Driving while male is unlawful in Arizona

Over on the Brown and Little law firm 'blog, Matt Brown remarks that according to ARS 28-1381, one can be driving under the influence without being impaired, simply by having any drug defined in ARS 13-3401 or its metabolites in one's body.

ARS 13-3401 is a guide to searching Wikipedia for designer drugs and perhaps half the syllabus for a nontraditional course in pharmacology. Name a hallucinogen, narcotic, or controlled stimulant or depressant, and you'll find it listed.

Included are a number of prescription drugs which may or may not produce impairment depending on the dosage, including Valium and several of the more common muscle relaxants, and some that produce no impairment at all, such as Ritalin, scopolamine (administered transdermally as an anti-emetic) and most anti-narcolepsy drugs, without which some drivers will find themselves impaired. There's quite the list of amphetamines, some of which are commonly given to Air Force pilots to keep them alert on very long missions.

And then there is that pharmacologically valuable but illegal substance, cannabis, very curiously classified as a narcotic. Under normal use does not impair the motorist, hence the original post. Its inclusion presents problems for users of legal Marinol, an anti-emetic inhaler, as its active constituent is a purified cannabis derivative. By spliff or by inhaler, the metabolites are indistinguishable.

But most problematic are twenty-three "anabolic steroids", classified as "dangerous drugs". Many are endogenous or have endogenous metabolites. Some are common medications for very serious conditions: oxandrolone is a treatment for osteoporosis and HIV-related weight loss, and testolactone is a very valuable chemotherapeutic agent against breast cancer. None conceivably produce impairment, but my "significant other" as they say might remark that testosterone impairs judgement. That's right, testosterone is on the list. It's in your body and mine--whether you're male or female--along with its metabolites. Thus according to ARS 28-1381, we're all driving under the influence.

In Arizona, if you're being treated for ADHD, ADD, narcolepsy, hyperemesis (including that induced by cancer chemotherapy), some forms of breast cancer, or HIV-related weight loss, you're driving under the influence. But you're not alone: all men, and any woman who hasn't had a hysterectomy, also run afoul of the law. It's simply unlawful to drive in Arizona.

Check your license plate frame

Walking through the parking lot on my way to the office this evening, I noticed that one in every six vehicles was in violation of a 2006 Arizona statute prohibiting the use of license plate frames obscuring the word "Arizona".

As reported in December in the Arizona Daily Star, brought to my attention only very recently, the law came into effect on 1 January 2009. Violators are subject to a $135 fine.

Readers, denizens of the Goldwater State: as petty as this is, check your frame. Those nickels and dimes are for many of us a substantial fraction of what we pay in state income tax; there's no sense in sending anything more to Phoenix than we already do.

Pima County Election Integrity Update

Remember the 2006 RTA election, with the upset victory in favor of the Pima Association of Governments' sweeping transportation plan? Earlier, I reported on an affidavit of Zbigniew Osmolski stating that one of the head IT guys at elections told him the election was flipped. If you don't know what I'm talking about, this article on Associated Content and links therein should bring you up to speed.

David Saifer of Blog for Arizona gives an update on the matter so I don't have to. I'm no longer an officer of any political party in the County, which means I no longer get word of these things directly, but I'll post any details I receive, when I receive them.

See that "Trackback" link?

A while ago, I switched to Haloscan as a provider of comment features on this 'blog. I thus added two other features: Trackback and star ratings. Look at the bottom of each post, and you'll see links for both.

A good 'blog is at least in part a conversation with other commentators. I always appreciate it when someone links to a post, but don't always have immediate context that allows me to link back to your remarks. But if you ping the trackback link, that you also have something to say will be evident to my readers without me having to take any action at all.

If your 'blog software isn't set up to automatically ping, set yourself up with a HaloScan account and ping manually from there. It'll mean more traffic from you, bring your post to my attention, and you don't have to change your comment section or 'blog format to do so.

The rights of illegal aliens: alpha to omega.

The Fifth Amendment to the Constitution of the United States:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article 2, Section 4 of the Constitution of the State of Arizona:

Section 4. No person shall be deprived of life, liberty, or property without due process of law.

