# "No refusal" DUI checkpoint **URL:** \ **Category:** Great Debates\ **Created:** [December 31, 2010, 11:17pm UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999 "2010-12-31T23:17:16Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 1, 2011, 12:21am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/21 "2011-01-01T00:21:22Z")
> [@jtgain](#): > > 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. I strongly doubt that any particular state’s law would be found to mean that the legislature intended that the ONLY result permissible from a refusal is XXXX. In other words, the mere fact that the legislature proscribed a refusal penalty doesn’t mean that this is the only outcome. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [January 1, 2011, 12:29am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/22 "2011-01-01T00:29:32Z")
Is there a reason why a US State couldn’t say (as they have in Australia and New Zealand, and- from the sounds of it- Canada) that “A condition of using the public roads in this state is that the police have the authority to pull you over for/ask you to undergo a breathalyser test for absolutely no reason at all beyond the fact you are operating a motor vehicle.”? ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [January 1, 2011, 12:29am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/23 "2011-01-01T00:29:58Z")
> [@DrDeth](#): > > 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. Which works out to house arrest for many in rural locations without public transit. If you have to give up up your rights or face de facto house arrest do you really have those rights? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [January 1, 2011, 12:32am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/24 "2011-01-01T00:32:02Z")
> [@Martini\_Enfield](#): > > Is there a reason why a US State couldn’t say (as they have in Australia and New Zealand, and- from the sounds of it- Canada) that “A condition of using the public roads in this state is that the police have the authority to pull you over for/ask you to undergo a breathalyser test for absolutely no reason at all beyond the fact you are operating a motor vehicle.”? yeah, the fourth amendment. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [January 1, 2011, 12:35am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/25 "2011-01-01T00:35:12Z")
> [@jtgain](#): > > …What if the driver refuses after the warrant is issued? Would he be forcibly tested? Yes, he’d be physically restrained while a medical technician draws the blood. He’d then be charged with something like assualt, contempt of court, or obstruction of justice. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [January 1, 2011, 12:52am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/26 "2011-01-01T00:52:13Z")
> [@jtgain](#): > > 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. The legislature has said you must not rob banks, and that if you do, then XXXX. The police are still allowed to force you to not rob a bank. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 1, 2011, 12:59am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/27 "2011-01-01T00:59:17Z")
“No refusal” DUI checkpoint? I’ll drink to that! Happy New Year everyone! ---
**Author:** ![Implicit](https://avatars.discourse-cdn.com/v4/letter/i/6a8cbe/32.png) [@Implicit](https://boards.straightdope.com/u/Implicit)\ **Post date:** [January 1, 2011, 12:59am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/28 "2011-01-01T00:59:49Z")
> [@jtgain](#): > > 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. Please explain what your illegal drug and gun operation has to do with your state issued driver’s license and DUI checkpoints. Thanks. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 1, 2011, 1:23am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/29 "2011-01-01T01:23:16Z")
IANAL (obviously) but is the legal principle here similar to it now being illegal to refuse to be grope by TSA and leaving the security line? It seems that refusal to submit to a search is becoming illegal all by itself. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [January 1, 2011, 1:34am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/30 "2011-01-01T01:34:04Z")
> [@Saint\_Cad](#): > > IANAL (obviously) but is the legal principle here similar to it now being illegal to refuse to be grope by TSA and leaving the security line? It seems that refusal to submit to a search is becoming illegal all by itself. no it’s not the same. the judge-by-the-roadside-to-sign-off-on-the-warrant isn’t making anything extra illegal - it’s just eliminating the delay between a cop arresting you for DUI and getting a court order to force you to give a breathalyzer/blood sample (based on the probable cause of the police officer) when you have decided to retract the implied consent you had previously given by virtue of driving on roads/getting licensed. the TSA security lines (from what I understand, but understanding could be faulty) is based in either a) TSAs overly generous interpretation of federal law/regulations and basically arresting first and worrying about the issues later b) an actual federal statute that makes it illegal to withdraw consent to a security screening/voluntary search once that consent has been given (in an attempt to close a loophole where a prospective terrorist can back out if he thinks he’s going to get busted) ---
