DUI roadblocks. How are they even legal, and do you support them?

[Hamlet]

Originally posted by Sua Sponte

Any increase in the power of the government to command us is a lessening of our freedom. And the rule, until Sitz, was that government could interfere with our freedom only when they had probable cause to think a crime had been committed or was about to be committed.

It may be a matter of semantics, but, although sobriety checkpoints are a lessening of our freedom in the broad sense of that term, they are not a UNCONSTITUTIONAL lessening of our freedom. We have the freedom, guaranteed under the 4th Amendment to be free from unreasonable searches and seizures. As I stated before, I and SCOTUS agree that sobriety checkpoints are not an unreasonable seizure under the Constitution. You can speak of free societies and the Founding Fathers all day, but the fact remains even the Founding Fathers put limits on citizen’s rights. Sobriety checkpoints are one example of a modern limitation.

Also, not to nitpick, but for awhile now, the government has had the right to interfere with your freedom without probable cause in what is called Terry stops, which others can read about here. From your argument above, I would assume you are also against Terry stops because they allow the curtailing of your freedoms without probable cause. And I, once again, agree with the SCOTUS that they are not violations of your Constitutional rights. More limits on your “freedom?” Maybe, but it is neither unconstitutional, nor is it a bad thing.

[Hamlet]

And I’ll say it twice! So there!

[SuaSponte]

Hamlet, actually, Terry stops are not are not seizures done without probable cause.

Here’s a nice summary of the Terry rule, taken from the syllabus of Minnesota v. Dickerson:

[QUOTE]
Terry permits a brief stop of a person whose suspicious conduct leads an officer to conclude, in light of his experience, that criminal activity may be afoot, and a patdown search of the person for weapons when the officer is justified in believing that the person may be armed and presently dangerous. This protective search - permitted without a warrant and on the basis of reasonable suspicion less than probable cause - is not meant to discover evidence of crime, but must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others. If the protective search goes beyond what is necessary to determine if the suspect is armed, it [508 U.S. 366, 367] is no longer valid under Terry, and its fruits will be suppressed.

[QUOTE]

The stop - that is, the seizure - must be done on the basis of probable cause. The subsequent search, only for weapons, may be done on the lower grounds of reasonable suspicion, and only to protect the officer. To me, the pat down doesn’t represent a lessening of freedom.

As for your other point, certainly DUI roadblocks are constitutional, because the Supremes said they are. IMO, the Supremes screwed the pooch - Sitz is incompatible with Indianopolis v. Edmond.
Edmond applies the traditional rule to roadblocks - no probable cause, no roadblock. Sitz says that this rule doesn’t apply to DUI roadblocks because they perform a predominately civil function - the removal of drunk drivers from the road. This distinction is absolute bullshit - show me one person caught for DUI who was only civilly sanctioned.

But, the Supremes say, that’s OK because while there are criminal penalties for DUI, there are also civil ones, most obviously license suspension or revocation. In Edmonds, which dealt with roadblocks to check for drugs, the sanctions were criminal, so the roadblocks were illegal. That distinction doesn’t exist.
If you are busted for drugs, you are subject to civil sanctions. The most obvious one is civil forfeiture - including of the very car you were stopped in. Other civil sanctions include denial of student loans, denial of employment in many government jobs, etc.

So, a roadblock to check for one type of activity, which can lead to both criminal and civil sanctions, is permissible, but a roadblock to check for another type of activity, also sanctionable both civilly and criminally, is impermissible. Does that make sense?

Sua

[John_Bredin]

“show me one person caught for DUI who was only civilly sanctioned.”

Umm, someone correct me if I’m wrong* but I thought that’s exactly what happens in most states if a cop demands you take a breathalizer or blood test under the implied consent law (a drivers license is consent to a breath or blood test) and you refuse: your license is suspended for a specified period (6 months in Illinois, IIRC, for example) but a criminal DUI charge cannot follow.
*Yes, I’m a lawyer, but I haven’t been in traffic or criminal court in years, and even back then not frequently.

