use is based upon the nature of the business and the use of the highways in connection therewith."
Ibid.
"We know of no inherent right in one to use the highways for commercial purposes. The highways are primarily for the use of the
public, and in the interest of the public, the state may prohibit or regulate...the use of the highways for gain." Robertson vs.
Dept. of Public Works, supra.
There should be considerable authority on a subject as important a this deprivation of the liberty of the individual "using the
roads in the ordinary course of life and business." However, it should be noted that extensive research has not turned up one case
or authority acknowledging the state's power to convert the individual's right to travel upon the public roads into a "privilege."
Therefore, it is concluded that the Citizen does have a "Right" to travel and transport his property upon the public highways and
roads and the exercise of this Right is not a "privilege."
DEFINITIONS
In order to understand the correct application of the statute in question, we must first define the terms used in connection with
this point of law. As will be shown, many terms used today do not, in their legal context, mean what we assume they mean, thus resulting
in the misapplication of statutes in the instant case.
AUTOMOBILE AND MOTOR VEHICLE
There is a clear distinction between an automobile and a motor vehicle. An automobile has been defined as:
"The word `automobile' connotes a pleasure vehicle designed for the transportation of persons on highways." American Mutual Liability
Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200.
While the distinction is made clear between the two as the courts have stated:
"A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons
for which remuneration is received." International Motor Transit Co. vs. Seattle, 251 P. 120.
"The term `motor vehicle' is different and broader than the word `automobile.'" City of Dayton vs. DeBrosse, 23 NE.2d 647, 650;
62 Ohio App. 232.
The distinction is made very clear in Title 18 USC 31:
"Motor vehicle" means every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes
on the highways in the transportation of passengers, or passengers and property.
"Used for commercial purposes" means the carriage of persons or property for any fare, fee, rate, charge or other considerations,
or directly or indirectly in connection with any business, or other undertaking intended for profit.
Clearly, an automobile is private property in use for private purposes, while a motor vehicle is a machine which may be used upon
the highways for trade, commerce, or hire.
TRAVEL
The term "travel" is a significant term and is defined as:
"The term `travel' and `traveler' are usually construed in their broad and general sense...so as to include all those who rightfully
use the highways viatically (when being reimbursed for expenses) and who have occasion to pass over them for the purpose of business,
convenience, or pleasure." [emphasis added] 25 Am.Jur. (1st) Highways, Sect.427, p.717.
"Traveler -- One who passes from place to place, whether for pleasure, instruction, business, or health." Locket vs. State, 47 Ala.
45; Bovier's Law Dictionary, 1914 ed., p. 3309.
"Travel -- To journey or to pass through or over; as a country district, road, etc. To go from one place to another, whether on
foot, or horseback, or in any conveyance as a train, an automobile, carriage, ship, or aircraft; Make a journey." Century Dictionary,
p.2034.
Therefore, the term "travel" or "traveler" refers to one who uses a conveyance to go from one place to another, and included all
those who use the highways as a matter of Right.
Notice that in all these definitions the phrase "for hire" never occurs. This term "travel" or "traveler" implies, by definition,
one who uses the road as a means to move from one place to another.
Therefore, one who uses the road in the ordinary course of life and business for the purpose of travel and transportation is a traveler.
DRIVE
Florida Chapter 322.01 Definitions(15) "Drive" means to operate or be in actual physical control of a motor vehicle in any place
open to the general public for purposes of vehicular traffic.
(See "traffic" infra)
DRIVER
The term "driver" in contradistinction to "traveler, ": is defined as:
"Driver -- One employed in conducting a coach, carriage, wagon, or other vehicle..." Bovier's Law Dictionary, 1914 ed., p. 940.
Notice that this definition includes one who is "employed" in conducting a vehicle. It should be self-evident that this person could
not be "traveling" on a journey, but is using the road as a place of business.
OPERATOR
Today we assume that a "traveler" is a "driver, " and a "driver" is an "operator." However, this is not the case.
"It will be observed from the language of the ordinance that a distinction is to be drawn between the terms `operator' and `driver';
the `operator' of the service car being the person who is licensed to have the car on the streets in the business of carrying passengers
for hire; while the `driver' is the one who actually drives the car. However, in the actual prosecution of business, it was possible
for the same person to be both `operator' and `driver.'" Newbill vs. Union Indemnity Co., 60 SE.2d 658.
To further clarify the definition of an "operator" the court observed that this was a vehicle "for hire" and that it was in the
business of carrying passengers.
This definition would seem to describe a person who is using the road as a place of business, or in other words, a person engaged
in the "privilege" of using the road for gain.
This definition, then, is a further clarification of the distinction mentioned earlier, and therefore:
1.Traveling upon and transporting one's property upon the public roads as a matter of Right meets the definition of a traveler.
2.Using the road as a place of business as a matter of privilege meets the definition of a driver or an operator or both.
TRAFFIC
Having defined the terms "automobile, " "motor vehicle, " "traveler, " "driver, " and "operator, " the next term to define is "traffic":
"...Traffic thereon is to some extent destructive, therefore, the prevention of unnecessary duplication of auto transportation service
will lengthen the life of the highways or reduce the cost of maintenance, the revenue derived by the state...will also tend toward
the public welfare by producing at the expense of those operating for private gain, some small part of the cost of repairing the
wear..." Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26.
Note: In the above, Justice Tolman expounded upon the key of raising revenue by taxing the "privilege" to use the public roads "at
the expense of those operating for gain."
In this case, the word "traffic" is used in conjunction with the unnecessary Auto Transportation Service, or in other words, "vehicles
for hire." The word "traffic" is another word which is to be strictly construed to the conducting of business.
"Traffic -- Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from
one person to another for an equivalent in goods or money..." Bovier's Law Dictionary, 1914 ed., p. 3307.
Here again, notice that this definition refers to one "conducting business." No mention is made of one who is traveling in his automobile.
This definition is of one who is engaged in the passing of a commodity or goods in exchange for money, i.e.., vehicles for hire.
Furthermore, the word "traffic" and "travel" must have different meanings which the courts recognize. The difference is recognized
in Ex Parte Dickey, supra:
"...in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous, interfere with the
ordinary traffic and travel and obstruct them."
The court, by using both terms, signified its recognition of a distinction between the two. But, what was the distinction? We have
already defined both terms, but to clear up any doubt:
"The word `traffic' is manifestly used here in secondary sense, and has reference to the business of transportation rather than
to its primary meaning of interchange of commodities." Allen vs. City of Bellingham, 163 P. 18.
Here the Supreme Court of the State of Washington has defined the word "traffic" (in either its primary or secondary sense) in reference
to business, and not to mere travel! So it is clear that the term "traffic" is business related and therefore, it is a "privilege."
The net result being that "traffic" is brought under the (police) power of the legislature. The term has no application to one who
is not using the roads as a place of business.
LICENSE
Florida Chapter 322.01 Definitions (16) "Driver's license" means a certificate which, subject to all other requirements of law,
authorizes an individual to drive a motor vehicle.
It is clear that Florida's definitions and meaning for the above is for commerce not travel. It seems only proper to define the
word "license, " as the definition of this word will be extremely important in understanding the statutes as they are properly applied:
"The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort." People
vs. Henderson, 218 NW.2d 2, 4.
"Leave to do a thing which licensor could prevent." Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118.
In order for these two definitions to apply in this case, the state would have to take up the position that the exercise of a Constitutional
Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could
then regulate or prevent.
This position, however, would raise magnitude Constitutional questions as this position would be diametrically opposed to fundamental
Constitutional Law. (See "Conversion of a Right to a Crime, " infra.)
In the instant case, the proper definition of a "license" is:
"a permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue
some occupation or to carry on some business which is subject to regulation under the police power." [emphasis added] Rosenblatt
vs. California State Board of Pharmacy, 158 P.2d 199, 203.
This definition would fall more in line with the "privilege" of carrying on business on the streets.
Most people tend to think that "licensing" is imposed by the state for the purpose of raising revenue, yet there may well be more
subtle reasons contemplated; for when one seeks permission from someone to do something he invokes the jurisdiction of the "licensor"
which, in this case, is the state. In essence, the licensee may well be seeking to be regulated by the "licensor."
"A license fee is a charge made primarily for regulation, with the fee to cover costs and expenses of supervision or regulation."
State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487.
The fee is the price; the regulation or control of the licensee is the real aim of the legislation.
Are these licenses really used to fund legitimate government, or are they nothing more than a subtle introduction of police power
into every facet of our lives? Have our "enforcement agencies" been diverted from crime prevention, perhaps through no fault of
their own, instead now busying themselves as they "check" our papers to see that all are properly endorsed by the state?
How much longer will it be before we are forced to get a license for our lawn mowers, or before our wives will need a license for
her "blender" or "mixer?" They all have motors on them and the state can always use the revenue.
POLICE POWER
The confusion of the police power with the power of taxation usually arises in cases where the police power has affixed a penalty
to a certain act, or where it requires licenses to be obtained and a certain sum be paid for certain occupations. The power used
in the instant case cannot, however, be the power of taxation since an attempt to levy a tax upon a Right would be open to Constitutional
objection. (See "taxing power, " infra.) Each law relating to the use of police power must ask three questions:
"1. Is there threatened danger? 2. Does a regulation involve a Constitutional Right? 3. Is this regulation reasonable?" People vs.
Smith, 108 Am.St.Rep. 715; Bovier's Law Dictionary, 1914 ed., under "Police Power."
When applying these three questions to the statute in question, some very important issues emerge.
First, "is there a threatened danger" in the individual using his automobile on the public highways, in the ordinary course of life
and business?
The answer is No! There is nothing inherently dangerous in the use of an automobile when it is carefully managed. Their guidance,
speed, and noise are subject to a quick and easy control, under a competent and considerate manager, it is as harmless on the road
as a horse and buggy.
It is the manner of managing the automobile, and that alone, which threatens the safety of the public. The ability to stop quickly
and to respond quickly to guidance would seem to make the automobile one of the least dangerous conveyances. (See Yale Law Journal,
December, 1905.)
