WOW...."Organic law" huh? And no need to show that the "lawful order" was based on....ummmmm...department legal decision rather than any LAW requiring the window to be rolled down.
The officers testified that your RIGHT to refuse FST's and RIGHT to refuse to answer questions was part of their reasoning that you were "obstructing". They also failed to identify ANY law which gave tehm lawful authority or issue a "lawful order" to roll your window down all the way. Their beliefs, their routine, what they desire, their departments "legal opinion" are not LAW. Without a law that specifically requires you to roll your window down all the way, there is not "lawful order" as there is not lawful authority. They have the authority to make you stop at their checkpoint (if it is done within the confines of the NRS for conducting such checkpoints). They have the authority to ASK any question they want and to REQUEST anything they want....however, the citizen has the RIGHT to refuse to comply with such questions or requests in a consensual stop AND the citizen has the right to withdraw consent at any time. Unless the officer has specific lawful authority to DEMAND compliance, which they do not in this case, then the citizen is within his or her rights to decide not to answer the questions or comply with the requests.
Since these checkpoints are conducted under "consensual" circumstances, consent can be withdrawn at any time. I would argue that it qas quite obvious that defendant's refusal to answer questions or to submit to FST's postively and actively shows his withdrawl of consent.
Case law on the topic:
“Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.” MIRANDA v ARIZONA 384 U.S. 436 (1966) In other words: The exercise of a RIGHT cannot be converted to a crime. The officers testifying that your exercise of your RIGHT to refuse FST's and to refuse to answer questions was part of the reason they cited you for obstruction FAILS the constitutionality test.
Your exercise of your lawful RIGHT to refuse FST's or answer questions cannot be converted into part of the officers "cause" or the states case, that you violated the obstruction statute.
“in determining whether the officer acted reasonably in such circumstances, due weight must be given,
not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U. S. 1 (1968) ID @ 27
The ONLY thing they had that was possibly legitimate was the bloodshot eyes for a DUI. However, their focus on the amount the window was rolled down was the ONLY thing that isn't specifically a RIGHT of the citizen and there is no statute requiring the window to be rolled all the way down, only their DESIRE and POLICY (neither of which is LAW) that the window be rolled down.
Even in closing arguments, the state argued that the failure to perform FST's and answer questions was part of the justification for the obstruction charge.
MIRANDA v ARIZONA 384 U.S. 436 (1966)
“Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.”
Brown v. Texas, 443 U.S. 47 (1979)
“When police officers, without arresting an individual, detain the individual for the purpose of requiring him to identify himself, they perform a seizure of his person subject to the requirements of the Fourth Amendment.” ID @ Headnote 3
Brown v. Texas, 443 U.S. 47 (1979)
“Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference.”
MIRANDA v ARIZONA 384 U.S. 436 (1966)
“Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure. Boyd v. United States, 116 U.S. 616, 635 (1886).”
Goes to the point that there was no legal authority or statute cited for the officers supposed "lawful order" to roll the window down all the way" as well as the officers and states insistence that refusal to submit to FST's or answer questions could be used as part of their justification for an obstruction charge.
United States v. Mendenhall, 446 U.S. 544, 551 (1980)
“We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
Goes to the state and courts position that defendant was not arrested and so the 5th amendment was not available (paraphrased from the video record of the court procedures)......i.e. they tried to make a point that you were not arrested. In terms of the fourth, it only requires that you are no longer free to leave (detention which they testified to). However, they cited no legaly allowable probable cause as the window (the window was their only allowable testified to justification) being rolled down was not shown to be ANY legal requirement.
Glad you whipped them in the end. "Organic" law.....give me a freakin break. I'm glad that judge got her "organic ass" handed to her by the appelate court.
