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'No Refusal' DUI Checkpoints Coming To Florida? 1219

Posted by timothy
from the ends-justify-the-means dept.
schwit1 writes "With New Year's Eve only days away, the National Highway Traffic Safety Administration expects this to be one of the deadliest weeks of the year on the roads. But now a new weapon is being used in the fight against drunk driving. ... Florida is among several states now holding what are called 'no refusal' checkpoints. It means if you refuse a breath test during a traffic stop, a judge is on site, and issues a warrant that allows police to perform a mandatory blood test."
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'No Refusal' DUI Checkpoints Coming To Florida?

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  • by DWMorse (1816016) on Friday December 31, 2010 @08:08PM (#34726150) Homepage

    I was under the impression that a refusal to take a breathalyzer in most states landed you in jail until your blood was drawn. That's how it is here in MN.

    I just don't understand any legitimate concern to decline a breathalyzer test. It's non-invasive and it's not like it's a cheek swap DNA test. But I bet that no drop of blood goes to waste once they draw that...

  • Penalty? (Score:4, Interesting)

    by Albanach (527650) on Friday December 31, 2010 @08:09PM (#34726158) Homepage

    At least in some states they need to consider the penalties for DUI. In many, drivers will be fined as little as $250 and be allowed to continue driving on a restricted license. DUI should result in a minimum one year total ban and a requirement to resit your test. There is no excuse for such behaviour.

    Many other countries have made drink driving socially unacceotable. That status is long overdue in the US.

  • Bad Idea (Score:5, Interesting)

    by FCAdcock (531678) on Friday December 31, 2010 @08:11PM (#34726184) Homepage Journal

    1: I don't know where you are, but New Years isn't "days away" here... It's here now.

    2: Doesn't Florida fall under the same constitution as the rest of the US? Refusing to take a brethalyzer test is a constitutional right under the 5th amendment, and as much as I'd like to see all drunk drivers charged with attempted murder, I don't see how a judge can issue a warrant without evidence simply because someone exercises their rights. Two wrongs do not make a right in this case for sure.

  • Re:seems simple (Score:5, Interesting)

    by dgatwood (11270) on Friday December 31, 2010 @08:14PM (#34726208) Journal

    Unless the previous person blew high enough that there's residual alcohol inside the machine.

    As far as I'm concerned, probable cause means probable cause. If they want to stop everybody at random checkpoints like the gestapo, fine, but don't make people who seem sober take any stupid breath tests or blood tests. If there's no probable cause to believe that the person has been drinking, such tests just plain don't pass constitutional muster.

    Oh, and you can bet a blood test on the side of the road won't meet HIPAA requirements for electronic medical records.

    Hope those states have good lawyers. They're going to need them.

  • by olsmeister (1488789) on Friday December 31, 2010 @08:15PM (#34726222)
    And the problem is, all politicians are too big of pussies to rein them in. Their eventual goal is 0% legal BAC and probably after that, a complete prohibition on alcohol at all. And you know what? I think they'll eventually get it. Baby steps. It's been going on for decades.

    No, I don't condone drunk driving. I'm sorry people get hurt and die. But at some point, you have to stand up and say, I think our system is OK as-is.

    Why not just force them to take the damn breathalyzer rather than jabbing them with a needle? Do they have an RN there for that, or does Barney Fife take a crack at it?
  • by hedwards (940851) on Friday December 31, 2010 @08:28PM (#34726336)
    It's more of a spot check on nights like New Years day when they know that a lot of people are going to be driving drunk. I don't think that they force everybody to take the breathalyzer test without probable cause, but the main purpose is to cause people that are likely to drive drunk to think again.

    What you're suggesting sounds questionable, sort of like speed traps.
  • Re:Bad Idea (Score:5, Interesting)

    by v1 (525388) on Friday December 31, 2010 @08:30PM (#34726352) Homepage Journal

    it does sound like the judge is using your refusal to take the test as probable cause to issue a warrant.

    Sounds like a 4th amendment issue. "We don't have probable cause, so we can't get a warrant. MAY we search your house?" "NO you may not." "OK then, your refusal to allow us to search gives us probable cause to believe you're hiding something illegal. Now that we have probable cause, here's the warrant. Step aside."

    The 4th amendment is specifically worded to prevent that sort of abuse. (before this, in England, probable cause was "required", but refusal WAS probable cause in the law's eyes, so it didn't matter) I don't see why simply having a judge on site changes anything. Actually I don't see why they can even do that do you once they haul you off to jail for refusal. It probably comes back to your agreeing to the test as a condition for receiving your state-issued drivers' license?

