No one likes to become recipient of a spit projectile, unless, of course, you are swapping it with your significant other. Sharing saliva with your girlfriend or boyfriend certainly is not a crime. Sharing it with that drunk girl or guy you meet in a bar is not a crime. However, two days later ,when you do not even remember the encounter, if you get a call from the Health Department that a known serial HIV boinker or TB (Tuberculosis) carrier was making his/her rounds through the Dallas bars the night you were cruising the same bars, should you become alarmed that the person the Health Department is searching for just left your place an hour ago? .And you thought you were special!

The two most logical questions are: first can you contract HIV or TB that way, and, second, is it a crime to spit on someone knowing you are a carrier?

At least as to the HIV issue, A Dallas, Texas jury has decided that it is a crime to spit on someone when you know you are HIV positive.

Two weeks ago, a homeless man spit in the mouth and eye of a police officer and then taunted him, saying he was HIV positive. On Wednesday, he was sentenced to 35 years in prison for harassing a public servant with a deadly weapon—his saliva. The key part of this ruling was the finding that the saliva should be classified as a deadly weapon.

We will put aside the fact that the guy got 35 years for the crime. The severity of the sentence was affected by the fact that he was convicted under a “habitual offender statute“. He had been convicted of attacking other officers in a similar manner as well as committing more than two dozen other offenses. This mandated a minimum of 25 years without regards to the HIV issue. Let’s take the fact that it was a cop out of the equation as well and get down to the basic issue at hand:

“If you are a carrier of a deadly disease that may, in very rare circumstances, be transmitted by your spit, does that make your spit a “deadly weapon” under the law? If you say yes, does that not open up a whole “Pandora’s Box” of criminal responsibility?

According to the Centers for Disease Control and Prevention, HIV is primarily spread through sexual contact or the exchange of blood or other bodily fluids. Although there have been rare cases of transmission through severe bites, “contact with saliva, tears, or sweat has never been shown to result in transmission of HIV,” the agency reports. You can read the CDC fact sheet on HIV transmission here.

There have been no known cases of HIV being transmitted through simple contact with saliva. Does that mean HIV can never be transmitted through saliva? Never say never, but the odds are remote in the extreme. But when we allow a remote “struck by lightning” possibility to justify a “deadly weapon” finding, are we hearkening back to the AIDS paranoia days of all toilet seats and drinking glasses being carriers of the disease? Was this conviction based on ignorance or science?

If we accept that premise that spit can be a deadly weapon, we also have to accept that the HIV carrier who lets you take a sip of his beer or coke has just committed a crime. If he had evil intent in letting you share the drink, would not the crime be the same taking out the public servant element? If he simply was not thinking about it or paying attention to his drink has he/she committed a crime? You can see where this has the potential to go. The slope gets very slippery. Will it even stop with HIV?

Andrew Speaker, an Atlanta lawyer with multi-drug resistant TB boarded several crowded planes knowing he had the disease, and, in fact, had been advised not to travel without a mask. We know that TB is spread from person to person as the bacteria are released into the air when a person with TB, a disease of the lungs or throa, coughs or sneezes. Amid all the hysteria, I don’t remember hearing much talk about whether any crimes were committed by Mr. Speaker. Did he commit any crimes? He probably didn’t intend to hurt anyone, but intent does not necessarily constitute an element of possible crimes on the books that either he or the HIV carrier sharing the beer may have committed.

You can read the CDC fact sheet on multi-drug resistant TB here.

There is also a crime in many, if not all, states called Reckless Endangerment.

The general definition of reckless endangerment (this can and will vary by state) is as follows:

“A person commits the crime of reckless endangerment if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. “Reckless” conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intentionally cause a resulting harm or know that his conduct is substantially certain to cause that result. The ultimate question is whether, under all the circumstances, the accused’s conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others.”

Now that you know the meaning of reckless endangerment as defined by law, does your opinion change? The issue becomes what is and what is not “reasonably foreseeable” in these situations. Is it reasonably foreseeable that you may contract HIV through saliva? Is it reasonably foreseeable you may contract TB through saliva?

Does Andrew Speaker’s conduct had a greater degree of foreseeable consequences than the homeless guy spitting on a cop? What about Beer Bottle Sallie, the HIV carrier, and Serial Make-Out Artist?

Are we on the verge of criminalizing ignorance or simply disregarding criminal foreseeability?

You are out partying it up with your buddies one weekend.. You have a few beers, which turns into a few too many. In the true tradition of an obnoxious drunk you tell all your friend you are fine, head to your car, stop to puke in an alley and you are on your way. You are pulled over. You are asked to peform a field sobriety test. You pull out every piece of law you have ever heard in bars, nightclubs and your last stay in the drunk tank.