"The automobile is not inherently dangerous." Cohens vs. Meadow, 89 SE 876; Blair vs. Broadmore, 93 SE 532.
To deprive all persons of the Right to use the road in the ordinary course of life and business, because one might, in the future,
become dangerous, would be a deprivation not only of the Right to travel, but also the Right to due process. (See "Due Process,
" infra.)
Next, does the regulation involve a Constitutional Right?
This question has already been addressed and answered in this brief, and need not be reinforced other than to remind this Court
that this Citizen does have the Right to travel upon the public highway by automobile in the ordinary course of life and business.
It can therefore be concluded that this regulation does involve a Constitutional Right.
The third question is the most important in this case. "Is this regulation reasonable?"
The answer is No! It will be shown later in "Regulation, " infra., that this licensing statute is oppressive and could be effectively
administered by less oppressive means.
Although the Fourteenth Amendment does not interfere with the proper exercise of the police power, in accordance with the general
principle that the power must be exercised so as not to invade unreasonably the rights guaranteed by the United States Constitution,
it is established beyond question that every state power, including the police power, is limited by the Fourteenth Amendment (and
others) and by the inhibitions there imposed.
Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment, since it operates
to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment
protects. (See Parks vs. State, 64 NE 682.)
"With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be
overthrown or impaired by any state police authority." Connolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R.
Co., 24 A. 848; O'Neil vs. Providence Amusement Co., 108 A. 887.
"The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution." [emphasis added]
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613; Bacahanan vs. Wanley, 245 US 60.
"It is well settled that the Constitutional Rights protected from invasion by the police power, include Rights safeguarded both
by express and implied prohibitions in the Constitutions." Tiche vs. Osborne, 131 A. 60.
"As a rule, fundamental limitations of regulations under the police power are found in the spirit of the Constitutions, not in the
letter, although they are just as efficient as if expressed in the clearest language." Mehlos vs. Milwaukee, 146 NW 882.
As it applies in the instant case, the language of the Fifth Amendment is clear:
No person shall be...deprived of Life, Liberty, or Property without due process of law.
As has been shown, the courts at all levels have firmly established an absolute Right to travel.
In the instant case, the state, by applying commercial statutes to all entities, natural and artificial persons alike, has deprived
this free and natural person of the Right of Liberty, without cause and without due process of law.
DUE PROCESS
"The essential elements of due process of law are...Notice and The Opportunity to defend." Simon vs. Craft, 182 US 427.
Yet, not one individual has been given notice of the loss of his/her Right, let alone before signing the license (contract). Nor
was the Citizen given any opportunity to defend against the loss of his/her right to travel, by automobile, on the highways, in
the ordinary course of life and business. This amounts to an arbitrary deprivation of Liberty.
"There should be no arbitrary deprivation of Life or Liberty..." Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US
356. ...and... "The right to travel is part of the Liberty of which a citizen cannot deprived without due process of law under the
Fifth Amendment. This Right was emerging as early as the Magna Carta." Kent vs. Dulles, 357 US 116 (1958).
The focal point of this question of police power and due process must balance upon the point of making the public highways a safe
place for the public to travel. If a man travels in a manner that creates actual damage, an action would lie (civilly) for recovery
of damages. The state could then also proceed against the individual to deprive him of his Right to use the public highways, for
cause. This process would fulfill the due process requirements of the Fifth Amendment while at the same time insuring that Rights
guaranteed by the U.S. Constitution and the state constitutions would be protected.
But unless or until harm or damage (a crime) is committed, there is no cause for interference in the private affairs or actions
of a Citizen.
One of the most famous and perhaps the most quoted definitions of due process of law, is that of Daniel Webster in his Dartmouth
College Case (4 Wheat 518), in which he declared that by due process is meant "a law which hears before it condemns, which proceeds
upon inquiry, and renders judgment only after trial." (See also State vs. Strasburg, 110 P. 1020; Dennis vs. Moses, 52 P. 333.)
Somewhat similar is the statement that is a rule as old as the law that "no one shall be personally bound (restricted) until he
has had his day in court, " by which is meant, until he has been duly cited to appear and has been afforded an opportunity to be
heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation
and it is oppressive and can never be upheld where it is fairly administered. (12 Am.Jur. [1st] Const. Law, Sect.573, p.269.)
Note: This sounds like the process used to deprive one of the "privilege" of operating a motor vehicle "for hire." It should be
kept in mind, however, that we are discussing the arbitrary deprivation of the Right to use the road that all citizens have "in
common."
The futility of the state's position can be most easily observed in the 1959 Washington Attorney General's opinion on a similar
issue:
"The distinction between the Right of the Citizen to use the public highways for private, rather than commercial purposes is recognized..."
...and... "Under its power to regulate private uses of our highways, our legislature has required that motor vehicle operators be
licensed (I.C. 49-307). Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, that all motor vehicle
operators will be competent and qualified, thereby reducing the potential hazard or risk of harm, to which other users of the highways
might otherwise be subject. But once having complied with this regulatory provision, by obtaining the required license, a motorist
enjoys the privilege of traveling freely upon the highways..." Washington A.G.O. 59-60 No. 88, p. 11.
This alarming opinion appears to be saying that every person using an automobile as a matter of Right, must give up the Right and
convert the Right into a privilege. This is accomplished under the guise of regulation. This statement is indicative of the insensitivity,
even the ignorance, of the government to the limits placed upon governments by and through the several constitutions.
This legal theory may have been able to stand in 1959; however, as of 1966, in the United States Supreme Court decision in Miranda,
even this weak defense of the state's actions must fall.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda
vs. Arizona, 384 US 436, 491.
Thus the legislature does not have the power to abrogate the Citizen's Right to travel upon the public roads, by passing legislation
forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we have previously established that
this "privilege" has been defined as applying only to those who are "conducting business in the streets" or "operating for-hire
vehicles."
The legislature has attempted, by legislative fiat, to deprive the Citizen of his Right to use the roads in the ordinary course
of life and business, without affording the Citizen the safeguard of "due process of law." This has been accomplished under supposed
powers of regulation.
REGULATION
"In addition to the requirement that regulations governing the use of the highways must not be vocative of constitutional guarantees,
the prime essentials of such regulation are reasonableness, impartiality, and definiteness or certainty." 25 Am.Jur. (1st) Highways,
Sect.260. ...and... "Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a
matter of right and one carried on by government sufferance of permission." Davis vs. Massachusetts, 167 US 43; Pachard vs Banton,
supra.
One can say for certain that these regulations are impartial since they are being applied to all, even though they are clearly beyond
the limits of the legislative powers. However, we must consider whether such regulations are reasonable and vocative-vocative of
constitutional guarantees.
First, let us consider the reasonableness of this statute requiring all persons to be licensed (presuming that we are applying this
statute to all persons using the public roads). In determining the reasonableness of the statute we need only ask two questions:
1. Does the statute accomplish its stated goal?
The answer is No!
The attempted explanation for this regulation "to insure the safety of the public by insuring, as much as possible, that all are
competent and qualified."
However, one can keep his license without retesting, from the time he/she is first licensed until the day he/she dies, without regard
to the competency of the person, by merely renewing said license before it expires. It is therefore possible to completely skirt
the goal of this attempted regulation, thus proving that this regulation does not accomplish its goal.
Furthermore, by testing and licensing, the state gives the appearance of underwriting the competence of the licensees, and could
therefore be held liable for failures, accidents, etc. caused by licensees.
2. Is the statute reasonable?
The answer is No!
This statute cannot be determined to be reasonable since it requires to the Citizen to give up his or her natural Right to travel
unrestricted in order to accept the privilege. The purported goal of this statute could be met by much less oppressive regulations,
i.e., competency tests and certificates of competency before using an automobile upon the public roads. (This is exactly the situation
in the aviation sector.)
But isn't this what we have now?
The answer is No! The real purpose of this license is much more insidious. When one signs the license, he/she gives up his/her Constitutional
Right to travel in order to accept and exercise a privilege. After signing the license, a quasi-contract, the Citizen has to give
the state his/her consent to be prosecuted for constructive crimes and quasi-criminal actions where there is no harm done and no
damaged property.
These prosecutions take place without affording the Citizen of their Constitutional Rights and guarantees such a the Right to a
trial by jury of twelve persons and the Right to counsel, as well as the normal safeguards such as proof of intent and a corpus
delicti and a grand jury indictment. These unconstitutional prosecutions take place because the Citizen is exercising a privilege
and has given his/her "implied consent" to legislative enactments designed to control interstate commerce, a regulated enterprise
under the police power of the state.
We must now conclude that the Citizen is forced to give up Constitutional guarantees of "Right" in order to exercise his state "privilege"
to travel upon the public highways in the ordinary course of life and business.
SURRENDER OF RIGHTS
A Citizen cannot be forced to give up his/her Rights in the name of regulation.
"...the only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular
transportation for compensation are (1) that the state must not exact of those it permits to use the highways for hauling for gain
that they surrender any of their inherent U.S. Constitutional Rights as a condition precedent to obtaining permission for such use..."
[emphasis added] Riley vs. Laeson, 142 So. 619; Stephenson vs. Binford, supra.
If one cannot be placed in a position of being forced to surrender Rights in order to exercise a privilege, how much more must this
maxim of law, then, apply when one is simply exercising (putting into use) a Right?
"To be that statute which would deprive a Citizen of the rights of person or property, without a regular trial, according to the
course and usage of the common law, would not be the law of the land." Hoke vs. Henderson, 15 NC 15. ...and... "We find it intolerable
that one Constitutional Right should have to be surrendered in order to assert another." Simons vs. United States, 390 US 389.
Since the state requires that one give up Rights in order to exercise the privilege of driving, the regulation cannot stand under
the police power, due process, or regulation, but must be exposed as a statute which is oppressive and one which has been misapplied
to deprive the Citizen of Rights guaranteed by the United States Constitution and the state constitutions.
TAXING POWER
"Any claim that this statute is a taxing statute would be immediately open to severe Constitutional objections. If it could be said
that the state had the power to tax a Right, this would enable the state to destroy Rights guaranteed by the constitution through
the use of oppressive taxation. The question herein, is one of the state taxing the Right to travel by the ordinary modes of the
day, and whether this is a legislative object of the state taxation.