In Yamayata v Fisher, 189 U.S. 86--one of a string of very sad, anti-liberal decisions which set the stage for our modern immigration problem--the U.S. Supreme Court affirmed that executive-branch administrative hearings constitute due process in immigration cases.

In other words, suspected immigration-law violators may not be deprived of life, liberty, or property until they receive their fair administrative hearing from the Department of Homeland Security's Immigration and Customs Enforcement division. That should settle the matter.

Some correspondents have offered that those who are in violation of any law are forfeit all their rights and all protection of law. They haven't used those words, but I don't believe I'm offering a caricature, either. This is alien to both our legal and our Enlightenment philosophical tradition. To fully explain how and why would make for a good academic paper, albeit one giving a silly idea more attention than it is due. Consider that outlawry was never a recognized part of the U.S common law, and that in any case the Fifth Amendment would mean that one couldn't become an outlaw without process. And also consider that under such a regime, if I find that you haven't updated that sticker in the upper right-hand corner of your license plate, I could summarily execute you. Depending on who you are, why wouldn't I? I've in the past received rather nasty threats about my political beliefs and have twice been physically assaulted. (Good thing my main hobby comes in handy when kicking of butt is in order.) I'm not a violent or aggressive person, but the Hobbesian "state of nature" is a real bitch, isn't it? You don't want to live in a world in which people think they need to pre-empt your nastiness. Make 'blogs, not war.

That brings me to my final point: the Roger Barnett matter is at least as much about the legal limits of citizen conduct as it is about the rights of the alleged visa violators he detained and terrorized. Arizona law places rather reasonable limits on both use of force and the right to detain suspected wrongdoers or violators of the law, and unless one is a police officer, common-law strict liability is in effect. More on that matter in a later post.

Walter Block to lecture in Arizona

I consider myself neither an economic "Austrian" nor a proponent of the form of government sometimes called "anarcho-capitalism", and actually have less sympathy for either position than one would imagine. (Readers of Sacred Stew or other places I can be found around the Web know this already.) But many of my readers have either an-cap or Austrian sympathies, so I post this as a sort of service.

Walter Block sent an e-mail a few days ago announcing that he'll be giving three lectures in Arizona. I've found him, in person and in writing, to be one of the more interesting and intelligent advocates of both of those positions. Unlike many who hold such positions, he does not avoid engagement with the larger communities of economists and philosophers. it would be worth your while to attend even if you, like me, don't think talk-arguments are valid economic methodolgy and don't believe "contract" and "property" have meaning in a lawless context.

It's always nice to meet readers at these sorts of events, but I'll be out of town at the Biophysical Society meeting for all three, so I won't be in the audience. For those of you who will be around, details are as follows:

Mar 3. Tucson, AZ.
12:15-2:00 PM
University of Arizona College of Law, Federalist Society
Contact: Jason R. Doucette
Title: "There's no such thing as market failure."

Mar 4. Phoenix College of Law.
Noon-1 PM
Contact: Jeff Hall
Topic open.

Mar 4. Tempe
3 PM-
Arizona State University Federalist Society,
Contact: Paul Clawson

Barnett found somewhat liable--this is almost a victory for rule of law.

As reported in the Washington Times and by Border Action Network, Cochise County rancher Roger Barnett was found responsible yesterday for $78,000 worth of actual and punitive damages for assault and infliction of emotional distress on a group of undocumented immigrants, illegal aliens, or whatever you'd like to call them, sneaking across his property. He was found not liable for most everything else, including giving a young woman a few gratuitous kicks (battery) and false imprisonment.

At first glance, if you're not familiar with Barnett's history, this looks like the following: A rancher suffers damages due to a Federal immigration system which doesn't match market needs and a Border Patrol that has diverted immigration of those without visas from the highways to ranches--a confusing mix of state trust land and private property. His fences are cut, gates are left open, his cattle have occasionally choked on bottles. He finds a group trespassing, and not being a lawyer or an educated man he violates the law a few times, perhaps inadvertently, while waiting for the Border Patrol and now finds himself being sued for millions of dollars. "Aw shucks--I didn't know that was 'false imprisonment', why, I've never heard of false imprisonment!--I'm just trying to make a living off the land."

