'No Refusal' DUI Checkpoints Coming To Florida? 1219
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."
Re:Whats next? (Score:2, Insightful)
Re:Whats next? (Score:5, Insightful)
Perhaps its time to just accept the tyrannical police state and dismiss the false claim of an impartial judiciary and replace the police with street judges.
I'm totally in favor of this (Score:2, Insightful)
Drunk drivers have been killing about a 9/11 worth of Americans every couple months since the 1960s. Given the extent to which we've allowed the government to invade our privacy in ineffective ways in the name of protecting us from terrorism, I'm happy to see them do something genuinely effective against a problem that's about a hundred times worse than terrorism.
Re:Why would you refuse a breathalyzer? (Score:4, Insightful)
I suspect people refuse the breath test to buy time. It'll take a half hour to drag you to the police station, and maybe longer to get the blood test arranged, and by then your blood alcohol level might be lower?
Dunno. Never had to worry about it. I have enough money to afford a cab if it ever came down to it, and I stay home on drinking occasions like New Years to avoid the drunks.
Re:Why would you refuse a breathalyzer? (Score:5, Insightful)
I just don't understand any legitimate concern to decline a breathalyzer test.
You mean the fact that it's an error prone test, that can draw false positives due to diabetes, low-carb dieting, and various non-intoxicated metabolic states, along with the fact that once the test is completed, the results can't easily be challenged and shown to be false, since there is no blood sample with which to do further testing.
Yeah, sounds great, I'll do a breath test anytime. There is absolutely no benefit whatsoever to my compliance with what I consider an unreasonable demand, due to the inherent unreliability and non-repeatability.
RIP Constitution (Score:3, Insightful)
Re:Why would you refuse a breathalyzer? (Score:3, Insightful)
Thats how it is in most of the world. Not jail maybe, but you get arrested for the purpose of getting a blood test if you refuse a breath test. Same if you fail the roadside breath test, you can be arrested long enough to get a more reliable test. That doesn't necessarily mean being charged on the spot or jail, unless you have a very high reading. It could mean a summons in the post.
Having a magistrate on site seems an awkward way to do things.
Florida is a state right? They get to pass their own laws? Why can they not just pass a law to allow random breath testing? e.g. give the same penalty for refusal as for failure.
Drink driving kills far more people than terrorism, and it seems an utterly miniscule inconvenience compared to the ludicrous actions of the DHS.
Re:Whats next? (Score:5, Insightful)
Excellent... using the refusal of a non-compulsory breathalyzer as probable cause for a compulsory blood test. That's some flawless logic right there!
If our society demands stricter enforcement of DUI, then there's already a well defined process for crafting new laws and allowing them to go through proper judicial reviews.
. . .subverting this process by using onsite judges to piss all over the fourth ammendment is NOT the solution!
Re:Something the judges should read (Score:4, Insightful)
Florida has implied consent laws. By choosing to drive on the roads, you agree to perform a breath test when requested by a police officer. If you don't want to, simply don't drive. Anyone refuse a test is already braking the law and will be facing a court appearance, a fine and a suspended license,
Doesn't it seem reasonable for a judge to determine that an individual refusing a non-invasive test, where the refusal has such significant repercussions, may indeed be over the limit and determine there is probable cause to test this rather than letting them off with a lighter penalty?
Re:I'm totally in favor of this (Score:5, Insightful)
You seem to think that because they do worse things, it is fine for them to do bad things. I hope you end up getting filled with holes by some police officer while walking down the street, just because you "looked suspicious." After all, we invaded a whole country, what's one shady smuck on a sidewalk?
Re:Whats next? (Score:5, Insightful)
I'm not against DUI checks.
I'm against what I experienced in Texas when the Homeland Gestapo demanded to search my trunk. I refused because they had no warrant. Had there been a judge there he could have issued a warrant on the spot, but he wasn't there, so instead the jack-booted thugs made me stand in the hot summer sun for an hour. I felt like a Black man circa 1950. Or Japanese american in 1942. Or German Jew in 1934. Not attacked- just intimated and treated like a rat by the cops.
