General Information

The "may" suspend language stems from a Supreme Court ruling: Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Basic a state cannot suspend a drivers license without due process of law.

For many years, government considered a driver's license "A privilege. Not a right", and thus there were few effective remedies available to a driver who wished to contest a suspension. The U.S. Supreme Court changed that, recognizing that a licensee's "continued possession may become essential in the pursuit of a livelihood". Because of their value, then, they "are not to be taken away without that procedural due process required by the Fourteenth Amendment". Good news some wiggle room, bad news its why most DMV's give hearings to challenge suspensions, including California.

[QUOTE=Poncho]The "may" suspend language stems from a Supreme Court ruling: Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Basic a state cannot suspend a drivers license without due process of law. .[/QUOTE]

I'm not quite sure why you feel that case deals with driver's licenses. Researching the case I found that the case is about a disabled individual and his social security benefits. I did not see anything in the decision that mentioned driver's licenses. One can read the decision at this link [url]http://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0319_ZS.html[/url].

[QUOTE=Irish Male2]I'm not quite sure why you feel that case deals with driver's licenses. Researching the case I found that the case is about a disabled individual and his social security benefits. I did not see anything in the decision that mentioned driver's licenses. One can read the decision at this link [url]http://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0319_ZS.html[/url].[/QUOTE]

My bad. The argument was made in another case. You can use relevant case examples to support the legal authority. Quoted a cite that makes the same argument even though different subject. Its a tough argument to make.

[url]http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2005_sc/732493maj&invol=3[/url]

[url]http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2005_sc/732493maj&invol=3[/url]

Or more applicable for an unsuccessful example in California:

[url]http://bulk.resource.org/courts.gov/c/F3/176/176.F3d.1202.97-17006.html[/url]


quote from California example:"Miller does not have a fundamental "right to drive." In Dixon v. Love, 431 U.S. 105, 112-16, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the Supreme Court held that a state could summarily suspend or revoke the license of a motorist who had been repeatedly convicted of traffic offenses with due process satisfied by a full administrative hearing available only after the suspension or revocation had taken place. The Court conspicuously did not afford the possession of a driver's license the weight of a fundamental right. See also Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Bell v. Burson, 402 U.S. 535, 539, 542-43, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

17
In sum, Miller does not have a fundamental right to drive a motor vehicle, and the DMV did not unconstitutionally impede his right to interstate travel by denying him a driver's license."--end quote

The key word in the quote is full administrative hearing satisfied due process.

For soliciting does the police in California give a notice to appear or promise to appear the latter with a finger print on the notice?

[QUOTE=Poncho]My bad. The argument was made in another case. You can use relevant case examples to support the legal authority. Quoted a cite that makes the same argument even though different subject. Its a tough argument to make.

[url]http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2005_sc/732493maj&invol=3[/url]

[url]http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2005_sc/732493maj&invol=3[/url]

Or more applicable for an unsuccessful example in California:

[url]http://bulk.resource.org/courts.gov/c/F3/176/176.F3d.1202.97-17006.html[/url]


quote from California example:"Miller does not have a fundamental "right to drive." In Dixon v. Love, 431 U.S. 105, 112-16, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the Supreme Court held that a state could summarily suspend or revoke the license of a motorist who had been repeatedly convicted of traffic offenses with due process satisfied by a full administrative hearing available only after the suspension or revocation had taken place. The Court conspicuously did not afford the possession of a driver's license the weight of a fundamental right. See also Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Bell v. Burson, 402 U.S. 535, 539, 542-43, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).[/QUOTE]

This is not to negate or minimize the citations provided here because they are certainly important. However, when someone notes "the Supreme Court," one thinks of the court on high in Washington DC that is the final arbiter of constitutional issues. The citations provided are from the Washington State Supreme Court and the California Supreme Court so they would not affect every state. Nevertheless, they can certainly be used in cases brought before a local court in those two states for application and precedent.

[QUOTE=Irish Male2]This is not to negate or minimize the citations provided here because they are certainly important. However, when someone notes "the Supreme Court," one thinks of the court on high in Washington DC that is the final arbiter of constitutional issues. The citations provided are from the Washington State Supreme Court and the California Supreme Court so they would not affect every state. Nevertheless, they can certainly be used in cases brought before a local court in those two states for application and precedent.[/QUOTE]


The Washington and California State Supreme Court, used United States Supreme Court rulings to determine each case. My main point is the DMV does have to give a hearing before they can suspend your license. Requires less due process over taking your car, hence why they changed the law.

