'The true Soldier fights not because he hates what is in front of him, but because He loves what is behind him.' -G. K. Chesterton

13 January 2011

The Bad Of Good Intentions

I appreciate all the comments and well wishes from all of you. My friends, each and every one of you. My Mother has been diagnosed with terminal lung cancer. We have an appointment with an Oncologist on February 7th in Las Vegas where she'll undergo further testing and treatment options will be discussed. She's already said she isn't going to be treated but I'm talking to her and trying to convince her to keep an open mind. We shall see.

We are hardly alone here and our story is no different than many of yours, it's just ours. So. Time for me to quit wallowing and worrying about the things I can have to effect on and talk about those where we might.

From Tampa Florida we have this story. No Refusal DUI checkpoints.

First, what is a DUI checkpoint? Simply put, A DUI checkpoint is essentially a roadblock set up to check the potential impairment of drivers going through the checkpoint. It's usually set up on a major thoroughfare, announced ahead of time (but that is not required in all states), and staffed by police officers or other police employees (detention staff, clerical staff and even police volunteers may be present). Not every car going through the checkpoint is normally stopped. The police with jurisdiction of the point will have a procedure set out dictating that every 5th car (or whatever they have set as the number) will be stopped and the driver scanned for signs of intoxication. That isn't a hard and fast rule though as I'll discuss later. This is normally done by the officer speaking with the driver and observing for signs of alcohol/drug intoxication. Other violations may be viewed as well and enforcement action taken for anything the officer sees in plain view. Normally 'other violations' make up the majority of the enforcement actions taken at any DUI Checkpoint.

The 'three minute rule' states that officers have three minutes to investigate the car in the checkpoint lane. If the detention exceeds three minutes either the car has to be pulled to the side, out of the lane, or following cars routed around the checkpoint until the three minute checks are re-established. That doesn't mean that every car can't be checked, just that drivers can't be detained for a inordinate amount of time. In some states the 'three minute rule' is longer, as much as five from what I can find.

Confused? It gets better.

The first DUI checkpoint was established by the Michigan State Police in 1986. It was challenged in court by a man named Rick Sitz. The Supreme Court ruled on the legality in 1990 in MICHIGAN DEPT. OF STATE POLICE v. SITZ, 496 U.S. 444 (1990).
In a 6-to-3 decision, the Court held that the roadblocks did not violate the Fourth Amendment. The Court noted that "no one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." The Court then found that "the weight bearing on the other scale--the measure of the intrusion on motorists stopped briefly at sobriety checkpoints--is slight." The Court also found that empirical evidence supported the effectiveness of the program.

Of note is that when the case was returned to the Michigan Supreme Court for further review they essentially ignored SCOTUS and struck down DUI Checkpoints within the state. Michigan remains one of 11 states where such roadblocks remain illegal. The various states Supreme Courts have taken up the issue and rendered a variety of verdicts, limitations and authority. including time limits and whether a car trying to avoid the checkpoint can be stopped (yes is the answer in most cases).

Written guide lines are generally required. They cannot be too vague and how cars will be singled out for checking must be included, whether it's every car, every 5th car, etc. Cases have been thrown out for improper written procedures or officers not following the guidelines. In some cases handheld Blood Alcohol Content (BAC) screeners, called Preliminary Alcohol Screener (PAS) are utilized and you may find yourself required to give a breath sample. I believe this is what is happening in the No Refusal law in Florida and they're using the state law that allows the courts to automatically suspend your license for refusing to take a blood alcohol test as the basis.

Mothers Against Drunk Driving, MADD, was established in 1980 (prior to the first DUI Checkpoint in Michigan). The founder, Candice Lightner, left the group in 1985 and later complained that they had become 'neo-prohibitionist' instead of strictly anti-DUI advocacy. Other groups followed; FADD, SADD, BADD and others. They are all fine organizations who espouse who are working to help eliminate driving while intoxicated. The problem with them is one of scope and the law of unintended consequences.

Groups like these start out narrowly focused but inevitably morph into something more. It's a lot like government. They start out with the best of intentions but the beast must be fed and they go well outside their initial charters. MADD has been instrumental in lowering the BAC presumption from .10 to .08 and raising the legal drinking age from 18 to 21. They've also been a driving force behind DUI checkpoints and now we're talking about interfering in Constitutional rights.

