"No Refusal" Checkpoints - good, bad, or ugly?

[Animavore]

I haven't implied that at all. What I have stated is that there are different concerns when we're talking about aircraft safety and pulling someone over for suspected drinking and driving. The situations are different, and therefore what is a "reasonable search" in one instance may not be reasonable in another instance. Just because one would allow airport security to do a pat down, doesn't mean that one needs to be willing to allow any and all other searches, anytime, anywhere, anyhow.

I don't agree with that. With the airport pat down there should also be a reasonable cause, like the metal detector going off, for instance. But this is off topic.

As for the rest of the post, we seem to be working from a different set of laws. Garda in this country can set up a checkpoint where ever they want.
I've never seen it as unreasonable but perhaps an example will show why not? Or at least, not in this country.

On bank-holidays road accidents go up. The reason is because people have Monday off so they go out Saturday and Sunday and, as you might know if you've ever carried on drinking over a couple of nights, you get more drunk on the second. So you get people driving home and Garda set up checkpoints to try prevent accidents. Now sometimes these checkpoints can cause a build up so you could be driving home from your relatives at night, not drinking at all, and when you come to the line up of cars the Garda may not even see you coming in at the back so when you get to the checkpoint it self the Garda have no way of knowing if you were drinking or not. Now, all you have to do is blow into a tube and be on your way. That's it. I just don't see it, myself, as being unreasonable.

Now on the point of the warrant for a house search, many people in this country will just let them in and are of the type you mentioned above that think only people with something to hide would refuse. The difference I see here is that this is your private property where as being on the road is being out in a public place. Now you can liken doing a breathalyser to being searched for no reason but I think that getting your car searched is the equivalent here, not being asked to blow into a pipe.

I'm not going to neglect the fact here that the Irish have a completely different drink culture to you guys and that this plays into it which is why I think we'd simply be talking past each other with any further discussion. I think the culture has to be taken into account here.

Now for the record I'm dead against them giving blood tests for reasons I said in the second post.

[maiforpeace]

I'm not going to neglect the fact here that the Irish have a completely different drink culture to you guys and that this plays into it which is why I think we'd simply be talking past each other with any further discussion. I think the culture has to be taken into account here.

The drink culture must be different state to state here in the US, if Florida has the highest rate of people refusing breathalizers.

[Animavore]

I'm not going to neglect the fact here that the Irish have a completely different drink culture to you guys and that this plays into it which is why I think we'd simply be talking past each other with any further discussion. I think the culture has to be taken into account here.

The drink culture must be different state to state here in the US, if Florida has the highest rate of people refusing breathalizers.

Probably. I did here there are a couple of States where you can actually drink with a beer in your hand. Not sure about the truth of that, though.

[maiforpeace]

I'm not going to neglect the fact here that the Irish have a completely different drink culture to you guys and that this plays into it which is why I think we'd simply be talking past each other with any further discussion. I think the culture has to be taken into account here.

The drink culture must be different state to state here in the US, if Florida has the highest rate of people refusing breathalizers.

Probably. I did here there are a couple of States where you can actually drink with a beer in your hand. Not sure about the truth of that, though.

I assume you meant drive with a beer in your hand.

When I was growing up that was the case, but that went away a long time ago with MADD (Mothers Against Drunk Driving) in the early 80's. While the laws do vary slightly state to state, I'm sure this isn't one of them.

[Coito ergo sum]

Forget 'unreasonable' search for a minute CES. So what, in your mind constitutes a 'reasonable' search?

A reasonable search would be one that is conducted where there is reasonable suspicion of a crime committed by the subject of the search. Reasonable suspicion for the search would exist where there is suspicion that amounts to more than an "inchoate and unparticularized suspicion or 'hunch' " and is based on "specific and articulable facts", "taken together with rational inferences from those facts" which point to a crime. In my view, if we're out in the general public, a police officer shouldn't even be permitted to "detain" a person without such reasonable suspicion.

It's a good standard for applying the Fourth Amendment, set by the Supreme Court in the case of Terry v Ohio. A traffic stop is a Terry stop. for the duration of a stop, driver and passengers are “seized” within the meaning of the Fourth Amendment. Cops can't just pull you over for no reason. There has to be a reason that is more than a hunch - more than an unparticularized suspicion. There have to be articulable facts from which the commission of a crime can be inferred. Without a warrant, probable cause, or the driver’s consent, police may not (generally speaking) search the vehicle.

