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A discussion has taken on a life of its own in the “Thanks to the following ….” thread regarding whether laws can be made more simple.
The argument has been advanced that if just regular folks wrote our laws instead of politicians and lawyers, everthing could be made plain and simple.
An example was offered: the recent law passed in Texas outlawing open alcoholic beverage bottles in vehicles. It was argued that House Bill 5 of the Texas Legislature is much too complex and if regular folks wrote it it could have been made a lot shorter and simpler.
For James et al who take that position: Take a look at the bill which passed and tell us (with specific line numbers) what you would eliminate.
Make it nice and simple, please:
The bill is at:
http://tlo2.tlc.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=77&SESS=R&CHAMBER=H&BILLTYPE=B&BILLSUFFIX=00005&VERSION=5&TYPE=B
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I haven't got the patience to read it all.
But how about:
"No one can operate a vehicle on public roads if their blood alcohol content during the time driving or within 1 hour after is XXX or above."
This lets you drive drunk around your own property if you want to.
This lets you have an open container since open containers are only dangerous if you violate my rule above.
This give police 1 hour to test you.
The courts are going to write so much legislation from the bench anyway, let them worry about the details.
*The problems with making "simple" laws is that aweful word "compromise" it seem the politicians be liberal, conservative, or what ever have to satisfy the folks they represent. ALL of them. So no matter how simple a law is to make it appealing to everyone they have to compromise thus making it complicated.
*1. What constitutes a "public road"? What about a supermarket parking lot, or a school driveway, or a park?2. What happens if you violate the law? What about the second or third violation?3. How are cops to determine your BAC? Does the driver who refuses to blow a breathalizer win or lose?4. What about the guy sitting behind the wheel of a car with the motor running? Is he "driving" or not? Define operating? Using the radio?5. Define motor vehicle? What about a backhoe that backs onto a road to turn around?6. What type of offense is it? Traffic infraction or misdmeanor?Just off the top of my head.SHG
*Mr. Walker,
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*"I haven't got the patience to read it all. "But how about: "'No one can operate a vehicle on public roads if their blood alcohol content during the time driving or within 1 hour after is XXX or above.'" Nope, not even close. Apparently you didn't even have time to read the key 7 words in my message: "the recent law passed in Texas b outlawing open alcoholic beverage bottles in vehicles."If you're not going to read the law, you're really in no position to offer an opinion on it. Perhaps you'll take the time, though, to skim SHG's post to understand that laws require definitions, etc.I'm offering an opportunity for someone of the "there ought to be simple laws" school to prove a simple law can be written. To do so, you'll have to show what is excess in the Texas bill as passed. (I'm not saying there isn't any excess in the Texas bill, there's some things that could be trimmed, but the argument has been advanced that you can do it in a few sentences. So, you'll have to do a lot of trimming!Simple, right?
*I guess that part of writing simple laws is not writing duplicate laws. When I'm king, there won't be laws concerning open containers in vehicles. There will be one about driving while drunk...the one I wrote above. Driving with a beer in your hand is ok with me. It's the intoxication that's bad.And the only ones that are arguing over wether vehicle means vehicle or if a road is a road or what "is" is are those that spent enough time in law school to start to believe that such arguments aren't silly and despirate. And I did read SHG's post and skimmed the Texas law. But even if I didn't...when I'm king I'll still express my opinion.There is a jury of 12 reasonable, normal, intelligent people (because when I'm king, you won't be able to stack a jury) who can take on the difficult decision of deciding if a vehicle is a vehicle.
*How about a partially used bottle of mouthwash? Some have alcohol, I think, and some could see that as a beverage. Cooking sherry you're taking to Mom's house to help cook dinner? What about transporting the cooking sherry in a moving van when moving from one residence to another?What does open mean? Original seal, or the cap screwed back on? If putting the cap back on is ok, then it'd be easy to drink and recork wine. If original seal only, then you couldn't take a partially finished bottle of wine home from a byo restaurant in the trunk of your car. You'd be better off drinking it all before you got into the car, as opposed to wasting it, right?And no alcohol served to airplane passangers?Or on a paddlewheel restaurant rolling down the mississippi?Or beer on the fishing trawler after it's docked for the night?Or drinks in your houseboat w/ dinner?And what about the retired people RV-ing all over the great state? No partial containers stored in the galley--once you open the bourbon (outside on picnic chairs, of course) you better drain it, be/c you can't transport it to the next night's campsite.
*My neighbor was on his sixth (seventh? it's easy to lose track...) DUI when he took out a couple hundred feet of fence and irrigation equipment, and ruined the coroner's night's sleep.State decided, as it has since in other cases, that he couldn't be charged with homicide or even manslaughter because he wasn't in his right mind when he killed--some would say, murdered---the woman.I just took some former tenants to court over trashing my rental. I won. No way to collect and when i asked the judge what i could do next, he shrugged his shoulders. Justice is too important to be left up to the lawyers. Vigilance Committee, anyone?
*You folks are doing an excellant job of proving my point.I wrote a "simple law:" "Take a look at the bill which passed and tell us (with specific line numbers) what you would eliminate."None of you have been able to follow that simple law; you seem to feel that there ought to be some sort of exception for you to establish your opinions.Ryan: "And the only ones that are arguing over wether vehicle means vehicle or if a road is a road or what "is" is are those that spent enough time in law school to start to believe that such arguments aren't silly and despirate."IMO You're saying more about yourself than anything else if you can't understand the need to define terms. (My 11 year old is working on the importance of definitions now in 5th grade.)
*CH,
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*there is probably nothing simpler than the ten commandments.....but 2000 years of interrpretations have kind of skewed them..so much for simple law.... i don't believe people can write simple laws, wether they're painters, or lawyers or teachers or druggies...it makes no difference.. and the greater the number of authors and ratifiers, the more complicated it gets...just sit in on your local government...and follow some of their ordinance creations... more law is more complicated living .. less law is better...