The views advanced herein are neither novel nor unsupported by authority. The question of taxing power of the states has been repeatedly
considered by the Supreme Court. The Right of the state to impede or embarrass the Constitutional operation of the U.S. Government
or the Rights which the Citizen holds under it, has been uniformly denied." McCulloch vs. Maryland, 4 Wheat 316.
The power to tax is the power to destroy, and if the state is given the power to destroy Rights through taxation, the framers of
the Constitution wrote that document in vain.
"...It may be said that a tax of one dollar for passing through the state cannot sensibly affect any function of government or deprive
a Citizen of any valuable Right. But if a state can tax...a passenger of one dollar, it can tax him a thousand dollars." Crandall
vs. Nevada, 6 Wall 35, 46. ...and... "If the Right of passing through a state by a Citizen of the United States is one guaranteed
by the Constitution, it must be sacred from state taxation." Ibid., p.47.
Therefore, the Right of travel must be kept sacred from all forms of state taxation and if this argument is used by the state as
a defense of the enforcement of this statute, then this argument also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the Citizen has the Right to travel and to transport his property upon the public highways in the ordinary
course of life and business. However, if one exercises this Right to travel (without first giving up the Right and converting that
Right into a privilege) the Citizen is by statute, guilty of a crime. This amounts to converting the exercise of a Constitutional
Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes, and, ... "The state cannot diminish Rights of the people." Hurtado vs.
California, 110 US 516. ...and... "Where rights secured by the Constitution are involved, there can be no rule making or legislation
which would abrogate them." Miranda, supra.
Indeed, the very purpose for creating the state under the limitations of the constitution was to protect the rights of the people
from intrusion, particularly by the forces of government.
So we can see that any attempt by the legislature to make the act of using the public highways as a matter of Right into a crime,
is void upon its face.
Any person who claims his Right to travel upon the highways, and so exercises that Right, cannot be tried for a crime of doing so.
And yet, this Freeman stands before this court today to answer charges for the "crime" of exercising his Right to Liberty.
As we have already shown, the term "drive" can only apply to those who are employed in the business of transportation for hire.
It has been shown that freedom includes the Citizen's Right to use the public highways in the ordinary course of life and business
without license or regulation by the police powers of the state.
CONCLUSION
It is the duty of the court to recognize the substance of things and not the mere form.
"The courts are not bound by mere form, nor are they to be misled by mere pretenses. They are at liberty -- indeed they are under
a solemn duty -- to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended
the limits of its authority. If, therefore, a statute purported to have been enacted to protect...the public safety, has no real
or substantial relation to those objects or is a palpable invasion of Rights secured by the fundamental law, it is the duty of the
courts to so adjudge, and thereby give effect to the Constitution." Mulger vs. Kansas, 123 US 623, 661. ...and... "It is the duty
of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon." Boyd
vs. United States, 116 US 616.
The courts are "duty bound" to recognize and stop the "stealthy encroachments" which have been made upon the Citizen's Right to
travel and to use the roads to transport his property in the "ordinary course of life and business." (Hadfield, supra.)
Further, the court must recognize that the Right to travel is part of the Liberty of which a Citizen cannot be deprived without
specific cause and without the "due process of law" guaranteed in the Fifth Amendment. (Kent, supra.)
The history of this "invasion" of the Citizen's Right to use the public highways shows clearly that the legislature simply found
a heretofore untapped source of revenue, got greedy, and attempted to enforce a statute in an unconstitutional manner upon those
free and natural individuals who have a Right to travel upon the highways. This was not attempted in an outright action, but in
a slow, meticulous, calculated encroachment upon the Citizen's Right to travel.
This position must be accepted unless the prosecutor can show his authority for the position that the "use of the road in the ordinary
course of life and business" is a privilege.
To rule in any other manner, without clear authority for an adverse ruling, will infringe upon fundamental and basic concepts of
Constitutional law. This position, that a Right cannot be regulated under any guise, must be accepted without concern for the monetary
loss of the state.
"Disobedience or evasion of a Constitutional Mandate cannot be tolerated, even though such disobedience may, at least temporarily,
promote in some respects the best interests of the public." Slote vs. Examination, 112 ALR 660. ...and... "Economic necessity cannot
justify a disregard of Constitutional guarantee." Riley vs. Carter, 79 ALR 1018; 16 Am.Jur. (2nd), Const. Law, Sect.81. ...and...
"Constitutional Rights cannot be denied simply because of hostility to their assertions and exercise; vindication of conceded Constitutional
Rights cannot be made dependent upon any theory that it is less expensive to deny them than to afford them." Watson vs. Memphis,
375 US 526.
Therefore, the Court's decision in the instant case must be made without the issue of cost to the state being taken into consideration,
as that issue is irrelevant. The state cannot lose money that it never had a right to demand from the "Sovereign People."
Finally, we come to the issue of "public policy." It could be argued that the "licensing scheme" of all persons is a matter of "public
policy." However, if this argument is used, it too must fail, as:
"No public policy of a state can be allowed to override the positive guarantees of the U.S. Constitution." 16 Am.Jur. (2nd), Const.
Law, Sect.70.
So even "public policy" cannot abrogate this Citizen's Right to travel and to use the public highways in the ordinary course of
life and business.
Therefore, it must be concluded that:
"We have repeatedly held that the legislature may regulate the use of the highways for carrying on business for private gain and
that such regulation is a valid exercise of the police power." Northern Pacific R.R. Co., supra. ...and... "The act in question
is a valid regulation, and as such is binding upon all who use the highway for the purpose of private gain." Ibid.
Any other construction of this statute would render it unconstitutional as applied to this Citizen or any Citizen. Your Defendant
was not and does not traffic anything nor was he involved in traffic as defined above or in any legal or other dictionary. There
was no crime committed by your Defendant even if he had been the rider of a motorcycle on the date in question.
THEREFORE being your Defendant has committed no crime, for there are no injured parties or complaining parties with common law and/or
statute standing, causing this court to lack jurisdiction as shown above, this sovereign, Xxxxxx Xxxx Xxxxxxx, (as denoted by his
Affidavit of Common Law Citizenship) moves this case be dismissed in favor of your Defendant. If not dismissed, a stay is requested
while this Brief is appealed to the higher courts.
June 30, 1998 ________
Xxxxxx Xxxx Xxxxxxx
Signed without Prejudice
By A Good and Lawful Christian
[ addr/phone# deleted --kk ] ---------
another driver brief
Driver Licensing vs. the Right to Travel
http://www.cs.cmu.edu/~karl/govt/driver/
The entirety of what you find below is transcribed exactly from what was sent to me by a fellow liberty-minded person. It is itself
a transcription of a brief, not a direct, per-character copy of the brief. This is unfortunate, but I'm trying to nail down some
of the references, and especially some of the cases in which this particular brief was used. --Karl Kleinpaste, March 14, 1995.
The following has been used in at least three states (Pennsylvania, Ohio, and West Virginia) as a legal brief to support a demand
for dismissal of charges of "driving without a license." It is the argument that was the reason for charges being dropped, or for
a "win" in court against the argument that free people can have their right to travel regulated by their servants.
The forgotten legal maxim is that free people have a right to travel on the roads which are provided by their servants for that
purpose, using ordinary transportation of the day. Licensing cannot be required of free people, because taking on the restrictions
of a license requires the surrender of a right. The driver's license can be required of people who use the highways for trade, commerce,
or hire; that is, if they earn their living on the road, and if they use extraordinary machines on the roads. In other words, if
you are not using the highways for profit, you cannot be required to have a driver's license.
This brief or the right it demonstrates is no substitute for either being safe on the road or for learning the subject of rights
versus regulations thoroughly before attempting to use or act upon this information. -------
The Accused therefore moves this court to dismiss the charge against him, with prejudice.
This ends the legal brief.
In addition: YOUR CIVIL RIGHTS
Since no notice is given to people applying for driver's (or other) licenses that they have a perfect right to use the roads without
any permission, and that they surrender valuable rights by taking on the regulation system of licensure, the state has committed
a massive construction fraud. This occurs when any person is told that they must have a license in order to use the public roads
and highways.
The license, being a legal contract under which the state is empowered with policing powers is only valid when the licensee takes
on the burdens of the contract and bargains away his or her rights knowingly, intentionally, and voluntarily.
Few know that the driver's license is a contract without which the police are powerless to regulate the people's actions or activities.
Few if any licensees intentionally surrender valuable rights. They are told that they must have the license. As we have seen, this
is not the case.
No one in their right mind voluntarily surrenders complete liberty and accepts in its place a set of regulations.
"The people never give up their liberties but under some delusion." Edmund Burke, 1784.
A thought on Driving
"Power can never be delegated which the authority delegating never possessed itself."
N.J. Steam Co. V. Merchant Bank, 47 U.S. 344, 407
In General: The following matters are applicable when stopped by any law enforcement officer and are relevant whether no tag or
any private tag is being displayed upon the motor vehicle or whether the vehicle is registered with the state agency which deals
in such matters and all documents are in order, or the registration has expired, has been revoked, or whatever. Driving license
and registration are irrelevant if the vehicle is not being used in a motoring activity on the public roadways which the state legislature
presumptively has authority to regulate.
Remember: Relax and be pleasant. Forgive the officer because he is probably as linguistically, politically and jurally illiterate,
ignorant and incompetent as your next door neighbor. If he respects your rights, you will be on your way. If he does not, and you
know how to assert them, then you will see him, his supervisors and their attorneys in court and you will win there.
You are a sovereign member of a community of sovereigns all of whom have an unalienable right to travel. Therefore, it is appropriate
to behave as a sovereign member of the American nation rather than as a bond-slave or whatever other kind of 2nd class citizen allegedly
subject to the will of an elitist class operating by and through their puppet instrument: the metaphysical and all too mythic entity
often evoked as The State in all it s fulsome, transcendental, de facto, corpora ficta glory.