I disagree with the idea that the benefit of these checkpoints ought to suggest that they are constitutional. Those taking that position are aligning themselves, incidentally, with Chief Justice Rhenquist. It's Rhenquist who wrote the SCOTUS opinion in Michigan v Sitz which held that DUI checkpoints can be constitutional. Rehnquist began his opinion by admitting that DUI sobriety checkpoints do, in fact, constitute a "seizure" within the language of the Fourth Amendment. In other words, yes, it appears to be a violation of the Constitution (because checkpoints are a seizure without any "reason" behind them - they are just blanket seizures). However, he continued, it's only a little one, and something has to be done about drunk drivers. The "minimal intrusion on individual liberties," Rehnquist wrote, must be "weighed" against the need for -- and effectiveness of -- DUI roadblocks. In other words, the ends justify the means.

The dissenting justices (the liberal ones, incidentally) 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... 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." (emphasis added)

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 another 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," he wrote, "indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative." (so, the Michigan courts actually found that the checkpoints were not shown to be effective at increasing traffic safety...)

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, though now 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." A small number of states have since followed Michigan's example.

Florida, on the other hand, is not one of those states.

[GreyICE]

For all those that think you are losing your Freedumb by accepting the Police right to breathalize you on a whim ,Look on the bright side it might only be a single Mum you kill , it could only be a few children you orphan (or you could really fuck up and hit my car and hurt my Dawg ).
When a Police man Stops you and asks for a few moments and one long Breath just on the off -chance that you have a significant amount of alcohol in your blood stream Then you comply without becoming an amateur constitutional lawyer ,without giving the cop a hard time and fucking cheerfully . That cop is not out busting people for kicks he (or she ) is trying to save the lives of you and others ! They are the first on the scene of accidents you want to know why they don't think much of your Freedumb and you Liberties ? ASK ONE !

And what happens when that oh so reliable piece of technology accumulates enough residual alcohol on it to trigger that you're drunk? You go to prison willingly because the police have the right to use fucking terrible pieces of technology?

You have fun in the jail cell, I'm refusing the test. Let them get a court order without probable cause and take a blood sample. I will laugh at them and see them in court.

[maiforpeace]

For all those that think you are losing your Freedumb by accepting the Police right to breathalize you on a whim ,Look on the bright side it might only be a single Mum you kill , it could only be a few children you orphan (or you could really fuck up and hit my car and hurt my Dawg ).
When a Police man Stops you and asks for a few moments and one long Breath just on the off -chance that you have a significant amount of alcohol in your blood stream Then you comply without becoming an amateur constitutional lawyer ,without giving the cop a hard time and fucking cheerfully . That cop is not out busting people for kicks he (or she ) is trying to save the lives of you and others ! They are the first on the scene of accidents you want to know why they don't think much of your Freedumb and you Liberties ? ASK ONE !

And what happens when that oh so reliable piece of technology accumulates enough residual alcohol on it to trigger that you're drunk? You go to prison willingly because the police have the right to use fucking terrible pieces of technology?

You have fun in the jail cell, I'm refusing the test. Let them get a court order without probable cause and take a blood sample. I will laugh at them and see them in court.

Assuming your blood alcohol is under 0.08%.

[Coito ergo sum]

I'm not going to neglect the fact here that the Irish have a completely different drink culture to you guys and that this plays into it which is why I think we'd simply be talking past each other with any further discussion. I think the culture has to be taken into account here.

The drink culture must be different state to state here in the US, if Florida has the highest rate of people refusing breathalizers.

Probably. I did here there are a couple of States where you can actually drink with a beer in your hand. Not sure about the truth of that, though.

At least a couple of years ago (2007), Mississippi was one of those States, as long as you are under the legal limit. Eight states (Arkansas, Connecticut, Delaware, Mississippi, Missouri, Tennessee, Virginia, and West Virginia) allow passengers to consume alcohol while the vehicle is in motion - although there are exceptions for things like "party buses" and whatnot in states that don't allow passengers to consume.

Lot's of symbolic and over-the-top alcohol regulations in the US - my favorite is how someone under 21, in some states (not all), is not permitted to stock beer on a store shelf, and not permitted to serve alcohol to patrons at a restaurant. Those are dopey laws.