*Joe, this time I'm speaking to you. Last time I was voicing a general opinion on a thread and using Taunton's Reply feature to identify the jumping off point of my comments for people who view threads. Emily Post says that's OK. I wasn't speaking directly to you, at you, or about you. Sorry you took it as a sheer act.Your wording is indeed clear, but the exceptions you allow stand in violation of your own law. Your law doesn't say this applies only to people operating a vehicle, so it would--in its current form--apply to all passengers regardless of the type of vehicle. This demonstrates Bob's point that simple starts getting complicated with exceptions and explanations and exigencies. Your law says it applies to anyone in a vehicle, not excluding passengers, diners, etc. And why can't a moving van move an open bottle as part of the house contents? Heck, even a garbage truck couldn't transport tossed out containers by your law. An exception to the law would be needed to clear them.Now if you mean "open" as just a cap on, even if partially consumed, then a bunch of 21 year old passengers with a screw-top bottle of whatever is ok driving around with a designated driver as long as they screw the top back on before the cop gets to the window. I'm not sure your law intends that.>Fishing trawlers and houseboats see law and apply some common sense. . .No one's asking me to adjudicate a violation of this law, so my applying common sense isn't relevant. You're asking a patrolman, a prosecutor, maybe a grand jury, a judge, and maybe a jury to apply common sense. They all have different standards. Some are literalists and would screw you over three drops of wine in the bottom of what looks like an empty bottle on your way to the recycling center (heck, I couldn't even take empties to the recycling center unless I ran them through the dishwasher first, be/c by your law, ANY includes the residue in the bottom of the bottle). Some would go by legislative intent as they interpreted it. Whose standards apply when the law is unclear or contradictory?Jim
*Right to the point Joe. Your law will put people in jail for having an open bottle of mouth wash (something most travelers driving to the airport would commonly do). But you would also put riders on the airplane in jail, because that's what your law says. You can't just change it because it makes sense to you. You made it illegal, so it's illegal. Common sense has nothing to do with it. The law is the law. So do you really mean to penalize drunk drivers and business travelers the same? Do you really want to make people who live on houseboats tea drinkers? And what of the driver who doesn't know that his passenger has an once opened, now closed, bottle of scotch in his bag? Your answer may be as above, zero tolerance, take it or leave it. But would you want your Legislature writing a law like that?SHG
*SHG,I'll answer ALL of those.1. What constitutes a public road? Texas already has laws governing what is, and what isn't a public road. Why does this particular bill have to spell it out, AGAIN.2. What hppens if you violate the law? Misdemeanors in Texas already have the sentencing guidelines spelled out for the judges. Same for each successive offense. Why detail all of that in this partuclar bill? It just repeats written laws.3. How are cops to determine your blood alcohol content? They test you, on the spot. Refuse a breathalizer test in Texas, and they will take you in. They WILL test you at the station. If you refuse there, you WILL lose your drivers license. This law is already on the books. It says point blank that if you refuse a breathalizer test, you lose the license for a psecified amount of time. No need to repeat anything in any other bill.4. What about the guy sitting behind the wheel of a car with the motor running? Texas law already defines this instance. Ain't sure of the exact wording, but the law already addresses this issue. No need to repeat the existing law in a new bill.5. Define motor vehicle. In Texas, ANY vehicle that is self propelled, uses a motor for drive, or uses OTHER than the passengers own power for movement. Backhoes backing out into the public road to turn around fall into this, and I have known people who got tickets for doing this eact thing, and causing a wreck. They also got sued, and lost. Texas has also charged, and convicted a man for DWI while operating his ELECTRIC wheelchair on the shoulder of a public road, while he was drunk. He challenged this vehemently, and lost. 6. What type of offense is this? It is a NON MOVING violation. It is a misdemeanor, and you will get fined, but it will not show up on your driving record, or insurance. Same for an out of date inspection sticker, or out of date registration. The whole point I was trying to make in the earlier discussion was that laws do not have to be so comlex to be effective. They CAN be written much simpler, and easier to read and understand. I NEVER said that you could write a law that covers comlex issues in one sentence. The problem today is (and I tried to emphasize this, but evidently no one paid attention) that our society is already so complex in its rules and laws that everything that comes up now must be the same. Each new set of rules has to deal with some of the things that are already out there, and some of those are pretty darn complicated. The example I used as a way to succeed was to use a NEW country, NEW population, and a chance to write NEW rules and laws. Can it be done, under this circumstance, much simpler, and laws written much more clear and simple? Yes, I personally believe it can. THAT was my point. Not what is going on now, but what COULD be done by average people with some common sense. When laws get so darn comlex that even experienced judges and lawyers have to research them to find out pertinent information, then something is terribly wrong. They do not need to be so comlexly written, nor should they. Life is only as complex as you want it to be. If you support extremely complex wording in documents, that's ok. But the average American has a difficult time understanding these documents, laws, etc... They must therefore hire someone in the legal field to interpet everything. I personally can write a contract for anything you can think of that will be accurate, legal (as any contract can be), and very easy to read and understand. One of the things that makes it simpler and easier to understand is the wording. Keep it simple, and discuss each line with the customer, and MOST problems will disappear (not all, though). Life can be simpler. Maybe not absolutely brick stupid simple, but it can be simpler. People like me believe this, and dream of this. We think about it, and then we develope a way that it can be achieved. When we decide to take action, at least we have tried to bring about change. We may or may not succeed, but at least we tried. James DuHamel
*well james.... if people like you ran for public office.. and they all had the same goal.. to make life ,and laws simpler, and easier to understand.. then , you're right.. it would be simpler.. those are usually NOT the people in charge of writing laws..
*My version. I personally think it is clear enough that everyone can understand it. Any questions that arise are handled by the officer on the scene, or in a court of law. A judge will ultimately decide the case if you decide to fight the citation. i It is illegal to have an open container of ANY alcoholic beverage inside the passenger compartment, within reach of the driver, or any passenger, of ANY motor vehicle, on ANY PUBLIC ROAD in Texas. This law will be classified as a class C misdemeanor, and punishment will be handled according to the existing laws of Texas governing class C misdemeanors. Texas law ALREADY covers most of the questions you are gonna ask. The officer on the scene has the authority to make JUDGEMENT calls based on the criteria he finds at the scene. If you are given a citation, and feel that you were not treated fairly and justly, you can fight it in court, and the judge will decide the case. It is already illegal for a cop to search the glove box, or locked trunk of a vehicle without your permission, or a warrant (The warrant must be very specific in wording on what they are looking for), as well as luggage, closed boxes, etc... Whatever the officer finds, he MUST see it in plain sight. RV's with liquor in a closed cabinet would not be considered. Mouthwash is not a beverage. Boats and planes are not on a public roadway, so they do not apply. BUT... it is illegal to drink and operate a pleasure boat in Texas waters. They can, and do fine you for DUI if you get caught. That paddle boat that was mentioned gets a permit to serve liquor to its passengers (paying customers). If the OPERATOR of this paddle boat were drinking and operating the boat, he would face the same penalty as anyone else. Passengers of boats are not included in this particular law. If it were a PRIVATE party boat, the OPERATOR of the boat can be fined for drinking WHILE he is operating the boat. The following is MY OPINION.Making things simpler does not mean that it will come down to one sentence. Lack of common sense, and people trying so hard to find loopholes and ways out of current laws when they ge caught are part of what makes laws today so complicated. Just think about your personal households. You have rules. They are simple, and everyone in your household knows them. Sometimes, you must take on the responsibility of determining mitigating circumstances, but most times your rules are simple, clear cut, and obeyed. Why can't a society do the same? I am a humble man, and I live a relatively simple life. I obey the laws, and if I don't, I expect to get caught, and punished. People who do not think certain laws are fair usually break them (or at least some of them) on a regular basis, then look for excuses and ways out of getting punished when they get caught. The more comlex the wording of laws gets, the easier it is for thes kinds of people to find loopholes and mistakes that allow them to walk free.James DuHamel
*That was the whole point, Mike. Not that those people ALREADY there would make anything a little simpler, but that average people, IF ELECTED, could make NEW things simpler. It ain't ever gonna happen, but it is possible. James DuHamel
*SHG,
