What are the limits of &quot;implied consent&quot; when obtaining a driver&#39;s license? This question comes out of reading this New York Times article (quoted below), about a bill that would allow officers to use a &quot;textalyzer&quot; to digitally search phones for evidence that the phones had been handled recently: The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer. The intention is behavior change: “We need something on the books where people’s behavior can change,” said [Félix W. Ortiz, a Democratic assemblyman who was a sponsor of the bipartisan Textalyzer bill], who pushed for the state’s 2001 ban on hand-held devices by drivers. If the Textalyzer bill becomes law, he said, “people are going to be more afraid to put their hands on the cellphone.” The US Supreme Court has unanimously ruled that when somebody is arrested, their phone can't be searched without a warrant. But the bill’s authors say they have based the Textalyzer concept on the same “implied consent” legal theory that allows the police to use the Breathalyzer: When drivers obtain a license, they are consenting in advance to a Breathalyzer, or else they will risk the suspension of their license. (Emphasis added.) The analogy to the Breathalyzer is based on comparability of dangers, too: Deborah Hersman, the president of the nonprofit National Safety Council and a former chairwoman of the National Transportation Safety Board, ... said the Textalyzer-Breathalyzer comparison was apt because looking at and using a phone can be as dangerous as driving drunk. “Why are we making a distinction between a substance you consume and one that consumes you?” How far does this &quot;implied consent&quot; legal theory go? Can it be extended to mean that drivers' license applicants give &quot;implied consent&quot; to have their cars, homes, or body cavities searched in detail, or give &quot;implied consent&quot; to physical control by police (to enforce any failures to comply with an instruction), etc., if police request that power and find a suitably sympathetic audience in the General Assembly? It's an old argument that increasing police search powers increases safety, because it allows the police to search out and stamp out whatever behavior creates the danger to others. Where's the line, if any, which limits the extent of how far that can go? What do people really consent to when applying for a driver's license? Can &quot;implied consent&quot; be retroactive, such that if I have a New York driver's license today, that means I've given &quot;implied consent&quot; to whatever permissions the General Assembly grants police a couple years after I've gotten that license? If not, does a license renewal establish that &quot;consent?&quot; There is some precedent in that having gotten a NY license a few years ago does indicate consent to be bound by traffic laws including updates and changes that occur during the period of license validity. Is &quot;implied consent&quot; to searches one of the topics covered by that? This is tagged for New York, but as the article notes: If it were to pass in New York,... it could well spread in the same way that the hands-free rules did after New York adopted them. So feel free to answer for other jurisdictions, if they are a better fit for your expertise, and note that in your answer.
Breathalyzer tests are distinct from blood tests because the former does not "implicat[e] significant privacy concerns" (see Birchfeld v. ND). A cell phone is like a blood test, because it implicates significant privacy concerns, especially the level of electro-snooping that would be required to determine if someone had recently committed a phone-use offense. As the court held, Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. A breath test might (but also might not) also satisfy the exigent-circumstances exception (waiting some number of hours for a warrant can easily result in the destruction of evidence), but a cell phone case could not give rise to such an exception. It should perhaps be noted that the "implied consent" laws are misnamed, because consent is not the issue. The 4th Amendment ban is on unreasonable searches, not unconsented searches. If you actually consent, it is reasonable for the police to search. I am not aware of any ruling to the effect that "because the defendant consented, the search is valid". In the context of breathalyzer law and case-law, an essential component of what makes the search reasonable is that it is incident to an arrest. With or without consent, or an implied consent law, Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Extending "implied consent" to cause-unrelated searches of cars, homes, or body cavities might not pass strict scrutiny. The state has a legitimate interest in public safety which justifies some minimal intrusion, but adding a provision that "when you drive, you give implied consent to searches of everything" is not narrowly tailored. But since driving is a privilege and not a right, the state has much more leeway to give you an ultimatum: if you don't cooperate with the search, you can lose your license. On the other hand, SCOTUS has not actually approved of this slogan about driving being a privilege. Something noteworthy from Birchfield is that the court also disapproves of blood tests because a less invasive method of achieving the result is available, and they grant that "Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit". There being no less-invasive alternative means of realizing the legitimate state interest in stopping distracted driving, I actually expect that when this comes to pass and the matter ends up at SCOTUS, there will be another important change in search law (but "implied consent" will still be irrelevant).