In many places in the US people have just gone crazy on the "temperance" issue. It's almost like they want to make alcohol like a radioactive substance to anyone under 21. To me, that's counterproductive. Many countries in Europe have low or even no drinking age and don't have the problems we have. It's a waste of law enforcement resources, IMHO. I think that making alcohol taboo until 21, and then saying "o.k., now you're legal - drink up, Johnny" is not the way to do it.

[Coito ergo sum]

I haven't implied that at all. What I have stated is that there are different concerns when we're talking about aircraft safety and pulling someone over for suspected drinking and driving. The situations are different, and therefore what is a "reasonable search" in one instance may not be reasonable in another instance. Just because one would allow airport security to do a pat down, doesn't mean that one needs to be willing to allow any and all other searches, anytime, anywhere, anyhow.

I don't agree with that. With the airport pat down there should also be a reasonable cause, like the metal detector going off, for instance. But this is off topic.

As for the rest of the post, we seem to be working from a different set of laws. Garda in this country can set up a checkpoint where ever they want.
I've never seen it as unreasonable but perhaps an example will show why not? Or at least, not in this country.

On bank-holidays road accidents go up. The reason is because people have Monday off so they go out Saturday and Sunday and, as you might know if you've ever carried on drinking over a couple of nights, you get more drunk on the second. So you get people driving home and Garda set up checkpoints to try prevent accidents. Now sometimes these checkpoints can cause a build up so you could be driving home from your relatives at night, not drinking at all, and when you come to the line up of cars the Garda may not even see you coming in at the back so when you get to the checkpoint it self the Garda have no way of knowing if you were drinking or not. Now, all you have to do is blow into a tube and be on your way. That's it. I just don't see it, myself, as being unreasonable.

You subscribe to our Supreme Court's analysis, through conservative Justice Rhenquist's analysis of the issue. You're being forced to stop - that's a detention or a seizure - you are not free to leave. That, in our law, normally requires "reasonable suspicion" of a crime. In the case of a blanket stop, there is no reason involved. Everyone must stop. The delay is not very long, and the inconvenience of blowing into a tube is, some say, not very intrusive. So, it's just a small violation of the principle that people have a right to be free from unreasonable searches and seizures.

Now on the point of the warrant for a house search, many people in this country will just let them in and are of the type you mentioned above that think only people with something to hide would refuse. The difference I see here is that this is your private property where as being on the road is being out in a public place. Now you can liken doing a breathalyser to being searched for no reason but I think that getting your car searched is the equivalent here, not being asked to blow into a pipe.

The idea, from where I'm coming from, is that if you're in a public place going about you're business you have a right to be left alone, absent reasonable cause to be stopped. I would think it dystopian and surreal to be walking down the street and have the cops set up a road block, just stopping everyone for a quick check for drugs or guns and if you reject the quick, unintrusive search, the cops have a judge issue a warrant based on the refusal to compel a more thorough search.

It may be cultural - and the laws are different country-to-country. I simply find it, in a larger sense, unhealthy for citizenry to be subject to unqualified control by the police. The police need to justify their actions, not citizens. If the police have justification, then they can act - if not - fuck right off, flatfoot, leave me the fuck alone. If the police have justification to arrest me, I still don't have to justify myself - I can remain silent, I can give them the finger, I can stand mute, I don't have to testify, I don't have to give them evidence or answer their questions - I am free to not cooperate at all. If they can prove me guilty beyond a reasonable doubt, then they win. If not, fuck right off, flatfoot and leave me the fuck alone.

These checkpoints, to me, smack of a reversal of the burden of proof. It says to the average citizen - to proceed along this path, you must demonstrate that you are not committing a crime - we don't even have to have a reason. It's not much different than "show us your papers..."

[Animavore]

These checkpoints, to me, smack of a reversal of the burden of proof. It says to the average citizen - to proceed along this path, you must demonstrate that you are not committing a crime - we don't even have to have a reason. It's not much different than "show us your papers..."

I don't agree at all. When you go out on to a road you have obligations that you don't have when simply walking around. It's funny you said, "Show us your papers", because you actually need papers to drive. You have to have a licence and pay road tax and car insurance before they will even let on the road. Do you think that a checkpoint that is checking for a tax and/or insurance disk on your car is also wrong?
People walking around aren't generally a hazard. Not many people will die if you bump into them. Even if you are drunk. And you don't need to have any licences or papers to walk about or be able to show you are in a state of competence to walk either.
If you are licensed by a state to drive then I think the state has an obligation to uphold your licence.