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*I shouldn't have been so quick to dismiss Joe's effort to write a simple "open bottle" law. I'm sorry.Let's take a closer look at his effort."Joe's Law"YOU shall not have an open alcoholic beverage of ANY Type of ANY alcohol content in your possession in or on ANY type of vehicle regardless of consumption.Definitions:Possession; The space occupied by the vehicle or any part of you.Vehicle; Any apparatus propelled by any means requiring navigation by any means other then God.What is the purpose of the law? I know you'll find it hard to believe, but it is helpful to spell out why a law was enacted. There lines 1-1 to 1-16Exactly what law are we passing or amending? Lines 1-17 to 1020 tell us we're amending an existing law. I know, that stuff's kind of boring and technical, but that doesn't mean we can leave it out, it's important information. What is "an open alcoholic beverage?"A pint of Jack Daniels, half gone, without a cap in sight. Guess so.A pint of Jack Daniels, half gone, cap on. Hmmmmm. A pint of Jack Daniels, appears full, cap on, seal broken. Hmmmm.I guess we do need lines 1-21 to 1-24What if that half-gone pint is in the glove compartment? A locked glove compartment? In the trunk? On the roof? I guess we need lines 2-1 to 2-8I'm sitting in my registered Jeep Cherokee (my main transportation) in my driveway, cooling off after a long day with an ice cold Ballentine Ale. My jeep is at least 60' from the road way.Am I violating the law? Looks like I'm in trouble under Joe's law.I'm in the old 1952 Hudson I'm restoring. Not registered. It's behind my garage. The second bottle of Ballentine is going down just as sweetly. Gonna haul me off to jail? What if its up on blocks, with no wheels? What if the cylinder heads are off?I'm in the private alley behind my city apartment. Switched to Narragansett. (After two Balley's, that 'gansett doesn't taste half bad. Gonna toss me?After noticing the unmarked cruiser swinging onto the country lane after I went sailing by sampling a taste from some bottle or another, I quickly pull off of the traveled lanes onto the shoulder where I smugly sit as the police officer struts up to my window. He saw me swigging something, but when he gets there, I've got a half empty bottle of Thunderbird and a quart of coke on the seat next to me.Gonna toss away the key? How about if I pulled complete off the road onto the shoulder? How about if I swung into someone's driveway?What if I've got that open bottle of Black Jack and that open Balley? One offense or two?I'd say maybe we can use lines 2-9 to 2-19.What if I've rented a car at Robert Mueller Municple Airport in Austin, TX. I'm cruising in on Airport Blvd to catch some tunes at Austin City Limits, when I swerve to avoid a couple of armadillos. A cop sees me swerve, pulls me over suspecting that I might be a wee bit under the influence, and finds a half empty bottle of Mad Dog 20-20 pushed under the seat. Sure as hell wasn't mine. (I've never left half a bottle of Mad Dog kicking around!)I kind of like the word "knowingly" in line 2-14.I went down to that crossroads, sold my soul to the devil and I CAN play guitar! I'm being driven in a rented limo to the gig I'm going to play with my bro' Jerry Jeff. A little hit of tequila to settle my nerves. Gonna throw me in the slammer, Joe? How about the driver?I'm sitting there at the stop light in Spur, TX, left hand lane, intersection of Ranch Road 836 and Ranch Road 261, bottle of Smirnoff's to my lips when a Texas Ranger pulls up beside me.Does he have to arrest me and haul me off to the local hoosgow, or can he issue me a citation?What level of offense do we have here?Lines 3-2 to 3-10 help out with these questions.Joe's version doesn't have any penalties. I kind of like that, but it does make you wonder why we passed the thing in the first place.What are you going to do on first offenses? Second offenses? Are you going to cut someone some slack if they take some drug and alcohol awareness training?Will you let 'em keep driving if they install one of those alcohol breathalizers which requires a test before the car starts?Will we treat people with occupational drivers licenses differently than others?Interestingly, the prohibition and definitions part of HB 5 runs about 1 page (50 lines) and the penalty provisions of HB 5 run about 3 1/2 pages (maybe about 180 pages.)The penalty provisions try to take a lot of factors into account, with the idea that justice requires that there are different types of case and different degrees of culpability.James has argued that much of the definitional stuff has been defined in other areas of Texas law, so we don't need to duplicate it in this law.Very legitimate question.From the drafter's point of view, it would be a lot easier to say "vehicle, as defined in blah, blah blah; roadway, as defined in blah blah de blah."The concern though, is that what if those other sections are amended because there is some legitimate need where those definitons occur, but, this law might be addressing different issues and the amendment in the other sections may lead to unintended consequences in this section.Also, if the other, cross referenced section is amended, a defendent under this law may now argue: the amended definition only affects the law where the definition occurs; the Texas legislature only intended the open bottle bill to apply to the defined areas i as they were defined at the time that bill was passed.I hope you will believe me that, even with computerized research, it is awfully easy to miss a cross reference when amending a bill to check for those unintended consequences; it is very easy to find other, similar definitions to weigh whether they should also be amended at the same time.This isn't a matter of deep policy or technical mubo-jumbo, it's just mechanics, but it can have a significant impact.So damn simple, isn't it!
*james.. you do your self a disservice.. you are not average... the average person would make the same mish-mash of new laws that the ones currently doing the job already have... and will continue to do..... i think you equate average with reasonable .. or tolerant..or plain -speaking..not what i see on boards , commissions , legislatures and law -making bodies in general..they all have agendas.. and making the law simple, clear , and concise is not part of the agenda..
*"..not what i see on boards , commissions , legislatures and law -making bodies in general.. they all have agendas.. and making the law simple, clear , and concise is not part of the agenda.. "That hasn't been my experience, and I've worked with a number of boards, legislatures and regulatory agencies. Yes, they have agendas: they have to, that's their job!Overwhelmingly, the legislative efforts I've seen were attempts to write a clear law.What direct experience have you had with legislative and regulatary bodies? On what do you base your observations? Direct knowledge? Or perhaps the opinions of others?
*Mr. Walker,
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*bob, i've been on two town councils.. and served for 9 years on the planning board.. i've been involved in statewide building code .. ... it has been my personal experience that everyone brings their own agenda to the WRITING of the laws.. once the laws are written ..they still interject their personal agendas into the interpretation of the laws.. the more verbiage.. the more latitude for the interpretation... there is nothing simple about laws: writing or interpreting or enforcing them ....nor the unintended consequences of them....the more laws the more complications.....and their proliferation is a matter of record...b but hey, whadda i no ?
*I knew there was sompfin I didn like about you !!Dang politicians. Crooked to the core. Every dang one of 'em.
*You guys can vote for me. Ill be the best politician money can buy.mYou want a law pay me you want to get out of a legal jam pay me. yep i can see it now...
*Jury ? Maybe things are different where you are; but, as far as I know, very few trials/hearings are held in front of a jury. The costs for a jury are enormous (and you pay costs if you lose), you absolutely would need counsel, every trial/hearing would take an order of magnitude more time, and courts couldn't handle the volumes. On the other hand, if you're going to trust a judge to administer justice; then, you better make sure the statutes are absolutely clear and bullet-proof.
*Joe,You answered one of the questions I asked; there's a who;e lot more to go.You call it drivel. I tried to make it amusing because some of the readers have demonstrated short attention spans.I assure you, however, that those questions are not meaningless.Try to picture yourself as the judge hearing a case under your law, with defense counsel raising the various issues I raised.
*I love this stuff. What it shows is that each person sees the answers as obvious, except each person sees it differently. Therein lies the problem.As laws go, an open container law is a fairly simple one. Joe's law is simple to Joe, but it requires to Joe to explain, vary, modify and alter it to each set of circumstances. If that was an acceptable law, it would read:It is a misdemeanor to have a container of alcohol in a motor vehicle whenever Joe says it is.Of course, some might think this gives Joe a little too much discretion. But, as long as it's clear to Joe, it works for him.Was this what you have in mind James?SHG
*Mr Walker,
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*"I'll take a step forward. How many more lines does my "Law" need to be absolutely crystal clear?I'm sure that I could define it with just a few more. How about you, does it need 200 more lines?"You're the one who says it can be shorter.All you have to do is answer the questions I raised, and we'll know.Or, you might answer the original challage I posed: start with the bill as passed, and, citing line numbers, show us which lines aren't needed.After all, the claim is that the bill is too complex and has too much junk in it.The burden is on the complainers to demonstrate that proposition.Lets make it easy, though: Just try to point out 10 lines, by number, that are superfluous or excessive from a drafting point of view.Not from a policy point of view: the Texas legislature made a number of policy decisions about how the law should work and that's what we're working with.Unless, of course, you can prove that any of those policy decisions have no basis whatsoever (not just that you would have adopted different policies.)
