"No Refusal" DUI checkpoints - judge on hand at sites to issue mandatory blood test warrants

[The Straight Story]

Tampa, Florida-- 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.

It's a change that could make you more likely to be convicted.

"I think it's a great deterrent for people," said Linda Unfried, from Mother's Against Drunk Driving in Hillsborough County.

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.

It's already being done in several counties, and now Unfried is working to bring it to the Tampa Bay area.

http://www.wtsp.com/news/topstories/story.aspx?storyid=165079&catid=250

[Billy Burnett]

1. Not activist judges! Repeat. NOT activist judges.

[ProgressiveProfessor]

2. It will make it harder for some to charge that the checkpoints are racist

[truebrit71]

3. They need to have a lawyer there on site too, to immediately appeal the warrant...

...I am no fan of drunks behind the wheel in anyway at all, but this seems a little over the top...

[RT Atlanta]

4. great point

n/t

[BzaDem]

6. That's not how a normal search warrant works. Prosecutors get warrants without telling the subject

of the warrant, and then execute the warrants.

If the warrant was provided illegally, a lawyer can later argue that and the evidence derived from the warrant is thrown out. Just like in the blood test case this article is talking about.

[former9thward]

11. Warrants are not appealable.

[ProgressiveProfessor]

42. Sometimes they can be quashed

and the results can also be suppressed at a later date

[H2O Man]

58. That tends to

be in the context of a bench warrant.

[DearAbby]

5. Refuse and be in violation of "Contempt of Roadside Court" n/t

[formercia]

7. I bet they take credit cards on site.

No pay, you stay.

[RamboLiberal]

8. Oh wonderful - I hate DUI checkpoints

They inconvenience 99% of the people in cars at the checkpoint to catch a few. And many they catch aren't for DUI but for some other offense like not wearing seat belt, no insurance, registration stickers, etc.

I've only encountered a few, but fume as I've had to sit in traffic for 10-15 minutes while the cops go through their act. They wanted license & proof of insurance and even asked where I was coming from. Since I hadn't been drinking IMHO it was none of their damn business.

I call BS that they are out there for safety. IMHO they are mostly out there to rack up the fines.

They could serve saftey just as well by patrolling for drunks.

I also heard recently on talk radio in my area that people who saw drunken driving on the road & called 911 were told sorry but we are too busy to respond or we don't have officers in the area.

DUI checkpoints make me flashback to "papers please" in movies.

[struggle4progress]

9. Here's the law in NC, according to the NCDOT Driver's Handbook

... If an officer charges you with driving while impaired, you will be asked to take a chemical test of your breath or blood. Refusal to perform any required test will result in the immediate revocation of your driver license for at least 30 days and an additional, minimum 12-month revocation by the DMV ...
http://www.ncdot.org/dmv/driver_services/drivershandbook/

So an NC license brings with it implied consent for DWI testing: you can refuse a DWI test -- but you'll immediately lose your license for a year. It doesn't seem unreasonable to me: about 500 people annually die in NC in DWI-related "accidents," and the fatalities are probably reduced by the fact that NC arrests about 50K annually for DWI

[ChoppinBroccoli]

12. Implied Consent Is The Law In MOST States

They call it a condition of having a driver's license. The truth is that it is the very definition of "Double Jeopardy," but they've devised sneaky ways around it so they can still get their conviction on the DUI.

[lumberjack_jeff]

19. Then don't get a license.

Don't consent to random roadside blood tests.

In Washington, a citation for driving without a license, provided you have insurance and an ID card and you appear in court, will cost you $50.

http://apps.leg.wa.gov/RCW/default.aspx?cite=46.20.015

[struggle4progress]

25. I think you're confused about what "Double Jeopardy" means

[ChoppinBroccoli]

45. No, I'm Not Confused At All

When the State IMMEDIATELY suspends your license for refusing a BAC test, that is a punishment. Under Double Jeopardy, you can't be punished twice for the same crime. Therefore, suspending your license and THEN prosecuting you for a DUI (and all the underlying consequences thereof) is the classic definition of Double Jeopardy.

The way they have gotten around that little Constitutional snag here in Ohio is that they call the immediate suspension of your license an "Administrative License Suspension" (ALS), and when you receive your ACTUAL suspension from the Court later, the ALS is converted into a court-ordered suspension. That's how they get around Double Jeopardy.