In California we have the Office of Traffic Safety. Take a look at their site and pay attention to almost the first words at the very top;
The California Office of Traffic Safety’s mission is to effectively and efficiently administer traffic safety grant funds to reduce traffic deaths, injuries, and economic losses. Think maybe MADD and the other organizations might have some influence with OTS? My agency didn't start doing checkpoints until OTS funded them. If they're so important why weren't the local jurisdictions finding the funding before then?

Take a look at that No Refusal link again and think about this. The on site judge can now order a forced blood draw if you refuse to participate when so ordered, regardless of whether reasonable suspicion exists for a test or probable cause exists for an arrest. If reasonable suspicion is there then yes, requiring a BAC sample is legal and ethical. If probable cause is present then an arrest should be made and, again, a BAC sample can be compelled. But this is a step further, giving authority for a blanket requirement to participate in the checkpoint regardless of whether the two standards of reasonable suspicion and/or probable cause exist and that's a clear 4th Amendment violation. I've been involved in forced blood draws. In California, at the time, we could compel a forced blood draw only in those cases where the driver was involved in an accident where someone else (besides the DUI driver) was injured and the driver refused to provide a BAC sample. Very few and very far between. Only a handful in my career. A forced blood draw is just that, forced. I've had cases where we literally had to sit on the guy to allow the blood tech to take the test. It's intrusive and can be damn ugly and hence should only be used in exigent cases. A routine forced blood draw should be shocking to the conscience of any court.

This is how a normal DUI case goes. I'll use myself as the officer in this example. I'm on my routine patrol. It's a Friday night and I know the drunk drivers are out there and I'm actively hunting for them. I'm driving and looking for signs. They can be obvious or subtle; swerving over the center line, stopping at green lights or failing to start when the signal turns green, speeding, driving well under the limit, stopping well before or well after the limit line at a stop sign, windows down on a very cold night, driving without headlights, signs of intoxication on a driver when that driver is visible, etc. Experience and training help immensely. Reasonable Suspicion. When I've spotted such a driver I'll follow and watch for more signs. If I see enough I'll make a traffic stop. The phrase here is "the totality of the circumstances". That is when there's enough erratic driving behavior to cause a reasonable officer to suspect the driver may be impaired and it's an important element in DUI cases. After the stop I'll approach the driver, have him roll down the window and we'll have a conversation. I will ask at some point if they've been drinking but it's not absolutely necessary and I usually only ask because the DA will later ream me if I didn't. I'm looking for the objective symptoms of alcohol or drug intoxication; eyes, breath, smell in the car, speech patterns, physical manipulation of wallet, drivers license and so on. If I'm not convinced he's been drinking I'll send him on his way with a thank you for his cooperation. If the symptoms are present I'll get him out of the car for roadside Field Sobriety Tests (FST's). Standard FST's differ from jurisdiction to jurisdiction but are essentially simple physical and cognitive tests. They usually consist of the following in some form; balance, divided attention, memory, Horizontal Gaze Nystagmus and more often these days a PAS. After the FST's are complete I'll make a decision, again based on the totality of the circumstances, on whether Probable Cause now exists for an arrest. After the arrest is made I'll give the driver three choices for a BAC test; blood, breath or urine. If he chooses a breath test I'll give him a Trombetta Advisement which states that I cannot preserve a sample of his breath and if he wants a sample for later testing he'll also have to provide a urine or blood sample as well. California is an Implied Consent state. essentially, to get a drivers license you agree before hand to provide a BAC sample on the lawful request of a police officer. A PAS is not a BAC test but the results may be entered into the court record and used against you. If you refuse to submit a sample your drivers license will be suspended for a set period and the refusal may be used against you in your court case. Now a bit of common sense is in order here. If you're good and you prepare your case carefully and properly a BAC sample isn't strictly necessary. My very first DUI arrest the driver refused FST's and BAC test. I was a raw rookie on FTO. When the case finally went to court he hired the best DUI lawyer in the county and presented in front of a jury. The topper was that my FTO has left the department and the DA failed to subpoena him. The case rested on my observations and testimony. The jury found him guilty so please don't tell me that a case is lost because BAC tests aren't done. If you're competent, honest and thorough that's all that is required.