  • by crhylove (205956) <rhy@leperkhanz.com> on Friday December 31, 2010 @08:38PM (#34726440) Homepage Journal

    http://www.flickr.com/photos/mr38/1308847889/ [flickr.com]

    http://fourthamendment.com/blog/index.php?blog=1&title=portable_backscatter_technology_zbv_and_&more=1&c=1&tb=1&pb=1 [fourthamendment.com]

    and now this? I don't think Nazi Germany was going around giving people cancer, forcing blood tests on the street and installing guard towers in shopping center parking lots.

    Sure, we aren't singling out Jews and Gays, but isn't that in a way EVEN WORSE?

    We're ALL expendable in this country now. Unless you have a private jet, and even then you might still get hit with the cancer gun when you're in your limo. Is there a good country to move to and get away from this? I'm dead serious: I want out. My country has fallen into a full on police state, and I'm ready to start swimming.

  • Re:seems simple (Score:2, Interesting)

    by nopainogain (1091795) on Friday December 31, 2010 @08:42PM (#34726468)
    If you drive with a 0.07, which is marginally close to illegal, you should be in the backseat of a cab. dont pretend this makes no sense to you. that's like arguing attempted murder vs murder.. "your honor, the guy pulled through, that means im not a bad person" your argument reflects that logic. drink a soda=drive yourself home drink alcohol=call a cab. if you can afford to party, you can afford a cab. I will however argue against (at the proper time) people who are picked up and fined for opting to walk while drunk. This is contradictory and I know a woman who walked home and got arrested. I think someone opting to leave their car should receive something of a pat-on-the-back. unless they are rowdy or doing something so destructive that it alone would warrant a fine, leave them be.
  • by Stavros_Oz (1702104) on Friday December 31, 2010 @08:44PM (#34726488)
    Do it the way we have been successfully doing it here in Victoria, Australia for over two decades. Random breath testing, either preliminary testing performed by ANY cop doing ANY stop using a hand held device, or process an entire stream of traffic using one of thirty-odd 'booze buses', each equipped with several cops who breath test everybody, AND can also perform the second stage (analytical) breath test on site (in the specially equipped bus). Yeah, you CAN refuse a breath test, that's easy, but you're then charged with refusing to take a breath test which carries the same penalty as if you blew the end off the range!! No we don't enforce 'mandatory taking of blood', after all that would be considered a deprivation of a citizen's rights in some enlightened cultures. But refusal = guilty, it's your choice!! Also for the past few years the booze buses are being converted to booze/drugs buses and a saliva test is used to check drivers for cannabis or amphetamine use. Some may scream of invasion of privacy, but the statistics clearly reflect the good that is done by this initiative. Road fatalities have fallen by 2/3!!! Injuries have fallen a similar amount. Stavros_Oz, Melbourne, AUSTRALIA
  • by serutan (259622) <snoopdoug.geekazon@com> on Friday December 31, 2010 @08:45PM (#34726506) Homepage

    If a mandatory DUI test is an unreasonable search, is a mandatory driving test at the DMV an unreasonable search? I believe both are reasonable.

    Sarcasm and hyperbole aren't rational arguments.

  • Re:seems simple (Score:2, Interesting)

    by Anonymous Coward on Friday December 31, 2010 @08:48PM (#34726542)

    It's not difficult to interact with a person and determine if they are sober or not.

    Bullshit. My dad, a heavy drinker, talked his way out of speeding tickets when he would have blown a DUI. There were plenty of times that -I- couldn't tell that he'd been drinking. It's too bad he didn't get caught, he might have lived longer. There are plenty of people that don't show it. Some of his friends haven't finished pickling their livers yet.

  • by The Snowman (116231) on Friday December 31, 2010 @08:52PM (#34726562) Homepage

    They get to pass their own laws?

    Subject to the Florida constitution and in some cases the US constitution, yes.

    Actually, in all cases the U.S. Constitution. It is the supreme law of the land, and supersedes all other legal documents on United States soil. The fourth amendment is in full force in Florida and would be a valid defense against these checkpoints. Having the judiciary working hand in hand with the police and rubberstamping warrants on the site of the alleged crime (the checkpoint) is, in my opinion, a violation of reasonable search and seizure: state law be damned.

  • by Anonymous Coward on Friday December 31, 2010 @08:52PM (#34726566)

    You are much better off staying within the US. Nowhere else is any better. Seriously, the best thing to do is to buy a small acreage somewhere and work from home. Raise some animals and grow a garden. The cost of living is low. UPS will deliver anything you could want from across the globe. The cops in rural areas are assholes, but they are easy enough to avoid. And odds are you will be surrounded by supportive neighbors who are sick of the bullshit as well.

  • by RobertLTux (260313) <robert AT laurencemartin DOT org> on Friday December 31, 2010 @08:54PM (#34726578)

    the hook here is BAC has a legally "known" decay rate so they acn and will in fact say that if your BAC was 0.08 when tested then it is assumed that WHEN YOU WERE PULLED OVER your BAC was 0.10 and therefore you get tagged for DUI.

