Category Archives: DUI Law
In a number of previous posts I’ve discussed the dubious efficacy, statistics and constitutionality of DUI roadblocks, aka "sobriety checkpoints". However, I’ve only briefly mentioned the potential for abusing the right to set up these roadblocks — the potential for government to use them as a pretext to violate citizen’s rights. Consider the following story from yesterday’s Washington Post:
Safety Stops Draw Doubts
D.C. Police Gather Nonviolators’ Data
Lisa Davis had done nothing wrong. She was wearing a seat belt, was obeying the speed limit and produced a valid driver’s license when D.C. police pulled her over one recent night at a traffic safety checkpoint in a crime-plagued neighborhood.
Even so, an officer jotted down some basic information before letting her go, including her name, address and the time and location of the stop for a police database used for crime solving.
"I’ve got some serious constitutional issues with that," Davis said as she sat in her idling Acura at the checkpoint at Kansas Avenue and Shepherd Street NW in the Petworth neighborhood. "I feel like it’s a violation of my rights. It’s a slippery slope to Big Brother."
The details about Davis and the stop will be fed into the database, which is linked to a computer that includes arrest records and mug shots of criminals….
Civil liberties advocates aren’t the only ones questioning the practice. The policy is sparking concern among some officers who conduct the checkpoint stops, most of which are made in areas where crime, not traffic safety, is the primary concern.
"That’s an invasion of privacy, demanding information from a citizen and putting that in a database," said Officer Gregory I. Green of D.C. police, who is assigned to represent the police union….
The officers jot down motorists’ information on a file-card-size form called a PD-76, which is recorded into the database. The forms also are used for routine traffic stops, and the information will also be used for a racial profiling study, (D.C. Police Chief Charles) Ramsey said.
D.C. homicide Detective Paul Regan said the collection of such data has been "a great intelligence tool".
In the 6-3 United States Supreme Court case holding that DUI checkpoints were permissible, Justice Rehnquist admitted that the stops constituted "seizures" within the meaning of the Fourth Amendment. However, he said, this was justified because "No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it."
Would the Court would have ruled as it did had the justices known what these supposed "sobriety checkpoints" would eventually become?
(Thanks to Steve Oberman of Knoxville, TN.)
For many years now, MADD has focused much of its considerable manpower (over 600 chapters), resources (revenues of $48 million a year) and political influence on the proliferation of DUI roadblocks (or, to use the politically correct phrase, "sobriety checkpoints"). To justify this invasion of our privacy, we have been repeatedly assured that "checkpoints" are extremely effective in reducing alcohol-related traffic fatalities — and these assurances have been accompanied by "statistics". Let's take a closer look at the statistics….
According to MADD's own website, 40 states have checkpoints and 10 do not. Well, it would be interesting to compare the states with the highest percentage of alcohol-related fatalities with the list of states not using checkpoints: If MADD is correct, the states with the highest fatality rates will be the no-roadblock states. Fortunately, another section of MADD's website provides such statistics for each of the states. The 5 states with the highest alcohol-related fatality rates:
According to MADD, all 5 states should be non-checkpoint states. In fact, however, 4 of these states use checkpoints; only Rhode Island does not. Well, what about the 5 states with the lowest fatality percentages? They are:
If MADD is correct about the effectiveness of checkpoints, these should all be checkpoint states. But as with the previous list, only 4 of the states permit the use of sobriety checkpoints; Iowa does not. As with the previous list, the percentage is what one would expect from pure random incidence: 20% of the states (10 of 50) do not have checkpoints — and 20% of the states on each list (1 of 5) do not use checkpoints. There appears to be no correlation between fatality rates and the use of checkpoints.
Let's take a look at another set of statistics: the effect of the proliferation of checkpoints on the national rate of alcohol-related fatalities. If checkpoints are effective, we would expect to find that alcohol-related fatalities will have declined since their widespread acceptance in recent years .
Again, the statistics do not support this. To use MADD's own numbers: Since 1982, the number of fatalities nationwide from alcohol-related crashes has declined every year — until about 1993, when it dropped to 17,908. Perhaps coincidentally, this was the year after the United States Supreme Court ruled that sobriety checkpoints were not unconstitutional. In the 10 years since then, sobriety checkpoints have gained widespead acceptance — but the number of fatalities have levelled off, vacilating between 17,908 and 17,013. Far from supporting MADD's position, one could even argue that this proves sobriety checkpoints have actually halted the steady decline in alcohol-related deaths. This would probably be incorrect — but indicative of how statistics can be used to serve a desired objective.
Incidentally, my favorite example of distorting statistics for self-serving purposes is MADD's own oft-repeated claim:
Since MADD's founding in 1980, alcohol-related fatalities have decreased 44 percent (from 30,429 to 17,013) and MADD has helped save almost 300,000 lives.
300,000? Do the math….
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 consitutionally 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 little one, 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”, he 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 decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”. The State of Washington has since followed Michigan.