"No refusal" DUI checkpoint

Several states are instituting “no refusal” DUI checkpoints this holiday season. The general approach seems to be having a judge available at the site, and if a driver refuses the breath test, the police can immediately ask the judge for a warrant for a blood test.

This is constitutionally permissble, in my view, but seems to blur the line a bit on the role of a judge.

Bricker, what is the relationship of this practice to the “implied consent” rule? If the judge’s warrant is essentially *pro forma *in that it would almost always be granted under the circumstances, I don’t see a problem here since the on-site judge is merely expediting something that is practically inevitable.

I see where you may think this is a slippery slope to judges partnering with LEOs and issuing “street” search warrants, but given that the need for probable cause is much higher in practically anything outside of DUI, I’d view that as a good ways down said slope.

What evidence is presented to the judge for the issuance of the warrant? Is refusing a breath test in and of itself sufficient?

Meh. They could go the route of a few other states or Canada and apply the same consequences to refusal as failing a breathalyzer test.

Right. Refusal to a search is NOT evidence of guilt, nor cause for a warrant. Now, if the Judge gets to view the obvious inebriated condition of the driver, and rules based upon that- no so bad.

Howevr, having been in one of these, I can tell you that non-drinking drivers are waved thru pretty damn quickly. My friend was driving last time, and he even told the PO that he had forgotten his DL at home, and was waved through as it was clear that he was not inebriated.

My objection isn’t to this procedure per se, but to the general notion of the refusal to take the breathalyzer as being probable cause. If the police cannot justify a breathalyzer without consent at a roadside checkpoint under the Fourth Amendment (upon threat of arrest), then they should not be able to conduct a blood test based on the refusal to consent. When denial of consent becomes probable cause, the Fourth Amendment becomes meaningless.

That said, maybe they’re asking for a warrant based on observed conduct of the driver other than refusal.

Also, as a policy matter, most of the evidence suggests that DUI checkpoints are a waste of time and resources.

I hear to reduce the costs of courts, with the judge there, the next 12 drivers in line will be pulled aside, and speakers similar to those at a drive in would be provided, so that a jury of his peers can issue a sentence.

(Perhaps not, but I do see this slowly evolving into “Judge Dred: DUI” in about a hundred years)

If you’re just walking down the street, probably.

In the US, however, every state has what is known as the “implied consent” rule, meaning that you consent to sobriety testing as a condition of receiving a drivers license. As such, refusing a breathalyzer IS, essentially, probable cause. This principle has survived Fourth Amendment tests on many occasions. Having the judge on site just hurries things along.

IANAL, nor have I ever been involved in a DUI case, so please correct me if I’m wrong.

Why is the judge or warrant necessary? The Supreme Court has found that alcohol-testing checkpoints are reasonable, and a search only has to be reasonable–neither a warrant nor probable cause is necessary.


I’m assuming the warrant is still necessary for a blood draw.

From your cite "The Court also held that the impact on drivers, such as in delaying them from reaching their destination, was negligible, and that the brief questioning to gain “reasonable suspicion” similarly had a negligible impact on the drivers’ Fourth Amendment right from unreasonable search (implying that any more detailed or invasive searches would be treated differently)." Italic mine.

And yes, some State hold that if you refuse, then your DL can be suspended. But that is not proof of being DUI. There’s no criminal conviction, just a suspension of driving priviledges.

The issue is that DUI lawyers often advise their clients to refuse, because refusal (while a crime) is a lesser offense than DUI. When a person knows or suspects he’ll blow > 0.08, he gets less time by refusing. This solves that issue.

My understanding of these checkpoints is that everyone is pulled over, the police then talk to driver, and if the police have a reasonable suspicion of the driver is intoxicated, they perform a breathalyzer test. This process gets around any 4th amendment issues.

What about the idea that the legislature (in most/all states) has provided a penalty for refusing to submit to a secondary test? Doesn’t that contemplate that the intent of the legislature is to allow the driver to refuse the test and then be subject to the penalty?

What if the driver refuses after the warrant is issued? Would he be forcibly tested?

Forcible testing after a warrant is permissible.

That’s what I was thinking too.

Is a warrant always required to take forcibly blood? It seems if the original sobriety search is reasonable but becomes unavailable due to the suspect’s actions that it would be reasonable for the police to take necessary actions, including drawing blood, to complete the search.

That sounds great. Let’s do that for other things. How about if I refuse a search of my home that equals me having 14tons of cocaine and 300 illegal machine guns in the basement? Lock everyone up who dares assert any type of privilege.

What about the separation of powers issue? In other words, the legislature has said:

  1. You must submit to a secondary test.
  2. If you refuse, then XXXX.

For the executive (cops) and judicial (judges) to come up with a scheme that forces drivers to submit to the test seems to counter what the law says. The law says that you can refuse and the penalty is XXXX.

Yeah, you’re wrong.

Again (and yes, this may not apply in all 50 states, but it applies in many of them)… the “breathalyzer test” they talk about with implied consent laws is the breathalyzer that is administered AFTER you have been arrested for DUI - i.e. after the police officer has obtained enough probable cause for arrest.

The pissant hand-held breathalyzer that you blow into on the side of the road is what is used to get the probable cause to arrest you. Failure to blow into that (this is VERY YMMV. check your state, don’t rely on what i say here as advice of anything) isn’t a violation of the implied consent laws.