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Lawsuit filed against FLRB

nstassel

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Thank you. Now I have a better understanding of what you hope to achieve.
From my point of view, I was always comfortable with the idea of defending a PP in federal court who had been issued a LTC by the state which restored their right to possess a firearm.
 
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Do you think the sjc has gotten a whiff of what’s going on lately regarding this ?
Of course they have. And if history is any guide, they'll quickly find a really bad case to take 'sua sponte' so that they can pollute the issue before too many other decisions come out.

The only question is will they hold their noses and side the the ATF/FRB so they can screw gun owners, or will they hold their noses and side with gun owners so they and give the middle finger to the Trump administration. It's sort of a perverse Sophie's choice for the SJC.
 

rocket500

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I get the OUI thing being tough but there are less “offensive” crimes that still make you a PP. I still think the guns thing is tough to overcome politically though.

Remember, pardons in MA come with and without restoration of gun rights. It is going to be a tough sell to get a pardon w/gun rights for a politically hot crime like first offense OUI. What governor hoping for re-election is going to come out as soft on OUI and Pro-Gun at the same time?

If anyone know of someone with an FLRB relief who has never owned guns, or surrendered the immediately after the original charge and never took possession, please contact Comm2A. The ideal person would be one with an OUI who has FLRB relief and never been a gun owner but wants to become one.

This issue is the legal equivalent of peeling an onion.
 

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I get the OUI thing being tough but there are less “offensive” crimes that still make you a PP. I still think the guns thing is tough to overcome politically though.
OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.
 
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OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.[/QUOT
OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.
Excellent paragraph !! So true !
 
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OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.
Excellent paragraph !! So true !!
 

nstassel

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OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.

Try 45 days loss of license which is standard for 1st offense oui.
 

rocket500

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I dont disagree I just think OUI is an offense that it’s politically tough to get “softer” on. Not defending it, just being realistic.

Frankly I don’t see how any misdemeanor merits a jail sentence potentially long enough to become a PP.
 
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From my point of view, I was always comfortable with the idea of defending a PP in federal court who had been issued a LTC by the state which restored their right to possess a firearm.
The problem is that there is still a risk, and the attorneys we deal with advise that a vindictive federal prosecutor could bring a felon in possession case against a gun owner who continued to possess. Despite the strong defense, the attorney we were dealing with, and the Comm2a triumvirate, did not feel it ethical to submit the appellant to this risk however small. Also, note that the entrapment by estoppel defense does not apply when a state official made a representation regarding federal law or vice-versa.
 
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[QUOTE="rocket500, post: 6009567, member: 33074"Frankly I don’t see how any misdemeanor merits a jail sentence potentially long enough to become a PP.[/QUOTE]
This is the fundamental problem. The system likes long theoretical sentences since it allows the legislature to send a "tough on crime" message every time it increases a sentence, and ADAs have a more powerful tool to coerce people into copping a plea.
 
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OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.

I dont disagree I just think OUI is an offense that it’s politically tough to get “softer” on. Not defending it, just being realistic.

Frankly I don’t see how any misdemeanor merits a jail sentence potentially long enough to become a PP.


Perhaps the answer here is to scale OUI charges (specifically drinking) with BAC. Blew a .09? Ok, maybe that's 45 days and loss of licenses blew a .16? Well that theres going to get you your 2.5 years, that way the penalty is consistent with the crime. Conversely, perhaps there should be a push at the federal level to change the wording to be based on scentance and not possible scentance.

This might screq people in MA and CA, for a while, but eventually the mandatory 2.5's that the courts will start throwing out for stupid shit will get backlash- after all one of the best ways to change a policy is to blindly enforce it to it's full extent, something that Trump is trying to teach as we speak.
 

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that way the penalty is consistent with the crime.

I still have an issue with calling any action with no mens rea a "crime". Crimes used to be actions that caused harm to a person or his property. Trespass, Assault, Battery, Larceny, Robbery, Burglary, Arson, Rape, Murder, Kidnapping. The trend to criminalize behavior that has the potential to cause harm is, in my opinion, simply wrong.

But you've got people who believe in the mantra "The goal is to have folks obey whatever rules, ordinance that any government puts in place"
 

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OUI is clearly an emotional issue for a lot of people, but simple OUI - absent personal injury or property damage - is still a basic misdemeanor and should not carry a possible sentence of 2-1/2 year in jail.