**Author:** ![Cisco](https://avatars.discourse-cdn.com/v4/letter/c/ccd318/32.png) [@Cisco](https://boards.straightdope.com/u/Cisco)\ **Post date:** [January 1, 2011, 1:53am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/31 "2011-01-01T01:53:06Z")
> [@Saint\_Cad](#): > > It seems that refusal to submit to a search is becoming illegal all by itself. Every cop, lawyer, and judge on the planet will deny it, but in reality, this has always been the case. ---
**Author:** ![StusBlues](https://avatars.discourse-cdn.com/v4/letter/s/dc4da7/32.png) [@StusBlues](https://boards.straightdope.com/u/StusBlues)\ **Post date:** [January 1, 2011, 2:30am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/32 "2011-01-01T02:30:25Z")
> [@Rumor\_Watkins](#): > > 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. Do you have a cite for any of this? [This site](http://www.impliedconsent.org/)does indicate that a detained driver is required to submit to roadside testing. Failure to do so, as noted above, carries non-trivial penalites, and, I’d assume, PC for lots else. Any lawyers want to weigh in on this? ---
**Author:** ![StusBlues](https://avatars.discourse-cdn.com/v4/letter/s/dc4da7/32.png) [@StusBlues](https://boards.straightdope.com/u/StusBlues)\ **Post date:** [January 1, 2011, 2:33am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/33 "2011-01-01T02:33:41Z")
> [@jtgain](#): > > 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. Nothing you’re talking about is a privilege–what you’re talking about here are rights. Driving, on the other hand, is considered a legal privilege, not a right. That’s the legal basis for implied consent laws. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [January 1, 2011, 4:21am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/34 "2011-01-01T04:21:26Z")
> [@Rumor\_Watkins](#): > > yeah, the fourth amendment. Care to elaborate? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [January 1, 2011, 5:08am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/35 "2011-01-01T05:08:14Z")
Yet another goosestep along the road to Naziism. Yes, the precedent is certainly there to allow it, it has been for over three decades when they were allowed to stop everybody and ask them. I’ve been to a couple of these stops. It isn’t a problem as I never drink. So I mouth off a lot about gestapo and unreasonable searches and seizures. I provide them with my license and my registration and I refuse to answer any other questions on the grounds that it may incriminate me. They usually at this point let me go. I don’t have any problems with blood tests, having once been sick enough to have several a day drawn by incompetents. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [January 1, 2011, 5:57am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/36 "2011-01-01T05:57:10Z")
> [@StusBlues](#): > > Do you have a cite for any of this? [This site](http://www.impliedconsent.org/)does indicate that a detained driver is required to submit to roadside testing. Failure to do so, as noted above, carries non-trivial penalites, and, I’d assume, PC for lots else. > > Any lawyers want to weigh in on this? [impliedconsent.org](http://impliedconsent.org). the great bastion of legal analysis. :rolleyes: i am one, btw. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [January 1, 2011, 6:00am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/37 "2011-01-01T06:00:35Z")
> [@Martini\_Enfield](#): > > Care to elaborate? “the authority to pull you over for/ask you to undergo a breathalyser test for absolutely no reason at all beyond the fact you are operating a motor vehicle” is pretty unreasonable. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [January 1, 2011, 6:07am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/38 "2011-01-01T06:07:03Z")
> [@StusBlues](#): > > Nothing you’re talking about is a privilege–what you’re talking about here are rights. Driving, on the other hand, is considered a legal privilege, not a right. That’s the legal basis for implied consent laws. And many people are in situations, that they can’t practically extract themselves from, where lose of license is de facto house arrest (especially in the winter). As I said before, if you have to give up up your rights or face de facto house arrest do you really have those rights? ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [January 1, 2011, 6:10am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/39 "2011-01-01T06:10:23Z")
> [@Rumor\_Watkins](#): > > “the authority to pull you over for/ask you to undergo a breathalyser test for absolutely no reason at all beyond the fact you are operating a motor vehicle” is pretty unreasonable. I agree. The logic behind it is pretty chilling. Using the internet is a “privilege”, would it be okay to make connecting to the internet “implied consent” for the government to search your computer at will? What’s to prevent the government defining making a phone call as implied consent for a wire tap? Phone calls are privileges. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [January 1, 2011, 7:44am UTC](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999/40 "2011-01-01T07:44:40Z")
> [@Rumor\_Watkins](#): > > “the authority to pull you over for/ask you to undergo a breathalyser test for absolutely no reason at all beyond the fact you are operating a motor vehicle” is pretty unreasonable. Seems pretty reasonable to me, and it’s been implemented in a lot of places that have failed to turn into fascist nazi police states. [Previous page](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999.md?page=1) [Next page](https://boards.straightdope.com/t/no-refusal-dui-checkpoint/565999.md?page=3)