  • Re:Bad Idea (Score:5, Interesting)

    by NNKK (218503) <nknight@runawaynet.com> on Friday December 31, 2010 @09:04PM (#34726686) Homepage

    That's not the way things are run, he's just an uninformed twit. In most, if not all states, you agree to surrender to breath testing at the discretion of law enforcement as part of getting your license. Courts tend to interpret the power a little more narrowly than cops would like, but if they have even the slightest reasonable suspicion, you're not going to get anywhere.

    An on-the-spot judge is new, though, and is going to be problematic. We take separation of powers pretty seriously here. A judge is not a police officer, and shouldn't be acting like one. The commingling is going totrigger a massive legal fight.

  • by wiredlogic (135348) on Friday December 31, 2010 @09:29PM (#34726922)

    I just don't understand any legitimate concern to decline a breathalyzer test.

    The government loves uninformed sheep like yourself.

    Breathalyzers do NOT measure blood alcohol content. Instead, they use a chemical reaction as a proxy that is not specifically sensitive to just ethanol. It is possible to trigger false positives with certain foods. On top of that there is no accounting for different body sizes and metabolic rates and any host of other biological variables. There is no possible way to derive an accurate measurement using these instruments.

    The industry and the courts want the public to stay in the dark on this issue because it is a convenient expedient to convicting drunks. Some countries have tried to dodge the issue by classifying intoxication by breath alcohol content but these machines can't even measure that with verifiable accuracy across the general population.

    If a cop asks you to take a breathalyzer test you should ask to see the calibration sticker. No up to date cal, no good. Then ask him to explain how the device works, in detail. His ignorance of the device will be important should you end up in court over the issue.

  • Re:Whats next? (Score:5, Interesting)

    by Crudely_Indecent (739699) on Friday December 31, 2010 @09:35PM (#34726976) Journal

    I've seen this tactic used.

    At one point I lived in Lake Elsinore California in a second story apartment with a balcony that looked down the worst street in town (it was really cheap.) The whole subdivision was tied together by a road called Quail - basically a horseshoe that was the only road in or out of the subdivision.

    Cops blocked both ends of Quail and started a house-to-house search with judges walking the street. If you didn't voluntarily allow your home to be searched, the judge would walk up, sign a warrant and the cops would break down your door. No way in or out, no refusal.

    My room mates and I sat on the balcony with a cooler full of beer and watched the action. When the cops came to our door and asked "can we search your house" we responded with a question - "Can we stop you?" He answered "No". No need to involve a judge, that would just piss someone off and we didn't need to make any enemies.

    We were all handcuffed and put on the living room couch while about 20 cops tore our apartment apart, then left us with a huge mess. They didn't break anything, but we had to replace a lot of food that they dumped out. Clothes were rummaged through, dumped on the floor, walked on. No consideration was made that we weren't the people they were looking for. We got no apology.

    We were, however, permitted to return to the balcony to watch the rest of our neighbors get arrested. This began the quietest 2 weeks that neighborhood had ever seen.

  • Re:Whats next? (Score:3, Interesting)

    by Fuzzums (250400) on Friday December 31, 2010 @09:47PM (#34727064) Homepage

    First of all I'm TUI. Second: in recent history you said something that I found interesting, so you have a green dot next to your name that encouraged me to read your post.

    But...

    "Honestly, I don't care if there are 800,000 alcohol-related road fatalities each year. That would be incredibly unfortunate but freedom is worth that and then some, even if I end up among those 800,000."

    I think we disagree here. Your freedom TOTALLY ends at the very point where you or anybody is about to harm, damage or kill me.
    I hope you will never have to experience the loss of a friend who got killed by a drunk driver.
    If, on the other hand, you DO have friends / relatives who got killed by a drunk driver, I think I can repeat your comforting words "I'm sorry, but it's just it's only the price of my freedom that your friend just paid".

    Next. If your freedom means killing others under false pretences, the only think I can say is. Well. Let's look at this from the my side. What would you say if I'd have you killed for my freedom? Hey. It's MY freedom and you might me in the way. You might be a swell guy, but you never know... Better safe then sorry, You have a different opinion, so you might also limit MY freedom.

    Seeing my point? There is freedom. There is fairness. There's a balance.

    Well. So much for my first post this year. Maybe if I explain that I knew people that were killed by DUFI, you'll understand my reaction.

    I TOTALLY agree with you that freedom is worth a lot, but getting killed by an ass who stepped into a car while under influence has nothing to de with freedom.

  • Re:Whats next? (Score:5, Interesting)

    by Crudely_Indecent (739699) on Friday December 31, 2010 @10:44PM (#34727466) Journal

    They were looking for meth dealers/labs.

    They found a lot of them. There were white passenger vans pulling in empty and out full. They also had a U-Haul that would pull in empty, and out full of lab gear.