Basic Elements: When the officer asks you his first question, it is imperative to answer his question by putting him on "good faith"
notice that you do not voluntarily consent to being detained and, then, posing to him your own questions. If you do not personally
establish by your own statement that you do not agree to be stopped, then you are said to allow a presumption to be created that
you do agree to being detained.
After you state that you do not agree to being stopped and detained, you must ask the officer if he is detaining you. If the officer
answers he is not detaining you, then you must inform him that you will be on your way.
If the officer answers that he is detaining you, then you must ask the officer does he have a well founded probable cause that you
have committed a crime known to the people s common law as his basis for detaining you and that you expect a "good faith" answer
from him. If the officer states he has no such well founded probable cause, then you must inform him that you will be on your way.
If the officer states that he does have a well founded probable cause, it had better be connected to your committing some felony
crime against the people or breach of the peace known to the common law of which he has knowledge. If his "probable cause" proves
to be merely connected with The State s traffic regulatory-related administrative law scheme, to include any local traffic regulatory-related
ordinance, then he is violating your sovereign right to life, liberty and property and by his detaining you he is holding you under
false arrest and false imprisonment pursuant to the common law. Of course, if at the same time you are stopped you really are a
party subject to the administrative law or ordinance he thinks you have violated, then his probable cause may have a legal basis.
But unless you are stopped while driving a school bus or some similar state employee activity, the odds are slim indeed that you
are subject to your state s traffic regulatory scheme. Recognize that there are constitutional arguments which will defeat a traffic
law violation charge no matter the circumstances.
Should the officer detain you without stating any probable cause reason after you proper good faith demand or can only claim some
administrative law violation without being able to show his probable cause grounds why he thinks you are subject to it, then he
is proceeding under color of office. He is using color of process. This is proceeding under color of law. Tort damages and "civil
rights" violations-related damages are in the making.
Remember that an officer may have just cause for stopping you, for example, if you are proceeding the wrong way down a one-way street,
or the like. You have a duty and an obligation to observe the customs and rules of the road. No one is above the law - not even
law enforcement officers, prosecutors and judges.
Every stop must be handled with the specific circumstances of the particular stop borne in mind. But in every case, if you truly
understand the "law", you need not become the victim of quasi police authority.
Script: A typical first statement from an officer runs to the effect: "LET ME SEE YOUR DRIVER S LICENSE, REGISTRATION & PROOF
OF INSURANCE." Or it could be: "SO HOW IS YOUR AUNT RUBY?"
Whatever his first statement is, your answer is: "OFFICER, I DO NOT CONSENT TO YOUR DETAINING ME. ARE YOU DETAINING ME?"
He must acknowledge your statement and answer your question. Of course, he may ignore your statement and question and proceed in
"jack boot" fashion. This will be a mistake for him as he is already violating your due process of law right to know if you are
being detained. If he says: "NO, I AM NOT DETAINING YOU", then he has a serious problem if he insists on asking any further questions
or is in any way holding you up. At this point, it is appropriate for you to say: "THEN, I AM FREE TO GO. IS THAT NOT CORRECT?"
He is now on the spot and must agree, whereupon you are on your way.
Of course, he may catch himself and say: "NO, YOU ARE NOT FREE TO GO." This would be the same outcome as if he first answered with:
"YES, I AM DETAINING YOU." But at this point he has created a problem for himself. This is an issue of his training. Does he understand
what it means to detain someone? Does he understand that any time he stops someone he is detaining them? Does he understand that
if he says he is not detaining you, then you are free to go? Does he understand that as a law enforcement officer it is a legal
absurdity to argue he is not detaining a person, yet they are not free to go? You must understand this kind of thing and bring it
to his attention. You must understand how to get it over to him that he and his supervisors will be held accountable for the fact
that he doesn t understand how to conduct himself as a police officer.
For now, we will proceed by your moving to establish the nature of his business by asking a question along the following lines:
"THEN, TELL ME OFFICER, ARE YOU DETAINING ME BECAUSE YOU HAVE PERSONALLY WITNESSED MY COMMITTING A MISDEMEANOR OR FELONY CRIME KNOWN
TO THE PEOPLE S COMMON LAW OR IS IT BECAUSE YOU HAVE A GOOD PROBABLE CAUSE TO BELIEVE I HAVE COMMITTED SUCH A MISDEMEANOR OR FELONY
CRIME? WHAT IS THE CRIME YOU BELIEVE I HAVE COMMITTED AGAINST THE PEOPLE OF THE STATE OF _____? AND WHAT ARE YOUR GROUND FOR PROBABLE
CAUSE?"
You have put him on the spot, whether he fully realizes it or not. If he cannot name a misdemeanor or felony crime known to the
common law which are the kinds of crimes which can be committed against the people of the state, then he has a problem if he does
not let you go. For all that is left for him now is to name some statutory crime created by the state legislature by way of enactment
of some regulatory law, but which has no origin in our common law. In the instant case, we must assume that it likely pertains to
the traffic regulatory law scheme.
Most likely he will evade answering your question by asking his own questions as though he were the only one with the right or authority
to ask questions and you were the only one with a duty to answer whatever questions he chooses to ask and to answer them the way
he expects them to be answered. Such is the nature of his training. Probably he really doesn t know he is a state political trustee
with a duty and obligation to answer your questions.
Therefore, he is likely to ignore your question and respond now with a statement such as: "LET ME SEE YOUR DRIVER S LICENSE, REGISTRATION &
PROOF OF INSURANCE" or "YOU ARE DISPLAYING AN IMPROPER TAG". No matter what his statement, his actions relate to his presumptions
you are engaged in a driving activity which requires you produce a so-called valid, state agency-issued driver license and vehicle
registration along with evidence of current vehicle insurance whenever he detains you and asks for these documents. It will not
matter why you were initially stopped. Understand that whether you have all the proper documents or none of them, that if you are
engaged in no regulatable activity at the time of the stop, then the body of administrative law pertaining regulation pertains to
a jurisdiction foreign to you.
Of course, the officer probably doesn t have a clue about any of this. Therefore, no matter what course things take at this point,
you must put the officer on his "good faith notice". This means informing him you proceed in "good faith" and you require that he
proceed in good faith and that if he fails to do so, the necessary conclusion will be he proceeds in "bad faith" contrary to his
duty as a public servant with self evident intent to "irreparably harm, damage and injure you". You say: "OFFICER, BEFORE WE GO
ANY FURTHER, I MUST GIVE YOU MY GOOD FAITH NOTICE. FIRSTLY, DO YOU UNDERSTAND THAT NO ONE IS ABOVE THE LAW AND THAT YOU ARE OBLIGATED
TO OBEY THE LAW AS I AM?"
If he answers "YES" to your question, then state: "WELL OFFICER, DO YOU UNDERSTAND THAT THE TRAFFIC REGULATORY LAWS OF THIS STATE
ARE ADMINISTRATIVE LAWS AND THAT I AM PRESENTLY ENGAGED IN NO REGULATABLE DRIVING ACTIVITY WHICH CAN POSSIBLY MAKE ME SUBJECT TO
THOSE LAWS?"
Of course, he doesn t have a clue here either. His training never included such facts. Therefore, you will again have to remind
him of his good faith obligation to level with you and admit he doesn t know.
At this point it is appropriate to present him with a copy of your "Good Faith Notice by Actual and Constructive Notice" (see Vol.
2, Appendix C) and tell him to review it. Explain to him that having been put on actual and constructive notice regarding the law
he presumes to enforce and his good faith obligations as a state political trustee, he will later have no affirmative defense that
he didn t know the law or that in good faith he charged you with violating various provisions of said laws anyway.
Ask him: OFFICER, DID YOU SWEAR TO UPHOLD THE STATE AND FEDERAL CONSTITUTIONS?" He must say "YES". If he says "NO", that makes things
worse for his supervisors. Ditto if he evades answering altogether.
Then ask him: OFFICER, HAVE YOU READ AND DID YOU UNDERSTAND THE STATE AND FEDERAL CONSTITUTIONS AS PART OF YOUR TRAINING?" This
is another critical question. Do not be surprised to learn that his training included nothing about the state and federal constitutions.
Then say: OFFICER, AM I TO UNDERSTAND THAT YOU DO NOT UNDERSTAND THAT THE "DECLARATION OF RIGHTS" OF OUR WRITTEN STATE CONSTITUTION
AND THE BILL OF RIGHTS OF OUR FEDERAL CONSTITUTION HOLD PRIMACY OVER ALL OTHER ARTICLES? AM I TO UNDERSTAND THAT YOU DO NOT UNDERSTAND
THAT THERE CAN BE NO LAW MAKING OR RULE MAKING WHICH DEROGATE OR ABROGATE THE UNALIENABLE RIGHTS OF THE PEOPLE?"
Your state s law enforcement officers receive no training whatsoever regarding the laws to which we are all equally subject. As
far as they are concerned, constitutional government does not exist. Most of the training they receive is based upon presumptions
of authority which simply do not exist, including presumptions that every citizen is subject to the state and federal "fourth branch
of (quasi-) government" schemes which your state and national political trustee legislators presume to have power to create.
If he cites administrative law to you, remind him that you are not engaged in any driving activity which is subject to the regulatory
authority of the agency charged with administering and enforcing that administrative law and that furthermore it is self evident
from the face of the state constitution that the traffic regulatory agency was never constitutionally sanctioned either to exist
even in title or to perform any administrative or enforcement functions.
If the officer continues with his business of detaining you, then it is appropriate to say to him: "IF YOU ARE DETAINING ME, THEN,
AS A SOVEREIGN AMERICAN CITIZEN, I HAVE A RIGHT TO KNOW WHAT IS YOUR PROBABLE CAUSE. IF YOU ARE DETAINING ME, THEN YOU ARE HOLDING
ME UNDER ARREST AS FAR AS COMMON LAW IS CONCERNED. IN GOOD FAITH I ASK YOU (AND THEREFORE IN GOOD FAITH ARE YOU OBLIGATED TO DIRECTLY
RESPOND) WHAT IS THE CRIME YOU BELIEVE I HAVE COMMITTED AGAINST THE PEOPLE OF THE STATE OF ____?