It's also provided the police with a convenient way to try to arm-twist you into taking the test. They TELL you that if you don't take the test, your license will be suspended for a year, whereas if you take the test and fail, it will only be suspended 90 days. What they don't tell you is that if you take the test and fail, your ALS will be 90 days, but when you go to Court and are found guilty (which will ultimately and undoubtedly happen if you blow over the limit because you just handed the State the rope to hang you with), that 90-day suspension will be converted to a 6-month court-ordered suspension. And if you refuse the test and get a 1-year ALS, that ALS will then be converted to..........say it with me, now.............a 6-month court-ordered suspension. So really, your choice is to take the test, assure your conviction in Court, and lose your license for 6 months, or refuse the test, have a fighting chance in Court, and lose your license for 6 months. Doesn't seem like all that tough a choice when you get the WHOLE story, does it?

[BzaDem]

49. "When the State IMMEDIATELY suspends your license for refusing a BAC test, that is a punishment."

No, actually, it isn't. You AGREED to a suspension upon refusal when you got a license. (If you didn't agree, you wouldn't have a license.) Executing an agreement that you agreed to is not a punishment, and the Constitution does not prohibit it. Not a single justice on the Supreme Court (or any past justice) would buy your argument, because it is laughably false.

But you are actually wrong for a second reason. Multiple punishments is not a violation of double jeopardy at all. Often, people are fined AND jailed, or fined AND jailed AND lose their license. So even in a completely imaginary world where executing an agreement you agreed to is a punishment, it STILL wouldn't be a violation. Just because they can't try you twice for the same crime after you have been acquitted does not mean someone who is convicted can't have multiple punishments.

[ChoppinBroccoli]

63. Your Knowledge Of Constitutional Law Is What Is "Laughably False"

Check out your Due Process clause. You cannot be deprived of life, liberty, or PROPERTY without Due Process of law. A driver's license is PROPERTY. If the State intends to take away your driver's license, you are entitled to a hearing at which proof of your wrongdoing must be presented. That's why the license suspension is called an ADMINISTRATIVE license suspension and not a regular suspension. And that's why when the court-ordered suspension is handed down, it TAKES THE PLACE OF the ALS. The States HAD to do this because they were losing DUI cases on Double Jeopardy grounds ALL THE TIME. So they changed the semantics and a few of the moving parts in order to satisfy the State Supreme Courts that the immediate suspension was not a punishment for Double Jeopardy purposes, but rather an Administrative decision to be decided at the time of your court hearing.

And there's a big difference between being punished twice for the same crime and receiving multiple forms of punishment. You can be jailed, fined, put on probation, and have your license suspended all for the same crime, but only if you receive the sentence all at the same time. If you are sentenced to probation, complete it, then get hauled back into court a year later and are given a license suspension, then a year later brought back and given a fine, that's receiving multiple punishments.

Turn off CSI and Court TV and open a law book. If it were me, I think I'd believe the guy who has a law degree, has passed the bar exam, and has practiced DUI Defense for the last 15 years (and makes his living knowing this stuff) rather than someone who heard something from somebody purporting to be an authority and then tried to repeat it.

Oh, and by the way, nobody "agrees to a license suspension when they get their license," or however you phrased it. The implied consent law says that you agree to SUBMIT TO A TEST OF YOUR BLOOD ALCOHOL CONTENT as a condition of having a driver's license. The conditions for failing to submit to a BAC test are suspension of your license. Now, I'm sure you're saying, "What's the difference? That sounds almost exactly like what I said." The difference, to someone with some legal education, is like night and day. If the law truly was that you "agreed to a license suspension," you would have no right to a hearing, no right to force the State to prove your guilt, no right to appeal the circumstances of the suspension, your license would just be gone and that's it. But anyone who has any experience in this area at all knows that's not true. Failing to live up to your obligation to submit to a BAC test CAN carry a license suspension, but the State has to jump through several hoops in order to make that suspension stick. That's why you have a right to a hearing, and to file for an ALS Appeal in court, and the State has to prove that it had probable cause to bring you in for a BAC test to begin with, and all that stuff. It's called Due Process. And it's the little intricacies of the law that make it worth your while to listen to the people who have been exhaustively educated in that field and actually know what they're talking about as opposed to a loudmouth who heard something somewhere from somebody.

[DaveinJapan]

60. One could argue that losing the license is not a punishment.

After all, if you or I were to suddenly go blind, we'd have to surrender our license wouldn't we (I don't know the specifics of how that works)? In no way would that be considered a punishment.