“I don’t have to take the field sobriety test ”

Well you are right, at least in Texas you have to right to refuse do the field sobriety test, blow into any probably cause breath analyzer, or say anything at all. While there are possible consequences for your refusal ,you can basically stand mute(if you are able to stand). The police officer then says “fine we are going to draw blood”. Your response is “please see previous refusals”

Police officer goes back to his car for a bit, and comes back with this piece of paper. You manage to slur out the party line again…. “please see previous refusals”

The officer, responds, “you can take your previous refusals and stick them in your beer can. I have a search warrant to draw your blood.”

Hmmm……. the jail house lawyers in the drunk tank didn’t tell you about that one…..

Your response? Drop your pants and bend over(figuratively) for the needle! Danger Will Robinson!

Do you have the right to refuse a blood test at a DWI stop? Not if the cop has a properly obtained warrant to draw your blood which he went back to his car and obtained from an on-call magistrate. In fact, even if the warrant was improperly obtained, the cop is taking that blood and you can argue about whether the warrant was properly obtained in a suppression hearing or on appeal after your conviction. Welcome to the “no refusal” policy being instituted by an ever increasing number of law enforcement agencies. .

The Dallas police and departments all over the country are instituting these “no refusal” policies with increasing frequency at DWI stops. It started with holidays only, went to every weekend and when budgeted and staffed for, will be the modus operandi every day of the week. This means you can forget everything you have ever been told about your right to refuse various tests when you are pulled over. You can throw whatever your state’s drunken driven statutes say about right to refuse out the window.

Local police departments through the use of search warrants and “on call” magistrates have in effect been able to write their own legislation without the help of the legislature that says you can not refuse. In order to get a better feel for the effect of this statute, I decided to talk to people in the trenches.

Richard Warfield, a very respected local Dallas Attorney specializing in DWI had this to say:

“The law in Texas regarding DWI’s(Driving While Intoxicated) requires that if a peace officer has “probable cause”(i.e.,he smells alcohol) to believe the driver of a motor vehicle may be intoxicated, the officer can demand the suspect give a specimen of his breath or blood to determine the level of the intoxicant, whether it be alcohol or drugs.

However, the Texas Legislature enacted a Statute under the Transportation Code(Sec.724.012) which states if a suspect refuses to give a specimen “none shall be taken.” This is out of respect for the rights of the accused and the inherent dignity of the individual. In other words, to forcibly extract breath or blood from a suspect is considered so invasive as to offend our sensibilities as a proud and free people.The argument can be made that if one is suspected of a serious felony such as murder, if the state seeks and obtains a search warrant, such a specimen would be taken.

A DWI is, much to the chagrin of Mothers Against Drunk Driving(MADD), still a Class B Misdemeanor. This all changed when the highest criminal court in Texas ruled in Beeman v. State that if an officer obtains a search warrant for ones’ blood, the warrant trumps the wishes of the Texas Legislature and we no longer have the right to refuse. I can’t help but think this is another example of the will of the people being overridden by an activist judiciary. By the way, this opinion was written by Judge Micheal Keasler, a Republican on an ALL Republican high court.

What this means to us is that if a local police or sheriffs’ department wants to set up a procedure whereby they have access to a local judge 24 hours a day, they can get the warrant EVERY SINGLE TIME!

The Dallas Police Dept. came up with this procedure this past weekend so they could have it in place just in time for our National Holidays of Memorial Day and Independence Day. Think about that. On those days on which we celebrate the memories of those brave souls, those patriots, who gave their lives so that we could become and remain free, our own govt. can now forcibly extract by needles our body fluids if any police officer says he smells alcohol on our breath and saw us drive.

This is a bit like the “Broken Windows” crime theory in reverse. When our “little” dignities and freedoms are abridged, and the people put up with it, the next thing you know our Govt. spies on us without warrants, we operate secret prisons, torture suspects, kidnap and even invade foreign countries not a threat to us. In other words our way of life, our democratic republic is under assault at all levels, on small scales and large. If we wish to override the Beeman decision, citizens should contact their State Rep. and express their outrage as only the Legislature can remedy this.”

That is the opinion of one Dallas DWI attorney.

Then of course there is Jacqueline Saburido. You can read her story here. Her photo graces this blog. I wonder what she would say. She is one of many dead and alive who probably wished there was a “no refusal” policy that deterred just one person from drinking and driving. That one person that disfigured them or wiped out their family.

