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Drunken-Driver Checkpoints: Every Driver Guilty

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Tens of thousands of innocent Americans are stopped each month at police checkpoints that treat every driver as a criminal. These checkpoints, supposedly started to target drunk drivers, have expanded to give police more intrusive power over citizens in many areas.

The demonization of alcohol is leading to a growing nullification of the constitutional rights of anyone suspected of drinking — or anyone who might have had a drink anytime recently. In 1925, the Supreme Court declared,

It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.

But as the 20th century progressed, judges and prosecutors gained a more rarefied understanding of the Bill of Rights.

In the early 1980s, police departments began setting up checkpoints to stop and check all cars traveling along a road to see whether the driver was intoxicated. As law professor Nadine Strossen wrote, checkpoint “searches are intensely personal in nature, involving a police officer’s close-range examination of the driver’s face, breath, voice, clothing, hands, and movements.” The checkpoints were extremely controversial. In 1984, the Oklahoma Supreme Court banned the practice in that state, declaring that drunk-driving roadblocks “draw dangerously close to what may be referred to as a police state.”

In 1988, the Michigan Court of Appeals, in a case involving driver Rick Sitz, also concluded that the practice was unconstitutional. The Michigan Department of State Police appealed the case to the U.S. Supreme Court. As professor Strossen observed,

The Sitz plaintiffs argued that mass, suspicionless searches and seizures at drunk driving roadblocks violate the Fourth Amendment because they are not based on any individualized suspicion.

But the Supreme Court disregarded the privacy concerns and approved the checkpoints. In a statement that epitomized some judges’ blind faith in police officers, Chief Justice Rehnquist declared,

For the purposes of Fourth Amendment analysis, the choice among reasonable alternatives remains with the government officials who have a unique understanding of, and a responsibility for, limited public resources.

Justice John Paul Stevens dissented, stating,

On the degree to which the sobriety checkpoint seizures advance the public interest … the Court’s position is wholly indefensible…. The evidence in this case indicates that sobriety check points result in the arrest of a fraction of one percent of the drivers who are stopped, but there is absolutely no evidence that this figure represents an increase over the number of arrests that would have been made by using the same law enforcement resources in conventional patrols.

Stevens continued:

A Michigan officer who questions a motorist [seized] at a sobriety checkpoint has virtually unlimited discretion to [prolong the detention of] the driver on the basis of the slightest suspicion…. [The] Court’s decision … appears to give no weight to the citizen’s interest in freedom from suspicionless unannounced investigatory seizures.

He characterized the checkpoints as “elaborate and disquieting publicity stunts.”

In the Sitz decision, the Supreme Court concluded that since checkpoint searches were equally intrusive on all drivers, no individual had a right to complain about an intrusive search. But that stands the Bill of Rights on its head — reading the Fourth Amendment to require the government to equally violate the rights of all citizens, rather than to restrict government violations of any citizen’s rights.

Naturally, once the Supreme Court sanctioned drunk-driving checkpoints, police expanded their use. As long as the car is stopped and the policeman is there, why not check to see whether the driver is wearing a seatbelt — or has his registration with him — or has any open containers of alcohol in the car — or has any guns hidden under the seat or in the glove compartment? And why not take a drug-sniffing dog and walk it around the car to see whether the pooch wags his tail, thereby automatically nullifying the driver’s and passengers’ constitutional rights and entitling police to forcibly search the vehicle?
Checkpoint tyranny

According to a North Carolina State Police press release, a statewide “Booze It & Lose It” checkpoint crackdown resulted not only in the arrest of drunk drivers but also in the arrest of 137 drivers for firearms violations and 636 for drug violations. The press release noted, “In addition to targeting impaired drivers, law enforcement officers will be keeping watch for other violations of the law.” This is essentially a declaration from the police of their intent to do visual searches — if not more — of all the cars they stop. The checkpoints did nab one drunk “big fish”: State Senator George Miller Jr., who had championed strict drunk-driving laws.