Re:Something the judges should read (Score:5, Insightful)
Implied consent is bullshit, and already makes a mockery of the Fourth Amendment. There is no consent to a breath test (or any other test) implied by driving.
No. Refusal of a search can never be probable cause for a search, as that too makes a mockery of the Fourth Amendment. If there were a an equivalently simple test for having committed a murder recently, it would still be unreasonable to allow cops to ask that people take it, and unreasonable for their refusal to be used as probable cause for forcing them to take such a test.
Re:Whats next? (Score:5, Insightful)
Personally, I think the worst part of all this is that they still lie to us and tell us we're free. We aren't and weren't, and at this rate, never will be.
Re:Why would you refuse a breathalyzer? (Score:5, Insightful)
"I just don't understand any legitimate concern to decline a breathalyzer test."
The same reason you should refuse to provide the police with any information. False positives.
Re:Whats next? (Score:5, Insightful)
Re:Whats next? (Score:5, Insightful)
When there is a continuum and this represents a movement towards one extreme end of that continuum, it is reasonable to ask what is next. American history is all about the gradual expansion of government intrusion and the gradual erosion of what were once sacrosanct civil rights. No official ultimate goal has been set, as in "once we reach this point we'll back off" so those of us who don't want to live in a police state quite legitimately wonder when the "for your safety" justifications will end.
Assuming you're willing to entertain such a case and accept it as valid so long as the reasoning is sound, even if you disagree with it (and around here that's a gigantic "if"), then sure. I'll explain this as well as I can.
The text of the Fourth Amendment of the U.S. Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That's the text. Now for how the courts have generally interpreted it. American jurisprudence has long held that even for things like traffic stops on public roads, this means that an officer must have either a warrant or probable cause. That is reasonable, and takes into consideration that there are very, very good reasons why we don't just blindly trust cops to not abuse their power. The idea is, they don't go on fishing expeditions and they don't hassle citizens without a good, justifiable reason.
Now then: the fact that you happen to be driving down a particular street is emphatically NOT probable cause to believe that you have committed any crime. So the cops don't have probable cause, and they don't have a warrant either. Do you see the problem?
If someone is driving poorly, weaving in and out of lanes, or otherwise their actual road performance demonstrates that they might be intoxicated, not only do I think it's reasonable for the police to pull that person over, I would consider them negligent if they were aware of it and didn't take action. Driving like you might be intoxicated is probable cause to believe that you are intoxicated and that's simple enough.
What's happening here with DUI laws is the same thing that's happening on several other fronts, including terrorism or "protecting the children" et al. An emotional, usually fear-based appeal is made to excuse the suspension of Constitutionally-guaranteed civil liberties. In my opinion, the politicians pushing for it are driven by a desire for more power and the citizens accepting it and making excuses for it are driven by plain old cowardice. There was a case like this involving roadblocks that went all the way to the Supreme Court, and I wish I could remember the name/date of that case. The ruling basically stated "yeah, this is almost definitely unconstitutional, but we'll accept it anyway because [at that time] there are 25,000 alcohol-related road fatalities each year."
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'd rather retain the freedoms that many great men have fought and died for. The cowards who will surrender liberty for promises of safety are not worthy to lick the boots of those who understood the value of freedom. I am willing to take my chances with a few more drunks on the road. I consider that far less of a threat than the unchecked police power of the state, and history backs me up on this one without question.
That's my coherent case. I'd be happy to answer any questions you may have.
Re:Penalty? (Score:5, Insightful)
Around here, there is quite a lot of popular support for lifetime driving bans for the first offense. This might be an overkill, but I'd support that for 2nd one.
I'm quite shocked by the US where they catch a drunken bozo for the 5th time in a month and he still is allowed to drive to work and back.
Re:Welcome to Florida... Sieg Heil! (Score:4, Insightful)
You seem to be saying that testing for alcohol is protecting drivers against themselves. I ride a bicycle to work (in a different jurisdiction). Shouldn't I be protected against drunk drivers?
Do you approve of drunks operating other types of heavy machinery? How about airliners, trains, cargo ships?