CA law on notification of pending action:

[url]http://dmv.ca.gov/pubs/vctop/d06/vc13106.htm[/url]

I'm guessing that avoiding license suspension is a carrot to gaining plea deals. On regular notice to appear tickets, no finger prints are taken. Most people do not realize after the court receives the ticket and its put on the "system". The courts through out the paper copy of the ticket. Hence why in one year if the ticket is not on the computer system, its an automatic dismissal in California, "statute" of limitation, as it was not properly filed with the court. Therefore you can't fail to appear and they no longer have "evidence" with your "accuser" you broke the law. A traffic offense must be committed in front of a police officer by California Vehicle Code.

Sticky gray area. Notice to appear tickets, if you can avoid being detected over a year and fail to appear for that citation. I'll find the vehicle code, you can when brought before a magistrate "request show cause". That you in fact received a traffic ticket from a police officer. If they can't find the original paper ticket in 45 days they must find you innocent on face value of driving while suspended because you failed to appear on a past traffic ticket. They need the past ticket as evidence. Your screwed if they find the court paper copy.

This is why on promise to appear citations they make you put your finger print on the citation.

Oh, should mention I' am not a lawyer. Just a bad driver, who knows how to manipulate the laws to their advantage

Took some digging but here is California law on being "arrested" for failing to appear to a notice to do so:

[url]http://dmv.ca.gov/pubs/vctop/d17/vc40500.htm[/url] "(e) (1) A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through his or her local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court determines that referral is not in the interest of justice.

(2) Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.

(3) Upon receipt of the issuing agency's or prosecuting attorney's response, the court may make a finding of factual innocence pursuant to Section 530.6 of the Penal Code if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person's driving privilege, the department shall immediately set aside the action.

(4) If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6 of the Penal Code, unless the court determines that a finding of factual innocence is not in the interest of justice.

(5) The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee who received the citation or notice to appear be found.

Amended Sec. 3, Ch. 93, Stats. 1995. Effective January 1, 1996.
Amended Sec. 7, Ch. 467, Stats. 2003. Effective January 1, 2004." -- end quote

Most times after one year the original citation was tossed when entered on the "system". Its a risky move with "perjury", but my non-legal opinion, the cops lie on their arresting affidavits. So is it so bad to make them find your outstanding ticket?

Published Case Law can, most times, be used in any Court regardless of whether it is a Federal or State Court.
[QUOTE=Irish Male2]This is not to negate or minimize the citations provided here because they are certainly important. However, when someone notes "the Supreme Court," one thinks of the court on high in Washington DC that is the final arbiter of constitutional issues. The citations provided are from the Washington State Supreme Court and the California Supreme Court so they would not affect every state. Nevertheless, they can certainly be used in cases brought before a local court in those two states for application and precedent.[/QUOTE]

[QUOTE=Wallie]Published Case Law can, most times, be used in any Court regardless of whether it is a Federal or State Court.[/QUOTE]

True. So can other state law, rules and regulations, etcetera. As long as its on the same issue and under the Constitution.

It can if it's on point but if the state law is different, and on some issues state law varies widely, then it may not be very effective. Also, if a decision is noted as non-precedential or is an unpublished opinion it may also not be effective. The point is that the thread of this issue started with a citation that the US Supreme Court had ruled on the issue of driver's licenses and it hadn't in the case citation provided. As someone who has lived in at least 6 states and has had licenses from those states I learned that motor vehicle law is often very different in each state.

Well, actually the thread started with a post concerning a motor vehicle law in California that allowed the state to suspend a driver's license for engaging in prostitution. I carefully read the law as it was posted and believe there is wiggle room in that law for Californians but I also questioned then as I do now that enforcement of that law amounts to double punishment, one would be the conviction in criminal court and then losing one's license. It seems on the surface to be unfair but what the hey, that's why all those police officers, attorneys, and judges get the big bucks and we just monger on.