[SuaSponte]

John, such a person hasn’t been busted for DUI. But, assuming I was overbroad, that doesn’t change the analogy. A person busted for drugs can still be civilly sanctioned with forfeiture even if they aren’t criminally convicted.

Sua

[John_Bredin]

“John, such a person hasn’t been busted for DUI. But, assuming I was overbroad, that doesn’t change the analogy. A person busted for drugs can still be civilly sanctioned with forfeiture even if they aren’t criminally convicted.”

But a person stopped as part of a roadblock hasn’t been busted for DUI either. The difference is that a person snagged by a DUI roadblock can suffer ONLY civil penalties if they refuse the alcohol test, but a person at a (hypothetical) drug roadblock can suffer CRIMINAL and civil penalties if drugs are found.

[Bryan_Ekers]

Unfortunately, the anti-roadblock arguments seem to consist only of fears (not entirely unjustified, I must admit) of a slippery slope that starts with a cop asking “having you been drinking tonight?” and ends with the abolition of private property. Being stopped at a roadbloack is obviously different from being disturbed at your own home, and being asked a few questions is obviously different away from having your vehicle or person searched for drugs or weapons.

The word “unreasonable” in 4th amendment has been subject to various definitions as well as outright abuse over the years, but to take “unreasonable” to mean “all” strikes me as an abdication of an individual’s obligations to society.

I find one of the better approaches to useful debate is to suggest a compromise you might make with your opponent’s position. If roadblocks are to be forbidden, what about mandatory valet service at bars known to have been a starting point for numerous past DWI offenders? You turn over your keys to a parking valet who has been trained to administer sobriety tests and will do so if he perceives your ability to operate a vehicle has been impaired. This way, only those who have probably been drinking are checked (as opposed to random citizens) and someone who is clearly out of it is prevented from getting behind the wheel.

If this still seems unreasonable, then suggest some way to improve the methods police can use to snare drunk drivers without resorting to roadblocks.

[SuaSponte]

*Originally posted by John Bredin *
**“John, such a person hasn’t been busted for DUI. But, assuming I was overbroad, that doesn’t change the analogy. A person busted for drugs can still be civilly sanctioned with forfeiture even if they aren’t criminally convicted.”

But a person stopped as part of a roadblock hasn’t been busted for DUI either. The difference is that a person snagged by a DUI roadblock can suffer ONLY civil penalties if they refuse the alcohol test, but a person at a (hypothetical) drug roadblock can suffer CRIMINAL and civil penalties if drugs are found. **

That’s actually not correct, John. A breathilyzer is damn good evidence of DUI, but it’s not the only evidence. A person who is stopped at a roadblock can be criminally charged if he/she fails a field sobriety test, if there is open alcohol in the car or the smell thereof, etc.

from Bryan Elkers
Unfortunately, the anti-roadblock arguments seem to consist only of fears (not entirely unjustified, I must admit) of a slippery slope that starts with a cop asking “having you been drinking tonight?” and ends with the abolition of private property.

I can’t speak for everyone making anti-roadblock arguments, but I haven’t made any “slippery-slope” arguments. There is no need.
'Course, if you want a slippery-slope, it’s not to abolition of private property, but to profiling stops.

Being stopped at a roadbloack is obviously different from being disturbed at your own home, and being asked a few questions is obviously different away from having your vehicle or person searched for drugs or weapons.

How so? Here is a description of the procedures at the Indianapolis drug roadblocks deemed unconstitution in Indianapolis v. Edmond:

At each checkpoint location, the police stop a predetermined number of vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for signs of impairment and conducts an open-view examination of the vehicle from the outside. A narcotics-detection dog walks around the outside of each stopped vehicle.
The directives instruct the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such a way as to ensure that the total duration of each stop, absent reasonable suspicion or probable cause, would be five minutes or less.
The affidavit of Indianapolis Police Sergeant Marshall DePew, although it is technically outside the parties’ stipulation, provides further insight concerning the operation of the checkpoints. According to Sergeant DePew, checkpoint locations are selected weeks in advance based on such considerations as area crime statistics and traffic flow. The checkpoints are generally operated during daylight hours and are identified with lighted signs reading, “NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.” App. to Pet. for Cert. 57a. Once a group of cars has been stopped, other traffic proceeds without interruption until all the stopped cars have been processed or diverted for further processing. Sergeant DePew also stated that the average stop for a vehicle not subject to further processing lasts two to three minutes or less.