[ChoppinBroccoli]

64. It Depends On Why You're Losing It

If I come drag your spouse out of your home and throw him/her in a locked facility, that's a punishment. But if I do it because he/she is insane, it's not a punishment.

Any way you slice it, a deprivation of life, liberty, or property as a consequence for wrongdoing is a punishment under the Double Jeopardy clause, and that's why you're entitled to Due Process of law when that happens.

[ChoppinBroccoli]

10. Regarding Getting A Warrant For Your Blood

I know this practice is becoming a bit more common, but I think it would be problematic in this particular situation. Why? Because the normal procedure for getting a search warrant is the officer fills out an affidavit stating with specificity what he hopes to find in his search, and his probable cause for believing he will find such object/substance.

Now, in a normal traffic stop, the officer can just state his probable cause for making the arrest, which would normally consist of the bad driving that initially drew his attention to this particular car, and his observations after making the stop. However, in a DUI Checkpoint, there is no bad driving that initially draws an officer's attention. So how could a Judge EVER make a determination that there is sufficient probable cause to issue a search warrant for alcohol in a person's blood? The officer's observations are not enough (at least they're not in the State where I practice DUI defense). There is case law in my State that says an odor of alcohol is not sufficient probable cause. And in most cases, if the driver is smart, all the officer will have is an odor of alcohol. Unless the officer can couple the odor of alcohol with something else (like bad driving or an admission of drinking or failed sobriety tests, etc.), he doesn't even have sufficient probable cause to make an arrest (let alone sufficient probable cause for a warrant). So again, if the driver is smart, and doesn't admit to drinking, and refuses to submit to field sobriety testing, and insists upon his/her rights, there won't be enough probable cause to get a warrant for his/her blood.

When some savvy lawyers start getting cases overturned on this basis, I predict that these kinds of DUI checkpoints will fade out of existence.

[TexasObserver]

13. Agreed. It's a ridiculous overreaching.

Hell, let's just have a trial on the side of the road, with only the police officer able to give testimony.

The hard right the country had taken on constitutional rights was supposed to have been abated after the election of 2008, but alas, our elected leaders weren't up to the task of actually defending constitutional rights.

[former9thward]

17. DUI defense and case law has been going on since there

have been cars and alcohol. But drivers are still not "smart" and never will be. Drivers who have been drinking almost always will admit to "having one or two beers" when they are stopped. That gives the cop probable cause. A few drivers will make no admission of drinking but law enforcement doesn't care that a few slip through. That is just part of the game. They will get most of them and that is all they want. In my state they just call a judge on the phone -- 24/7 -- and get a warrant authorized that way. They don't need to be present.

[BzaDem]

23. But the same can be said about probable cause to arrest anyone at a normal DUI checkpoint.

Yet people are arrested at normal DUI checkpoints all the time, without all arrests being en masse thrown out due to lack of probable cause.

If officers today have sufficient probable cause to make an arrest (as they do frequently), surely they have probable cause to seek a mere search warrant.

[ChoppinBroccoli]

47. That's Because, Like The Prior Poster Said, Most Drivers Are Stupid

I would say that the percentage of drivers who actually know their rights when they've been stopped, and who will have the courage to insist upon exercising their rights, is less than 1%. They're scared, they're intimidated by the uniformed officer with the badge and the gun standing in front of them, and they have had it drilled into their skulls by society that 1) the nice policeman is their friend, and 2) everything will be OK if you just spill your guts and/or do everything the nice policeman asks you to do.

A smart driver who enters a DUI checkpoint will NEVER be arrested, and even if he/she is, the State will NEVER be able to secure a conviction. But as the prior poster said, most drivers aren't smart.

[BzaDem]

50. Perhaps. Though someone very drunk probably would do something obvious enough to create probable

cause, even if they are generally legally smart enough in normal circumstances.

[ChoppinBroccoli]

65. That's The Paradoxical Part Of It

Someone who's fall-down drunk, most of the time, would never have the intellectual wherewithal to be able to pull off what needs to be done in order to escape a DUI arrest. I say "most of the time" because I've met a few people who have such bad alcohol problems that they actually begin to function more normally when they're soused. They actually need the alcohol just to get to normal.

[MilesColtrane]

14. Michigan Dept. of State Police v. Stitz (1990) was a bad ruling.

Stopping every motorist at a checkpoint to see if they are sober goes against the intent of the 4th Amendment.

