I don’t know if it’s illegal or not, but I guess the police figured he had a good reason to run. This time they were right.
While I can understand and appreciate that such jumps could eventually be made in the law, the situation is qualitatively different. As long as I’m at home getting drunk or smoking methamphetamine or shooting up heroin, I don’t run the risk of causing a vehicular accident or running over a pedestrian with my house. Now the minute I drink my last drop, smoke my last quarter gram or have my last fix, and I decide I have to get behind the wheel of my vehicle to get more of whatever my favorite drug is, others are now at risk on the road as well.
There is bound to be someone out there saying that loved ones at home are at risk if I’m sitting there getting blotto, and that person is right. But that is for another thread.
- Driving as a privilege: Driving is a legal privilege because it is not a right. If it were a “right,” you would be able to force the government to allow you to do it, absent some showing by the govenment of circumstances sufficient to restrict your doing it. An example is voting. As long as you are 18 years of age, and a citizen of the United States, you get to vote for federal office holders. The government can’t stop you unless you have done something sufficiently obnoxious that the government is allowed to restrict you from it (e.g., be a former felon).
By comparison, driving is something you have to get the permission of the government to do. You can’t just get behind the wheel at 16 and start driving; you have to get educated, take a test, pay a fee, etc. Thus, it is a privilege. And a privilege is much easier to take away than a right.
- Constitutionality of roadblocks: Roadblocks under certain circumstances were ruled constitutionally valid siezures back in 1976, when the issue of checkpoints inside the border to ferret out illegal aliens was addressed. The analysis is simple: stopping a car for a short question and answer session is a minimal intrusion on one’s life, and as long as there is a sufficiently important purpose and evidence that the purpose is effected to some degree by the roadblocks, they are constitutionally valid. See United States v Martinez-Fuerte, 428 U.S. 543 (1976). Roadblocks to find drunken drivers were upheld by application of the same review (Michgan Dept. of State Police v Sitz, 496 U.S. 444 (1990)). Note that the Court in Sitz accepted that finding as few as 1% of those drivers stopped were in violation of the DUI laws was sufficient effectiveness, since a much smaller rate of succes was sufficient in Martinez-Fuerte.
There are a number of suspicionless siezures or searches that are allowed by the Court as being “reasonable.” Thus, it isn’t sufficient to say that a seizure is unreasonable absent reasonable suspcion of commision of a crime.
- California’s Red Light Cameras: What apparently happened is simple. California law requires advance notice of 30 days before installing and using an automated traffic control device monitoring compliance by drivers with a stop signal (Vehicle Code §21455.5). Most cities had interpreted this provision to require advance notice only before installation of the first such light in a jurisdiction. A Superior Court judge in Orange County ruled that the warning was required for each and every new installation of such a device. An appeal from this ruling was made directly to the California Supreme Court, which apparently declined to accept review. The actual extent of the procedings is difficult to ascertain, since the primary providers of content are the organizations devoted to eliminating such cameras. Please note that this does not result in a determination that red light cameras in California are, per se, illegal.
A little Straight Dope.
try living out in the country where things are really far away, and there is no afforable public transpo. saying it is not a right is akin to saying walking around wihtout a medicine ball on your foot is a privilage not a right.
It is illegal to search a person’s car without a warrant or probable cause at a traffic stop, thats why cops need to ask you permission to look in your trunk if they stop you ans you are perfectly within your rights to say no. (Preston v. United States) It is legal to search cars if the person is arrested for a crime and the search of a car is material to the case (probable cause). The Supreme Court ruled recently that a person’s car was an extension of their living space and as such had the same status as a house under the 4th amendment. This is why is said it’s not a slippery slope to go from stopping a car to give a breathalyzer test to going into people’s home for drug tests under the same rationale of “compelling state interest”.
Also, in Indianapolis v. Edmond the Supreme Court ruled that random stops for searching cars for drugs was unconstitutional. However, this will not hold up for sobriety checkpoints since the issue is that DRIVING while intoxicated is the crime while being drunk at home is not.
For those people whose argument is: it is only a minute and if it gets drunk drivers of the road . . . , would you be so willing to give up your rights if the police came to your neighborhood and searched every house (including yours) looking for guns, drugs, bomb-making equiptment, etc.? This is even more convienent since it won’t waste even a minute of your time (they’ll do it while you’re at work) and it would certainly save lives.
Do you encounter many random DUI stops on the highway? I’m actually curious, since lots of people–mostly teenagers–I know like to go out of town (to cabins and acreages) when they have their wildest parties.
You seem to be arguing two things in this post. Do you see it as a slippery slope or not? The first part says “no,” while the second says “yes.”
Your argument is flawed in the second part, anyway. The situations would only be similar if the police warned people ahead of time and gave citizens the right to refuse the search, perhaps by putting up a sign on their door. People can take alternate routes around DUI checkpoints, so you’d need the same sort of “out.” Furthermore, your idea of “convenient” is rather limited. Having my house disordered (as it would have to be if they were searching that many houses) would ultimately take up far more of my time than breathing into a tube.
Hey, you don’t have to live out in the country, you know. What do you think happens to people who get their licenses yanked over repeated DUIs? The courts don’t say “oh, but he lives in the country, let’s let him keep driving.” (Yes, I know that some DUI offenders get waivers for work-related driving only, but IIRC even that can be removed eventually.)
