Category Archives: DUI Law

U.S. Senators Want Apple to End DUI Checkpoint Apps

Senators are now pressuring Apple and others companies to remove internet applications which warn motorists of drunk driving roadblocks.

Senators Ask Apple, Google, RIM to Pull Checkpoint Apps 

Washington, DC.  March 22
— Four Democratic senators on Tuesday penned a letter to Apple, Google, and Research in Motion to urge the companies to remove apps that provide users with information about DUI checkpoints.

"With more than 10,000 Americans dying in drunk-driving crashes every year, providing access to applications that alert users to DUI checkpoints is harmful to public safety," according to the letter, which was signed by Sens. Harry Reid, Chuck Schumer, Frank Lautenberg, and Mark Udall.

The senators asked the companies to remove the apps, unless the app creators remove DUI or DWI checkpoint functionality.

"One application contains a database of DUI checkpoints updated in real-time. Another application, with more than 10 million users, also allows users to alert each other to DUI checkpoints in real time," they wrote. "Giving drunk drivers a free tool to evade checkpoints, putting innocent families and children at risk, is a matter of public concern.

How conveniently memories fade….

As I’ve summarized in past posts (see, for example, DUI Sobriety Checkpoints: Unconstitutional?), a number of years ago the Michigan Supreme Court held that DUI roadblocks (aka "sobriety checkpoints) were unconstitutional.  Such warrantless stops, the court correctly concluded, were a violation of the Fourth Amendment to the Constitution since American citizens cannot be stopped in their cars without reasonable suspicion to believe that they had committed a crime.  

The United States Supreme Court thereafter reversed the state court.  In Michigan v. Sitz, Chief Justice Rehnquist essentially admitted that the stops were violations of citizens’ rights — but found that these were only minimal violations.  And these minimal intrusions, Rehnquist found, were outweighed by the more important interests of the government in ensuring safety on the highways.  However, the Court left to the states the role of determining how to minimize these intrusions.

The first state supreme court decision to define these regulations was Ingersoll v. Palmer.  In that landmark case, the California Supreme Court laid down the safeguards mentioned in Sitz.  These mandatory procedures specifically included "advance publicity":

Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.

The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, at page 1001 explained the value of advance publicity: "Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety; the warning may well decrease the chance of apprehending ‘ordinary’ criminals, but should certainly have a considerable deterring effect by either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs.

Any one of these goals, if achieved, would have the salutary effect of interfering with the lethal combination of alcohol and gasoline. Advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening." (663 P.2d 992, 1001, conc. opn.Feldman, J.; see also State v. Deskins, supra, 673 P.2d 1174, 1182.)  Publicity also serves to establish the legitimacy of sobriety checkpoints in the minds of motorists. Although the court in Jones v. State, supra, 459 So.2d 1068, found that advance publicity was not constitutionally mandated for all sobriety roadblocks, nevertheless the court offered the observation, consistent with finding reasonableness under the Fourth Amendment, that [43 Cal. 3d 1347] "’[A]dvance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.’ [Citation.]" (Id., at p. 1080.)

Maybe the senators need a crash course in constitutional law….

Money-Making DUI Roadblocks Growing

I’ve commented repeatedly in the past about how DUI roadblocks (MADD prefers the less oppressive term "sobriety checkpoints") are inefficient at apprehending drunk drivers.  See Do DUI Roadblocks Work?Do DUI Roadblocks Work (Part II),  As a means of apprehending drunk drivers, even law enforcement admits they are only effective as a deterrent — i.e., keeping people off the streets.  See DUI Logic: Roadblocks Effective – Because They’re Inefective, Purpose of DUI Roadblocks: "Shock and Awe".

So why are cops using more and more DUI roadblocks?  Simple:  They are goldmines.  See DUI: Government’s Cash Cow, What if the Cash Cow Goes Dry? and How to Make a Million in the DUI Business.

A quick refresher:

1.  It is illegal to stop a citizen without probable cause to believe they have violated the law.

2. A roadblock constitutes a stop without probable cause.

3.  The US. Supreme Court ruled in Michigan v. Sitz that although a DUI roadblock does constitute a violation of the Fourth Amendment, the governmentalal interest in reducing drunk driving fatalities outweighs the "minimal intrusion" into a citizen’s constitutional rights. 

4.  Under the decision, roadblocks can only be for the purpose of arresting drunk drivers.  However, as with any investigative detention, if the officer finds other violations of law during the roadblock stop, he does not have to ignore them.