In reading that above paragraph I hope you get a sense in how complex and involved such cases are. There's a very good reason for that. I'm depriving a person of their liberty and, if found guilty, their property in the form of fines, fees and penalties. It should be difficult and require care and a strict adherence to the Constitution and long established case law. What it cannot be is a fishing expedition. I never sat on a bar at closing time and in fact have made formal complaints to the CHP Watch Commander when I caught some of his people doing it in my beat. I went so far as to do a walk or drive through of bars at or near closing time to remind those who had imbibed that we were out there. I didn't participate in DUI Checkpoints because I find them distasteful and unnecessary. A good DUI enforcement program where the officers are trained and motivated to search out, find and arrest impaired drivers is very effective and all that is required. A good PR campaign, the Avoid the __ posters and commercials, are an effective way of announcing your intentions and providing motivation to potential violators that you mean business. DUI checkpoints are anathema to the American Way of law enforcement and lead to things like the No Refusal abomination.

Don't misunderstand me here. I'm death on DUI drivers. They cause billions in monetary damage and take thousands of lives. I've arrested hundreds in my career. Finding, prosecuting and punishing such drivers is and should be a priority in any law enforcement agency. I just don't think checkpoints are the proper, legal or ethical answer. It boils down to professionalism and competency versus taking the lazy approach. It's easy to set up and check each and every car that passes through. It's much harder to go and search out and find these drivers through proper police procedures and bring them to justice using Constitutional and ethical means. We get paid to do the hard things not to use shortcuts. The bad result of good intentions gone way too far.

If it was easy anyone could do it and that's a road we're already way too far down at this point.



Borepatch said...

Six, you said you'd listen to any advice I had about your mom.

This is all I can think of.

Six said...

That's beautiful my friend. Thank you. I promise I will try and remember.

instinct said...

Six, I am so sorry about your mom. I also want to say that you are spot on about DWI enforcement.

I was an MP and we dealt with plenty of drunks. Also, my brother is a Sgt. in the local department and has done years on the DWI team and checkpoints are more publicity stunt than actual law enforcement. It allows the departments and the politicians to say 'look, we are doing something' and to hell with your rights.

Any good officer can make a DWI case, it just requires work, and with dash cams now the norm, there is no reason that an FST can't stick it in the end.

Six said...

Thanks Instinct.
Good points all and especially about the dash cams. I totally forgot about them. There is just no reasonable justification for checkpoints that I can see. Good police work hasn't changed we just see less emphasis on the basics.

innominatus said...

Dunno about the other states, but here in Oregon the courts don't take DUI seriously enough. Lots of chronic DUI drivers out there because the penalties are so minor. If I were a police officer it would really p*ss me off that everybody I haul in for DUI will just get Diversion over and over again.

LauraB said...

I am terribly sorry to hear that news. I lost mom to bone cancer and it was a wretched thing. I understand her desire to face it down and live her life as she wishes as long as it lasts. I might do the same, given the same choice...

Meanwhile, Trooper is one of the very best at the FST - but it doesn't help to have a prosecutor that - er - supports the other team. Every little thing is scrutinized. And, as you know, TX has the blood draw...you did not mention the lawsuit against the breathalyzer (sp?) which states that the - what? - logarythms? - well, the math, at any rate, was squirrely.

This guy has decent posts on the topic. http://www.duiblog.com/

Take good care of yourself - you'll need all your energy for the days to come...

Six said...

You and Inno make great points Laura. An experienced and aggressive DA is very important in DUI cases. One of the problems is that prosecutor offices tend to push down these cases to the newest and/or least experienced assistants. If you get one like you mentioned Inno, who actively works against the system then it's a recipe for No Refusal Checkpoints. I'm going to have to research that case Laura because I can't recall it off the top of my head.

I'm sorry about your Mom Laura. I agree with you intellectually but my heart is fighting my head. I'm still in the denial phase, bordering on anger I think.