The Supreme Court, by ruling that sobriety checkpoints have a negligible impact on a citizen's right of unreasonable search, opened the door to more flagrant violations.

What's next, cops going door to door asking for your ID and questioning whether you are engaging in illegal activity?

[Matariki]

15. Vampires.

Mandatory side of the road blood tests? Seriously?

[BzaDem]

28. Actually, it's mandatory breath tests. You only get a blood test if you refuse a breath test. n/t

[CreekDog]

16. I will not consent to a roadside sobriety test

when i'm 100% sober judging how i walk in the dark on the side of the road among other things is going to result in a waste of my time and the cop's.

all these police setting up at one thoroughfare, they'd be more useful catching weaving drivers on the road instead of wasting their time on me.

heck the last checkpoint i was stopped at was set up on the way to bars, not the way home from them. :wtf:

[sam sarrha]

20. i will just demand a Blood Test.. i have Vertigo and a bad back.. i am also an Aspi, couldn't do the

alphabet sober on a good day.. i have an IQ of 164 but i am functionally illiterate. but, i am a mechanical savant, and i work in Aerospace.

i have heard of totally sober people failing the breath test and then not being allowed to get the blood test.. instant guilty.. in many states that means many thousands of dollars to the state coffers.

my brother is a retired Police Captain.. he said never do the road tests.. just demand a blood test.

i've been sober now for 12 years... only meditation worked to get sober

[Ilsa]

22. I wonder how many Mercedes and BMWs they'll pull over. nt

[ProgressiveProfessor]

41. Somehave claimed they are racist...espcially when they impound vehciles of those without licenses.

[sam sarrha]

18. Alcoholic once told me about Driving Drunk.. "Us Alki's don't take no F'n Vacations"...

if Alcoholism was the Flu... they would close the schools...!!!

time to end Campaign Contributions, formerly known as BRIBES, so we can get serious problems fixed in this country.

[Odin2005]

21. I got into an argument with my mom over drunk driving when I was with her for Christmas.

She was going off on how many people can "drive just fine with a BA level of .08". Tried explaining the statistics to her, but she doesn't get that kind of stuff, it's all about personal experience. :banghead:

[uncommon]

24. Good. There is no excuse for drunk driving.

[NuclearDem]

26. Amen.

I have no sympathy for drunk drivers, and I've seen too many lives destroyed by them.

[Newsjock]

27. Bad. There is no excuse for shredding our Constitution.

I've seen too many Americans all too willing to sacrifice their liberty just because a giant gila monster might be hiding under their bed.

P.S.: Drunken driving sucks and is very, very bad.

[uncommon]

31. People have a right to drive unhindered?

I didn't know that.

I think the government has a responsibility to protect people and if it wants to do so by making sure no one is driving drunk, then that is fine by me. If they wanted to stop me from walking, that's unacceptable. Once I get behind the wheel of a 1500 lb+ bullet, I lose my right to not be bothered by the authorities.

[taterguy]

33. If the government wanted to make sure no one drove drunk it would put Interlocks on all cars

It wouldn't cost anymore than air bags to put devices in cars that wouldn't let you start them if you had alcohol in your system.

Eliminating drunk driving is not the goal. The hospitality industry wouldn't stand for it. We will have drunk drivers as long as automobiles are the primary mode of transportation in this country.

These checkpoints aren't about eliminating drunk driving. They're about giving the appearance of attempting to solve a problem that the government has no real interest in solving. They just want to keep it semi-manageable.

The question is how much of our liberty do we sacrifice for this window-dressing.

I don't know the answer.

[Taverner]

37. +10000

My thoughts are its just like the Checkpoints on the California Border

It's a bit of 'friendly fascism' designed to make it easier when we have intra-state passports and checkpoints all over, just like Israel

[Dappleganger]

43. Well, if you want to bend over and take it from the government

that's your right. Me, I will stand behind the constitution because that's the only thin piece of paper protecting the citizens from a fascist state.

And NO, I never drink and drive but don't appreciate being treated like a drunk just because I'm out on New Year's Eve with my husband.

[Taverner]

36. Yep

[Taverner]

35. Yes, because we all know driving drunk is tantamount to mass murder

:eyes:

[uncommon]

39. AFAIC, it's tantamount to attempted murder.

Roll your eyes all you want - it's unacceptable to drive drunk.