There is part of me that says so what. If you don’t want to have your blood drawn, don’t drink and drive. It does not get any simpler than that. There is part of me that says there are to many graves and Jaqueline Saburidos out there. This is a good thing.

Then there is that part of me that has concern about this evolving into a “kangaroo procedure” where magistrates do not even listen to the facts. They simply fax the warrant over. Who knows, maybe the magistrate is taking a dump when the call comes in and his wife listens to the cop and faxes the warrant over. You get the point.

When the process becomes a complete rubber stamp farce, the joke is really on the Constitution as our rights our stripped away piece by piece.

Is it a trade off? Is the Constitution supposed to be a trade off? If we say we are trading the pain and suffering of future Jacqueline Saburidos and the future graves of unsuspecting families on their way home from church with a reduction in civil liberties does that make the trade off acceptable?

I use the picture and story of Jacqueline to make a point. We should never forget that when you lift the curtain on all the theories, constitutional arguments, lawyers, drunks, etc, there are real people. Should this change our opinion?

So what do you think? Should police have the right to draw blood at a DWI stop involving no injuries, no accident, nothing but your smelly breath? Is this a violation of our constitutional rights? Do we even care if lives are saved?

Police Arrest 76 In First Use Of “No Refusal”

Do illegal aliens have rights to basic services? Will local regulation herd them all into massive “sanctuary cities?

I am aware we all have basic human and constitutional rights regardless of our immigration status. To what extent however can local government alter those rights based on that status?

While not the first to try it, the Dallas suburb of Farmer’s Branch,Texas is the latest to test the Constitutionally perilous waters of limiting the right of those not in this country legally to rent housing and obtain other basic services. This is primarily a Hispanic issue in this part of the country but the ban would of course apply to any person in this country illegally.

The controversy started back in May of 2007 when Farmer’s Branch passed a law targeting illegal immigrants by barring them from renting apartments. Ordinance 2903 would require apartment management to obtain proof of citizenship or legal immigration status before entering into or renewing leases or rental agreements.

The only exception to the ban would be that mixed-status families could stay if they were already living in the apartment, the spouse or head of household is a citizen or here legally, and the household includes the head of household and spouse and their minor children or parents. You can read about more about the ban here.

The ordinance was modeled after an similar ordinance passed in Hazleton, Pa. which also made national headlines. It is important to note that in July 2007 a federal judge struck down Hazleton ordinance as unconstitutional . The city’s appeal is pending. You can read that story here.

While the Farmer’s Branch statute has not worked its way that far up the federal court ladder, a permanent injunction has been granted by Federal Judge Sam Lindsey blocking the enforcement of the ordinance pending a full trial. You can read that story here. The important connection between the two cases is that both judges focused on the same issue which was Federal Preemption and the Supremacy Clause of the Constitution. What does that tell you?

So there you have it. Battle lines formed. Swords drawn. Troops storming the field on both ends bent on destruction with those in this country illegally standing right in the middle wondering if they will survive the carnage.

Once such an ordinance passes constitutional muster ,anyone who thinks it will stop there is delusional. After rentals, come education, after education comes medical care, etc etc. The goal is seems to be to make it so miserable for illegals to be in this country that they become of the mindset that there is a better quality of life where they are from and head on back home.

Is it even that complicated? Just get the hell out of our city! Flock to some sanctuary city! Just not here! That may be what many want.

After all, why should those here illegally reap the benefit of services that they are not paying the taxes that are designed to subsidize these services. I am no tax attorney but isn’t it a crime to intentionally not file a tax return to avoid paying taxes? While I do not necessarily agree, I certainly understand the mindset. I don’t like the idea of anyone getting a free ride off my tax payments regardless of whether they are here legally or unless they have been accounted for and and a legitimate determination made that they don’t have to pay.

Of course the counter-argument is that the vast majority illegals don’t file tax returns to avoid detection as illegals and not because they are trying to avoid paying taxes. You say tomato I say…….. Makes perfect sense to me… or does it?

Does it even matter?

It really does not matter.

Whether you agree or disagree with the basic premise, it simply is not a local or state issue. The Federal Government has already spoken on this issue and when the Federal Government speaks the Supremacy Clause of the U.S. Constitution listens and shouts back.

The Supremacy Clause is shouting that we already have the Immigration and Nationality Act in place speaking loud and clear for all. No arm chair legislation needed or wanted.