If the officer still proceeds with obvious intent to write you up on one or more traffic violations, then, before he does, it is
appropriate for you to state and ask: "BY DETAINING ME AGAINST MY WILL, YOU ARE ARRESTING ME. BY THE ISSUE OF A CITATION YOU ARE
ALLEGING I HAVE COMMITTED VIOLATIONS OF LAW WHICH CLEARLY HAVE NO FORCE AND EFFECT OF LAW ON SEVERAL CONSTITUTIONAL LAW DEFECT GROUNDS
WHICH I HAVE ENUMERATED IN THE GOOD FAITH NOTICE BY ACTUAL AND CONSTRUCTIVE NOTICE AND WHICH YOU WILL NOT BE ABLE LATER TO SAY
YOU WERE NOT ON ACTUAL AND CONSTRUCTIVE NOTICE REGARDING THESE JURISDICTIONAL DEFECT ISSUES. I MEAN NO DISRESPECT TO YOU, AND I
UNDERSTAND THE DIFFICULTY OF YOUR JOB, BUT YOU ARE ON NOTICE THAT YOU PROCEED IN NO OFFICIAL CAPACITY."
If the officer writes you up, it is appropriate for you to write on the ticket before he separates copies: "NO CONSENT TO DETENTION".
If the officer will not allow you to write such a statement, that is OK, because you are later going to write up an Affidavit of
Truth & Facts which you are going to file with the Clerk of Court in the case, and you will indicate there that the officer
did not allow you to write your statement.
Conclusion: Always remember your duties and obligations as a sovereign American motorist on the public roadways to observe the customs
and rules of the road. At the common law, you are accountable for your actions while driving. Should you cause injury to life, limb
or property of another, and following judicial proceedings conducted pursuant to your right to due process of law it is found that
you are at fault, you should be prepared to make restitution to the injured party.
The role of the sovereign American motorist does not include a ticket for a free ride in the state of anarchy which the legal sophisticates
have been so diligently constructing for generations for and on behalf of their elitist class masters.
The State s quasi traffic regulatory schemes are built upon metaphysical constructs which are in direct conflict with American constitutional
government. These schemes are justified and promoted using a 180 degree twist of legal metaphysical calculus to an argument that
without these "fourth branch of government" schemes there would be anarchy on the streets and highways.
These arguments are, as much as anything else, smoke and mirrors to justify a police state upon the premise that people are no damn
good and will only act responsibly when traveling if they fear they will be penalized by fines and imprisonment administered and
enforced by the wizards, lackeys and stooges of The State instead of having to answer to the people in a proper judicial power court
when they flagrantly disobey the common law rules of the road.
These traffic regulatory schemes, from the beginning, provided a ready forum for extortion, kickback, payoff and mutual back scratching
schemes. Paramount among these schemes has been the evolutionary development of mandatory automobile insurance coverage, and the
business of legal representation by members of private lawyer associations and syndicates whenever a motorist finds him or herself
caught in the web of these traffic regulatory schemes.
Only the naive can take at face value the proposition that the traveling world can be a better place for everyone only where the
rights to life, liberty, property, privacy, livelihood and due process of law of every motorist is controlled, managed, and generally
abridged or abrogated, which is to say regulated, by licensure of him or herself and vehicle and by presumptively being required
to have certain liability insurance coverage.
Likewise, only the naive are unaware of the profits which members of the lawyering class crank out of the many types of traffic-related
cases brought into "traffic courts" where the entire proceedings upon scrutiny may sensibly be viewed only as orchestrated opera
bouffe performances for the benefit of witless defendants/clients.
William Duff on Secrets & Traffic ticket resistance on net wdd.htm
http://www.doprocess.net/articles/article
Secrets they don't want you to know
http://www.doprocess.net/articles/article secrets nma.htm
Secrets the Cops, the Courts and the Insurance Companies Don't Want You to Know
Disclaimer: This page was originally found on the NMA Page , and all credit is given to them.
1.The purpose of insurance is to cover unusual risk. Since the act of exceeding an unreasonably low limit is hardly unusual or dangerous,
the risk assumed by the insurance company is nearly non- existent. Therefore, any surcharges issued for speeding tickets are almost
pure profit.
2.The profits that an insurance company generates from speeding ticket surcharges allow them to purchase more radar and laser guns
to give away free to law enforcement agencies. This allows the police to ticket more people, which in turn ensures a constant flow
of revenue to the insurance company. The units will perform their revenue-enhancement duties for 3-5 years, having paid for in less
than one.
3.Thousands of speeding tickets are issued by traffic law enforcers who don't know or care how to properly operate radar, VASCAR,
or other speed-measurement devices. They are ignorant of proper operating procedures, performance characteristics, and common malfunctions
or errors.
4.Traffic ticket fines are the cash cow of the court system. No other class of "crime" is as profitable for state and local governments
as is that of traffic tickets. Traffic courts cannot be fair and unbiased when their financial welfare depends on traffic fines.
5.It is not true that writing more tickets will result in fewer accidents. A 1995 Memorial Day ticket-writing binge in Connecticut
resulted in a 67% increase in accidents over the same time period in the previous year. The federal government paid $750, 000 to
the state for that.
6.Many speed limits are deliberately set well below the prevailing speed of safely-driven vehicles. Doing so does not slow traffic
but it does make a greater number of motorists eligible for a speeding ticket they don't deserve.
7.There is no connection between receiving an occasional traffic ticket and the likelihood of being in an accident. Therefore, there
is no justification for charging a person more for auto insurance just because they were convicted for a traffic violation.
8.Trivial or concocted traffic law violations are frequently used as an excuse to stop, detain, and search persons for whom the
police have no otherwise legitimate reason to do so. "Probable cause" or "reasonable suspicion" are inserted after the fact and
only if the motorist lodges a formal complaint.
9.A large proportion of the stop signs erected by local governments are illegal and in violation of state traffic regulations. They
know that people don't stop for them since the intention is to use the signs as speed control devices. This proliferation of stop
signs merely increases the number of motorists who can be cited for failing to stop when there is no reason to.
10.The best protection against the "good ole boy" system where the judge, district attorney, and the arresting officer are on a
first-name basis is the jury trial. Jury trials are time-consuming, expensive, and diminish the profitability of the traffic ticket
system. Therefore, state-by-state, the right to a jury trial is being incrementally denied to traffic ticket defendants, all under
the guise of being more fair when actually it is less.
11.Only a small fraction (about 2%) of all traffic tickets are seriously contested. The vast majority of these contested tickets
are dismissed or the defendant is given a significantly reduced penalty. If just 10% of the people who received citations fought
their tickets, the entire system of government extortion would collapse within a matter of months.
----------------------------------
More on the "Right" to travel !
courts
tickets
no right to travel
-----------------------------------
Dear Journal,
Jim Hall says our highways are dangerous. I agree. And for that reason I protect myself at all times when driving. Consistent with
my Responsibility "not to harm another" I also protect those around me by choosing to use my property in such a way that will not
harm them.
I am 52 years old and have almost no history of harming others on the roadways. The one time I did harm someone else was an incident
to which I was at fault, having made a bad choice, that amounted to $106 damage to someone's auto and no harm to their person. I
paid the $106 which completed my responsibility to the person I caused harmed. I recognize that some people have greater or lesser
stories to tell. I also recognize that none of the other stories alter the principle expressed in the story I just told you about
my experience.
What is that principle? Our Constitution guarantees citizens the right to own and use property in whatever way they choose, without
government interference, so long as they harm no other citizen. (No Harm, No Foul). (See Spann vs City of Dallas find it at
http://www.claimhelp.com/traffic. Should we harm another, then and
only then do have the obligation to correct that condition. Our collective and fundamental wish to harm no other is correctly assumed
by our constitution.
What role "Can" Government play in this process?
1.) Government has a duty to educate the population to the risks and hazards on the roadways including road signs that inform people
about special risks and hazards.
2.) Government has a duty to oversee the implementation of that responsibility of Citizens for those they harm and to cause the
satisfaction of that responsibility should the responsible party not be willing to do so voluntarily.
3.) Government has the duty to determine who the injured party is when that is not apparent or is disputed.
4.) Government has the duty to identify and prosecute all responsible parties where the fact that harm was "Intended" can be demonstrated
beyond a shadow of a doubt.
Government can not responsibly and Constitutionally go Beyond these activities without invading the province of the citizen through
the infringement of Constitutional Rights.
What does all this have to do with Jim Hall, his commission, it's recommendations and the resulting law that arise there from? Simply
that Jim Hall, et al, does not recognize the 4 elements described above as being the outer limits of governmental authority and
capacity to manage the function of this society. Jim's, et al, efforts go far beyond these limits. When government goes beyond these
limits it does not seek a constitutional society.
Jim , et al, would have us all believe they have the ability to prevent or limit the misjudgments responsible for 99% of the traffic
accidents and deaths if we will allow the government to enforce laws that punish people who have harmed no one. Such belief and
the governmental actions those beliefs lead to are unconstitutional in nature and contain far more illusion than reality. The body
of laws that are used to enforce this belief are defective. They are supported by Positive Law (case law) promulgated by appeals
courts and supreme courts through historical decisions that have evaded and alienated "Unalienable" Law. This Positive law has had
the effect of Amending the Constitution without the ratification of three quarters of the States and without the public debate that
precedes an Amendment process. A few appointed men have controlled such lawmaking and as a result the NO Harm, No Foul ideology
has given way to the punitive and arbitrary oligarchic parental ideology Europe has struggled with for thousands of years.
The people of this country are no longer allowed to decide whether these laws should exist or not. The representatives of the people
are deluded and confused into believing that these proposed laws are good for the people. The courts will also not allow a jury
to judge the constitutionality of such law.
In Summary
I have demonstrated through our constitution, common sense, and with fundamental regulatory procedures, seen everywhere, that our
government has stealthily scrapped The Supreme Law of the Land (our constitution) in favor of an oligarchic system that moves not
at the whim of the American people but at the whim of that government and those few men. By whim I mean; by whatever means by which
this government can convince the American people that safety and security is a good trade for rights and responsibilities. Whether
or not that safety and security is an illusion who's major beneficiary is government itself never seems to make the news in any
substantial way. Courts refuse to allow juries to pass judgment on such laws as have been described herein.