But this is no innocent rube. This is Roger Barnett. The same Roger Barnett who assaulted a hunting party and came a squeeze of the trigger away from murdering Ron Morales for being someplace he and his companions had a right to be. He's seen a courtroom before. He's broken the law before and paid for it. He ought to know better but, apparently out of self-righteousness, continues to disregard the state's use-of-force laws, and the Cochise County Attorney is too chicken to prosecute. And I get the impression the jury was given his history. Perhaps we see today why successive County Attornies don't bother to prosecute--the juries are such a bunch of simpletons that "them 'criminals' had it comin' because they didn't get visas" could be at work. It's certainly at work in the blogosphere. Forget due process, forget rule of law, it's all black and white, really, and will only become colorful when the Barnett actually shoots the next Ron Morales. But that's one of those Mexicans who's "diluting our culture" so he must have it coming, too. Blood and soil, now and forever. Self-defense against "diseases" and Spanish.

Very hard to not be cynical in light of this result. It doesn't take much for Cro-Magnon tribal instincts to overwhelm American liberal traditions.

Tin foil is all the rage: HCR 2024

In every session of the Legislature we see one or more "resolutions" (HCRs and SCRs) and "memorials" (HCMs and SCMs), collectively called "odd bills", introduced in addition to substantiative law. The Resolutions often but not always create a ballot measure. Most are outlets for legislators' hobby-horse concerns--this year we see one declaring undocumented aliens to be trespassing, calling for passage of the (expired) Equal Rights Amendment, ending the Clean Elections program (and maintaining the same "taxpayer money" language which tanked the last effort to do so), lowering the state voting age to sixteen, and repealing 2006's Proposition 207. Unremarkable all around with at most two or three exceptions.

One, HCR 2024 caught my eye due to inclusion in Korwin's "Page Nine" newsletter. I had seen rumors on the Internet of resolutions affirming "state sovereignty", even heard about these from acquaintances of more populist tendency, but thought them to be the product of citizens' committees, the usual stuff from those who either forgot to figure out how change is actually effected or know how but choose to do differently anyway. But I was incorrect: these are legislative resolutions all around.

On the one hand, it's cute, for lack of a better word, for a populist movement to have developed around federalism, a position concerning the structure of government, instead of a sense of entitlement ("Free health care!" as in "Free beer!") or a desire to stick it to one's (homosexual, Mexican, or fill in the blank _______) neighbors. On the other, it's difficult to see the point, and for legislators to indulge the popular fervor with a bill diverts people toward effete activity.

The AZ Legislature affirms the doctrine of enumerated powers, calls for an end to unfunded mandates and Federal laws threatening either civil and criminal penalties or withholding of highway funds for noncompliance. So what? Will the state police arrest Federal employees the bill's sponsors deem to be acting outside the enumerated powers, or will Arizona sue the Feds? Either way, a question of constitutional interpretation will end up in Federal court. And without the sort of change in mainstream legal scholarship that preceded the Heller RKBA decision, the federalists don't stand a chance.

But populism was never really about having strategy, was it? Put on tin-foil hats to keep the moon rays out, and wave HCR 2024 like an amulet to ward off post-NLRB v Jones & Laughlin Steel Federal devils.

The question not on everyone's mind.

Are February rains too late to bring March flowers?

Overheard in my teaching lab last week.

"Yeah, if they're gonna raise our tuition, they'd better give us better lab manuals."

The poor dears think they're paying fee for service here. Sorry, kids, this ain't University of Phoenix. Now for a lot of you that sort of arrangement would probably be better, but be prepared for quite the tuition fee increase if you really want fee for service.

One for the privacy fans out there.

I'm not one to fret too much over privacy in the way some people fret over privacy, and I don't understand the mentality very well. To keep others from knowing things that are none of their business is one thing, but not registering to vote "so the government doesn't know where I live" as one friend of mine does is another.