AND it certainly shouldn't carry a lifetime firearms prohibition if folks are able to reinstate their driving privileges after 9-12 months. After all, they don't have a history of irresponsible conduct with a gun, they have a history of irresponsible conduct with a motor vehicle.

I'm against any "theoretical" sentence that is so unrealistic that no judge would ever go there no matter how bad the perp was or how deep his rap sheet might be.

[QUOTE="rocket500, post: 6009567, member: 33074"Frankly I don’t see how any misdemeanor merits a jail sentence potentially long enough to become a PP.
This is the fundamental problem. The system likes long theoretical sentences since it allows the legislature to send a "tough on crime" message every time it increases a sentence, and ADAs have a more powerful tool to coerce people into copping a plea.[/QUOTE]

I agree with Rob as to why these ultra-long theoretical sentences are part of all new legislation. I just feel that those kind of laws should not be allowed to pass that way . . . but sanity will never return to the Mass legislative or judicial system, no way in hell.
 

milktree

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Perhaps the answer here is to scale OUI charges (specifically drinking) with BAC. Blew a .09? Ok, maybe that's 45 days and loss of licenses blew a .16? Well that theres going to get you your 2.5 years, that way the penalty is consistent with the crime. Conversely, perhaps there should be a push at the federal level to change the wording to be based on scentance and not possible scentance.

The real problem is the way we evaluate "drunk driving" overall. BAC isn't a perfect indicator of reckless behavior or incapacitation, it's a proxy at best. Some people can drive as well as stone cold sober at .08, some people are a danger to everyone around them at .03.

Plus, the "test" (brethalyzer) is *terrible*, it's notoriously inaccurate.
 

Boston4567

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I still have an issue with calling any action with no mens rea a "crime". Crimes used to be actions that caused harm to a person or his property. Trespass, Assault, Battery, Larceny, Robbery, Burglary, Arson, Rape, Murder, Kidnapping. The trend to criminalize behavior that has the potential to cause harm is, in my opinion, simply wrong.

But you've got people who believe in the mantra "The goal is to have folks obey whatever rules, ordinance that any government puts in place"
The real problem is the way we evaluate "drunk driving" overall. BAC isn't a perfect indicator of reckless behavior or incapacitation, it's a proxy at best. Some people can drive as well as stone cold sober at .08, some people are a danger to everyone around them at .03.

Plus, the "test" (brethalyzer) is *terrible*, it's notoriously inaccurate.
This is exactly right.

Do people understand what a .08 or a .16 is? .08 is like 2 beers, .16 is like 4-5 beers. The whole DUI-government industrial complex is a big scam. As are most criminal laws. Most "crimes" on the books aren't crimes. Crimes are not arbitrary prophylactic government rules. Crimes have victims.
 

nstassel

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The problem is that there is still a risk, and the attorneys we deal with advise that a vindictive federal prosecutor could bring a felon in possession case against a gun owner who continued to possess. Despite the strong defense, the attorney we were dealing with, and the Comm2a triumvirate, did not feel it ethical to submit the appellant to this risk however small. Also, note that the entrapment by estoppel defense does not apply when a state official made a representation regarding federal law or vice-versa.
I'm not suggesting at all setting up a ltc holder as a test case. I'm starting that there's value to an ltc even with a misdafelony conviction.
 

42!

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Remember, pardons in MA come with and without restoration of gun rights. It is going to be a tough sell to get a pardon w/gun rights for a politically hot crime like first offense OUI. What governor hoping for re-election is going to come out as soft on OUI and Pro-Gun at the same time?

If anyone know of someone with an FLRB relief who has never owned guns, or surrendered the immediately after the original charge and never took possession, please contact Comm2A. The ideal person would be one with an OUI who has FLRB relief and never been a gun owner but wants to become one.

This issue is the legal equivalent of peeling an onion.
In the case of OUI convictions I think it would be far easier, and less expensive, to change MA law. And it can be done without being seen as soft on OUI. And you don't even have to mention guns.

A simple change that limits the potential jail time for a first offence, where there is no loss of life, to one day short of making it a Fed felony. Subsequent convictions would have potential sentences exponentially greater, even more than they are now, along with permanent loss of drivers license.

The reasoning is simple and positions the sponsor as both a reasonable person AND hard on OUI is;
"People make mistakes and a conviction seen as a felony by the Fed can have lifelong implications. It can have a serious impact on their life and ability to pursue a better life, including affecting their potential employment in both the public and private sector. People deserve a second chance.
But once they are given that second chance, and they continue the destructive and dangerous behavior, then the punishment must not only send a message, it must prevent then from endangering others again."