Get a horse.
In what case?
My point with the second example (purposely made ridiculously extreme) was to respond to the people who seemed willing to put up with the sobriety checkpoint because of the same reason the Supreme Court declared them legal, namely
A) it doesn’t inconvience them too badly (subjective I know)
b) it serve a valuable public service (taking drunk drivers off the road)
The question is: is this criteria enough to give up Fourth Amendment rights? From your reply, you also need to have access to a way to avoid the search. Now the question is, if at the checkpoint the police want to search for anything other than alcohol in my lungs, I can refuse by saying no. Why don’t I have this right covering the air in my lungs?
Perhaps for the same reason you don’t own your garbage once it’s mixed with “common” garbage? As long as you can keep your lung air separate from the “common” air, it’s yours.
Note I have no idea if this rationale has any basis in case law; just one possible answer to the question.
Now, what was that case you mentioned in which SCOTUS declared the car to be an extension of the home?
Thanks for the correction, because my memory was different. But if they stop someone, what “probable cause” do they need to do someting beyond asking you for your license and insurance? Can you say “no” if they want you to do a “sobriety test”? I imagine that if you did, they’d just say that that was “probable cause,” and they’d do a search of your vehicle anyway, too. If you resisted, they’d just bust you even more.
So it’s a moot point, or rather, a catch-22. They can always find “probable cause,” when they want to. Maybe in theory they’re wrong, but who can stop them in practice?
And what about those things that can detect the vapors in a car at a distance? Didn’t they rule them legal? That’s what I recall. In effect, they’re examing the interior of your car, and they can do that to anyone they want. Probably there will be other, more advanced, detection systems, that can find whatever they’re looking for. I don’t advocate possession of such things, I’m just pointing out that they can’t do such inspections of homes without a warrent, AFAIK. Is it an inconsistency or not?
I don’t know the year of Preston vs. U.S., but it could be that the SCOTUS has changed since then.
Anyway, at a traffic stop, how much constitutes “probable cause”? Can they force anyone to search and sobriety test regardless of how they drive? Or do they have to have some visible sign? Is this a subjective estimate on the part of the officers, or are there some objective signals they have to go by? Can a driver just say, “Hello, here’s my license, here’s my insurance, now let me go,” (refusing a test)? Can they do the same thing to people walking on the sidewalk? Is there a difference?
I know this is pretty much theory vs. practice. In practice, it seems that they can do just about whatever they want.
No offense, but where I live there is a sizeable population of people who live quite far out in the country, and refuse, that’s right, refuse to drive automobiles. They don’t seem to find it a problem. 
Before you pretend to discuss US constitutional law, I recommend you learn it, first. At the very least, do some quick research to confirm or deny your contentions.
As for the statements by SaintCad, the fallacy in your argument is that you do not “give up” your Fourth Amendment rights. Rather, you never HAD a right to deny the temporary seizure discussed in *Sitz * and in Martinez-Fuerte. Not all warrantless seizures are unreasonable; indeed, English law never held so, nor has American law at any point in our history.
Exactly. This is one of my personal problems with the situation, as it stands now. The legal claim is apparently that nobody is “forced” to submit to the checkpoint; therefore, anyone who passes through and is found to be operating under the influence has simply incriminated themself.
However, in my state, at least, the checkpoints work like this: there will be a sign set up on the side of the road saying something like “Sobriety Checkpoint Ahead”. A police cruiser will be stationed near the sign. Based on the claim of the state/law-enforcement agencies, nobody is forced to pass through the checkpoint; however, around here, if a car turns around and “opts out” of the checkpoint, the cruiser will give chase and immediately pull them over. Based on what I’ve heard of other states (I live in Connecticut), the situation is similar – anyone who is clearly avoiding the checkpoint is presumed to be violating the law, and is thus given extra scrutiny.
Moving to GD for further discussion.
-xash
General Questions Moderator
Ah, but you can’t just go down to any old polling place on election day and start voting, either. You have to register in advance (in most places), go to the correct polling place, sign your name, etc. Those are comparable to the steps you must follow to get a driver’s license.
And the government can’t stop you from driving unless you’ve done something sufficiently obnoxious that they’re allowed to restrict you from it (e.g. demonstrate that you’re unable to drive safely). You can’t have your license revoked just because some judge or police officer feels like it; they have to have a legal justification.
Either voting and driving are both rights, or they’re both privileges… or there’s another difference between them that no one has mentioned yet.
Seems to me that the sobriety checkpoints aren’t searches of a car or person but rather a qualification check. The law requires those who operate a motor vehicle on the public highways and byways to be qualified, to include not being under the influence of alcohol or drugs, to be operating them.
Is that the line that the government’s taken in operating these checkpoints?
BTW, someone menetioned above that these checkpoints aren’t legal in Texas. I read the Austin American-Statesman online quite often. That paper lists traffic enforcement locations for the week (requires registration). From that page:
Mr2001: Upon reaching voting age, I’m eligible to vote in my jurisdiction. Upon reaching driver licensing age, I must pass a test regarding my knowledge of traffic rules and also a driving skills test prior to the jurisdiction licensing me.
Is that enough difference?
I’ve never lived in a state that practiced DUI checkpoints, so how does this advance notice work? Where can one go to see the schedule?