Does the Constitution Protect the OWI Suspect?

No. I am willing to argue that no other crime has caused lawmakers and courts of this land to bend the Constitution more than drunk driving. The traditional ideals we have in criminal law of a defendant’s Constitutional protections, such as your right to be free from illegal stop, search, or seizure; your right to fully cross examine your accuser; your right to present a defense; and your right to due process, have been slowly eroded away over the years to the extent that many of these defenses and rights are extinct.

The problem traces its way back to the legislature’s constant bogeyman, the need to protect the public, an important and serious role. Drunk driving has been a danger to society in the United States since there has been alcohol (I would guess long before 1776) and modern automobile transportation (let’s just go back to 1908 and the Model T). Safe to say, it has been a while. What we may think of as the modern attitudes and laws about drunk driving really only stretch back 30 years. In this vein, let’s take a modern look at drunk driving law and policy as it stands today.  

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New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests

Now available online, the recently published student comments in the Marquette Law Review cover a wide range of topics.  They include Nathan Petrashek’s comment on the impact of online social networking on Fourth Amendment privacy.  Since social networking sites like Facebook and MySpace attract both criminals (e.g., sexual predators, identity thieves) and the police who investigate them, the question whether users have a reasonable expectation of privacy in their voluntary disclosures under the well-established Katz test is poised to become a significant issue in the near future.  Petrashek relies on Fourth Amendment doctrine, as well as the First Amendment right of association and good public policy, to argue that user content should be shielded from police scrutiny in the absence of a warrant.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

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SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.  

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