Well, the individual that sent the email from my article “When A Stranger Calls… or Emails” has returned. He seems a bit more angry, or at least more snide, than in his original email. But that is okay. If he has no real desire to learn, but only to denigrate others that happen to be more informed and educated on a particular legal subject than he is, or is willing to even admit that he is, then nothing I can say or show him will make any difference anyway.
As before, please be respectful in your commentary, and address the issues involved here from an educational perspective and not an accusatory or ad hominem manner. Thank you.
His response email:
You are arguing that that having licencing for something such as driving in an of itself is unconstitutional. Following that argument, any laws pertaining to such as also unconstitutional. You can’t be charged with driving while suspended, because what are you in fact suspended from? Perhaps you can even drive drunk, because since regulating driving is unconstitutional who can put a restriction on your constitutional right? In fact, every single police officer and ADA in the country is violating the constitution according to your argument, because I don’t don’t know of any active ones anywhere that would agree with your premise. I would like to see the arrest records of your agency while you were in charge. I assume is very very low since you don’t see to believe in any man man laws which come after the constitution.
Thanks for the reply.
You statement as to my arguing that a license for “driving in an of itself is unconstitutional” is patently incorrect. It is you that is arguing that “driving,” and any grammatical variation thereof, is synonymous with the individual right to privately access and use the public right-of-way for the purpose of traveling for one’s own private business or pleasure. The case law on that subject simply doesn’t agree with you as far as these two things being synonymous, and with good reason. They simply aren’t.
The grammatical variations of the legal terms of art, “drive/driver/driving,” are terms related to the same legislative subject matter, i.e. “transportation,” i.e. commercial use of the highways, by engaging in the business of “transportation” for private profit or gain. This is in no way synonymous with the public’s individual right to travel upon that same highway for private purposes without a license or anything else that is associated with “transportation.” OUR private actions have nothing to do with that regulated occupation, and they are not subject to any regulatory requirements associated therewith.
It is the application of the “transportation” statutes regulating a business activity/profession to the private activities and common law rights of the public that is actually unconstitutional, because those statutes do not apply to them, and they never have.
“All persons, in the absence of legislative edict, are vested with the right to the use of the streets and highways for travel from one place to another in connection with their business when such use is incidental to that business. This is an ordinary use of the streets and highways and is frequently characterized as an inherent or natural right. No person has an inherent or natural right, however, to make the streets or highways his place of business. Such a use is generally characterized as an extraordinary use.” (Green v. City of San Antonio, 178 S.W. (Tex.) 6; Hadfield v. Lundeen, 98 Wn. 657; LeBlanc v. City of New Orleans, 138 La. 243; Ex parte Dickey, 85 S.E. (W.Va.) 781; Desser v. City of Wichita, 96 Kan. 820; Melconian v. City of Grand Rapids, 218 Mich. 397.
As to your assertion of “driving” drunk, you would also be incorrect on that point for multiple reasons.
First off, using a car, or any type of device or equipment, in a populated public place while physically impaired is not a “crime” only under the “transportation” code. It is an actual Penal Code offense as well, but, it cannot be one related to “driving” or “operating” a “motor vehicle.” Instead, it must be alleged as reckless endangerment or negligence. If the activity actually results in death or injury to another or their property, then there could also be additional charges that would apply. No one has the inherent right to engage in an act that in and of itself creates an imminent danger to the life, rights, or property of another, such as using a car on a populated public highway under the influence of alcohol or drugs. The operative word here being imminent. The threat of injury caused by such activity must be far greater and much more likely than simply possible in order to be construed as an imminent threat.