There's your fix. A supporting legislature can be seen as tough on OUI and having a heart (Libs love this). And it fixes all the past OUI mistefelonies, and stops future ones. It also establishes an approach and path for changes to other non-violent offences. And it fits with a feel good second chance agenda.

And of course, by changing the law, you don't need to rely on a courts interpretation.

Sometimes it's not about wining by beating the opposition, sometimes it's about changing the rules.

Hmm, this has gotten me thinking, GOAL is about legislation and Comm2a is about filing in court, perhaps we've become too focused on the process and less focused on solving the problem.

I'm sure I'll get the response of how this won't work, but it's easy to say that when no one is trying.
 
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42!

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The real problem is the way we evaluate "drunk driving" overall. BAC isn't a perfect indicator of reckless behavior or incapacitation, it's a proxy at best. Some people can drive as well as stone cold sober at .08, some people are a danger to everyone around them at .03.

Plus, the "test" (brethalyzer) is *terrible*, it's notoriously inaccurate.

The problem with arguing the standard is that the obvious response is to ask what standard you want to apply. Keep in mind, you are questioning how to measure what is and is not OUI with a practical test, you're not arguing the right or wrong of the law, or the potential punishment. And the test has to be objective, subjective determination just promotes unfair application of the law.

So I'll ask you specifically, what test would you suggest for determining OUI. Nothing to do with punishment, just a yes/no is a person OUI?

And to be clear, if you've missed my saying it in the past, if a person is a repete OUI, or is OUI resulting in a death, they should be hung by their toes in the town square until they die a natural death. No sympathy for OUI here.
 

Boston4567

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The problem with arguing the standard is that the obvious response is to ask what standard you want to apply. Keep in mind, you are questioning how to measure what is and is not OUI with a practical test, you're not arguing the right or wrong of the law, or the potential punishment. And the test has to be objective, subjective determination just promotes unfair application of the law.

People always raise this question; I find it bizarre. What percentage of crimes on the books require chemical tests with numerical thresholds?

You have the cop testify that you were all over the road, driving twice the speed limit, and/or crashed your car. Then, you were slurring your words, unbalanced on your feet, swaying back and forth, aggressive, and smelled of alcohol. You can have the cop administer field sobriety tests which you pass or fail. And in this day and age, you can have body cameras or dash cams that show your behavior. And the jury can decide.

DUI is NOT something that was ever supposed to be used in marginal cases. If you're actually drunk, it's obvious, and any jury that's encountered drunk people can tell that from a video or a police officer's testimony. If you're not drunk enough that it's obviously and substantially impairing your judgment and/or your motor functions, you should not be found guilty of driving under the influence. Or more precisely, you never should have been charged.
 

42!

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People always raise this question; I find it bizarre. What percentage of crimes on the books require chemical tests with numerical thresholds?

You have the cop testify that you were all over the road, driving twice the speed limit, and/or crashed your car. Then, you were slurring your words, unbalanced on your feet, swaying back and forth, aggressive, and smelled of alcohol. You can have the cop administer field sobriety tests which you pass or fail. And in this day and age, you can have body cameras or dash cams that show your behavior. And the jury can decide.

DUI is NOT something that was ever supposed to be used in marginal cases. If you're actually drunk, it's obvious, and any jury that's encountered drunk people can tell that from a video or a police officer's testimony. If you're not drunk enough that it's obviously and substantially impairing your judgment and/or your motor functions, you should not be found guilty of driving under the influence. Or more precisely, you never should have been charged.

You've got it backwards, factual, objective, evidence was, and should be, the standard for law.

In your example. A cop testifies that you looked drunk to him (lie truth, whatever). No video because not all departments have video (Framingham, a city of 70k, with 125 patrol officers, has no video), would be enough to convict you. Is this really what you see as good law.

Laws need to have clear objective lines. After that it's your choice to cross them or not.