Re:Whats next? (Score:5, Insightful)
The "what's next?" is an argument when the example is not a non sequitur like take for example... yours. Having a judge on site to "streamline" the process like this is dangerous because it lessens the boundary between the executive and the judicial powers. Basically overriding the protection of your rights gets boiled down to "Ok you wont let me do this," *turns around, gets a stamp, turns back* "now you have to."
So, what's next? Making a police officer and a judge be a standard pair when on patrol? If getting a warrant becomes a 1-minute formality then yes indeed the next thing could easily be "no refusal" car searches. Because if the judge and the police officer gets paired up like this then there is no real separation of power.
"Oh but it is okay in this case, because it makes the roads safer!" is a very dangerous argument in itself. It advocates overriding the system when it feels "right", which is very subjective and is a method that can quickly turn sour or be horribly abused by men in power. Instead of undermining the system by doing stupid things like this, work within it. If something doesn't work, petition the legislative branch to change how it works, just don't go play Judge Dredd because it feels "right".
This is not a question of whether DUI checks are "bad" or if we should stop testing for it completely or whatever. That's a straw-man in this case, because it is not the argument the OP made that you're attacking.
Re:seems simple (Score:5, Insightful)
Unless you under-dosed on insulin, used mouthwash recently, ate sourdough bread, suffer any of a number of metabolic disorders, the breathalyser is miscalibrated, malfunctioning or operated incorrectly, etc etc etc.
The one good thing about a blood test is they have no excuse for not having a second sample for independent analysis.
Of course all of that is a destruction of constitutional rights when implemented as a roadblock. What happened to probable cause? I'm all for keeping DUI under control and making people safe but shredding the foundation of our society is much too high a price.
Re:seems simple (Score:5, Insightful)
in ontario canada, the stop-everybody stops do NOT make everyone blow.
they talk to you (real close to your face) and shine their flashlight at your eyes
and ask you if you have been drinking.
if they think you arentt bombed or clumsy with spilling drinks, they let you go
without a breath test.
probably because the breath tests use disposable tubes, and those tubes
probably cost real money and would soon swallow a police budget if used
on every single driver on a busy roadway.
also, i believe here 'probable cause' is still required for asking a breath test.
they can stop everybody at a roadside event, but the next step of actual testing
requires the officer, keeping a straight face, to be able to say in court he
had believed the driver had been consuming alcohol/appeared intoxicated.
of course many idiots will admit they had "1 drink" when asked if they
have been drinking -- this is probable cause.
Re:Thats not bad in British Columbia (Score:4, Insightful)
Despite the rest of the western world providing a working counterexample, many American citizens still think it's 1776 in the rest of the world and that the rest of us haven't managed to make democratic socialism work. It's also forced the American governments to do things in an underhanded and below-board manner (and to the detriment of freedom) because they can't have a hysteria-free debate on certain toics like the rest of the us have.
Its like the whole "gun" thing. Again, the much of the rest of the civilised world does without the level of gun nuttery baggage, and yet curiously we're not at the mercy of warlords or jackbooted thugs or what have you.
It's sad, really. Much of the country desperately needs to get a sense of perspective.
Re:seems simple (Score:5, Insightful)
its not going to be enough residual alcohol to impress a reading. and if you didnt drink at all, *buzzed driving is drunk driving* then your CLEAN breath + the last guys millidrop of alcohol will not register 0.08 so what do you care? and yes, i support the crap out of safe flying associated x-rays. if x-raying some guy to check him for explosives guarantees me a safe flight, i say ZAP AWAY!
Do you find it odd that Israel and other places that have far bigger terrorism problems than the USA has ever experienced don't use such scanners and consider them to be not worthwhile? Or did you even know that?
The difference is that in the USA, the screeners are looking for weapons. In Israel, the screeners are looking for terrorists. They collect intelligence on the people who purchase tickets. They ask questions. If necessary they interrogate and perform psychological evaluations. They know who you are, where you're going, whether you plan to return, and maybe also why you're going there. They look for inconsistent or conflicting stories. What they do is more like old-fashioned police work. Israel has many enemies and those enemies tend to use terrorism tactics rather than conventional warfare.