*SHG,No. What I have in mind is a GROUP of people, with common sense and a bit of intelligence ALL saying "Hey, there ain't a reason in the world why this law should be 15 pages long. Most of what needs to be detailed is already listed in other laws, so let's make this one a bit more simple, and easier for the average person to understand". Then they write the law in simple language, using simple terms, and make it possible for anyone, anywhere with reading skills to be able to read it, and understand it. My version, listed in a previous post, pretty much details my ideas on making things a bit simpler, and avoiding info that is not necessary. Joe's version was also simple and to the point.My dream...James DuHamel
*James,When printed on my laser jet directly from the Texas site, it runs 4 3/4 pages, not 15. (When DL's in their WP format and printed out double space, it ran about 12 pages, but I have my default font set at 12 point, a fairly large size.)"Most of what needs to be detailed is already listed in other laws."Most? Maybe in the definition section, but what else is duplicative?Lets say you want to learn what the open bottle bill says. You go to Section 49.031 of Chapter 49, the Texas Penal code, to read it.Section (a) contains the definitions. Runs about 17 lines.Would you rather have 3 or 4 lines that say: "to know what we mean by a "open container" see section xyz of Chapter 123; to know what we mean by a vehicle, see section mno of Chapter 456; to know what we mean by "public highway" see..... You get the picture. (If you don't, take it from me, when you're researching a law its a PITA to have to chase down cross references.) Also, as I mentioned, when laws are amended, those types of cross references can lead to all sorts of unintended results.There is no absolute right or wrong on this one, but my experience is that in most cases, self-contained definitions are the better way for (i) understanding the law (which our goal, right?) and (ii) administration fo the law-making process over time.Also, as I noted above, most of the law (about 4/5) is devoted to penalties. The legislature seems to have made the determination that the law could be applicable in a wide range of situations and felt that those different circumstances call for different handling.Maybe that's excessive complexity, or maybe its common sense. No one can win that argument.My pesonal view is that justice is best served by recognizing differences. The Taliban are a good example of the b extreme end of the opposite approach.
*> Are you going to cut someone some slack if they take some drug and alcohol awareness training?I am not speaking for Joe, but it's hard for me to imagine Joe cutting "someone some slack"!!LOL!Rich Beckman
*Mr. Walker,
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*>If you want to avoid all this. . . Don't drink and drive.Wait a second Joe. This isn't a drunk driving law, it's a container law. This has nothing to do with being drunk but with driving with alcohol in your vehicle. And putting aside the absurd results that always happen when people try to be so simplistic, you've got them in jail for life for killing someone when there's an open container in the car. So the guy who hasn't had a sip but does have a once-opened bottle of scotch in the car, then gets involved in an accident that wasn't his fault but results in death, goes to jail? Really?James, you justify the absence of definitions by saying there are other laws that provide them. Putting aside the issue of the need for different definitions for different purposes, you've just required the law to be more complex, since you need 10 other laws to explain your one, simple law. What have you accomplished?SHG
*I vote for Joe Fusco for supreme court judge.
*SHG,
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*Ron,
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*Well, you did do a good job of simplifying things. You have, of course, written a completely different law with an entirely different policy approach to justice.I wonder if the Taliban are looking for a legislative draftsman? Good luck getting it passed. (Ron's vote was to be expected, of course. It's not just great minds that think alike )
*Mr. Walker,
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*Joe,I take no offense from disagreeing with you. Even great minds sometimes disagree. Same with James.Not only doesn't it work the way you would like, but neither you nor anyone else would really like it to work that way. Defendants are presumed innocent, not intelligent. We don't lock people away for being stupid, or making mistakes. If that was true, how many people would be left on this board?Oddly, there is a Supreme Court Justice in New York named Fusco. He's in Brooklyn. The black sheep of the family, Joe?SHG
*Bob,i When printed on my laser jet directly from the Texas site, it runs 4 3/4 pages, not 15. (When DL's in their WP format and printed out double space, it ran about 12 pages, but I have my default font set at 12 point, a fairly large size.)I should have been a bit more clear. When I said in quotation marks about THIS bill being 15 pages long, I did not mean the Open Container law. I meant a generalized law, in a generalized situation. 15 pages reference was just out of the clear blue, with the intent of meaning most laws are way over worded (in my opinion). I was told by a State Senator that the Open Container law wasactually 7 1/2 pages long, in whatever format they have it printed in. Income tax laws are a prime example of overdoing it. James DuHamel
*the same thing that happened to our sample law right here is what happens to them before any deliberative body...simple is always the goal , until it gets in the way of ego....
*Ahhh. I guess you must feel like you're winning this debate. It's a well known fact that when someone is ahead in a debate, they start tossing personal insults.Very impressive.
*SHG,i James, you justify the absence of definitions by saying there are other laws that provide them. Putting aside the issue of the need for different definitions for different purposes, you've just required the law to be more complex, since you need 10 other laws to explain your one, simple law. What have you accomplished? First of all, I have not required the law to be more complex at all. I have made it much simpler to understand (the accomlishment). The 10 other laws to explain this particular law is a bit overboard. The laws that you speak of already exist, and define the terms and conditions that you keep bringing up. Because they already exist, a court of law will be able to do any defining necessary (based on written law), and determine if the citation was justified based on evidence presented. Judges make the call based on evidence presented. That is what the system is all about. The written laws simply tell us what is illegal, and the courts decide if you actually committed the crime, based on evidence presented. The complexity of the laws seems to be a way for lawyers to find ways to wheel and deal on reduced charges and sentencing criteria. Of course, this is just my opinion about all this. I am in no way, shape, or form an expert on law by any stretch of the imagination. I'm just a guy wondering WHY we can't make things a little simpler, and wondering how we can go about doing it. Just because that is the way it has always been done does not make it right. What I seem to be seeing from a lot of lawyers is the need for a loophole, or out. If you know that doing a certain thing is a violation of the law, what difference does it make what the penalty is? A court of law will decide of the punishment is too severe, or if it is unconstitutional. That is paramount to deciding if the crime is worth the punishment before you commit it. I personally think that if you get a DWI, you should get 1 year in prison. No ifs, ands, or buts. No loopholes, no way out. Right now, there are too many loopholes, too much bargaining at the table, and too many dead people as a result of drunk drivers. You can get anything from a slap on the wrist, to 6 months probation, to jail time. Too many variables exist. There should be NO variables for the offense. One rule, one punishment for ALL. Simple laws are needed to cover simple situations. The more complex the situation, the more complex the law required to cover it. I just feel that simple situations do not need to be complicated. Lawyers and legislators seem to think they do need to be complicated. It's just a matter of opinion. James DuHamel
*Mike,If only we could get rid of the egos, we'd be halfway there.James DuHamel
*SHG,I love disagreements because it opens up dialogue that would not have been possible otherwise. If everybody agreed on everything, then we would not accomlish much. No new ideas would ever surface, and no new ways of doing things would ever be learned. It shows different views, different ideas, and different ways of doing things. The more information available to absorb, the more we learn. I love it, as long as civil people are disagreeing. Where disagreements fail is when one person decides that they are right no matter what, and all dialogue after that point is defensive in nature. Each party then starts to defend their way of thinking instead of looking at the differences, and comparing the ideas. An awful lot of this whole thread is showing me why we both think like we do, and the different ways we are coming to each of our conclusions. It may very well be a pipe dream I am having, but I gotta dream. I gotta believe that somehow, some way, simpler (not brick stupid simple) laws can be written. Maybe, just maybe some day I'll figure it all out. This dialogue is showing me a lot of obstacles that must be overcome first. They may be impossible obstacles, but if we don't believe that change can happen, then it never will. Just a ramble...James DuHamel
*Mr. Walker,
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*I find it amusing that on a board where people come for expert advice on construction matters, when another area of expertize comes up, the amateurs think they have all of the answers.