Nebraska police set up a checkpoint consisting of a sign announcing a narcotics checkpoint; police then watched to see which drivers passing the sign showed “furtive movements,” thereby supposedly justifying the police to pursue, stop, and search the auto. (A state court struck down the procedure as unconstitutional.)

One California police chief set up a checkpoint supposedly for the purpose of checking licenses and vehicle registrations. But in reality, the roadblock was a pretext for drug searches, since drug-sniffing dogs would circle all the stopped cars. The local police chief admitted in court that he set up the license-and-registration roadblock because he knew he could not lawfully establish a roadblock that was only “looking for drugs.” (A judge squelched the chief’s program.)

Monroe County, Pennsylvania, police began setting up checkpoints at random points in the Pocono Mountains. Though the checkpoints were supposedly instituted to catch drunk drivers, they were also used to catch drug couriers. One annoyed local resident complained to a local paper that he had been stopped at the roadblock at night and after complying with police requests to show that his car’s equipment was in proper working order, he was approached by a black-hooded police officer who brandished a heavy flashlight and told him repeatedly that he appeared jumpy. Meanwhile, two other police officers shined flashlights into the car. When they saw two jugs of water, they questioned him about why he had so much water with him. The local police chief defended the use of black-hooded drug agents at the late-night checkpoints.

A drunk-driving checkpoint erected by Florida police near Orlando resulted in 65 drivers’ receiving fines for such crimes as not carrying proof of insurance, not wearing a seat belt, nonfunctioning horn (apparently the cars, as well as the drivers, had to pass a toot test), having loud mufflers, and failing to have the correct residential address on a driver’s license. Of a thousand people checked, only seven were arrested for driving under the influence. Thus, almost ten times as many drivers were fined for violations with no relation to drunk driving as were fined for drunk driving. And the amount of time they spent listening to horns honking epitomizes how police squander their shifts merely as revenue agents with guns on their hips.
Checkpoint politics

Congress made drunk-driving checkpoints even more irrelevant to public safety with a 1995 law that effectively required state governments to penalize as drunk any driver under the age of 21 who had consumed a single beer. That was a follow-up to one of the worst abuses of the Reagan administration — a 1984 law that compelled all states to raise their drinking age to 21 or else lose federal highway subsidies.

Drunk-driving policies are sometimes heavily influenced by politics — especially by politicians’ love of bragging about arrest rates of drunk drivers. Newsday reported in 1994 that in Nassau County, Long Island, police appeared to have a quota for DWI arrests. Officers were permitted to receive lucrative overtime assignments only after making a DWI arrest. Newsday noted,

DWI arrests have been on a downward trend, and that’s a politically thorny issue for elected officials who like to point to successful war-on-drunk-drivers statistics, especially when they are running for election.

In judging policies against drunk driving, it is important to recognize that some widely used statistics may exaggerate the harm done by drunk drivers themselves. Richard Berman of the Alcoholic Beverage Council noted in 1995,

Last year, 17,461 people were killed in “alcohol-related” traffic accidents. Because of the way statistics are developed by the Department of Transportation, an accident does not have to be “caused” by alcohol to be classified as “alcohol-related.” It is estimated that 50 percent of these accidents “related” to alcohol would have occurred anyway. Even more bizarre, an alcohol-related fatality can result from a sober driver who wrongfully hits another car, killing the “innocent” driver who had one beer with dinner.

Furthermore, most of these deaths are not “tragic killings”…. The overwhelming majority of alcohol-related deaths are the drunken drivers and their drunken passengers. (These folks may be accused of suicide, but generally not homicide.) Even less reported is the fact that approximately 10 percent of these reported fatalities are drunken pedestrians hit by non-drinking drivers — weak support for tough laws aimed at drivers.

There is a great difference between vigorous prosecution and penalizing of drunk drivers, and creating laws that presume that every driver deserves to be treated by police as a drunk. Drunk-driving checkpoints greatly increase the police’s power to harass everyone.

Drunk-driving checkpoints epitomize the modern law-enforcement mentality — that it is more important to be politically visible and impose costs on private, law-abiding citizens than to actually solve the problem — as if annoying the public is more important than protecting them.

This article originally appeared in the August 2007 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.