The last hijacking that happened anywhere in Israel was on July 23, 1969. The Ben Gurion Airport just outside Tel Aviv has never had a single hijacking. I'm thinking we should listen to the Israelis on this matter.
And if intrusive groping of 80-year-old grandmas and terrified, screaming three-year-old girls becomes government-sponsored, I say the terrorists have been handed more of a victory than they ever could have hoped for.
Re:Something the judges should read (Score:5, Insightful)
There's also few statements in your driver's license EULA about not criticizing the government, allowing the state to quarter troops in your home, waiving your right to a jury trial in vehicular manslaughter cases, and permitting the police to scourge you at roadside for violating the speed limit.
Oh, wait, there aren't. But if there were, they'd have to be unconstitutional as well. Because if the state can force you to waive your fundamental rights as a condition of performing a common activity, your rights are pretty much null and void.
Besides, what if you're driving without a license? Can't be any implied consent there, and driving without a license carries a lesser penalty than drunk driving.
Re:Bad Idea (Score:3, Insightful)
I don't see how a judge can issue a warrant without evidence simply because someone exercises their rights.
It's not. On the other hand, upon sworn testimony from an officer that he observed multiple objective indicia of drunkenness (e.g. slurred speech, bloodshot eyes, smell of booze), a judge might conclude that it is more probable than not that you committed the crime of DUI.
That's been the standard for judging warrants since time immemorial -- the police gather evidence, they submit an sworn affidavit summarizing their evidence, the judge determines whether the materials in the affidavit suffice to establish probable cause that a crime was committed and that evidence of that crime is likely to be found in the place to be seized.
Of course, the entire procedure is amenable to criticism on a number of levels but none of those criticisms are specific to the particular manner its used here. This procedure is identical in nearly all respects to the manner used to kick down doors in murder investigations or seize computers in fraud investigations. Maybe they are all suspect, but I really don't see the distinction between them.
Re:I'm totally in favor of this (Score:5, Insightful)
There's an obvious difference. A mandatory DUI test might be an unreasonable search -- or it might not. A mandatory driving test, on the other hand, is not a search.
The Fourth Amendment says people should be secure in their "persons, houses, papers, and effects." These are all clearly material things, and don't include the contents of your brain. (That would be the Fifth Amendment, and that only applies to "bearing witness against oneself," not to an entirely voluntary test that is not even administered by the justice system). A physical search of your body by police, on the other hand -- such as a breath test -- does seem to fall in this category.
Furthermore, for most types of crimes -- even very serious ones -- there are no mandatory checkpoints. Police don't have the right to stop you on the street, for example, and go through your wallet and ask you for a receipt from the bank for any cash you might have, to prove you're not a thief. A married man does not have to pass wife-beating checkpoints, where police demand that his wife wipe off her makeup to prove that her face doesn't have bruises on it. When you take your kids to Disneyland, police can't take your blood to run a curbside paternity test, to prove you're not a kidnapper. And police don't have a right to demand that your girlfriend have sex with them to prove that she likes sex -- because if she doesn't like sex then you must be a rapist. (You think such things have never happened?)
Mandatory DUI tests might be "reasonable" if they help to reduce the amount of injury and death due to traffic accidents. I feel, however, that in this aim they work best as a deterrent, and when police pursue cases with too much vigor it starts to look like a quota game -- a way to make the police department look good by producing trumped-up statistics -- than a real societal benefit.
Re:seems simple (Score:4, Insightful)
If people aren't noticeably impaired by the alcohol, isn't that sort of not a problem then? The reason for BAC limits is just because we need something objective that correlates reasonably well with impairment, not because high BAC is inherently bad.
If we administered actual "impairment" tests, different people would probably have different BAC threshholds, depending on physiology, tolerances, etc. Perhaps we should go in that direction, and make people do some sort of hand-eye coordination task, instead of testing alcohol levels...
No citation needed (Score:4, Insightful)
Refusing to take a brethalyzer test is a constitutional right under the 5th amendment
Courts are almost never willing to extend the privilege against self-incrimination to the collection of ordinary physical evidence - hair, fingerprints, blood samples and so on - paricularly when the procedure is non-invasive - and least of all when you look and smell as drunk as a skunk.
