In my state they have “no refusal” checkpoints where refusals are met with an onsite magistrate who will sign a search warrant for your blood and a nurse who will take it.
Long time since I applied for a Florida DL, but, IIRC, you can’t get one without signing a statement where you give standing consent to a DUI breathalyzer test.
And mine does say at the bottom, “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”
Don’t know whether or how that applies to out-of-state drivers.
Except that’s how it works the other 364.9 days of the year when there isn’t a checkpoint running in a given area.
Also, it’s not really such a hypothetical, even if you treat the jurisdictions with checkpoints as always having them (rather than how it really works in some places, which is that maybe every couple of years there’s a checkpoint for a couple of hours in the evening on one road). There are several states that ban checkpoints. Is the carnage in those states really much worse?
Here’s the relevant Florida law:
(my bold)
Same as CA in this regard - chemical and physical tests cant be compelled unless arrested. This is as it should be. Otherwise police could force any driver to undergo a blood test for less reason than probable cause. That’s bad.
From CVC 23612:
(my bold)
Preliminary tests are voluntary. These include PAS (breathalyzers in the field) and physical Field Sobriety Tests (FSTs) like walking in a line and touching your nose, etc.
Yes - you must stop. What the “inspection” portion of that section entails is not defined. But we know that it’s not a chemical test since those are only required after arrest. We also know based on the above that FSTs are voluntary and not required. We also know that you are not compelled to speak in any way to an officer at any time. You are compelled to provide your drivers license and proof of insurance, which can be done without speaking.
Totally - and if only we could arrest people for pre-crime the carnage in our streets would be totally reduced! Just institute mandatory screening and thought compliance, no need to mess with this whole pesky evidence bullshit. Amiright?
It is incorrect in the* opinion* of the Supreme Court justices who ruled in that case.
The fact is that it remains upheld law; Constitutionality can certainly change in time.
From the Sitz opinion:
Where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant [p450] or some level of individualized suspicion in the particular context.
I don’t foresee drunk driving as a “special governmental need,” any more than carrying a backpack as a potential bomber, or smoking a cigarette as a pregnant mother.
They admit it is an intrusion, but allow it on the basis the ends justify the means. I disagree.
Stand your round.
OK, that made me laugh!
Okay, you disagree. I happen to think the Sitz decision was wrongly decided myself, but I don’t wear a black robe when I go to work. In any case, are you conceding that your earlier statement was wrong? You said:
I’m not sure if you are actually conceding that your statement was false. Are you?
You’re thinking of R. v. Hufsky, [1988] 1 S.C.R 621.
I’m reminded of the case of Dustin Byfuglien, an NHL hockey player, charged for refusing a blood test by a park ranger(?) in Minnesota while boating. From what I recall of the case, they stopped the boat on suspicion of drunk boating - an obvious case of DWB. In the course of asking questions, they asked if they were taking drugs, and the conversation was something like “only doctor prescribed medication”. (painkiller for sports injury?). At that point, the officer demanded a blood test. (This is, after all, the land of the free). Initially he refused, then later on advice of a lawyer agreed; but the authorities said “nope, too late, you already refused”.
This is the dilemma that the Florida lawyer poses. How do you politely refuse to answer questions, not lie to the police, and not refuse a test if legally mandated to take it? You don’t want to provoke the police, but you don’t want to give them an opening by telling them things they don’t need to know. “You HAVE been drinking?” or “So what medications are you on?”
I do find it interesting that such checkpoints are normal in a country with a constitutional right regarding search and seizure which at least seems to invalidate the concept, yet in a country with no definite constitutional right to do so, the police are inhibited by their requirement to police by consent.
Thank you for that. I quoted part of the decision below.
If what you’re saying is that checkpoints are not effective if they are very rare, I agree. They have to be random, unpredictable, and frequent enough with severe enough penalties that they constitute a real deterrent, causing drunks to have second thoughts about drinking and driving. Checkpoints are part of the gradual reform of DUI enforcement that has shifted the social view of drunk driving as something that was tacitly accepted with a nod a wink to the current view, at least in my experience, that it’s regarded both as a crime and as recklessly irresponsible.