Thus we as a people have absolutely no way to correct the unconstitutional way in which we now must live. The media, who gives voice
to every governmental agency and body refuses to provide the necessary teaching environment we the people must have in order that
we may substantively address this problem. We are relegated to the hiding (the safety available deep within the group of like kinds)
the majority of our people now practice. Is it any wonder that people who study these dynamics in our society refer to the average
American as Sheeple? How many times in the history of the world has this very social dynamic resulted in catastrophic events? When
will the media finally realize this must be addressed publicly and often in order for us to escape the building event. When will
the media take it's eye off it's profit line and give back to this country some of what has provided that profit for so long. Beyond
it's own, who's wellbeing is the media protecting? It Is the media who must take the lead because only the media contacts us all
on a daily basis.
We will not rid our society of the Jim Hall's of this nation until the media better educates itself and shares that education with
all the people or until another internal war rips us apart. If anyone in the media doesn't consider that an internal war is possible
they are not paying attention to the the power that gut level anger has. The symptoms are obvious for all to see; Murah, columbine,
the Atlanta school shooting, the gang violence, patriot teachings, militia readiness teachings, 35 million Americans that refuse
to file taxes, the current uprising over the proposed New World Order, the 35 million traffic citations given to citizens who have
harmed no one, and on and on and on. All this tells us that a parental government isn't working.
In the final analysis, those in departments and commissions of government must be cognizant of the limits defined herein and not
be willing to breech that boundary. The fact that they currently more than willing to do so, as Jim Hall has demonstrated, is not
an act of service to this nation or it's people.
From the Desk of William D Duff
DUFF ON REGULATION
RE: REGULATING TRAFFIC 10-05-99
Remember this one fundamental rule as you read this article;
You, as a citizen of the United States of America, possess an unalienable right to OWN and to CHOOSE the USE of YOUR PROPERTY without
the interference of government. This is how private citizens maintain the right of Choice. Choice, then, is a necessary element
of the Right to own property. Why? What value would there be in owning a thing if someone else could tell you when, where and how
you would use it?
The right to travel is another of our protected rights. When we use our private property to travel, the Choice we make in the use
of our property doesn't disappear as the state would have us think.
These unalienable rights have ONLY ONE limitation. That limitation is that each of us, and our choices, HARM NO ONE.
That is the sum total of your responsibility to society for any right we exercise. There can be no higher degree of care than the
responsibility we must take, along with our unalienable Right of Choice, to harm no one. This means, simply, that if we do cause
harm, no matter what the reason, we must take responsibility for that harm.
REGULATION OF TRAFFIC
Now that we have that fixed firmly in mind, lets talk about Regulation of traffic and it's relationship to our current governments
predisposition to limit our choices thru the use of civil and criminal penalties for failing to follow the regulatory scheme. We
get into this subject by first taking a good hard look at the relationship between the citizen (with its unalienable right to choose)
and the authority of the State (re; use of it's police power to protect the health and welfare of the people) and how those two
awesome authorities interact while maintaining both in accord with the Constitution. Once we fully understand this concept, we can
move on to understand that regulation has no relationship to "Victimless" traffic tickets where private citizens are concerned.
The power of the State, when individual rights are involved, was never intended to ascend to a parental role. As a matter of fact,
the Constitution specifically precludes States from taking on such a role. (see Article VI clause 2 of the Constitution of the United
States of America) This Document and the laws made in pursuance thereof (in accord with it) is the Supreme Law of the Land (this
is the supremacy clause). That can only mean that the rights protected to citizens are not assailable by the State since the rights
protected in the constitution are The Supreme Law of the Land. The unalienable nature of these rights can only mean, they can not
be abridged, rescinded, revoked, waived or even given away, not even with the consent of the right holder. Having demonstrated all
that, it may be possible that the reader recognizes this absolute environment doesn't really exist in this country. If you did,
sadly, you would be right.
Outrageous comments made to me by lawyers, city attorneys, prosecutors and judges such as; "The Constitution doesn't reach this
far down" (city attorney speaking at a city council meeting defending the right of the city to repeal the right to jury trials in
the city charter), or as; "the framers never envisioned cars with the capability of doing 100 mph" (a judge defending his parental
leaning to which I responded "yes they did your honor, they made the citizen responsible for his choices gone bad"), or as; "Unalienable
rights as they exist in the Constitution no longer exist" (a prosecutor being honest from his view) or as; "technically, you are
right, but even if you get a court in this country to say you are, it will change nothing, they won't publish the case". All these
comments make very clear the mindset of our legislative and judicial systems. The guarantees inherent in the constitution are an
unwelcome complication in their lives. They just don't see how they can make government work in the face of these individual rights.
Clearly This class of person will say anything and do anything to undermine that which stands in the way of their perceived right
of paternalism, including trashing our fundamental protection...... The adage; Power corrupts and absolute power corrupts absolutely
is again proven to be a material truth by these coat and tie soldiers of the state.
As one might guess from reading the previous two paragraphs, asserting their right to choice may be a perilous venture in the current
environment. What will it be? Paternalism (see Duff on Paternalisms)? or Choice and Responsibility? Right now in 1999 the answer
seems to be Paternalism, at least where the courts and legislators are concerned. Not much deep critical thinking going on in that
environment.
All should recognize by now that In a parental environment the child only exercises those rights approved by the parent. By contrast,
in our constitutional environment the parent is the individual and the individual is free to do whatever that individual chooses,
excluding only harming another. If our government does the choosing there can be no freedom that is not approved or disapproved
by our (Parent Like) government. It is Material that both freedom of choice and a parental government can not exist in the same
environment. Only the illusion of freedom remains when the government seeks be a parent.
In pursuit of the understanding of regulation of traffic this struggle for dominance between Paternalism and Freedom of Choice is
where the battle line is drawn.
Let me begin the definition of regulation by asking a question or two; center lines, lane markings, road edge lines, cross walks,
painted arrows, RR signals, speed signs etc, etc.
What do all these signs and regulatory markings have in common?
A. They are the visual rendering of what regulating traffic means. In so doing they are informing citizens about probable hazards
that lay ahead so that citizens have adequate information with which to make good decisions.
What duty is added to a private citizen by regulation of traffic?
A. Absolutely none. Why? All citizens have a pre-existing duty to harm no other. It makes no sense for the state to attempt to enlarge
on that material fact as no greater degree of care can be applied than that which the citizen is already duty bound to provide.
What is meant by Regulation?
The State, in its charge to provide for the health and welfare of the people, has a duty to inform private citizens in matters where
their safety and welfare might be at risk. (remember, the State is the SERVANT of the people) This regulation (as shown above and
that we all find in almost all walks of life) is the resulting product of that duty. That is the job we gave them to do.
Here is a California Appellate decision supporting the definition I just provided.
To regulate means to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles
of law. It does not include power to suppress or prohibit. McCoy, In re (1909) 10 CA 116, 137, 101 P 419. (emphasis added)
There are two fundamental reasons why regulation is limited in this way.
First and foremost, To inform the private citizen (who has the right of choice and just as importantly the responsibility to harm
no one) about potential hazards that lie ahead. The better the State does this job, the safer it is for private citizens and the
more likely the citizen will be to make a safe choice.
Secondly, To mandate actions to be taken by those entities in this society who are doing business on the roadways of America (in
other words those that DO NOT have a Right of choice). This mandate carries with it the full force, authority and enforcement of
the Police Power of the State. Why? Answer; To further fulfill the State charge to provide for the safety and welfare of the People.
REGULATION is the PLAN we all follow that allows us to minimize the inherent risk in a free society. Where a government or even
a society seek to criminalize actions contrary to the plan (regulation) without there being a clear and present harm or danger of
harm attendant to that act the resulting environment is not freedom because a primary element of freedom is destroyed, "Choice".
This is a concept the framers of our constitution knew very well and protected for us. Consequence to that fact, Governments that
enact and enforce criminal laws against acts of individuals who harm no one are not only unconscionable, they are unconstitutional.
wdd ------------
http://www.doprocess.net/articles/article
how to cop stop aclu.htm
What to do if you're stopped by The Police
A. General
Searches without warrants generally come to the attention of a judge in the form of motions to suppress evidence made by defendants.
See 2.5-3 of this Benchbook regarding motions to suppress.
B. Searches of Persons and Places
The legality of a warrantless search depends on whether an exception to the warrant requirement applies. The following are recognized
exceptions to the search warrant requirement.
Search Incident to a Lawful, Custodial Arrest. An arresting officer may make a valid warrantless search of the person being arrested
and that portion of the premises within the arrestee's control. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed.2d
685 (1969); U.S. v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed.2d 427 (1973); New York v. Belton, 453 U.S. 454, 101 S. Ct.
2860, 69 L. Ed. 2d 768 (1981)(upholding warrantless search of the passenger compartment of a car in which the defendant had been
riding after defendant placed under custodial arrest). But see State v. Kaiser, 91 N.M. 611, 577 P.2d 1257 (Ct. App. 1978) (search
of defendant s luggage not made incident to lawful arrest when luggage was not within defendant s immediate control and defendant
could not have destroyed evidence or seized a weapon).
a. The search and seizure will be invalid if the arrest is invalid. Compare Michigan v. De Fillippo, 443 U.S. 31, 99 S. Ct. 2627,
61 L. Ed.2d 243 (1979).
b. The arrest must be made before the search.
c. The search should be made immediately after the arrest.
d. An arrest is not valid if it is merely used as an excuse to search a person or place.
e. A warrantless arrest is valid if based upon probable cause to believe a crime has been committed by the person arrested. Probable
cause may be established by information obtained from an unidentified informant as long as the police corroborate the information
with other evidence, such as police reports or verification of informant's description. State v. Jones, 96 N.M. 14, 627 P.2d 409
(1981).
Plain View. If an officer sees contraband or other incriminating evidence in plain view while he or she is conducting a lawful investigation,
the officer may seize such property without benefit of a warrant. If the seized property establishes probable cause, may make a
warrantless arrest. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed.2d 564 (1971); Horton v. California, 496 U.S.