Here’s the description of DUI roadblocks in Sitz:

Petitioners, the Michigan Department of State Police and its director, established a sobriety checkpoint pilot program in early 1986. The director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its charge, the advisory committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity.
Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist’s driver’s license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer’s observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately. [496 U.S. 444, 448]
The first - and to date the only - sobriety checkpoint operated under the program was conducted in Saginaw County with the assistance of the Saginaw County Sheriff’s Department. During the 75-minute duration of the checkpoint’s operation, 126 vehicles passed through the checkpoint. The average delay for each vehicle was approximately 25 seconds.

The only differences between the DUI roadblock and the drugs roadblock was that a dog circled the outside of the car at the roadblock, and that it took 2-3 minutes, as opposed to 25 seconds.*

The word “unreasonable” in 4th amendment has been subject to various definitions as well as outright abuse over the years, but to take “unreasonable” to mean “all” strikes me as an abdication of an individual’s obligations to society.

And who, exactly, said “all”? And when, exactly has the word “unreasonable” been subject to various definitions? In a very cursory search of Findlaw, I found a Supreme Court case from 1925 noting that the standard of whether a search was reasonable was “probable cause.” I am quite sure that considerably earlier cases have the same standard - indeed, IIRC, the concept of probable cause was inherited by the U.S. from pre-revolutionary English common law.

I find one of the better approaches to useful debate is to suggest a compromise you might make with your opponent’s position. If roadblocks are to be forbidden, what about mandatory valet service at bars known to have been a starting point for numerous past DWI offenders? You turn over your keys to a parking valet who has been trained to administer sobriety tests and will do so if he perceives your ability to operate a vehicle has been impaired. This way, only those who have probably been drinking are checked (as opposed to random citizens) and someone who is clearly out of it is prevented from getting behind the wheel.

Not a bad idea at all.

If this still seems unreasonable, then suggest some way to improve the methods police can use to snare drunk drivers without resorting to roadblocks.

Take the same 30 cops at a roadblock and put them all in cars at one point on the road. Have them scrutinize every car passing for any indication of erratic driving and/or for any traffic violation, from failure to indicate a lane change to broken tailight to speeding, and pull them over. After pulling them over, check them for signs of drinking.
I would be very surprised if this didn’t improve on the 1.5% success rate in Sitz.

Sua

*I question the “25 seconds” claim about the DUI roadblocks. It would probably take a car most of that time to come to a stop from 65 MPH. But that’s not particularly relevant

[Hamlet]

Sua, I don’t want to step on your toes, but I think you may be misinterpreting some law here.

When talking about the Terry case you state:

The stop - that is, the seizure - must be done on the basis of probable cause.

Not true. One of the main discussions in the Terry case dealt with the wide variety of police/citizen encounters and the different levels of Fourth Amendment protections that coincide with those encounters. In Terry, SCOTUS held that the police officer did NOT need probable cause for the stop, reasonable suspicion was enough. After Terry, police officers do not need probable cause to stop a citizen.