canada The law &quot;The [Criminal] Code requires 'ongoing, conscious consent' to 'each and every sexual act' and can be revoked at any time.&quot; See R. v. Sweet, 2018 BCSC 1696, citing R. v. J.A., 2011 SCC 28. &quot;The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.&quot; R. v. J.A., para. 66. The Supreme Court has explicitly declined to decide &quot;whether or in which circumstances individuals may consent to bodily harm during sexual activity&quot; (R. v. J.A., para. 21). However, in the context of a non-sport fist fight or brawl, one cannot consent to another intentionally applying force that causes serious hurt or non-trivial bodily harm: R. v. Jobidon, [1991] 2 S.C.R. 714.1 And at the provincial appellate level, it has been held that &quot;consent is not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm&quot; (R. v. Quashie (2005), 198 C.C.C. (3d) 337 (Ont. C.A.)). Consent would be irrelevant in a charge of criminal negligence or manslaughter, if the activities were to escalate this far (R. c. Deschatelets, 2013 QCCQ 1948, para. 175-77). The content of advance negotiations is not relevant to whether the complainant was consenting to the impugned conduct, however, it may be relevant as evidence of expectations about how consent would be communicated between the parties throughout the conduct. See R. v. Barton, 2019 SCC 33, para. 93 (citations omitted): For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.” These “negotiations” would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. See also R. v. Sweet, 2018 BCSC 1696, para. 141: ... consenting adults may enjoy the personal autonomy to establish rules such as “no means yes”. If so, in my view, this passage suggests a corollary requirement to establish an alternative “safe word” or other mechanism to ensure that each party is also able to maintain their personal autonomy to put an end to unwanted sexual activity. Application A contract cannot provide advance consent, therefore it is irrelevant as to proof of consent during the acts. However, advance agreements can (and several courts suggests should) set out the expectations about how consent will be communicated. Any evidence of such agreements would be relevant to establishing the defence of &quot;mistaken belief in communicated consent.&quot; None of this would assist an accused in the circumstance where a court finds that any consent was vitiated because the accused deliberately inflicted pain or injury that gave rise to bodily harm (this position has not been confirmed by the Supreme Court). If you are simply asking how to prove a fact in litigation, see this Q&amp;A. 1. Since this is a judicially-developed limit, the conception of &quot;bodily harm&quot; used here does not necessarily have to match that codified in the Criminal Code. But: &quot;The common law definition of 'bodily harm' has been substantially incorporated in s. 245.1(2) of the Criminal Code, and means 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling'&quot; (R. v. Martineau, [1990] 2 S.C.R. 633).
There are venue restrictions where political speech is restricted, such as on military bases; content restrictions (transmitting classified information to the world); you cannot defraud by saying false things in order to get something, you cannot defame a person, you cannot speak obscenely (though it's hard to tell what counts as "obscenity"). You cannot appropriate other people's property in speaking (i.e. copyright law is a restriction on speech). The type of speech restrictions seem to pertain to speech and violence caused by such speech. A classic limitation is that you cannot speak "fighting words" (Chaplinsky v. New Hampshire 315 U.S. 568), which in 1942 meant calling someone a "damned racketeer" and "damned Fascist", which the court characterized as "inherently likely to provoke a violent reaction". The court subsequently refined its position on "provocative" speech. In Virginia v. Black 538 U.S. 343 a law against cross-burning was found to run afoul of the First Amendment as a restriction on political expression, but it would be fully consistent with The Constitution to outlaw "cross burning carried out with the intent to intimidate". This states may "prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm". The current position is that you cannot incite to the imminent use of force. In Brandenburg v. Ohio 395 U.S. 444, the court stated that the First Amendment does not "permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". There are myriad laws against threats, for instance in Washington you may not "knowingly threaten(s) to cause bodily injury immediately or in the future to the person threatened or to any other person", and you can't do that ("knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person") in Ohio either. You can't get away with threatening "to commit a crime which will result in death or great bodily injury to another person" in California. This class of restrictions on speech seems to be quite robust. You may not induce panic in Ohio, e.g. shout "fire" in a theater -- I don't know if any other state has such a law.
