RS?
I’m opposed to all DUI checkpoints but they seem to be the accepted exception to the 4th amendment. That’s unfortunate.
I assume Reasonable Suspicion
I thought maybe that, or Reasonable Search.
Apparently they were off-duty FW police officers which for me raises two questions.
Police do unofficial & off-duty work in uniform and using police equipment like when escorting funeral processions. What is the police department’s liability in those cases?
In California, what they did could be considered kidnapping (forcing someone to move to a different place). In a case like this, since the police are off-duty do they still have the power of an LEO* to move people into a holding area like this or are they a private citizen and therefore potentially committing a crime.
*I believe many jurisdictions allow LEOs to use their police powers when off-duty when a crime is in process. In this case, no crime was being committed.
the way I read the article (skimmed,that is) - it looks like this was done under the guise of testing new equipment/ideas and was not specifically looking for drunk drivers - the question remains if someone could be convicted here based on the information gathered (IOW - outside of this new test/voluntary thing, the Police had no RS to suspect the driver was impaired).
Did this exercise result in anyone being detained/fined/arrested?
This is a brief summary of “off duty/color of law” cases.
There was an article in ALR (American Law Reports), similar in nature to the American Jurisprudence Volumes, Liabilty of off duty officers acting as a security guard and if they were under color of law. I can’t off hand remember the volume, but it is by Elaine …
Here, although they were off duty, they were still as agents of the feds who set it up, so they were no doubt acting under color of law.
The claim is I suppose, is that they offered them money for samples, so no coercion can be imputed to that?
Detained, yes, the lady in the article says she was asked to pull over after encountering the block. Is that a legal deatinment? This is the Q.
These can’t be that new though. I have an uncle that helps run security when he’s off duty (as a cop) at a HUGE festival and he mentioned something like this to be at least 5 years ago. His main duty, at the time, was dealing with underage drinkers and that’s what he used it for. So, going up to some kids to ask them if they’d ‘been doing some drinking tonight’ and waiting to see if that thing made a noise was part of his arsenal of tools. Of course, at a festival where the smell of beer sort of wafts through the air, I’m not sure how much help it is.
OTOH, it is possible he was just telling me about it as a something on the horizon and not something that he was going to be using that year or had been using in the past. It was a while ago. Also, it’s a very different situation then ‘detaining drivers’.
Hey, I keyed in Elaine + key words, and this case cites it. I’m not as dumb as I look, ha!
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/7th/942425.html
But that is very different than being in a police uniform, blocking his way, implying he had to go to a certain tent and testing him there and then claiming it was voluntary. The sad part is that we ridicule Sovereign Citizen for feeling that there are “magic words” that work in the legal system that only they know but you know something, they may be on to something. After Salinas you now have to say, “I am remaining silent.” for your 5th Amendment protection. In a case like this, the magic words when they want you to pull over are either, “Am I being detained?” or “Am I free to go?”. I really wish that if you ask that, then law enforcement are required to answer directly yes or no. I’m also wondering if your way is blocked like the lady claimed so you can’ leave even if you are free to go if it is detainment.
Lastly, I believe that the methods they used were illegal. With human subjects, they cannot feel obligated to participate and there must be informed consent. Without that, the testers are violating Federal law.
[QUOTE=45 CFR 46.103]
(a) Each institution engaged in research which is covered by this policy and which is conducted or supported by a federal department or agency shall provide written assurance satisfactory to the department or agency head that it will comply with the requirements set forth in this policy. In lieu of requiring submission of an assurance, individual department or agency heads shall accept the existence of a current assurance, appropriate for the research in question, on file with the Office for Human Research Protections, HHS, or any successor office, and approved for federalwide use by that office. When the existence of an HHS-approved assurance is accepted in lieu of requiring submission of an assurance, reports (except certification) required by this policy to be made to department and agency heads shall also be made to the Office for Human Research Protections, HHS, or any successor office.
[/QUOTE]
[QUOTE=45 CFR 46.116]
Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject’s legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject’s legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in paragraph (c) or (d) of this section, in seeking informed consent the following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject’s participation, a description of the procedures to be followed, and identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts to the subject;
(3) A description of any benefits to the subject or to others which may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent questions about the research and research subjects’ rights, and whom to contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one or more of the following elements of information shall also be provided to each subject:
(1) A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject’s participation may be terminated by the investigator without regard to the subject’s consent;
(3) Any additional costs to the subject that may result from participation in the research;
(4) The consequences of a subject’s decision to withdraw from the research and procedures for orderly termination of participation by the subject;
(5) A statement that significant new findings developed during the course of the research which may relate to the subject’s willingness to continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth above, or waive the requirement to obtain informed consent provided the IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or subject to the approval of state or local government officials and is designed to study, evaluate, or otherwise examine: (i) public benefit or service programs; (ii) procedures for obtaining benefits or services under those programs; (iii) possible changes in or alternatives to those programs or procedures; or (iv) possible changes in methods or levels of payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the waiver or alteration.
(d) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth in this section, or waive the requirements to obtain informed consent provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights and welfare of the subjects;
(3) The research could not practicably be carried out without the waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.
(e) The informed consent requirements in this policy are not intended to preempt any applicable federal, state, or local laws which require additional information to be disclosed in order for informed consent to be legally effective.
(f) Nothing in this policy is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable federal, state, or local law.
[/QUOTE]
Looking over this, there does not seem to be any exemption to 45 CFR 46 apply.