I also fear that you are oversimplifying the reasoning the Supreme Court used in Sitz. Sitz was not some kind of off-the-wall-ruling where SCOTUS just threw out the Constitution. It was based on quite a few rulings they had already made. In Delaware v. Prouse, the Supreme Court held random, suspicionless stops of vehicles by police to check for licensing and insurance was unconstitutional. However, they allowed that it may be permissible for states to “develop methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock type stops is one possible alternative.” In Camara v. Municiple Court, the Supremes allowed a suspicionless search for housing code violations. In United States v. Martinez-Fuerte, the Supreme Court found suspicionless searches at permanenet checkpoints (border stops) to be constitutional. These three, and other cases, were the legal background the Supreme Court relied upon in determining the legality of the sobriety roadblocks in Sitz. The Court found that the roadblocks were clearly suspicionless seizures, and went on to check the reasonableness of said seizure. They adopted a test from Martinez and looked to weigh “the public interest against the Fourth Amendment interest of the individual.” Given the compelling interest the State has in stopping drunk driving, the close relationship between the roadblock and that interest, and the minimal intrusion of the person’s Fourth Amendment rights, the roadblock was constitutional. This was not a rogue Supreme Court disregarding law, it was a well-reasoned opinion based on prior caselaw dealing with suspicionless searches and seizures.

In addition, your attempted distinction between Edmonds and Sitz being based solely on the civil/criminal distinction is likewise flawed. The Supreme Court in Edmonds specifically spoke about it’s holding in Sitz and distinguished it. In Edmonds the governmental interest was in GENERAL law enforcement, not a specific driving related crime, and the use of a roadblock to meet that interest in Edmonds was not nearly as tied to that of Sitz.

The United States Supreme Court has allowed searches and seizures that are not based on probable cause or reasonable suspicion in many different areas. Sobriety roadblocks are one of the relatively new ones, and, as the Supreme’s point out, the State has a compelling governmental interest that outweighs the minimal intrusion of having to stop your car for 25 seconds. Makes perfect sense to me.

[Bryan_Ekers]

Hmmm, I’d have to agree that stopping someone just to do a search (even a noninvasive dog search) should be forbidden as “unreasonable”. Actually, it strikes me as cops being lazy, but that’s another issue.

The big debate on this thread seems to be betwen people who think a drunk-driving roadblock is reasonable vs. those who are concerned about random (and unreasonable) searches. Problem is, these are seperate points and everybody (including me) has been lumping them together.

My primary concern has always been with the immediate impairment of the driver. I’d like police officers to be able to approach a driver and talk to them to check for coherence, and possibly for the smell of alcohol or (recently smoked) marijuana. I wouldn’t require the passengers to talk to the cops, and the driver need only supply his normal driving documents. If the driver is clearly sober, the conversation should take only a few seconds. This practice should only be done on nights near major holidays (or possibly Fridays and Saturdays in areas with many bars) when drunk driving rates are expected to be highest.

If a police officer suspects impairment from the driver’s behaviour or smell, he can compel the driver to undego further sobriety tests and the standard drunk-testing procedures follow.

Only if a driver is actually arrested on impaired driving charges can his person and vehicle be searched. If a legally admissable blood-alcohol test later shows no impairment, evidence found during this search can be tossed as inadmissable, hence the need for the cops to make good arrests if they want to use evidence of other crimes.

If these conditions were written out formally and strictly followed, would they still be unreasonable?

I’m concerned with restricting cops to only being able to act when they actually see erratic driving becuase oftentimes, trying to pull over a drunk driver leads to chases, which are far risker than roadblocks, though I admit I lack hard data.

[Bricker]

*Originally posted by SuaSponte *
But, the Supremes say, that’s OK because while there are criminal penalties for DUI, there are also civil ones, most obviously license suspension or revocation. In Edmonds, which dealt with roadblocks to check for drugs, the sanctions were criminal, so the roadblocks were illegal. That distinction doesn’t exist.
If you are busted for drugs, you are subject to civil sanctions. The most obvious one is civil forfeiture - including of the very car you were stopped in. Other civil sanctions include denial of student loans, denial of employment in many government jobs, etc.

I agree that the forfeiture of the vehicle used is a valid example. The other consequences you mention are collateral, not direct, results of the act… by the same token, there may be immigration consequences for a felony conviction, but the judge accepting a guilty plea doesn’t have to warn the accused of them; his colloquy does have to include the prison time, the right to a unanimous jury verdict if it went to trial, etc etc.

• Rick