In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving.
What law in the U.S. governs when you need to pull over for a traffic stop? Specifically, Massachusetts? Refusal to submit to a police officer, Mass. Gen. Laws Ann. ch. 90, § 25 (2016) governs. The relevant part reads: Any person who, while operating or in charge of a motor vehicle . . . who shall refuse or neglect to stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment . . . shall be punished by a fine of one hundred dollars. What about a police standing on the side of the road, waving you over? (perhaps at a speed trap) If the police officer is on a uniform and displays his badge, probably. What about a police just standing on the side of the road, looking at you? Assuming the police officer doesn't "signal" you to stop, you would be okay under this statute. Whether he is legally justified in asking you to stop is a separate issue outside the scope of you question. Bottom Line: Someone who doesn't want to run afoul of this law should stop whenever they think a police officer is pulling them over.
No. The laws specify what you can and what you cannot do. If the intent of the authority was that you were allowed to drive at 45 mph, you would have a speed limit of 45 mph, not a speed limit of 40 mph. If you go at 41 mph, you are breaking a law and can be punished. That said, law enforcement officers usually have some leeway on how to enforce the law, and they could very well let it pass with just a warning (or even ignore it if they have more pressing issues); the circunstances of it are specific to every situation and officer. The only point that could be made would be if the difference was so small that it could be argued that it can invalidate the evidence on the basis of margin of errors. If the radar catches you driving at 41 mph but the error margin of the radar is 5%, you could argue that you were driving at 39 mph and that the reading is due to the error in the radar1. That would enable you to challenge the evidence (but here the point is not that you are allowed to drive at 41 mph but that there is no proof that you were driving at 41 mph). From what I know, most police forces will be aware of that and avoid issuing fines unless you are well above that margin of error2. 1In fact, in Spain word of the street is that radars are set to account to possible margin of error of the radar, plus possible margin of error of the vehicle speedometer -even if it is the vehicle owner's responsibility to ensure that it works correctly- and some leeway. 2Some people post on the internet the "magic formula" of how many % of speed you can go over the posted speed limit based on those calculations. Of course those magic formulas rely in the radar and the speedometer being 100% accurate and the driver never getting distracted a few seconds and passing it. So, even assuming that those magic formulas are correct, if either the radar or the speedometer are not accurate or the driver gets distracted for a few seconds, you are at risk of getting a ticket.
In the U.S. there is no law that requires you to ever say a word to a law enforcement officer, and lawyers generally encourage you to minimize what you communicate to them anyway. I can't think of any situation where a request for information could not be demanded in writing. As a practical matter, in some situations you will probably be subject to some extra scrutiny and inconvenience: E.g., in a stop-and-identify situation, you could hand the officer a note saying, "Please make any requests for information from me in writing." The officer may infer that you have some disability, but if he does not (or discovers you don't) he may get irritated enough to subject you to harassment for "contempt of cop". Of course, if you can understand him, you are still required to obey an officer's lawful orders no matter how they are communicated. But "speak" is not a lawful order.
Can the police seize your phone without a warrant UK? YES An arrest on suspicion of rape (an indictable offence) triggers two powers under the Police and Criminal Evidence Act 1984 (PACE) to search premises for evidence without a warrant. Which power depends on where the arrest was made: s.32(2)(b) PACE: if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence. Note that s.32(2)(b) does not have the power of seizure attached, but the officer can use the &quot;General Power of Seizures&quot; at s.19 PACE s.18 PACE: (1) ... a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence... (2) A constable may seize and retain anything for which he may search under subsection (1) above. IF... the phone is not on the suspect at the time of the arrest (say the police arrest the suspect in their home) but in another room on the shelf - either s.32(2)(b) or s.18 would apply IF... being outside at the time - s.32(2)(b) possibly if he had just left, s.18 otherwise.