This thread was asking opinions on the Florida lawyer’s statement, and I gave mine. I don’t know that I want to get into a full-on argument about the whole DUI thing, but to respond to your comment, all I can say is that I’ve never found outrageous hyperbole to be a particular persuasive debating tactic. Here is a quote from the Supreme Court decision linked above, with a couple of sentences emphasized by me:
The key concept here is balance. I find myself arguing about the basic concept of balance in jurisprudence across a number of different subject areas, including free speech, gun control, abortion, euthanasia, and now the business of probable cause. I realize there are many adherents of constitutional absolutism but it seems to me that it has rarely if ever served the public interest. Balance is a hard thing to achieve and it requires a basic level of trust in government and in the wisdom of judicial institutions, but in the long run it seems to me that it engenders a much healthier society than one based on libertarian absolutes.
Note that in the above case, a drunk driver appealed the case all the way to the Supreme Court hoping to get a legitimate drunk driving charge dismissed by arguing that he should have exactly the same rights while driving a car as he would have in his own home. No, he should not. Driving a car on public roads is a privilege granted by license and subject to a burden of responsibility in the interest of public safety. The court made the right call, and the drunk was convicted, as he should have been. I hope the drunk got his license suspended, had to get an ignition interlock breathalyzer installed, and that his insurance went through the roof.
This is an example of the root cause of the problem – police behavior that erodes public trust. If we hadn’t be inundated with example after example of abuse of power, people would give them a bit of slack to wield it. As it is, we have to keep them on as short a leash as possible, and maybe add a few choke collars with pointy bits and electrodes on the inner lining.
If we adopt this method of speaking about whether something is Constitutional, the answer becomes trivial, since no matter what we’re discussing, it’s subject to change by some future court ruling.
We have a constitutional right to freedom from unreasonable searches and seizures. It’s important to bear in mind that DUI checkpoint locations must be published ahead of time (though this does not seem to be strictly required by Sitz.) In other words, you never have to see one unless you want to. In that respect, it’s much easier to avoid a DUI checkpoint than the far more intrusive searches at airports and such.
I think there is a link right in this thread to a newspaper article that gives the date and time of a planned DUI checkpoint. I must say I found that absolutely astonishing. It defeats the whole purpose of spot checks, and turns the whole program into a joke that wastes time and money.
On the subject of intrusiveness, the suggestion by the Florida lawyer that you just put your documents up against the rolled-up window reminds me that where I live, no one ever asks for documentation at a DUI checkpoint. That’s routine in a traffic stop, but these are not treated as traffic stops and that’s not what they’re for. What happens is that an officer comes over and asks if you’ve had anything to drink today/tonight. If you say you have not, and you don’t sound impaired and there is no smell of alcohol, you’re on your way. Total duration of the stop: literally a few seconds.
But if you have been drinking it could change your life. That’s why it’s a deterrent that works. And, not to moralize excessively, but if someone else has been drinking and driving and is on the same road as you it could end your life, or change it in a very bad way. To anyone who considers that, on balance, those few seconds spent at a random DUI checkpoint constitutes “unreasonable detention”, I say cry me a river. I have little patience for libertarian absolutes and their practitioners.
Well, it would defeat the purpose of spot checks if people actually looked up where checkpoints are. But they don’t.
I don’t have a problem with DUI checkpoints as a matter of principle. I do think that SCOTUS departed from its prior holdings and their underpinnings (without adequate explanation, as the majority opinion is short and poorly written) when it allowed them, though.
I think such DUI stops are ok because they are not targeting anyone specifically but an action. I don’t think its a violation of rights if, given a reasonable expectation of an illegal action, cops canvass an area for such a behavior.
Okay, I’ve been thinking about this a bit, and if we take the SCOTUS decision in Sitz and apply it to this situation, would the decision mean that since driving is a privilege and not a right, and since there is great public interest in safe roadways, drivers MUST speak to the police?
No. Well, probably not. The Fifth Amendment (rather than the Fourth) provides the right to remain silent. SCOTUS has previously ruled that notwithstanding the 5th Amendment you must disclose your name to the police if detained, but those detentions require reasonable suspicion. DUI stops do not require reasonable suspicion, so they are dissimilar from the Terry (and Hiibel) type.