*It's always simple, if doesn't involve you - best of the season to all of you - DOUD
*Joe, The difference is in my post, I used a universally accepted indication that I was intending to be humorous: has since at least the 80's indicated and is used to indicate a joke was intended.I'm, sorry that I assumed you weren't quite as ignorant as you've proven yourself to be."The more you speak the clearer it becomes why you went from law to home inspections. . . You really you suck at law."Gosh, I'm crushed by your evaluation. You've established your own level of knowledge and insight by your posts so please don't be offended if I find your latest attack as completely unimportant.For the record, when I stopped practicing law I was the lead international legal counsel for one of the largest banks in the US, with primary legal responsibility for approximately US$6 billion (yes, billion) in international lending, as well as primary legal responsibility for the foreign exchange trading desk and approximately US$1.5 billion in domestic US lending.To reach that position I was evaluated by other, accomplished lawyers and by senior bank management. "Do you remember your predictions of what the supreme court would do in the Bush Gore issue. . ."Actually, no. Refresh my memory, please.
*True story.I was at a pub with friends who were daring each other to do dumber and dumber things. They went from drinking flaming shots of rum, to eating glasses. One of my friends decided to eat a glass. He took a big bite out of the glass and that's when I decided it would be a good thing if I drove him home. Before we left the bar, I took an empty beer bottle and filled it with water and told him to rinse the glass out of his mouth. On the ride home he was taking swigs out of the bottle and spitting out the car window. A cop stopped us and saw my very drunk friend and a now empty beer bottle. He gave me a ticket for "open container". I couldn't prove that there was no beer in the bottle when we got into the car or that I wasn't drinking it. Although, if I had been drinking the beer, he should have give me a ticket for DUI which he did not. When I went to court I was told it was illegal to have an open beer bottle in the car and whether it was empty or whether the driver was drinking from it, was irrelevant.Would I have been given a ticket under "Joe's Law"?
*i the amateurs think they have all of the answers. Perhaps the analogy would be that of someone who comes to the board for a little help with a shrinkage crack in his foundation wall and gets told to go hire an engineer. Only i don't find it amusing, just smug.
*>Would I have been given a ticket under "Joe's Law"? Nope. Under Joe's law, you would have gone to jail, to borrow a phrase from James, "no ifs, ands or buts." The love of zero tolerance laws by people who believe it provides swift, sure and simple justice is that it does none of these things. Guys, it would be really nice if things could be simple, but a few hundred plus years of experience has shown that simple isn't simple and doesn't work when put to the test of real life experience. I agree with both James and Joe completely that things are out of hand, tax code being one fine example, but you guys have gone too far the other way. It may not need to be as complex as it has gotten (at least in some instances) but it can't be that simple.And please don't send Cynthia to jail. She doesn't deserve it, I tell ya.SHG
*From simple minds come simple L...Aw, ferget it.
*I still wanna know how to transport our empties to the recycling center. Cynthia's story makes me even more curious than Joe's law does. A cop with a chip on his/her shoulder not liking me or my wife, and a judge who, as James prefers, is given no discretionary powers, and our little bit of enviironmental conscientiousness becomes a criminal record or worse.
*i how to transport our empties to the recycling center.Good question! I think they're OK in the bed of a pickup (for whatever reason). I recycle curbside.
*DW takes them in the car and our containers don't fit in the trunk. If I took them in my truck, they'd probably bounce around and I'd get ticketed for violating NC's Unsecured Cargo law. Don't know if that's written simply or not. It could be your next homework assignment, Bob, James, et al. Ha ha ha. Blue, talk to me, dude. All this makes be think of converting to Libertarianism!
*i I recycle curbside.So now the poor recycle truck driver is gunna get a ticket. (Or thrown in jail if Joe's law is passed.)
*Sorry if this is redundant--I've only skimmed over much of this--but, I must put out recylables (clean glass/aluminum, plus newspaper/junk mail/etc.) in a separate container from trash, which is also separate from greenery. Three containers.
*Cloud,Evidently, by your remarks, you don't care much for our legal system. Our system is set up so that the Legislative branch makes the laws, the police officers charge you with committing a crime, and the judicial system decides if you actually violated any law, and if they find you did, they determine if the laws are valid, constitutional, and determines any mitigating or extenuating circumstances before meting out sentencing. That's our system, like it or not. Your own household is much the same, whether you like to admit it or not. I'd be willing to bet that YOUR rules are not so complex. As the head of a househld, your job is to make the rules (although I know some families that sit down and make the rules together), determine if a rule has been broken, and mete out any punishment. The problem lawmakers have is the fact that so many people are involved in the process. There has got to be a way of simplifying the process, and simplifying the actual laws. Again, I reiterate that the more complex the situations, the more complex the rules and laws must be to cover them. My father taught me that change can only come about with effort. Without the effort, the only change that will occur will be the intensity of the bitching and complaining. Just a thought...James DuHamel
*Bob, What an arrogant remark. I am one of those amateurs that you speak of. I admit to not knowing the law as expertly as I'd like, but you don't know it that well either. (My opnion here - Your area of expertise was NOT in civil criminal law, and there is no way that you can convince me that you are an expert in such. You may know more about it than I do, but you are FAR from an expert in criminal law. As an experienced lawyer, your expertise lies in how the system works, not its contents. There are FAR too many laws on the books for ANYONE to be a real expert. Even criminals know WHERE to find the information they need about laws.)As far as this dicussion goes, you have not proven to me WHY these laws that cover simple situations need to be so complex. Maybe they don't need to be as simple as I'd like to see them, but they do not need to be as complex as they appear to be, and as you seem to think they need to be. You keep asking us to rewrite existing laws. I keep saying my thoughts and opinions are concerning writing NEW laws. They are as different as night and day. Judging by the responses on this thread, a lot of other folks think along the same lines. They know that these laws are complex, and see WHY they are, and even know that it will never change. But they also see WHY and HOW they get that way. It all boils down to how our system is set up. I still say a simpler system could have been used. And again, this is all my opinion. I am not an expert, nor do I think everything can change simply because I say so. You seem to think, based on your remarks, that nothing can change because YOU say so. They told George Washington that the Colonists could not defeat the mighty British army. They said that the powerful British army was too strong, and the Colonists were too weak, too few in number, and too ill organized. That just the way it was then. Weaker armies couldn't win. Guess what? George and the rest of the Militia and Colonial army leaders refused to accept this way of thinking. They challenged that ideology, and becasue of their perserverence, strong will, and courage, they defeated the mighty British army. Common people, with the courage to stand up and fight, can, and do defeat the formidable power of the system sometimes. Ya just gotta believe in the fight, and get enough people to support ya.I have a challenge for you and your expertise. It may well change the way I think on this matter. We'll use the open container law as an example since it is the one you started with in this thread. We will use my version of the written law. You think it is too narrow minded, and too simple to cover the issues that YOU are going to raise. I think it isn't. Let's see. Here's my version:i It is illegal to have an open container of ANY alcoholic beverage inside the passenger compartment, within reach of the driver, or any passenger, of ANY motor vehicle, on ANY PUBLIC ROAD in Texas. This law will be classified as a class C misdemeanor, and punishment will be handled according to the existing laws of Texas governing class C misdemeanors. You are standing in a courtroom, accused of having an open container of alcohol in your CAR. You have been charged with a class c misdemeanor, punishable under Texas law by a fine to be determined by the court. A police officer stopped you because you did not have your seat belt on. BOTH of these offenses are class