So…A cop can’t stop you to check for registration or license, possible equipment violations, open containers, seat belt checks, etc.  But if they throw up a DUI roadblock, they can screen hundreds of drivers for anything they can find.  Result:  citations, arrests, impounded vehicles — and an invaluable source of revenue for local governments.  See, for example, DUI Roadblock: 1131 Stops, 114 Tickets, 0 DUI Arrests, Another "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIs.

The following is a story from yesterday’s news by investigative reporter Ryan Gabrielson, winner of the 2009 Pulitzer Prize for local reporting:   

California Cops Exploit DUI Checkpoints to

Bring in Money for Cities, Police

California police are turning DUI checkpoints into profitable operations that are far more likely to seize cars from unlicensed minority motorists than catch drunken drivers.

Berkeley, CA. Feb. 13 – An investigation by the Investigative Reporting Program at UC Berkeley with California Watch has found that impounds at checkpoints in 2009 generated an estimated $40 million in towing fees and police fines – revenue that cities divide with towing firms.

Additionally, police officers received about $30 million in overtime pay for the DUI crackdowns, funded by the California Office of Traffic Safety…

In the course of its examination, the Investigative Reporting Program reviewed hundreds of pages of city financial records and police reports, and analyzed data documenting the results from every checkpoint that received state funding during the past two years. Among the findings:

• Sobriety checkpoints frequently screen traffic within, or near, Hispanic neighborhoods. Cities where Hispanics represent a majority of the population are seizing cars at three times the rate of cities with small minority populations. In South Gate, a Los Angeles County city where Hispanics make up 92 percent of the population, police confiscated an average of 86 vehicles per operation last fiscal year. 

• The seizures appear to defy a 2005 federal appellate court ruling that determined police cannot impound cars solely because the driver is unlicensed. In fact, police across the state have ratcheted up vehicle seizures. Last year, officers impounded more than 24,000 cars and trucks at checkpoints. That total is roughly seven times higher than the 3,200 drunken driving arrests at roadway operations. The percentage of vehicle seizures has increased 53 percent statewide compared to 2007.  

• Departments frequently overstaff checkpoints with officers, all earning overtime. The Moreno Valley Police Department in Riverside County averaged 38 officers at each operation last year, six times more than federal guidelines say is required. Nearly 50 other local police and sheriff’s departments averaged 20 or more officers per checkpoint – operations that averaged three DUI arrests a night…

With support from groups such as Mothers Against Drunk Driving, California more than doubled its use of sobriety checkpoints the past three years.

State officials have declared that 2010 will be the “year of the checkpoint.” Police are scheduling 2,500 of the operations in every region of California. Some departments have begun to broaden the definition of sobriety checkpoints to include checking for unlicensed drivers…

It’s probably just a coincidence that California, on the verge of bankruptcy, has decided to make this the "year of the checkpoint".

(Thanks to David Baker.)

DUI Roadblocks Act as Deterrents, But…Don’t Tell Anyone

I’ve posted repeatedly that DUI roadblocks, aka "sobriety checkpoints", are ineffective at apprehending drunk drivers.  See, for example, Do DUI Roadblocks Work? and Do DUI Roadblocks Work? (part 2).  Faced with irrefutable facts, police agencies simply switch horses and say that they are effective as deterrents.  In other words, "Ok, they don’t work but they scare people". See Purpose of DUI Roadblocks: "Shock and Awe" and OK, DUI Roadblocks Are Illegal and Don’t Work, But… 

So why do they get upset when others publicize roadblock locations?

Apps Alert Drivers to DUI Checkpoints

Washington, D.C.  Dec. 16 — Modern technology is turning the table on cops. Drivers can now get instant warnings on their cell phone or GPS when a DUI checkpoint is near. That has police outraged and worried that drunk drivers could use it to escape arrest…

In Montgomery County, Maryland, police sometimes announce DUI checkpoints without exact locations. Police say having that information out there could endanger everyone on the road.

"If that were to occur, it could cause someone to go ahead and drink and drive because they think they’ve got a free pass," said Captain Paul Starks of the Montgomery Count Police Department.

"If you know there’s a crackdown for DUI, then you’re most likely not going to do it," said Jonathan Milman, the co-creator of (Iphone app) Buzzed. "And that’s where our cab feature comes in."

Still, there’s no preventing people from using the checkpoint alerts to get away with driving drunk. But the point, both companies say, is to deter drunk driving in the first place.

"Why do people put a home security sign in front of their house? It’s to stop the burglar from coming in, in the first place," Milman said. "That’s the purpose of DUI checkpoints. It’s to stop people from driving drunk in the first place."

"We’re not blowing their cover, not undercutting their efforts," said Scott. "Actually we’re enhancing it."

They invite police to team up with them by providing checkpoint locations directly. Don’t expect Montgomery County to sign on.