You are very much in your right to refuse a brethalyzer test. The courts have upheld that time and again. However, since you do not have a constitutional right to drive, the courts have also held that states are free to revoke your privilege to drive if you refuse to take the test.
Why don't people understand that?
Re:Whats next? (Score:5, Insightful)
They aren't being duped, or sleepwalking into it, they are begging for some movement sufficiently authoritarian to allow them to absolve themselves of the painful business of maintaining a personal ego and subsume themselves in some forceful mass-movement. The ideas that diversity is deviance and dissent is treason are self-evident homespun wisdom in many quarters.
Just look at the massive disapproval of wikileaks for proof - at one point in recent weeks a polled showed a staggering 80% disapproval rate among US residents. It comes in all forms - Palinites accusing wikileaks supporters of being dirty terrorist sympathising liberals like Ron Paul and frothy left-wingers making up all kinds of criteria to differentiate wikileaks from "real" news reporting -- all on top of a common foundation of populist authoritarianism.
Re:Whats next? (Score:4, Insightful)
Re:seems simple (Score:5, Insightful)
At least, here in Washington, you need a license to drive. And a license to drive is a privilege, for which the state is free to impose whatever conditions they see fit.
Which, at its heart, is a fundamental violation of basic constitutional rights. The right of freedom of movement means nothing if it is restricted to only certain means of travel.
Re:Whats next? (Score:5, Insightful)
If "driving around without a drunk test" belongs on the list of those freedoms
Murdering babies with a Sawzall doesn't belong on that lits of freedoms, either, but you know what? We'll still follow due process and give you a fair trial if you're accused of doing that.
Nobody is defending drunk drivers. What the other people here are trying to get across to you, and what you steadfastly refuse to understand for some reason, is that DUI should not be considered an exception to the Constitution. Get some abstract thinking skills, willya?
Re:Whats next? (Score:2, Insightful)
Re:Whats next? (Score:4, Insightful)
So what about the history that shows strict enforcement of impaired driving laws have led to a reduction in impaired driving in just about every jurisdiction where it's been done?
So the fact that unconstitutional tactics work can be used to justify their employment? Gee, Josef, if we take away everyone's car, I'll bet that will cut down on impaired-driving deaths even more!
Re:Why would you refuse a breathalyzer? (Score:4, Insightful)
Why would you want to give the police anything when they are trying to find something to put you in prison for?
It's no different than refusing their request to search your car, or their request to search your house, or their request to enter your house, or to talk them without a lawyer.
It doesn't matter if you think you have done nothing wrong. You might be ignorant of a law you have broken, there might be a mistake, etc.
Re:Whats next? (Score:3, Insightful)
all on top of a common foundation of populist authoritarianism.
Perhaps it's something entirely different. Perhaps 80% of people understand that the release of most of these documents had nothing to do with holding the government accountable, but rather was intended as a detrimental action against the government. Couple that with the fact that even journalists are criminally liable for releasing documents that are known to be illegally obtained. Wikileaks broke a federal law. So did the New York Times. It has nothing to do with freedom of the press - these organisations violated federal law. That's why 80% of the people think what they did was wrong. The fact that you support it only means that maybe your viewpoint is in the vast minority and is also possibly wrong. It's quite narcissistic of you to think that since you think it's good and 80% of America thinks it's bad, that 80% must just be stupid or misinformed. It's far more likely that you are the one who needs to think things through a little more.
Re:Whats next? (Score:4, Insightful)
If DUI checks are such an horrible imposition on liberty, then isn't having to have a driver's license to drive on the roads equally offensive to freedom? After all, shouldn't you be allowed to drive whatever vehicle you like, anywhere you like, without any kind of licensing? To believe otherwise would be sacrificing freedom for safety.
Re:Whats next? (Score:5, Insightful)
I believe the point is generally understood to be that the government has never been given authority to be bothering the citizens unless it has probable cause to do so. And that it is therefore not just "counterculture heroism" to hold them to that standard, but your duty as a citizen. Unless, of course, you are one of those that thinks the constitution is a meaningless piece of paper, and you enjoy watching the government slip into an authoritarian, non-constitutionally authorized mode of operation.