Personally I have a high tolerance for alcohol, and in the past I acted and appeared completely sober when I knew I was over the legal limit (this was often reinforced by the objective opinions of others). Yet I would never push the legal limit for OUI, even a little bit.
But now, due to problems with my feet, I wobble when I walk and there is no way I'd pass a field sobriety test. An officer conducting one, and even video of me taking one, would look like I failed and so I would appear to be drunk. It's a simple lack of sensitivity in my feet that results in balance issues when my eyes are closed. I would start to sway and then stumble, a clear indicator in a field test. But I don't walk or drive with my eyes closed so it's not an issue.
In your example a breathalyzer, and even a blood test would say I'm sober, but the officer testimony and video would imply I'm not. So I would need to spend upwards of $10K to bring in expert medical witnesses to defend myself. On the other hand, with clear, objective, standards I would never even go to court.

So now explain to me how your"opinion" based law works fairly for everyone?
Keep in mind, I'm not taking a position on where the line is on the physical tests, only that there needs to be physical, objective test.
 

milktree

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The problem with arguing the standard is that the obvious response is to ask what standard you want to apply. Keep in mind, you are questioning how to measure what is and is not OUI with a practical test, you're not arguing the right or wrong of the law, or the potential punishment. And the test has to be objective, subjective determination just promotes unfair application of the law.

So I'll ask you specifically, what test would you suggest for determining OUI. Nothing to do with punishment, just a yes/no is a person OUI?

And to be clear, if you've missed my saying it in the past, if a person is a repete OUI, or is OUI resulting in a death, they should be hung by their toes in the town square until they die a natural death. No sympathy for OUI here.

Hold on there cowboy...

Go back and read what I wrote. Read it carefully.

Nowhere did I argue for any standard.

Nowhere did I suggest that any practical test exists.

Unless by quoting me and using "you" it was just colloquial English and "you" means "one", not "milktree"

But to answer your question, I think you're wrong about OUI being a binary thing. For starters, some people get really reckless when even a little drunk, and it's not limited to driving. Some people get into fights or have more than your average "hold my beer" moments. Others recognize they're drunk and are more careful than normal (which might put them back to where most people are normally)

I'd argue that "driving when over-tired" or "driving while trying to sooth a baby in the back seat" or "driving while on prescription pain killers" should/could all be in the same category of offense.

If you're driving erratically because you're texting, that's no better than if it's because you're drunk.

This is the problem with objective tests for subjective things. You can test for BAC, but even if it's 100% correct it doesn't measure impairment. You can do a field sobriety test, but it wouldn't prove alcohol consumption.

Diabetics fail breathalyzers, for instance. Are they DUI?
 
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In the case of OUI convictions I think it would be far easier, and less expensive, to change MA law. And it can be done without being seen as soft on OUI. And you don't even have to mention guns.

A simple change that limits the potential jail time for a first offence, where there is no loss of life, to one day short of making it a Fed felony. Subsequent convictions would have potential sentences exponentially greater, even more than they are now, along with permanent loss of drivers license.

The reasoning is simple and positions the sponsor as both a reasonable person AND hard on OUI is;
"People make mistakes and a conviction seen as a felony by the Fed can have lifelong implications. It can have a serious impact on their life and ability to pursue a better life, including affecting their potential employment in both the public and private sector. People deserve a second chance.
But once they are given that second chance, and they continue the destructive and dangerous behavior, then the punishment must not only send a message, it must prevent then from endangering others again."

There's your fix. A supporting legislature can be seen as tough on OUI and having a heart (Libs love this). And it fixes all the past OUI mistefelonies, and stops future ones. It also establishes an approach and path for changes to other non-violent offences. And it fits with a feel good second chance agenda.

And of course, by changing the law, you don't need to rely on a courts interpretation.

Sometimes it's not about wining by beating the opposition, sometimes it's about changing the rules.

Hmm, this has gotten me thinking, GOAL is about legislation and Comm2a is about filing in court, perhaps we've become too focused on the process and less focused on solving the problem.

I'm sure I'll get the response of how this won't work, but it's easy to say that when no one is trying.
42 , I like what your saying. Looking at this from a difrent angle ! I still wonder how many repeat flrb offenders their are? I bet none or next to it ! Be nice to wave that fact under someone’s nose !!
 

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You've got it backwards, factual, objective, evidence was, and should be, the standard for law.

In your example. A cop testifies that you looked drunk to him (lie truth, whatever). No video because not all departments have video (Framingham, a city of 70k, with 125 patrol officers, has no video), would be enough to convict you. Is this really what you see as good law.

Laws need to have clear objective lines. After that it's your choice to cross them or not.