c misdemeanors, and non moving violations. You feel that the cop that stopped you was wrong. You plead not guilty, and ask for a jury trial, or you choose to face the judge for a summary judgement. You are now defending yourself. What is your defense, and how do you present your defense. I will act as judge (unbiased) and I'd like to see if you are actually guilty or not. I will judge the case simply by using existing Texas law that covers this case, and the evidence presented by you. An open beer can was found in the BACK passenger floor board of your car, in plain view of the officer standing at the driver's window, and looking in. You are the only one in the vehicle (there are no passengers). The officer that stopped you has already testified about everything he did. For the benefit of the doubt, and for simplicity sake, YOUR version of the actual events will mirror the officer's (in other words, whatever YOU say happened is exactly the way the officer said it happened). My job is to determine if you actually had an open container of alcoholic beverage as defined by Texas law (existing law), if the officer that stopped you did so legally (already covered by existing law), and if the officer found the open container in the vehicle by legal means (searches already covered by existing Texas law), and if the law, as written, fits the circumstances and evidence presented by the State (prosecutors). The reason your are appearing in court is that you believe that you are not guilty. Now please tell us (and prove your case) on WHY you are not guilty. I don't think you will participate, so I'll do it for you.The first order of business is the fact that the ONLY charge you are contesting is the open container. Based on the facts presented, and the law as written, I find you innocent of the charges. WHY? Because the law says very plainly that the open container must be within REACH of you (as the only person in the vehicle). The container, according to you and the officer, was found in the BACK PASSENGER floorboard. This is definitely NOT within arms reach. The case as presented by the Prosecutor did not have validity. Now, if the officer had any reason to believe that you were driving while intoxicated, he would have given you a breathalizer test. He had no reason to believe that you were drunk, so he did not charge you with DWI. Now the case simply boiled down to whether or not the evidence met the criteria as specified in the law. It did not. The law as written, and existing laws covered this simple issue very easily. I just cannot fathom why a much more complex version of this law would be needed. Merry Christmas Bob. I don't want to be in the law writing business anymore. No fun.James DuHamel
*De minimus non curat lexMerry Christmas, James, Joe, Bob, and everyone.SHG
*James:"What an arrogant remark. "I am one of those amateurs that you speak of. I admit to not knowing the law as expertly as I'd like, but you don't know it that well either. (My opnion here - Your area of expertise was NOT in civil criminal law, and there is no way that you can convince me that you are an expert in such. You may know more about it than I do, but you are FAR from an expert in criminal law. As an experienced lawyer, your expertise lies in how the system works, not its contents"I'm sorry you think that remark was arrogant.Several things. In the Anglo American legal system, we divide things up as criminal law (offenses against the state for the penalty is (potentially)time in jail; and civil law - basically everything else.There is no "civil criminal law." I suspect that was a typo, though.Second; the issue here isn't the civil or criminal nature of the law; it is the drafting of a particular law. What is good drafting; what needs to be included in the drafting?I do not claim expertise in that area; I do claim experience.I worked with the Legislative Drafting Counsel of the Vermmont State Legislature for a short period of time; part of my 12 years practicing law was involved in regulatory compliance, which included reviewing proposed laws and regulations, drafting comments on them, and in many cases, drafting alternatives to suggest.For the past 3 years I've been involved in a citizen effort to draft a licensing bill for home inspectors in Ohio. We started with the NJ bill and drafted a number of changes. There were 20 people on the committee. I was the only one with legal training or experience.During my 12 years of practice. I drafted countless agreements (which are nothing more than "private laws") and legal memoranda explained applicable laws to my clients in the context of particular situations.There a many lawyers who have far more experience and expertise than I in drafting laws, but I believe I bring some professional knowledge and experience to the area."As far as this dicussion goes, you have not proven to me WHY these laws that cover simple situations need to be so complex. Maybe they don't need to be as simple as I'd like to see them, but they do not need to be as complex as they appear to be, and as you seem to think they need to be."I think many laws b are too complex. I don't think the Texas open container law is one of them (to any significant degree.) And, I don't think most laws are way too complex. (They are often (usually?) complex, but because life is complex, the laws which govern how we live those lives needs to be complex.I think this is the real issue: do what degree to we try to make our laws refect and respond to the wide range of human actions, endeavors and intentions.If I lie in wait for a particular person to come along and then kill them; s/he is dead. If I glance at my map while driving and lose control of my car and kill a pedestrian, s/he is dead. Same result.Should we have one law which covers both? Throughout the existence of our Anglo-American legal tradition, a policy judgement has been made that the degree of the crime and the punishment should reflect the degree of "evil intent". (Aka 'mens rea.' Now you know almost as much leagl latin as I do. "In hoc signes vince." Ooops, that's on Pall Mall cigarettes. )Complexity. I can't prove this complexity is "right." It's a judgment call. What do you think? Should we punish the two killings in the same way?I think it was you who raised this particular bill as an example of a law that is far too complex."As far as this dicussion goes, you have not proven to me WHY these laws that cover simple situations need to be so complex. Maybe they don't need to be as simple as I'd like to see them, but they do not need to be as complex as they appear to be, and as you seem to think they need to be. You keep asking us to rewrite existing laws." Well, I'm not quite sure what to say. In several messages you've argued that the definitions on the first page of the law should merely be cross-referenced to other, existing bills.I've explained that there are reasons for not doing that: (i) it makes it harder to understand what the particular bill in question is (you have to start pulling other volumes of the law and flip back and forth - not an outlandish imposition, but it i isharder to read and follow the law); (ii) if the the cross-referenced law is changed in its definitions, it might have unintended consequences in the application of this law unless someone remembers that this law referes to that one. I could have simply refered you to earlier messages where I made these same points. Would that have been easier or harder?Let's assume that the other law which defines "Public Highway" is changed to exclude the shoulder of the road because of a budgetary crisis in Texas and the legislature wants to save money by not having responsibility to maintain the shoulders of the road. So that law is changed. Now, either the legislature and its advisors remembers thsis cross reference exists or not. If not, we've now substantively changed this law without intending to.Let's suppose someone does remember. First, we have to decide if the change will change the intent of the open container law. I submit it would. Now, in the cross-referenced law, we have to say something like: Section xyz is amended to read "Public highway means ....