If municipalities like Farmer’s Branch want to arrest every illegal alien within their borders, call INS and have them deported I have no issue with that. Whether I agree or disagree that is within the framework of Federal Law. If that is simply not feasible, write your Congressman, cast your vote for someone with a constitutional fix. Don’t make up crap as you go along and pour perfume on it….. It is still going to stink.

Local municipalities like Farmer’s Branch and Hazleton have lawyers. They have very good lawyers. It is a safe assumption that these good lawyers knew all about the Supremacy Clause when they drafted these statutes It is also a safe bet that they are very familiar with federal court disdain for pre-text bullshit disguised as lofty motives…..

So what does a good lawyer do when faced such an obstacle? A good lawyer tries to find any and every perceived pinhole that will allow them to squeeze that statute right on through…… The pinholes these lawyers try to find is every little fact or situation that the Immigration Act does not mention. If it is not mentioned it must have been the intent to leave it to the states right?

“We are not regulating illegal immigration, we are protecting our tax base and the ability to provide basic services to our tax paying constituents”

“We are not engaging in housing discrimination since we ask for proof of citizenship from everyone.”

There you go! Problem solved! States Rights! 10th Amendment! Equal Protection as well! In other words…

Get the hell out and don’t touch the “Not Welcome” sign as you go!

What does that sound like to me? Take form and call it substance. Take a tomato and call it an orange. It is all hogwash.

It is not where you start, it is where you finish. At this finish you are still regulating illegal immigration regardless of your motives and definitions. You are venturing into an area that Congress has already decided only the Federal Government has the power to regulate.

So why do cities, local governments,etc waste time and money on such futile attempts? The answer is so simple that you don’t have to be smarter than a Fifth Grader to figure it out.

What does every elected official serving a first term want? They want a second term. Constituency trumps futility every time. These statutes have no chance. But hey, people get re-elected, lawyers get paid big bucks and maybe get to argue before the Supreme Court. People find a reason to protest and more people vote. In the end those affected the most, sit in the middle and suck on it. So what, they should not be here anyways right?

So what do you think? Should local government be allowed to regulate illegal immigration even to the extent of denying housing and other basic services? If the answer is yes, what is the legal authority to do so? What is the rational legal argument? I have yet to see one….

The other day, I watched a Law and Order SVU episode about a child who had a genetic defect that caused her to grow abnormally. In order to be able to better care for her, the parents forced her to take medication that permanently stunted her growth. The episode was based on real life events.

In January of 2007, the parents of a girl named Ashley had a surgery entitled “growth attenuation” performed on her to permanently stunt her growth to keep her at 4 feet 5 inches. This treatment also includes sterilizing Ashely. Ashley has severe physical and mental disabilities. The parents stated the treatment was for her comfort and to make it easier to carry her and include her in family activities. Ashely was of course much to young to consent to or even understand what was being done to her.

The case created a huge medical and ethical controversy. The hospital and parents defended their decision to to do the surgery while others in the medical community and general public were outraged. You can read the story and see photos of Ashley here

The hospital and the doctors who performed the surgery were roundly criticized for performing the procedure. The Seattle hospital performing the surgery was later found to have broken state law when doctors performed a hysterectomy on Ashley as part of the treatment. Under Washington law minors can not be sterilized without court order.

At what point does the attempt to control genetics become perverse and who gets the say in how much is too much? In Ashley case, there was no guardian ad litum appointed. There was no independent voice speaking for Ashley. Do we need better legal checks and balances before we permanently alter the life course of those who can not speak for themselves. I am not passing judgment on what went down. I do not have children and don’t know what I would do. You can get her parent’s perspective by viewing their website.

Where do we draw the line between the best interest of the child and the best interest of the parents.

This is just the tip of the genetics sword. What if genetic testing during pregnancy told Ashley’s parents that Ashely would have these problems? It is a given that in my lifetime, your lifetime or your child’s lifetime, genetic testing will advance to the point where many deadly and life changing maladies will be able to be detected prior to birth. Genetic engineering and testing is BIG business.

Am I a going to far when I state that I see a world in the not to distant future where genetic testing for certain diseases will be mandatory and it will be a crime to conceive if you test positive for certain genetic disorders. Such a movement would most likely start in more overpopulated areas of the world with less freedoms but I do see it coming. China already has its’ “one child policy“. Is the next genetic step a “One Child No Defects” policy?

The law is now only beginning to address these issues. We can expect that it will lag behind scientific discovery. Lawmakers are not known for foresight. It is fear that generates action. Congress just recently reached an agreement clearing the way for a bill to prohibit discrimination by employers and health insurers on the basis of genetic tests. You can read about it here.

Are we moving towards a “Gattaca” society?