But when it comes to uniform, Federal ID cards, I balk. It's not that I really have strong opinions about driver's licenses, but rather that there's no good reason for the Feds to have strong opinions either. "Real ID" and similar measures are only means to mischief.

Arizona is one of several US States that have refused to go along with Federal uniform ID schemes, last year passing HB 2677 (link unavailable due to technical quirks of the AZ Legislature website) forbidding Arizona compliance with the Real ID act. Janet Napolitano, now head of the Department of Homeland Security, signed the bill not out of opposition to Real ID per se but because Real ID was an unfunded mandate.

With Napolitano gone, we now see a bill with more teeth, HB 2426. The authors do not mince words, as the bill creates a new ARS § 28-337 reading:

This state shall not participate in the implementation of an enhanced driver license program to satisfy the requirements of the federal western hemisphere travel initiative or the Real ID Act of 2005 (P.L. 109‑13, Division B; 119 Stat. 302). The department shall not implement an enhanced driver license program and shall report to the governor and the legislature any attempt by agencies or agents of the United States department of homeland security to secure the implementation of an enhanced driver license program through the operations of the United States department of homeland security.

Nothing to cause me to drive up from Tucson--and I'm still waiting to be entered in the RTS system this year--but you privacy nuts (I'm using the term affectionately) who live in the Phoenix area may want to drop in when the bill is up for discussion in the Transportation and Infrastructure Committee this Thursday morning.

HT: Seth Apfel

The Arizona Reefer Review

Smoking pot in dormitories is rude. As is smoking tobacco in dormitories. Or smoking either while walking on a crowded sidewalk. And smoking anything while sitting in front of Espresso Art and pooh-poohing "consumerism" is hilarious for reasons lost on the average non-analytic thinker.

But marijuana possession or consumption is at least as peaceful and safe as having a bottle of Riesling in the fridge or having a glass thereof with lunch. There's no secondhand drinking--but secondhand smoking of any kind can be regulated separately. (And why did we get a private property ban but not a public sidewalk ban? That's exactly backwards!) Moreover, if a pot smoker gets violent or kills someone in a car wreck due to his consumption, it's so rare that it's remarkable in the true sense of the word. To be arrested and penalized for possession, even if the penalty is the "referral to the Dean of Students" given to privileged University of Arizona students--Joe Average gets probation if he's lucky--is simply wrong.

And it's largely unnecessary. Avoiding arrest if in possession doesn't require a Jedi mind trick a la "These are not the drugs you're looking for." Under ordinary circumstances--unless evidence of crime is in plain sight, the police are in "hot pursuit" of a criminal suspect or the public is immediate danger--one can refuse police entrance to a place one rightfully occupies until they produce a search warrant. Over on the Desert Lamp, Connor Medenhall has begun to review University of Arizona marijuana cases and found that many students could have avoided trouble if they simply stood on their rights.

Learning your legal rights--and if you live in a dorm, review your lease carefully--can save you much time and grief, whether or not you're breaking the law. It takes a little more effort than waving a sign at the Capitol and chanting a slogan, too, but you'll be doing yourself a direct favor with tremendous positive externality.

What do I mean? Imagine if Maricopa County had to hire a process server to deliver each photo-radar ticket. A certain cost/benefit analysis would completely change. Now imagine if the police had to go before a judge every time they wanted to have a look around for a couple of spliffs in the desk drawer. Try justifying that one to the supervisor when there's real crime--the sort with victims--to fight.

Why the University of Arizona cuts make sense

Being an ABD grad student I'm a little "bothered", so to speak, by the prospect of mandatory furloughs. The "deferred compensation" alternative presented by Ted Downing--who I miss having in the legislature--seems more sensible, but at the very least the policy could have been distributed differently between higher-paid employees, departmental staff, junior faculty, and grad students. The high-paid employees can take the hit, University departments are already running on skeleton crews and can't afford to have staffers taking days off, and five days' income is so much for junior faculty and grad students that it's sure to hurt morale. (Both will come to work anyway.) ASU has taken this into account. U of A charged forward clumsily.

Then again, the details haven't yet been sent to us, so maybe the plan isn't set in stone.