Personally I have a high tolerance for alcohol, and in the past I acted and appeared completely sober when I knew I was over the legal limit (this was often reinforced by the objective opinions of others). Yet I would never push the legal limit for OUI, even a little bit.
But now, due to problems with my feet, I wobble when I walk and there is no way I'd pass a field sobriety test. An officer conducting one, and even video of me taking one, would look like I failed and so I would appear to be drunk. It's a simple lack of sensitivity in my feet that results in balance issues when my eyes are closed. I would start to sway and then stumble, a clear indicator in a field test. But I don't walk or drive with my eyes closed so it's not an issue.
In your example a breathalyzer, and even a blood test would say I'm sober, but the officer testimony and video would imply I'm not. So I would need to spend upwards of $10K to bring in expert medical witnesses to defend myself. On the other hand, with clear, objective, standards I would never even go to court.

So now explain to me how your"opinion" based law works fairly for everyone?
Keep in mind, I'm not taking a position on where the line is on the physical tests, only that there needs to be physical, objective test.
First off, the law says it's illegal to drive under the influence. It also says it's illegal to drive above .08. These two provisions operate entirely independently. There is no current requirement a police officer attempt to administer a breathalyzer to effect a DUI arrest, nor is there a requirement that someone who has taken a breathalyzer register above a .08 in order to be arrested for DUI.

So this parade of horribles you're suggesting where an officer arrests you because you walk in a wobbly manner is already theoretically possible. But it doesn't happen because it's also illegal to arrest without probable cause. The presence or absence of the option to arrest based on a canonical numerical threshold neither adds nor eliminates common sense from the equation. I would argue that it actually adds arbitrariness in that it allows a police officer to effect an arrest upon an innocent person who is clearly in complete control of their faculties just because they register a certain number on an instrument.

Secondly, no one is advocating for the elimination of breathalyzers. No one is advocating for a non-objective or opinion-based standard. Behavioral patterns are objective. All of the criteria I listed are objective. None of them are necessary and none alone is sufficient. A police officer can only arrest if based on the totality of the circumstances, there is sufficient probable cause that someone is operating a vehicle under the influence. In addition to the potential for video evidence, I listed "slurring your words, unbalanced on your feet, swaying back and forth, aggressive, and smelled of alcohol" as potential objective indicators of intoxication, as well as "all over the road, driving twice the speed limit, and/or crashed your car" as ancillary factors to be considered. There are many, many other objective fact-based considerations for a police officer to take into account.

We have an adversarial justice system grounded in facts and evidence. A police officer does not come to court and say a defendant "seemed drunk". Every defense counsel in America would object to a remark like that and every judge in America would strike it from the record (or be overturned on appeal if he didn't). An officer explains the facts of the defendant's behavior and presents the circumstances and the evidence. He explains his training and why those behaviors are factual indicators of intoxication. The defense counsel can cross-examine and present his own witnesses. The judge explains the law. The jury decides the truth.

Third, before the strict "per se" numerical threshold, breathalyzers still existed, and they were still used in court. But they were neither necessary nor sufficient for an arrest. One of the older laws in MA read that a BAC reading below x% could be used by a defendant as evidence they were not under the influence of alcohol, a BAC reading between x% and y% meant that the reading could not be used as evidence in either direction, and a BAC reading above y% was evidence that they were intoxicated. That's a perfectly reasonable evidentiary rule that allows BAC evidence to be considered alongside any other evidence that's available.

Finally, take a second to think about any other criminal law. In a murder trial, even if there's DNA evidence, it's evidence, to be considered alongside a whole lot of other evidence. Virtually no laws have a canonical scientific test to prove guilt. Crimes and criminal law simply don't work that way.

For whatever reason people love the simplicity of the idea of DUI BAC thresholds, and are entranced with the idea that they're 'objective' and 'scientific' while the alternatives are not. But it's all pure applesauce. It's a narrative that's been beaten into our heads over the years by the lunatics at MADD and their statist Congressional enablers. Not to mention the joint media/MADD collusion to use the emotions of grieving parents to produce "this bill will bring my dead kid back and if you vote against it you want more dead kids" laws like Melanie's law.

There's no single test that proves guilt for theft, arson, fraud, negligent driving, assault, harassment, forgery, extortion, kidnapping, homicide, prostitution, rape, perjury, etc. Arrests are effected based on probable cause. You have an adversarial trial where both sides present objective facts and evidence. The judge explains the law to the jury. The jury decides the truth. That's the way it works. That's the way it ought to work with DUI.
 
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