"I don’t know that we’re going to ever be interested in letting people know exactly where our DUI checkpoints are," said Starks.

Incidentally, when the U.S. Supreme Court permitted DUI roadblocks despite the fact that they’re a clear violation of the Fourth Amendment, they also said that certain safeguards must be used — including advance publicity warning the public of roadblock locations.  See Michigan v. Sitz.  Of course, police have become very adept at "publicizing" the roadblocks on the back pages of throw-away publications no one reads — or, as in Montgomery County, simply keeping the locations secret.

DUI Roadblock: 1131 Stops, 114 Tickets, 0 DUI Arrests

While MADD continues to praise the efficacy of DUI roadblocks (aka "sobriety checkpoints"), most experts have come to recognize that they are simply ineffective at apprehending drunk drivers.  See Do DUI  Roadblocks Work? and Do DUI Roadblocks Work? (Part II).  But as I’ve written in earlier posts, local government has awakened to the fact that they are very effective at one thing:  raising desperately needed money.   See DUI: Government’s Cash Cow, How to Make a Million in the DUI Business and What if the Cash Cow Goes Dry?.     

It is, of course, normally a violation of the Constitution’s Fourth Amendment to set up roadblocks to issue tickets for outdated registration, equipment defects, outstanding warrants, etc.  But the Supreme Court carved out one exception to the 4th Amendment: roadblocks to catch drunk drivers.  And, well, if in the process the cops find no proof of insurance or an expired license, then those are "incidental" to the purpose of the roadblock and therefore permitted.

Problem:  "sobriety checkpoints" have simply become subterfuges for issuing income-generating tickets.  See for example, Another "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIs in which there were 177 citations, 84 vehicle impounds — and no DUI arrests.   The following recent news story is typical:

DUI Checkpoint Stops 1,131 Vehicles

Gaineseville, FL.  July 6  – DUI checkpoint over the holiday weekend resulted in 10 people being arrested and more than 100 drivers being issued traffic citations.

The Florida Highway Patrol arranged for the checkpoint to be set up in the 2500 block of Southwest 13th Street in Gainesville between 10 p. m. Friday until 2 a.m. Saturday. FHP Lt. Pat Riordan said that during that time, 1,131 vehicles were checked.

"We conduct these checkpoints to enforce and to educate," Riordan said. "It’s a way for us to bring the public’s attention to things like faulty equipment they need to fix as well as being a way for us to get people out from behind the wheel who do not belong there."

Although no one was arrested for DUI, FHP said the following actions were taken during the checkpoint:

–Two arrested on outstanding warrants.

– Seven arrested on felony charges, including six on drug-related charges.

– One arrested for misdemeanor drugs.

– 104 traffic citations issued.

– 10 faulty equipment warnings were issued.

Repeat: the Supreme Court made a roadblock exception to the Constitution for one limited purpose only:  apprehending drunk drivers – not "to educate", not "as  a way for us to bring the public’s attention to things like faulty equipment".

Once you start whittling away at the Constitution, it’s kind of hard to stop….

Here Come the Feds (cont’d): Marines at DUI Roadblocks

I’ve posted in the past about the increasing federalization of drunk driving laws and law enforcement procedures.  See Here Come the Feds and The Future of DUI.  But even I wasn’t ready for the latest development…

The U.S. Marines have landed…and are apparently manning “sobriety checkpoints” in San Bernardino County in California.  Yes, Marines.  Yes, civilian DUI roadblocks. 

From an official December 10th California Highway Patrol public relations release:

CHP to Conduct Sobriety/Driver’s License Checkpoint

The Morongo office of the California Highway Patrol (CHP) in conjunction with the  San Bernardino Sheriff’s Department and the USMC military police will conduct a joint sobriety/driver license checkpoint on Friday, December 12, 2008, somewhere in the unincorporated/incorporated area of San Bernardino County.

As an American citizen, not to mention a former Marine, I find this troubling — particularly in view of the clear wording of the Posse Comitatus act of 1878, described in Wikipedia:

The Posse Comitatus Act is a  United States federal law (18 U.S.C. § 1385) passed on June 16, 1878, after the end of Reconstruction. The Act prohibits most members of the federal uniformed services  (the Army, Air Force and State national Guard forces (when such are called into federal service) from exercising nominally state law enforcement, police or peace officer powers that maintain “law and order” on non-federal property (states and their counties and municipal divisions) in the former Confederate states.

The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act.

A follow-up call to a Marine Corps public affairs sergeant resulted in assurances that the Marines would be there “as observers”.   Hmmmm…..military observers.  Isn’t that how it all starts?

Thanks to Branson Hunter and Andre.