[Taverner]

40. I agree it is unacceptable to drive drunk, but .08 BAC is not drunk

It's not even buzzed for most people

And I disagree with your statement that its attempted murder. If that were the case, than drinking alone should be attempted murder. God knows while drunk you might pick up a knife, stumble and hurt someone.

The punishment does not fit the crime IMO

[hobbit709]

29. I don't drink and I would refuse just on principle.

[Dappleganger]

44. You get it.

[DainBramaged]

30. The Fascist beast eats a little more of our freedoms every day

This isn't going to go over well with the Teabaggers.......

[guardian]

32. The fascist state is here

So let's see.

* You must submit to a mandatory molestation by the TSA to fly
* You must submit to a mandatory blood test to drive

What's next? Mandatory search of your house or car to buy a carton of milk?

This is how it always starts...the crumbling of liberty and rights all in the name of "safety" or "state security".

So much for fucking "CHANGE". Yeah acceleration to full fledged fascist state that Bush started and Obama is finishing.

[Taverner]

34. These checkpoints are unconstitutional

But The fearmongers out there don't complain, because everyone knows Drunk Driving is just as bad as murder :eyes:

[struggle4progress]

46. Michigan State Police v. Sitz

http://supreme.justia.com/us/496/444/case.html

[Taverner]

56. Yes, a very bad decision

[AzDar]

38. If they were really serious about no drinkee/drivee , they'd remove parking lots from saloons.

:)

[Warren DeMontague]

48. Meh. Soon, hopefully, our cars will be able to drive themselves.

Back when I still drank and paid large amounts of money for cab fare (having had a friend killed by a drunk driver at 26) I always thought that was the ideal solution. Let the car do the driving, get as drunk as you want.

Either that, or balloon-lined freeways and bumper cars that only go 20 mph.

[Rex]

51. So when they have checkpoints 'just cause' no particular reason

but to pull people over and violate their Constitutional rights, will we call it fascism yet?

I have zero tolerance for drunk drivers, but there should be NO EXCUSE for creating draconian laws to suppress The Peoples rights to move around the country freely.

Anyone who agrees with these kind of checkpoints is clueless about how badly the Powers that Be want to treat us all like defendants and not citizens.

Is it fascism yet?

[madinmaryland]

52. If you have not done anything wrong, then you have nothing to fear...

Yeap. :grr:

[cbc5g]

53. Maybe I'm too liberal, but checkpoints sound kinda..umm fascist

And where does it stop? Do you HONESTLY think that if they get away with this they are just going to only test people for alcohol?

What about when they test you for a substance you have in your body that may or may not intoxicate you...cough medicine, traces of marijuana from that smoke 2 weeks ago, nicotine, or allergy medicine? Will you say something then? And by then it will be too late.


Here is where we are going..Soon you are going to have to be tested just to leave your house. Hey, we can't have people walking around like that, and even if we do have public intoxication laws, why take the risk with them even leaving the house at all?

Sorry, I don't enjoy a police state just to save a couple lives. If we want complete security lets live in an underground bunker. Freedom requires risk, a police state requires total security at the expense of freedom. No one wants drunks drivers on the streets and I wish drunk drivers to a long long term in prison, but this is going too far and there are far better ways of handling the drunk driving problem that does not slap the constitution.

[cbc5g]

54. Those who would give up liberty for security deserve neither

Those words by Franklin need to be plastered all over the place these days ... its scary where this nation is headed.

[Nye Bevan]

55. I guess I'm in the minority but having a judge on site makes me feel better about these checkpoints

I don't see this as "shredding the Constitution" as others have put it in this thread. To me, *warrantless* searches are shredding the Constitution. Having a judge present and insisting on a warrant should help ensure that everything takes place *according* to the Constitution.

[leeroysphitz]

57. If you haven't done anything wrong this shouldn't be and issue.

[WinkyDink]

62. That is un-American.

[sarcasmo]

59. Police State inches closer and closer.

[lib2DaBone]

61. It's deadly on the raods at all times...People on Cell phones are out of control...

On the cell phone and driving? Red light? No problem.. just drive on thru it.

On the cell phone and changing lanes? No problem.. who cares if you smash up a car next to you.. that cell call is IMPORTANT.

On the cell phone and having an argument with your ex while at a traffic light? No problem... just sit there for 2 or 3 light changes.. the rest of the world can wait.

Put on makeup.. Text... read the newspaper.. eat luncn.. it's all OK as long as you are only going 80 mph... anything over 80 can be dangerous.