Archive for January, 2011

“I observed the defendant weaving within his lane”

Monday, January 10th, 2011

Undoubtedly the most common observation of impaired driving that officers make — and the one most commonly used to justify stopping the driver — is that the suspect was "weaving within the traffic lane", sometimes combined with "erratic driving".  At the same time, e xperienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as "black-and-white fever"…

That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted black and white in many jurisdictions). As soon as the motorist becomes aware that a police car is following him, he becomes understandably apprehensive and focuses his attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, and his concentration on driving is broken: He keeps his eyes more on the mirror and less on the road ahead. Each time the driver brings his eyes back to the road, he finds that he has drifted and must correct the course of the car back to the center of the lane.

The result: weaving and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator).  And, of course, these are the most commonly encountered symptoms of a drunk driver on the highway.

In other words, it is the very presence of the officer which tends to create the probable cause for suspecting a DUI. And after the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we all tend to see what we expect to see: normally veined eyes appear "bloodshot", normal but nervous speech sounds "slurred", normal pink complexion appears "flushed", etc.

These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….followed predictably by an arrest for drunk driving.


A Fading Constitution?

Wednesday, January 5th, 2011

I believe in the Constitution.  And I have railed long and hard in books, lectures and this blogsite about the damage being done to that great document in the name of fine-sounding schemes like "homeland security" and the so-called "war on drunk driving".  

Our Constitution is a marvelous document, the cornerstone of a great nation, and one which is admired and emulated around the world.  But it is only a document; it has no magic.  The Constitution gives the people no more than what is already within them.  When the Supreme Court approves warrentless stops and searches of citizens at DUI roadblocks and there is no outcry, the people are getting what they deserve; the document will not save them.

My blog’s banner above says that our Constitution is "fading".  That is, of course, inaccurate. The document is quite clear; it is the will and courage of the people that is fading.

The following is from a speech given by the renowned Judge Learned Hand in New York’s Central Park on May 21, 1944:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women.  When it dies there, no constitution, no law, no court can save it.  No constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.



Are DUI Roadblocks Constitutional?

Sunday, January 2nd, 2011

The Constitution of the United States pretty clearly says that police can’t just stop someone and conduct an investigation unless there are “articulable facts” indicating possible criminal activity. So how can they do exactly that with DUI roadblocks?

Good question. And it was raised in the case of Michigan v. Sitz (496 U.S. 444), in which the U.S. Supreme Court reviewed a decision of the Michigan Supreme Court striking down drunk driving roadblocks as unconstitutional. In a 6-3 decision, the Court reversed the Michigan court, holding that roadblocks were constitutionally permissible.

Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks (aka “sobriety checkpoints”) do, in fact, constitute a “seizure” within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution. However….

However, it’s only a "minor violation", and there’s all this “carnage” on the highways MADD tells us we’ve got to do something about. The “minimal intrusion on individual liberties”, Rehnquist wrote, must be “weighed” against the need for and effectiveness of roadblocks. In other words, the ends justify the (illegal) means….aka, “the DUI exception to the Constitution”.

The dissenting justices pointed out that the Constitution doesn’t make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, “That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.” Brennan concluded by noting that “The most disturbing aspect of the Court’s decision today is that it appears to give no weight to the citizen’s interest in freedom from suspicionless investigatory seizures”.

Rehnquist’s justification for ignoring the Constitution rested on the assumption that DUI roadblocks were “necessary” and “effective”.  Are they?  As Justice Stevens wrote in his own dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks:

“The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”.

p.s. The case was sent back to the Michigan Supreme Court to change its previous decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if now permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution!  TheCourt ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”.