[QUOTE=Irish Male2] As someone who has lived in at least 6 states and has had licenses from those states I learned that motor vehicle law is often very different in each state. .[/QUOTE]

Actually motor vehicle law has become fairly uniform. In that its governed by federal law, but that is on a voluntary basis. So it could be argued that it is not binding on state domestic. All states volunteer to make it binding, cause they get fed funds for incorporating federal highway safety act(s) into their domestic law. So really traffic laws and infractions, have become giant revenue generation tools for the state. California has another act. That makes it so they can't convict you if your complying with federal law and regulations. I'd attempt to argue this as a due process issue that it is not in the governments interest in suspending your license is not public safety interest. Therefore, you have more interest in keeping your license for liberty and pursuit of happiness.

[QUOTE=Poncho]I'd attempt to argue this as a due process issue that it is not in the governments interest in suspending your license is not public safety interest. Therefore, you have more interest in keeping your license for liberty and pursuit of happiness.[/QUOTE]

Good luck with that one at the Supreme Court. Not too many people would have the money, let alone spend it and the time to chase it through the court system to get it into the Supreme Court. And, if they did, it is always possible the Supremes will not take up the Writ of Certriori. They only take up a small fraction of the cases that are submitted for consideration by the Supremes each year. And then there's that pesky legal term found in many decisions from many courts called "harmless error." The court agrees there was an error made by the lower tribunal or appellee but it was not harmful so - no harm no foul. That one is always a tough one for me to take.

[QUOTE=Irish Male2] And, if they did, it is always possible the Supremes will not take up the Writ of Certriori. They only take up a small fraction of the cases that are submitted for consideration by the Supremes each year. And then there's that pesky legal term found in many decisions from many courts called "harmless error." The court agrees there was an error made by the lower tribunal or appellee but it was not harmful so - no harm no foul. That one is always a tough one for me to take.[/QUOTE]

I agree. That it is actually very hard to fight on these grounds. Both, minor traffic offenses and even "criminal" misdemeanors are very unfair and impartial in how they are adjudicated. In that most times they will not toss you in jail when your not public safety risk. No jail "harmless error" are just not taken seriously by any court level.

It's almost the same as being robbed in the hobby. Rarely will someone call the police even knowing the location, the thieves are at. Most people want the easiest way out of being charged with a prostitution offense as a "john" because to fight you have to admit paying for sex. The states, via the courts have figured out a system that they can and will rob "defendants".

Take DUI. First time offenders barely over the limit and having good grounds to fight. The lower courts, skirt around your legitimate grievance and make it very hard and not worth fighting. Hence the plea deals when you show up for arraignment. Pay a small fine, plead guilty, might even keep your license, etcetera. Most of all no jail. Defense attorneys, love it as well. Cause its become standard to be offered very light "punishment". My local district court even has a pamphlet explaining the standard plea deal offer from the state. Takes time and money to fight, your lawyer doesn't want to work for the often flat fee they charge for these cases. Hired one for a past license suspension charge it was $750 flat fee, one case fits all. Even from the "defense" attorney side of things.

Its typical and become the standard procedure. Easy plea deal, takes maybe 20 minutes work for both sides, including standing before the "judge". Who makes sure in most cases that this deal if granted is best for you cause we could toss you in jail. Defense attorney has already scared you if you fight, cause you have a weak case. The prosecution, is giving the easiest fastest way out of the situation. Besides you can apply in the future to deffer/expunge most misdemeanors! Its all about the money, hence why most traffic court non-criminal penalty infractions are not tried in a court setting. Really an informal hearing. Misdemeanors, like low blood alcohol, not really drunk DUI, and even prostitution on the monger side are technically moving in the same direction. That is a profit center for the state, court sanctioned robbery.

State, court for non public safety risk area's. Are the McDonald's drive through window of blinders on one case fits all justice. Joe Pesci said it best in Lethal Weapon: "They F*ck you at the drive through!" UN less you have a history of being a bad driver, long time criminal, you'll get the new system of a cop gave a ticket, even if its a wrong application of the law(s) his reason is good enough to find you guilty! The entire reason why the Founders wrote The Constitution, make it hard for the government to extort and abuse its citizens. The Supreme Court to the state legislature have weakened the Constitution to an instrument that is twisted to make it far too easy for government to extort with threat of jail!