But that aside, the cuts make sense. University of Arizona President Robert Shelton sent an e-mail early last week presenting them in brief. To quote:

We will also be forced to eliminate or greatly reduce many of our outreach and community-based activities. This will result in:
a.. The suspension of three-quarters of University funding for UApresents.
b.. The current Flandrau Science Center facility, Planetarium and UA Mineral Museum will be closed to school groups and the public later this spring.
c.. The Arizona State Museum will be open to the public fewer days per week, and many outreach and educational activities, including public events, will be cancelled later this spring.
d.. The UA Museum of Art will be open fewer days per week, and will eliminate its engagement in university-level education as well as educational outreach.
e.. A significant portion of the UA's outreach and extension operations across the state will be suspended.
The new partnership creating the Colleges of Letters and Science allows us to reduce the number of academic colleges from 16 to 13, and we have previously announced the closing of University College, the functions of which are being absorbed in the new Colleges of Letters and Science.

Letters and Sciences makes sense from an intellectual perspective, although some toes will surely be stepped on. But as for (a) through (d): why were these things paid for by the State, anyway? To fund museums, UA Presents, etc--highbrow stuff, all--with the taxpayer dime is simple exploitation. It's the worst kind, too: literate sorts who prefer the Academy of St. Martin in the Fields to AC/DC can put together pretty-sounding albeit half-baked arguments for subsidizing their entertainment with far more skill than the AC/DC fan can bring to bear in telling them to go fuck themeselves. It isn't a fair fight. (Full disclosure: your narrator owns a copy of Back in Black but usually prefers Sir Neville Marriner's chamber orchestra.) Back at Tulane the classical-music concerts didn't come out of our tuition fee, but were financed by ticket sales--usually free or a small peppercorn for students--and donors in the community who valued the arts.

It should be that way at the University of Arizona, too, and this is the correct way to make it so. Did you know that UA Presents was subsidized? Neither did I. (Isn't government funding of colleges and universities insidious?) Now I do, and now I know the subsidy has gone away. And I'll pay more for the ticket, and perhaps start paying a fee to drop in at the museum. And some high-minded businessman who does think that artsy stuff should be more affordable than a Rolling Stones concert or a day at the ballpark (it is, but it's less popular anyway) or who wants to be a patron of the arts will make a donation or even establish an endowment. Bread-and-circuses stuff has the public's immediate interest and attention. Elimination of a support staff position in the Department of Transgendered Jewish Chicano Studies does not.

I suspect that the set of moaners and the set of donors will be largely exclusive. Belief that everything good is the government's responsibility pretty much absolves one of any duty to support anything privately. We're far more likely to see Jim Click's name on a plaque in the Arizona State Museum than we are to see the establishment of a Paula Aboud Chair for Study of the American Political Tradition. I will, however, contribute the dollar equivalent of 19.68 euros if that last one ever happens.

Dos Cabezas

In the modern era of government bailouts, no town of three hundred--certainly not one with a Wells Fargo stage stop--would be allowed to fail.

I've posted another photoessay to Associated Content, this one a shoot of Dos Cabezas done during a Wings over Willcox lunch break. Portions were supposed to be submitted to Jones Photo's winter contest, but Dwayne's took their sweet time with processing and I missed the deadline.

Arizona is full of places like Dos Cabezas, funky "ghost towns" that are still inhabited. Were I to return, I'd approach the subject rather differently. Rather than so heavily emphasizing old individual structures I'd show Dos Cabezas as it is. As I'm planning on going to Whitewater Draw before the sandhill cranes leave for the season, I'll be in the area again, and might take a roll of Kodachrome 64 to shoot this second, more interesting essay.

"Consent search" en español

One would think a good translator would be easy to find in Arizona, but word is that the Spanish-language version of the new consent-search form read something like "With my permission, you will search my car" without it being clear that one could withhold consent.

Sounds like a laughing matter, but word is also that evidence ended up being suppressed in a few cases because of this. (And no, I will not name my early-career defense-lawyer source!) It makes one wonder if a bad translator was hired to save money or if translations are a "brother-in-law job" in Arizona.