[yada yada]" b except for the purposes of the open container law, for which the "Public highway shall mean [dodah dodah]."Is that easier? Simpler?This subject is not a "right/wrong" type of thing. I can't "prove" one is right and one is wrong, or that one or the other is "more simple." I submit that in many cases, and in the case of the open container law, self-contained definitions are simpler and better in that (i) it makes it easier to read and understand the law having the definitions right there, and (ii) it makes it easier to administer the law and avoid unintended consequences from amendment of the laws."You seem to think, based on your remarks, that nothing can change because YOU say so."Yes, there have been a couple of times where I've said something like "trust me on this one. I've been there and done that."Your George Washington argument is very touching. That argument can be made any time anyone with experience in an area (an expert, if you will) says: in my experience, there's a reason we do it this way. So, you want to throw out expertise in all human endeavor?"I have a challenge for you and your expertise. It may well change the way I think on this matter. We'll use the open container law as an example since it is the one you started with in this thread. We will use my version of the written law. You think it is too narrow minded, and too simple to cover the issues that YOU are going to raise. I think it isn't. Let's see. "Here's my version: It is illegal to have an open container of ANY alcoholic beverage inside the passenger compartment, within reach of the driver, or any passenger, of ANY motor vehicle, on ANY PUBLIC ROADin Texas. This law will be classified as a class C misdemeanor, and punishment will be handled according to the existing laws of Texas governing class C misdemeanors." First: I stated the challange first: refering to the existing law, show us what lines are superfluous. Why should I answer your challange?Why should I reiterate what I have said several times and examples I have given when no one has taken up my initial challange? You folks say it's too complicated. I say the burden of proof is on you, the complaintants.Second: I've explained in several previous messages why this is too simple. Go read them. (You certainly can't object to that answer, can you?)Third: "This law will be classified as a class C misdemeanor, and punishment will be handled according to the existing laws of Texas governing class C misdemeanors."I don't know what the heck Texas law says about class C misdemeanors. I've got to go look that up. I don't even know if Texas law has one spot where the penalties for class C misdemeanors are spelled out. It can be a real pain in the butt looking for a law/definition which might not even be there. Trust me on this one. Been there, done that. (I don't know how I can prove that. I suppose I could dig through my 12 years of time sheets and find some times where I had to do just that, and recreate the time and details of looking for a needle in haystack. It would be a real spell-binder - have you on the edge of your seat the whole time! )Rather than answer your scenario, let me ask a few questiopns for you to answer under your law (as the judge.)Does the officer making the stop have to arrest me or can s/he give me a ticket? (Lines 3-1 3-10)If someone gets nailed for a second offense (remember - we're talking open bottle - b notdrunk driving) do we want to cut the defendant a break and allow them to stay free and use a breath-tester device on their car?(Remember, the pupose of the law is to discourage drunk driving. I would say if there is a less expensive way to discourge runk driving than throwing someone in jail for 90 days, lets save the tax payers some money.)Does the cross-referenced penalty for class c misdemeanors address this issue? You look it up if its so easy and simple.Does the existing class c penalties talk about suspension of drivers licenses? Beats me. I'll bet you a daylight breaking and entering in an unoccupied house is a class c misdemeanor. I'll bet that law doesn't talk about drivers licenses.Most of the existing open container law deals with penalties. The penalty section deals with a number of different scenarios: length of time betwen offenses, whether a person drives for a living, provides probation options and then details what happens if the terms of the probation are violated.You keep arguing that these details are somewhere else in Texas law.Prove it.What if you rent a car, get stopped, and an open bottle is found under the seat, left by a previous renter? (Or, left by the guy who is supposed to clean the cars and he took a little break while the car was parked in the rent-a-car lot?) That's not covered by your law: "A person commits an offense if the person "knowingly possesses ....""I don't think you will participate, so I'll do it for you." What on earth gave you the idea I wouldn't participate? In this very thread (not to mention many others!) I've been accused of having way to much to say and being full of it! "Merry Christmas Bob. I don't want to be in the law writing business anymore. No fun."Yeah, you're right on that one. Drafting laws can be b very tedious.It's been a long time since I did any roofing (other than minor repairs and maintenance on my own houses, I haven't worked on a roof since the summer of 1969.) Drafting laws has some similarity. There is a lot of tedious back breaking work (well, for legal drafting forget the back breaking except in the figurative sense.... No, I take that back - i you want me to go lugging a lot of different statute books around the library so I can use easy cross-references. Those suckers ain't light!) b butdrafting, like roofing, reguires some specialized knowledge and, if it's going to be done right, attention to details.Similarly, reading and responding to these posts is, to some extent, tedious, but, for me at least, very enjoyable at times.Merry Christmas.Bob Walker
*Two quotes from my favorite legal writer, Professor Grant Gilmore, from his book "The Ages of American Law""Ever since the remote day when human beings began to live together in society, official organs of the state have been charged with the responsibility of deciding disputes between individuals who belong to the community .... From the beginning of social time there have been institutions like courts which have generated or excreted law or something like law. In all societies beyond the most primitive a professinal class of lawyers and judges has emerged and maintained itself. In most societies at most periods the legal profession has been heartily disliked by all non-lawyers: a recurrent dream of social reformers has been that the law should be (and can be) simplified and purified in such a way that the class of lawyers can be done away with. The dream has never withstood the cold light of waking reality." (This quote opens the book.)And, "Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed." (This quote ends the book.)Bob
*>Evidently, by your remarks, you don't care much for our legal system.I don't get the attitude or the conclusion, James. I ain't picking on no one, including you and Joe. As for the legal system, got no bones to pick with it either. My only encounters with it have been being called for jury 4 times. And I go, make no excuses, but have never been empanelled. Only experience with cops is being stopped on my motorcycle as a college student time and time again be/c I looked like a hippie. They'd stop me, id me, then see the textbooks and let me go. Never a ticket. A nuisance, and early form of profiling, but no big deal. Also twice on break-ins, cops were nice and even caught the guys. Once on a break-in, the cop accused my brother and me of being homosexual lovers. ??????? Whatever, but that's the sum total of my experiences, and I have no gripe against them.My whole goal in participating here is to keep it a little light and to find the situations others may not have thought of when writing a rule or a law. Exceptions that make applying that law tricky. When I was a businessman, I reviewed lots of contracts for exactly that kind of thing--the wording that would allow a situation not in our favor. I was good at it. Loved to find a loophole and close it. Too often, the simple wording was ambiguous, and ambiguity is almost always used against "you", whoever the "you" is. I love ambiguity in life, religion, politics---but not in law.You want a judge to have no discretionary powers (if I read right), yet find me a judge that wants no discretion in the sentencing of people. They say it leads to illogical sentences (Cynthia's fine being an example) and overcrowding of prisons. Should we ignore their input?>The container, according to you and the officer, was found in the BACK PASSENGER floorboard. This is definitely NOT within arms reach.I have long arms and can reach practically anywhere in the back seat of my car or truck _while_ driving. Discovered this talent while gathering up Meili's bottles (milk) when she'd drop them while on a long trip. So would you as Judge find Bob not guilty but me guilty, just be/c I have long arms? That means your law is adjudicated differently for different people, which violates "equal protection."And I still am a bit in shock over the recycling question--we don't yet have curbside. Shoot, we don't yet have curbs. Do you really, really think my wife should be found guilty of violating the Open Container law for having the recycling bin on the front seat on her way to the recycling center?Who was it that said, if that's the law, then the law is an ass?Cheers, James, I got no attitude, just a friendly discussion.
*James,Let's talk about arrogance. There have been written laws for centuries. There are courses in law schools about drafting laws. Legal drafting is a speciality area: there are people who do nothing but draft laws.Lawyers and courts spend a good chunk of their careers looking at, interpreting and prediciting how the laws will affect their clients and parties to legal actions.Countless books and treatises and law review articles and court decisions have been written about legal drafting.And then a few people with none of that experience (and with no indication that they are even aware of the depth of experience, practice, research and practical testing which has gone into the legal drafting process over the centuries) say, based on who knows what: "It should be simpler. This open container law is too complicated."It appears that most, if not all of those complaining about the complexity of the bill hadn't even read it when they first offered their opinions.And you want to talk about arrogance?