I made a post in the Philadelphia General Reports thread on this subject and the Editor suggested I re-post it here for the benefit of members interested in legal issues.

If you want to follow some other interesting information preceding this post on the same subject, you will also find it in the Philadelphia General reports thread.

ENTRAPMENT

I did a little research on Supreme Court entrapment cases. The last one was in 1992, which overturned the conviction of a man who received child pornography in the mail. The general concept of entrapment is whether a law enforcement agent was inducing a person to commit a crime which he otherwise would be unlikely to commit. This particular ruling focused solely on whether the prosecution had established that the defendant had a "predisposition" for committing the crime. Since the man in question had no other such material in his home, save what he purchased from the postal inspectors, the question was whether the idea was implanted in his mind and/or whether it was established that he wished to continue the purchases. So it would seem that behavior patterns are relevant before and after the commission of a "crime" induced by law enforcement to clarify whether indeed there was entrapment. In other words, it would be much more difficult to raise an entrapment defense after a previous arrest and/or conviction for the solicitation of prostitution (or if it can be proven that there was a desire to do it again) because "predisposition" has been established. Or, to put it another way, if you get your hand caught in the cookie jar, swear off cookies for life if you expect an entrapment defense to work.

[QUOTE=Supereloquent]
ENTRAPMENT

...The general concept of entrapment is whether a law enforcement agent was inducing a person to commit a crime which he otherwise would be unlikely to commit. This particular ruling focused solely on whether the prosecution had established that the defendant had a "predisposition" for committing the crime. Since the man in question had no other such material in his home, save what he purchased from the postal inspectors, the question was whether the idea was implanted in his mind and/or whether it was established that he wished to continue the purchases. So it would seem that behavior patterns are relevant before and after the commission of a "crime" induced by law enforcement to clarify whether indeed there was entrapment. In other words, it would be much more difficult to raise an entrapment defense after a previous arrest and/or conviction for the solicitation of prostitution (or if it can be proven that there was a desire to do it again) because "predisposition" has been established. Or, to put it another way, if you get your hand caught in the cookie jar, swear off cookies for life if you expect an entrapment defense to work.[/QUOTE]


From lectlaw.com: "ENTRAPMENT - A person is 'entrapped' when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit; and the law as a matter of policy forbids conviction in such a case.

However, there is no entrapment where a person is ready and willing to break the law and the Government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the person. So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded, and that Government officers or their agents did no more than offer an opportunity.

On the other hand, if the evidence leaves a reasonable doubt whether the person had any intent to commit the crime except for inducement or persuasion on the part of some Government officer or agent, then the person is not guilty.

In slightly different words: Even though someone may have [sold drugs], as charged by the government, if it was the result of entrapment then he is not guilty. Government agents entrapped him if three things occurred:

- First, the idea for committing the crime came from the government agents and not from the person accused of the crime.

- Second, the government agents then persuaded or talked the person into committing the crime. Simply giving him the opportunity to commit the crime is not the same as persuading him to commit the crime.

- And third, the person was not ready and willing to commit the crime before the government agents spoke with him.

On the issue of entrapment the government must prove beyond a reasonable doubt that the defendant was not entrapped by government agents."

A search for the definition online leaves one with an almost universal idea of what is and isn't entrapment. Essentially, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. In order to be found to be a victim of entrapment, the entrapped person must have been ready and willing to commit the crime prior to the alleged entrapment. The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion to commit a crime by the entrapping party.

I've been curious about seeing Craig's List, or other 'open' sites which list erotic services adds, containing a providers specification of race for her clients, "(insert specific racial group here) gentlemen only. " While I'm not advocating any form of discrimination, I am curious as to the legality of law enforcement's ability to use such verbage in a decoy add.

Would such a decoy add stand up to legal scrutiny? Of course they could use multiple adds each specifying a different 'racial' group; add #1, "type A gentlemen only, " add #2 "type C gentlemen only. " Wouldn't multiple adds offer up a subjective argument as to the dilligence the various 'racial' groupings targeted with the individual adds were prosecuted with?

Does the provider's specification, any other consideration aside, provide a, " not a decoy add guarantee?"