[Warren Dew]

The drink culture must be different state to state here in the US, if Florida has the highest rate of people refusing breathalizers.

It might not be the drinking culture. Breathalyzers can give false positives on ketones rather than alcohol, and Florida may have a larger proportion of the population in ketosis - and thus exhaling ketones - than most states.

[Coito ergo sum]

These checkpoints, to me, smack of a reversal of the burden of proof. It says to the average citizen - to proceed along this path, you must demonstrate that you are not committing a crime - we don't even have to have a reason. It's not much different than "show us your papers..."

I don't agree at all. When you go out on to a road you have obligations that you don't have when simply walking around. It's funny you said, "Show us your papers", because you actually need papers to drive. You have to have a licence and pay road tax and car insurance before they will even let on the road. Do you think that a checkpoint that is checking for a tax and/or insurance disk on your car is also wrong?

Absolutely. A check point just to check everybody's drivers license and insurance without any particularlized suspicion that anyone in particular is doing something wrong? Yes, I think that's very wrong. It's a stop/detention without any reason.

People walking around aren't generally a hazard.

Neither are people driving around, generally speaking.

Not many people will die if you bump into them. Even if you are drunk. And you don't need to have any licences or papers to walk about or be able to show you are in a state of competence to walk either.
If you are licensed by a state to drive then I think the state has an obligation to uphold your licence.

Sure, you also need a license to own a dog, but that doesn't mean that police can walk around checking everyone if they have a dog license.

What we're talking about is not whether the State has the power to license and regulate - they do. What we're talking about is whether they have the right to detain and search you for no reason.

[Santa_Claus]

The road side judges does seem out of order and simply a way around the laws.

Having said that I don't see being stopped on suspicion and then asked to blow into a bag (easier to spell ) is unreasonable as you are sharing a public space (with a vehicle that more likely to injure if drunk).....I would even say fair enough that a refusal to breath in the bag should mean being arrested on suspicion and then taken to the police station for a blood test.

but IMO the roadside hanging judges just taking the piss.

of course in a country that has secret trials,trials without evidence and secret prisons as well as extra-judicial executions of both suspects and there families (my understanding is that Assange was not only charged in secret, but has been convicted and sentenced to death for esppionage).........then road side summary justice perhaps not so out of place.

[maiforpeace]

Sidenote - Interesting stuff I didn't know about DUI laws in California - it's not an issue in our household since we don't drink and drive.

A California DUI arrest triggers two separate cases - one in court and another at the California Department of Motor Vehicles (DMV). The criminal case typically involves two different counts. The first, under California Penal Code section 23152(a), is driving under the influence of alcohol, which is commonly known as the "a" count. The second offense, under California Penal Code section 23152(b), is a related charge of driving with a blood alcohol content (BAC) of .08 percent or greater - the "b" count. The second charge is the one that triggers the California Department of Motor Vehicles DUI case, where the California DMV will attempt to suspend the motorist's driving privileges.

>snip<

.... establish that the police had probable cause to arrest the driver, whether the arrest was lawful, and whether the driver had a BAC of .08 percent or greater in violation of California law. If the driver is accused of refusing a chemical test, the hearing officer will seek to establish whether the driver was properly advised of the consequences of refusing the test, and whether he or she continued to refuse after receiving that warning.

http://en.wikipedia.org/wiki/Drunk_driv ... by_country

And, checkpoints have been established as being lawful, in California.

So, since checkpoints are lawful in Florida...CES, you should seek to get this overturned in Florida, eh? Probably more useful than arguing with us about it.

[Coito ergo sum]

The road side judges does seem out of order and simply a way around the laws.

Having said that I don't see being stopped on suspicion and then asked to blow into a bag (easier to spell ) is unreasonable as you are sharing a public space (with a vehicle that more likely to injure if drunk).....I would even say fair enough that a refusal to breath in the bag should mean being arrested on suspicion and then taken to the police station for a blood test.

...the point is that you're not being stopped "on suspicion." In this process there is a stop "without suspicion."

but IMO the roadside hanging judges just taking the piss.

of course in a country that has secret trials,trials without evidence and secret prisons as well as extra-judicial executions of both suspects and there families (my understanding is that Assange was not only charged in secret, but has been convicted and sentenced to death for esppionage).........then road side summary justice perhaps not so out of place.

We've got nothing over here that you folks in enlightened Europe haven't had for a long time...we're just catching up, unfortunately.