    Humorous, yes...we all had a laugh as we were watching the rest of the neighborhood get arrested and cleaning up the mess. "Holy shit dude, we just got raided....We're like the only ones left on the street."

    Disturbing, yes. We had done nothing wrong, but were treated as guilty until proven innocent.

  • Re:Whats next? (Score:4, Interesting)

    by TheABomb (180342) on Saturday January 01, 2011 @12:04AM (#34727934)

    Fact: a driver who is "not otherwise detain-able" is one who's not committing the already-existing crime of "reckless driving".

    If said driver is not driving dangerously on account of his intoxication level, then any accident he's involved in is by its very nature just that—an accident. In such a case, the harm that is done to society by treating everyone as a latent criminal—from things as simple as lost time, to things as dangerous as malicious prosecutions and maintaining a general state of fear of jackbooted thuggery—far outweighs the purported good of safening the roadways from people who are dangerous on paper only. From there, the "what's next?" argument does logically extend to things like roadblock checkpoints to make sure your tire treads aren't a millimeter under regulation, or your radio isn't too loud, or indeed even to potential pedestrian offenses like needing regular shoe check-ups (because a faulty lace could result in tripping, and a trip could fall into the street, where the tripper could be hit by a car, or a driver might swerve to miss him and do more damage to an innocent pedestrian). And a "pedestrian permit" is also analogous in that it would generate every bit as much revenue as fining drivers who are only dangerous on paper.

  • Re:Whats next? (Score:4, Interesting)

    by arth1 (260657) on Saturday January 01, 2011 @12:57AM (#34728188) Homepage Journal

    You're conveniently ignoring that there are legitimate reasons to refuse, including illnesses that makes breathing hard through a tube either near impossible or hazardous, or simply having just ingested something that may give false positives.
    I belong to the first category, but wouldn't object at all if alternative and well-proven methods like an eye cup test were available.
    But to be detained and jabbed with a needle by non-medical personnel because some asshole sheriff would rather spend money on wagging his penis and forcing people than the much cheaper alternative of having alternative tests available -- now that I protest.

  • by Anonymous Coward on Saturday January 01, 2011 @12:58AM (#34728194)

    Refusal to be searched is not probable cause.

    Evidently it is now.

    "Consent to a search or we will get a warrant instantly and search you anyway."

    Hard to see how anyone can justify this corruption of the law. The intent of the 4th Amendment was that the government needs to provide a reason to search you beyond "we just want to." That's why the law requires that persons, places, and things to be searched are specified and not just any old person going about their business.

  • Re:Whats next? (Score:4, Interesting)

    by Caraig (186934) * on Saturday January 01, 2011 @02:04AM (#34728438)

    I knew someone once -- his politics don't matter so much, but he was very, very strongly authoritarian. Thing was, he didn't have that curious self-deception that so many authoritarians I've know have, thinking he would be one of the people on top. Instead he had no illusions that he would be a follower, and he embraced it. It's a strange sort of mental submission to Legalist thought, but you are entirely right: There are some humans who will embrace being slaves, so long as you make sure not to call it 'slavery.'

    In fact there's another curious mindset that many authoritarians have. Some are followers, and some are leaders, and some are enforcers. They will follow and make sure that others follow. And they will gladly accept whatever power is given to them to do that enforcing. This person who was once my friend will be one of the jackbooted, baton-swinging enforcers of the state, as will, it seems, someone whom I was very fond of once. I do not have a vast circle of acquaintances; that at least two of them are ready to be authoritarian enforcers seems to be too many to me. I do not want to give up on freedom, but there are some days when an authoritarian system seems to be inevitable.

  • by sjames (1099) on Saturday January 01, 2011 @04:06AM (#34728822) Homepage

    State figures sometimes count anything at all. However, consider:

    Sober someone fiddling with the radio runs up on the sidewalk and kills 10 diners at an outdoor cafe. One of the tables had wine, so according to NHTSA that's 10 alcohol related fatalities (I'm NOT kidding).

    The trend is practically meaningless due to the noise.

  • Re:Whats next? (Score:2, Interesting)

    by potat0man (724766) on Saturday January 01, 2011 @12:23PM (#34730806)
    How about altering the penalties for DUI and reckless/careless driving, and speeding based upon the weight or dangerousness of the vehicle you are driving? Something like 10 cents/pound or something. Why should someone drunk on a moped who is likely only going to hurt himself face the same penalty as someone driving a dump truck while drunk?

    Caught speeding on a moped? That'll be $15. Oops, speeding in an Expedition? That'll be $607. Same for DUI's except maybe a little more expensive. 50 cents/pound or Half-day in prison per pound.

    So at checkpoints you can let sub-compacts go right through, but stop the heavy trucks and SUV's to check for sobriety since they're creating a much larger potential hazard on the road.

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