*Cloud,I DO think a judge should have discretionary powers. Texas law gives these powers to a judge. I am ALL for it.I thought you were against discretionary powers as some here seem to be. My apologies for not reading clearly.As for your extra long arms, no, you would not get convicted. That is where a judge comes in to determine what is a reasonable situation, and what is not. Simply by being in the backseat floorboard, the open container would be out of reach for a NORMAL person, in a NORMAL situation. THIS is where the judge and his discretionary powers comes in. If you got a citation for this particular situation to start with, the cop had a problem. It is now up to the judge to correct the situation.No cop in his right mind would give a ticket for a recycling container full of cans. If he did, the judge would throw it out. I love discussions where people can actually discuss ideas and thoughts without getting angry and abusive. When the abuse and anger takes over, it is no longer a discussion - it becomes an argument. Thank you for your courtesy and politeness. It is appreciated. It is exactly this conduct that keeps things flowing as a discussion.Bob just wants to argue.Merry Christmas to you and your family!James DuHamel
*Bob,WOW! I'll try to keep it short, but no promises.First, you aren't practicing law in Texas, so who knows what about Texas laws, and where the information is found should not be of a concern for you. Anyone outside of Texas law practice and experience will have the same problem of finding the information. Those who practice law in Texas, and those who specialize in misdemeanor offenses (including judges) DO know the laws, and where to find the references when they need them. In most cases, they know almost all of it by heart. They should, they have dealt with it enough. Here, if you live in a city, a city judge handles all the midemeanor cases. This includes traffic tickets, and all other misdemeanor offenses. Non moving traffic fines do not threaten your driver's license. Enough of them will warrant jail time though. In the country, a Justice of the Peace, or a County Judge handles these cases. And no, breaking and entering a vacant building is not a class c misdemenaor, it is a class A misdemeanor (nephew just went through this one). Still heard by the Justice of the Peace. He got unajudicated probation (6 months). He was also ordered to pay $200 restitution for the damage to the door frame when he kicked it in. So far, he hasn't paid a dime, and says he isn't going to. No one has mentioned non payment (he has to make monthly payments to the court) so far (4 months behind), and I doubt they will. I see a lot of this. As for the two types of killing, one is accidental, and one is intentional. BIG difference, and a difference in the laws. But then again, we weren't refering to felonies, complicated cases, or killings. We were talking about a simple law, specifically the Open Container law. I made a LOT of references to more complex situations needing more complex laws. I also never said that the law was too COMPLICATED. I said it SEEMED to be too COMPLEX. In my opinion, these two are different words, with different meanings. I also said that you may just open my eyes a bit about the reasons, because I was indeed far from being any kind of expert, just concerned that things seemed to be getting out of control. You actually did open my eyes a bit.I also never said YOU were arrogant. I said your statement was arrogant, and I still think it was. I determine if peoploe are arrogant by the number of times that they keep making arrogant remarks. So far, I have only seen that one statement. Therefore, I think the statement was arrogant, but I do not think you are arrogant. I also made the statement about you not participating because I honestly felt that you wouldn't take the challenge. After I wrote it out, I figured you'd think it was silly, and a waste of time. You didn't take the challenge, but I must assume it was because I answered for you. When it comes to Home Inspector licensing, why has it taken 3 years to come up with a bill? It took Texas legislators about 2 months. Signed, sealed, and delivered. And yes, I did read the law, and understood it BEFORE I discussed it. I still think they could have made it LESS complex, and still got the message across, and the intent clear. My opinion. Just because it differs from yours does not make me an idiot. You keep trying to prove to me that my opinion is wrong. It's an opinion. Opinions are neither right, nor wrong. Your (and SHG's) explanation have helped me see things a little differently, but so far, only a little. Maybe I'll get there in time. If Texas decided to withdraw their claim to shoulders of highways (as per your example), then they would add an AMENDMENT to the laws. The judges would learn this amendment. If they didn't, a good lawyer would find it, and appeal the decision of the ignorant judge. THAT'S what people pay defense lawyers for - finding the information needed to make sure that their client is given a fair trial, and not unfairly convicted. Texas law is extensive. We have a Constitution that would curl your toes as far as length goes. We are a Republic (says so on the Capitol building, and in our Constitution). If you want to practice law in Texas, or be a judge, you best get used to the fact that you are gonna be spending an awful lot of time reading law books, and deciphering wording of laws. There is way too much cross referencing already. They have to make sure that current written law does not contradict, or interfere with new laws (which include punishemnt, and lots of descriptions). Maybe all this is necessary. Maybe it ain't. I'll never know for sure becasue it all deals with a system that is already so cluttered and complex that there is no way that it can all be undone and rewritten. Your challenge was to delete specific lines in the existing law. No way you can. I personally would not have written it that way in the first place, so for me to delete portions of a law that I do not think was written correctly to start with is of no use. No matter what I delete, the rest is still unacceptable to me (my opinion). I wrote it the way I THOUGHT it could be used effectively. Of course, in reality, I would not be writing the law myself. There would be a LARGE group participating. THIS is where I stated time and again that a large problem lies. Getting large groups of people together to agree on anything is a vast undertaking, and sometimes downright impossible. Lots of the stuff you said made sense, and enlightened me. I am understanding better why you believe like you do. I still believe that change can occur if enough people stand up and say enough is enough. Tax laws are one area that needs attention. There are many examples to go along with that one. More is not always better. Writing laws ain't no fun. I don't want the job. Just an opinion...James DuHamel
*et al,
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*well, that would work too, joe...Merry Christmas....
*>I realized today would be better spent making cheese cakes and strufoli for Christmas Eve's diner tonight.Or homemade angel hair and spaghetti sauce in my case. Not near as tough on me as my daughter's Godmother, who's doing the traditional Italian seven fishes for 16 tonight. Tired just thinking of it.
*Caesar Salad, Potato Encrusted Seabass, Duck and an assortment of my wife's pies and cookies. Wonderful dinner, shame I have to share it with my in-laws. But, therein lies the irony of life.Happy holidays. I even prefer to argue with you guys than to engage in pleasantries with the in-laws. SHG
*To all and The "Honorary Judge Joe Fusco" merry Christmas and a Happy New Year.
*Have to work from 10 PM to 6 AM this Christmas Eve, come home take a quick nap and then start cooking Christmas dinner. I invited friends over for dinner before I knew I had to work. Hope I don't fall asleep with my face in the mashed potatoes! Hope you all have a blessed Christmas.
*I've finally reached the end of this discussion after three days. I understand the motive behind making drunk driving illegal but, so far, nobody has asked this fundamental question: "What difference does it make if the passenger is drinking?" As long as the driver isn't drinking and he is sober, there should be no problem. -Peter
*Writing laws, it seems to me, is a little like writing computer programs. Back in my assembly language days, I certainly found out time and again that what I wrote didn't mean to the machine what I thought it meant. Brevity and simplicity were highly prized in programming back then, and they should be in legislation now and always. But it's more important that the law or the program actually does what it's supposed to do. Perhaps it would be a good idea to start not by trying to write a law, but rather by writing a specification for the law. First figure out what you want it to do, then design it to do that. This reminds me of a quote from Einstein: "All things should be made as simple as possible, but no simpler."-- J.S.
*
A discussion has taken on a life of its own in the "Thanks to the following ...." thread regarding whether laws can be made more simple.
The argument has been advanced that if just regular folks wrote our laws instead of politicians and lawyers, everthing could be made plain and simple.
An example was offered: the recent law passed in Texas outlawing open alcoholic beverage bottles in vehicles. It was argued that House Bill 5 of the Texas Legislature is much too complex and if regular folks wrote it it could have been made a lot shorter and simpler.
For James et al who take that position: Take a look at the bill which passed and tell us (with specific line numbers) what you would eliminate.
Make it nice and simple, please:
The bill is at:
http://tlo2.tlc.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=77&SESS=R&CHAMBER=H&BILLTYPE=B&BILLSUFFIX=00005&VERSION=5&TYPE=B