128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Seeing contraband in plain view does not constitute a search. However, a warrant
is required before a police officer may enter an automobile to seize evidence that is in plain view, unless exigent circumstances
or another exception to the warrant requirement exists. State v. Jones, 2002-NMCA-019, 131 N.M. 586, 40 P.3d 1030.
Exigent Circumstances. Premises may be searched without a warrant if exceptional circumstances exist (also known as "exigent" circumstances).
a. An exigent circumstance is a situation requiring swift action to prevent imminent danger to life or serious damage to property.
State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct. App. 1986).
b. The claim of an extraordinary situation is measured by the facts known to the officers at the time they are called upon to act.
c. Imminent escape: This situation is not limited to a chase but also includes those situations where swift action is needed to
forestall an escape. State v. Chavez, 98 N.M. 61, 644 P.2d 1050 (1982). The "imminent escape" emergency justifies a warrantless
entry into the residence of a suspect for the purpose of an arrest.
d. Contraband: An officer may search without a warrant when he or she has good reason to believe that contraband may be immediately
removed or destroyed. State v. Ortega, 117 N.M. 160, 870 P.2d 122 (1994); State v. Trujillo, 95 N.M. 535, 624 P.2d 44 (1981).
e. Even if a law enforcement officer has legal possession of sealed boxes, the officer may not conduct a warrantless search without
the presence of exigent circumstances. Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed.2d 410 (1980).
f. Hot Pursuit. Although hot pursuit is often referred to as an exception to the warrant requirement, the fact that officers are
in hot pursuit of a defendant does not necessarily justify a warrantless entry and search absent exigent circumstances and a valid
purpose for entering. State v. Moore, 92 N.M. 663, 593 P.2d 760 (Ct. App. 1979).
Consent. A person may voluntarily consent to a search. By a voluntary consent the person waives the right to be free from a search
without a warrant. State v. Cohen, 103 N.M. 558, 563, 711 P.2d 3 (1985). Any evidence seized during a consensual search is lawfully
seized.
a. Knowledge of the right to refuse consent is one factor to be taken into account when considering whether a person s consent was
voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
b. The consent must be given voluntarily; that is, the person must not be under duress or be coerced by the officer requesting the
search. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed.2d 497 (1980).
c. The consent must be clearly and explicitly given. Permission to enter is not, however, permission to search.
d. The scope of the search is limited to the consent given. State v. Garcia, 199-NMCA-97, 127 N.M. 695, 986 P.2d 491.
Where two or more people have common use of or joint access to the premises, a relationship to the premises based on right of occupancy,
possession of a key to premises, individually owned property on the premises, or community property interests, and where only the
consent of one of these people has been given, the search is a valid consensual search; provided that there is no showing that police
took the non-consenting defendant's personal property from an area reserved for his or her exclusive use. State v. Hensel, 106 N.M.
8, 10, 730 P.2d 126, 128 (Ct. App. 1987); State v. Madrid, 91 N.M. 375, 574 P.2d 594 (Ct. App. 1978); State v. Kennedy, 80 N.M.
152, 452 P.2d 486 (Ct. App. 1969).
A private person who conducts a search for private purposes does not need a search warrant. U.S. v. Andrews, 618 F.2d 646 (10th
Cir. 1980). Security searches made by airline employees acting under federal tariff regulations, for example, are private searches
and do not require a search warrant.
Public school officials may conduct a warrantless search of a student's person if he or she has a reasonable suspicion that the
student has committed a crime or a violation of school rules or the official has reasonable cause to believe that the search will
reveal evidence of the student's violation of school laws or rules. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed.2d
720 (1985); State v. Michael G., 106 N.M. 644, 646, 748 P.2d 17, 19 (Ct. App. 1987). But see Kennedy v. Dexter Consol. Sch., 2000-NMSC-25,
129 N.M. 436, 10 P.3d 115 (strip-to-undergarments search by school officials of all students in a class without individualized suspicion
is an impermissible warrantless search). When police officers conduct a warrantless search of a student without the involvement
of school officials, the higher standard of suspicion (probable cause) is required, even if the search occurs on school grounds.
State v. Tywayne H., 1997-NMCA-15, 123 N.M. 42, 933 P.2d 251. Compare In the Matter of Josue T., 1999-NMCA-115, 128 N.M. 56, 989
P.2d 432.
C. Searches of Motor Vehicles
Probable cause is always needed to search a motor vehicle, whether the vehicle is parked, stopped for a license and registration
check, or stopped for an investigation. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed.2d 543 (1925); United States
v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed.2d 572 (1982). Because a motor vehicle differs inherently from a residence or office
due to its mobility and possibility of movement outside an officer's jurisdiction, a motor vehicle may be searched without a warrant
on facts that would not justify a warrantless search of a residence or office.
The scope of a warrantless search based on probable cause is no narrower and no broader than what would be authorized by a warrant.
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed.2d 572 (1982), overruling Robbins v. California, 453 U.S. 420, 101
S. Ct. 2841, 69 L. Ed.2d 744 (1981), and modifying Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed.2d 235 (1979). The
scope of a search must be supported by probable cause. If the officer has probable cause to search the automobile for contraband,
the officer can search every part of the vehicle (including the trunk), including all containers and packages, where the contraband
might be found. The scope of a warrantless search of an automobile for contraband is not defined by the nature of the container
(e.g. luggage or paper bag) in which the contraband is secreted. The scope of the search is defined by the object of the search
and the places in which there is probable cause to believe that it may be found.
The automobile exception permitting the warrantless search of an automobile for contraband does not apply to a warrantless search
of any movable container found in a public place which is believed to be carrying an illicit substance even when the container is
placed in a moving vehicle, which is not otherwise believed to be carrying contraband. United States v. Chadwick, 433 U.S. 1, 97
S. Ct. 2476, 53 L. Ed.2d 538 (1977); Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed.2d 235 (1979).
Before a vehicle can be stopped, however, the officer must have an articulable and reasonable suspicion that a motorist is unlicensed,
that an automobile is unregistered, or that either vehicle or occupant is otherwise in violation of the law. Delaware v. Prouse,
440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed.2d 660 (1979). The stopping of only certain automobiles and the detaining of the driver in
order to check license or registration constitutes an infringement of a person's Fourth Amendment rights. The random stopping of
vehicles does not constitute a general roadblock.
a. Random stopping and detaining constitute a "seizure, " though the purpose of the stop is limited and the detention brief. Delaware
v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed.2d 660 (1979).
b. At the same time that an automobile may be subject to governmental regulations, a person operating or traveling in an automobile
does not lose his or her reasonable expectation of privacy. State v. Bolton, 111 N.M. 28 (Ct. App. 1990); City of Las Cruces v.
Betancourt; 105 N.M. 655, 735 P.2d 1161 (Ct. App. 1987).
For a warrantless search of a vehicle to be valid, there must first be a justifiable reason for stopping it.
a. An officer may stop a vehicle to lawfully arrest the driver for a violation of the Motor Vehicle Code. State v. Galvan, 90 N.M.
129, 560 P.2d 550 (Ct. App. 1977). The vehicle may be searched without a warrant as incidental to an arrest. The existence of a
Motor Vehicle Code violation must not be used as an excuse for searching the vehicle for evidence of another crime.
b. As long as an officer has a reasonable suspicion, not merely a hunch, that a crime has been or is being committed, the officer
may stop a vehicle for the purpose of investigating possible criminal activity, even though there is no probable cause to make an
arrest. State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct. App. 1977). Radio dispatches from investigating officers or an eyewitness
description of a vehicle at the scene of a crime are valid reasons for making an investigatory stop of a vehicle. State v. Barton,
92 N.M. 118, 584 P.2d 165 (Ct. App. 1978).
c. A car being driven erratically near a border patrol checkpoint, where it is common to let illegal aliens out to walk around checkpoint,
is sufficient reasonable suspicion to stop the vehicle for investigation. Once stopped, the occupants evasive answers to officer s
questions, coupled with the erratic driving, established probable cause to search the vehicle without a search warrant. United States
v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed.2d 607 (1975); State v. Franco, 94 N.M. 243, 608 P.2d 1125 (Ct. App. 1980).
d. Roadblocks. An officer has authority to set up general roadblocks for purposes of checking sobriety, licenses and vehicle registrations.
The roadblock may not be used as an excuse for searching the vehicle for evidence of crimes other than DWI and license, registration
and insurance violations. City of Las Cruces v. Betancourt, 105 N.M. 655, 735 P.2d 1161 (Ct. App. 1987). In Betancourt, the New
Mexico Court of Appeals set forth eight standards for determining the validity of roadblocks and guidelines useful in testing that
standard. These guidelines must be used in determining the reasonableness of a roadblock. No one guideline is necessarily controlling
as to whether or not a search was reasonable. Those guidelines are as follows:
i. Role of supervisory personnel: The selection of the site and procedures for conducting it must be made and established by supervisory
law enforcement personnel rather than officers in the field. Ideally, the chief of police or other high ranking supervisory officials
should make roadblock decisions.
ii. Restrictions on discretion of field officers: For a valid roadblock, it is important that the discretion of field officers be
restricted. Automobiles should not be stopped randomly. It would (be) proper to stop every automobile. Alternatively, the procedural
plan may properly include a mathematical selection formula, stopping, for example, every third automobile. Unrestricted discretion
in determining which vehicle to stop leads to the evil we seek to avoid. it is also wise to instruct officers orally in writing
on uniform procedures to be utilized when stopping motorists. As nearly as possible, each motorist should be dealt with in precisely
the same manner.
iii. Safety: The safety of the motoring public and the field officer should also be given proper consideration. Here, we look to
safety measures aimed at warning approaching traffic, the degree to which the roadblock causes traffic congestion and whether the
roadblock is set up in such a way so as to put the motoring public and officers in unnecessary peril.
iv. Reasonable location: The location of the roadblock is significant in determining the degree of intrusiveness and safety of the
public and police. Ingersoll. It will also impact on the deterrent effect of the sobriety roadblock and its detection value. Obviously,
a location chosen with the actual intent of stopping and searching only a particular group of people, i.e., Hispanics, African-Americans,
etc., would not be tolerated.
v. Time and duration: This factor also bears on the intrusiveness and effectiveness of the roadblock. Reasonableness is the standard.