Re:Whats next? (Score:4, Insightful)
Re:Whats next? (Score:5, Insightful)
WTF? (Score:4, Insightful)
WTF? Driving is a privilege, not a right, not even in the US. You'll need a licence for it, and in addition you'll choose to accept certain rules and regulations by choosing to drive.
In any sensible jurisdiction, if you choose to drive, you'll accept you could be stopped and breathtested at any time and if you refuse, you'll be, and you should be, automatically subject to a blood test.
If you don't like the breathalysing, then don't drive. As simply as that. This has nothing to do with being a police state.
Re:WTF? (Score:3, Insightful)
I'll grant you that driving on taxpayer funded roads is a PRIVILEGE not a right the moment that collecting taxes from me to build them is likewise.
Re:Whats next? (Score:4, Insightful)
A nontrivial fraction of the human population likes being tied up, spanked and having someone pee in their mouths.
What was your point again?
Re:Whats next? (Score:5, Insightful)
If the New York Times broke a law in the U.S, they are within the juristiction of the U.S. legal framework and there should be arrests. Wikileaks is outside U.S. jurisdiction, why chase one and not the other?
Why have "secret meetings" to come up with a law to pursue Wikileaks if a law exists?
Why not press charges if a law exists?
Wikileaks have not broken any laws in the countries they operate from, perhaps the U.S. declare war on these countries for supporting "cyber terrorists" as one prominent person labelled Assange.
The U.S. government was offered the opportunity to vet the documents and have whatever they considered "sensitive" to be redacted and refused. Major newspapers are deciding what to publish, not Wikileaks, why doesn't the U'S. government chase the Guardian in the U.K.?
Perhaps 80% of people think they understand that the release of most of these documents had nothing to do with holding the government accountable, it appears more likely that they are misguided.
Personal freedom is important, maybe you should read your sig and stop doing backstroke.
Re:Penalty? (Score:4, Insightful)
Sounds perfect, to me. I'm tired of treating driving like some sort of god-given right that we only take away from you in the absolute most dire circumstance. Convicted of driving drunk? Never drive again. Caught driving after a life time ban? Serve time in prison (maybe a year - five if you're doing it drunk). It's pretty easy to avoid losing your right to drive. You know, by just not drinking and driving.
People would be pissed as hell if, say, their doctor was caught performing surgery while drunk. Slap him on the wrist and send him right back into the surgery room. A second time. A third. A fifth. A twelfth.
For that matter, I'd like to see more attention given to proper driving *period*. Your car isn't your living room or your office. People always say things like "well, if I can't use my cell phone in a car, should I just not be allowed to have conversations, either -- since that's proven to be just as distracting?".
YES. Fucking hell YES. You are behind the wheel of a three ton 80mph fucking DEATH MACHINE. You shouldn't be eating, drinking, playing with your radio, reading, disciplining your kids, doing office work, making calls, texting, or any fucking other things. If that's too much to ask of people, they need to hire a fucking driver, walk/bike, take a taxi, or hop on a bus.
Re:Why would you refuse a breathalyzer? (Score:5, Insightful)
"Doing something" about "the problem" is a sport amongst the politically inclined. It doesn't matter if the something addresses the problem or even if it IS a problem. Prosecutors routinely inflate charges to force a plea bargain and do everything in their power to block the release of prisoners AFTER they are exonerated by new evidence.
That doesn't mean that all cops, all prosecutors, etc are worse than the criminals they're supposed to oppose, but it does mean we're well advised to insist on a strict observance of the constitution at all times and otherwise keep them on a short leash. The dangers from that are far less than the dangers from giving them cart blanch.
Having the judge in the field with pen at the ready doesn't inspire much confidence that any sort of appropriate consideration or due process is going to happen. If he's just there for a rubber stamp ceremony it hardly meets the spirit of the 4th amendment. They've evidently given up even pretending to weigh the issues before forceably extracting bodily fluids for testing.
That is far more dangerous than someone intoxicated enough to have their reaction time off but not so much as to be obviously intoxicated.