For example, sobriety checkpoints established during the late evening hours on a weekend may be reasonable to detect drunk drivers,
while continuing the roadblock through Monday morning during rush hour might not be reasonable.
vi. Indicia of official nature of the roadblock: The official nature of the roadblock should be immediately apparent. Officers in
the field should be uniformed; police cars should be marked; and warning or stop signs, flares and pylons are advisable. The roadblock
scene should strike an appropriate balance to provide for high visibility at the roadblock, yet minimize the potential fear and
apprehension to the public. In addition to being important for safety reasons, these indicia will reassure motorists that the stop
is duly authorized.
vii. Length and nature of detention: The average length of time that a motorist is detained at the roadblock and the degree of intrusiveness
should be minimized. This will avoid lengthy delays and traffic congestion. Initially, motorists should be detained only long enough
to be informed of the purpose of the stop and to look into the vehicle for signs of intoxication. Where facts within the observation
of the officer warrant further investigation, the suspected motorist should be asked to pull into a separate testing area so as
not to unreasonably inhibit the flow of traffic.
viii. Advance publicity: The deterrence value of any roadblock and its reasonableness for sobriety checks will be enhanced if given
widespread advance publicity. See also State v. Clark, 112 N.M. 500, 816 P.2d 1122 (Ct. App. 1991).
After a lawful arrest for Motor Vehicle Code violation, a valid license or registration check, or a valid investigatory stop, there
is probable cause for a warrantless search of the vehicle if:
a. The officer sees contraband or other evidence of a crime in plain view. State v. Powell, 99 N.M. 381, 658 P.2d 456 (Ct. App.
1983).
b. The officer smells liquor or marijuana. Or,
c. The officer observes conduct reasonably related to illegal use of drugs or other criminal activity.
In addition, once arrested, the defendant and the defendant s vehicle may be searched without a warrant as incidental to the arrest.
If the stop and/or arrest is initially valid or if the driver of gives consent to search and the consent is unlimited in scope,
there is no issue of illegal search and any contraband found can be properly seized. United States v. Watson, 423 U.S. 411, 96 S.
Ct. 820, 46 L. Ed.2d. 598 (1976); State v. Austin, 91 N.M. 793, 581 P.2d 1288 (Ct. App. 1978).
Generally, if it is practical to obtain a warrant to search a vehicle, a search warrant must be obtained. The following situations
illustrate when a warrant should be obtained.
a. The vehicle is regularly parked in a specific location, like a person's driveway.
b. The vehicle travels a regular route, for example, a delivery truck.
c. The vehicle is in a garage for repairs.
d. Probable cause to search has developed after a vehicle has been impounded. State v. Luna, 93 N.M. 773, 606 P.2d 183 (1980).
A warrantless inventory search of a vehicle is lawful if the following requirements are met:
a. the vehicle is in police control and custody;
b. police custody of the vehicle must be based on some legal ground and there must be some nexus between the arrest and the reason
for impounding the vehicle;
c. the inventory is made pursuant to established police regulations; and
d. the search is reasonable, that is, it is intended to protect the owner's property or to protect the law enforcement officer from
false claims or potential danger.
If during a lawful inventory search, evidence of a crime is discovered, the officer should obtain a warrant before seizing the evidence,
unless the evidence is contraband. If the evidence discovered is property, the possession of which is prohibited by law, such as
drugs or drug paraphernalia, no search warrant is required before seizing the property. State v. Ruffino, 94 N.M. 500, 612 P.2d
1311 (1980); State v. Foreman, 97 N.M. 583, 642 P.2d 186 (Ct. App. 1982).
Inventory searches must be limited to the extent necessary to carry out the caretaking function. State v. Boswell, 111 N.M. 240,
244 n.6, 804 P.2d 1059, 1063 n.6 (1991). If the vehicle is left out on the road for a lengthy period of time before being taken
into custody, a warrantless search is not authorized.
An inventory search of defendant's automobile, lawfully parked at the scene of the crime, made after defendant has been arrested
and booked, is lawful. State v. Williams, 97 N.M. 634, 642 P.2d 1093 (1982) The evidence obtained from the parked car will not be
suppressed although the only connection between the car, the defendant and the crime is that the defendant is the owner of the car
and the keys are found in defendant's possession during booking.
Border Searches. Warrantless searches of automobiles crossing an international border (or its functional equivalent) are permissible
if the vehicle searched is in the same condition as when the border was actually crossed and the officer has reasonable suspicion
that the person or thing searched is involved in some illegal activity. State v. Gonzales, 97 N.M. 182, 637 P.2d 1237 (Ct. App.
1981).
A warrantless search of the automobile belonging to a driver who is providing the defendant with transportation is permissible because
the defendant does not have a legitimate expectation of privacy while being transported in an automobile belonging to another. State
v. Waggoner, 97 N.M. 73, 636 P.2d 892 (Ct. App. 1981).
Consent. A search and seizure of property may be valid if the defendant consented to the search. It is for the judge to determine
whether the defendant consented to a search. See State v. Grossman, 113 N.M. 316, 825 P.2d 249 (Ct. App. 1991) ( Viewed with a presumption
against waiver of constitutional rights, the testimony must show that the consent was unequivocal and specific and given without
coercion. ).
To fight police abuse effectively you need to know your rights. There are some things you should do, some things you must do and
some things you cannot do. If you are in the middle of a police encounter, you need a handy and quick reference to remind you what
your rights and obligations are.
That's why the ACLU is making these tips available as a downloadable .pdf file. You can photocopy this and carry it in your wallet,
pocket or glove compartment to give you quick access to your rights and obligations concerning police encounters.
ACLU - AMERICAN CIVIL LIBERTIES UNION
http://www.aclu.org/
ACLU "Bustcard": Pocket Guidelines on Encounters with the Police
Complete instructions for printing the bustcard, and other resources on police reform are also available.
-Be polite and respectful. Never bad-mouth a police officer.
-Stay calm and in control of your words, body language and emotions.
-Don't get into an argument with the police.
-Remember, anything you say or do can be used against you.
-Keep your hands where the police can see them.
-Don't run. Don't touch any police officer.
-Don't resist even if you believe you are innocent.
-Don't complain on the scene or tell the police they're wrong or that you're going to file a complaint.
-Do not make any statements regarding the incident. Ask for a lawyer immediately upon your arrest.
-Remember officers' badge & patrol car numbers.
-Write down everything you remember ASAP.
-Try to find witnesses & their names & phone numbers.
-If you are injured, take photographs of the injuries as soon as possible, but make sure you seek medical attention first.
-If you feel your rights have been violated, file a written complaint with police department's internal affairs division or civilian
complaint board.
Internal Affairs
http://www.niaia.org/
Civilian Complaint Board
http://occr.dc.gov/occr/site/default.asp
Produced by the American Civil Liberties Union.
Copyright 1998, The American Civil Liberties Union
KEEP THIS CARD HANDY! IF YOU HAVE A POLICE ENCOUNTER, YOU CAN PROTECT YOURSELF.
1. What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to
arrest you, especially if you bad-mouth a police officer.
2. You don't have to answer a police officer's questions, but you must show your driver's license and registration when stopped
in a car. In other situations, you can't legally be arrested for refusing to identify yourself to a police officer.
3. You don't have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your
rights later in court. If the police say they have a search warrant, ASK TO SEE IT.
4. Do not interfere with, or obstruct the police -- you can be arrested for it.
IF YOU ARE STOPPED FOR QUESTIONING
1. It's not a crime to refuse to answer questions, but refusing to answer can make the police suspicious about you. You can't be
arrested merely for refusing to identify yourself on the street.
2. Police may "pat-down" your clothing if they suspect a concealed weapon. Don't physically resist, but make it clear that you don't
consent to any further search.
3. Ask if you are under arrest. If you are, you have a right to know why.
4. Don't bad-mouth the police officer or run away, even if you believe what is happening is unreasonable. That could lead to your
arrest.
IF YOU'RE STOPPED IN YOUR CAR
1. Upon request, show them your driver's license, registration, and proof of insurance. In certain cases, your car can be searched
without a warrant as long as the police have probable cause. To protect yourself later, you should make it clear that you do not
consent to a search. It is not lawful for police to arrest you simply for refusing to consent to a search.
2. If you're given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.
3. If you're suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver's license may be suspended.
IF YOU'RE ARRESTED OR TAKEN TO A POLICE STATION
1. You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your
name and address. Don't give any explanations, excuses or stories. You can make your defense later, in court, based on what you
and your lawyer decide is best.
2. Ask to see a lawyer immediately. If you can't pay for a lawyer, you have a right to a free one, and should ask the police how
the lawyer can be contacted. Don't say anything without a lawyer.
3. Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman,
a relative or any other person. The police may not listen to the call to the lawyer.
4. Sometimes you can be released without bail, or have bail lowered. Have your lawyer ask the judge about this possibility. You
must be taken before the judge on the next court day after arrest.
5. Do not make any decisions in your case until you have talked with a lawyer.
IN YOUR HOME
1. If the police knock and ask to enter your home, you don't have to admit them unless they have a warrant signed by a judge.
2. However, in some emergency situations (like when a person is screaming for help inside, or when the police are chasing someone)
officers are allowed to enter and search your home without a warrant.
3. If you are arrested, the police can search you and the area close by. If you are in a building, "close by" usually means just
the room you are in.
We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities -- especially
in our relationships with the police. Everyone, including minors, has the right to courteous and respectful police treatment.
If your rights are violated, don't try to deal with the situation at the scene. You can discuss the matter with an attorney afterwards,
or file a complaint with the Internal Affairs or Civilian Complaint Board.
Internal Affairs
http://www.niaia.org/
Civilian Complaint Board
http://occr.dc.gov/occr/site/default.asp
Produced by the American Civil Liberties Union.
Copyright 1998, The American Civil Liberties Union
This is a collection of information maintained by RLC
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