Wednesday, April 1, 2009

More on DWI checkpoints

Here are a few of the hidden gems in S.B. 289 which would authorize law enforcement agencies in Texas to set up temporary DWI checkpoints:
65.04(d) The criteria for selecting the location for a sobriety checkpoint must include the number of traffic accidents in the vicinity of the location in which the use of alcohol was a factor and that occurred in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months. The selection of the checkpoint must be made without regard to the ethnic or socioeconomic characteristics of the area in which the checkpoint is located.
First, I love the Orwellian phrase sobriety checkpoint. How does one go about determining whether another person is sober? What is sober? How do you prove a negative - I am not intoxicated?

I also want to know how law enforcement determines whether alcohol was a factor in an accident. Does that mean that the driver at fault was intoxicated? Does that mean that either driver was intoxicated? Does that mean that the driver at fault consumed an alcoholic beverage? Does that mean that either driver consumed an alcoholic beverage?
65.04(h) ...a peace officer may not request a person operating a motor vehicle at the sobriety checkpoint to display the person's driver's license or concealed handgun license or to furnish evidence of financial responsibility unless the officr has reasonable suspicion or probable cause to believe that the person has committed or is committing an offense...
Obviously the handgun lobby was involved in the final markup of this bill. And what would constitute reasonable suspicion that someone was driving without insurance? 
65.04(i) A peace officer at the sobriety checkpoint may not require a motor vehicle operator to perform a sobriety test unless the officer has reasonable suspicion or probable cause to believe that the operator is in violation of Section 49.04 or 49.045, Penal Code. A peace officer who requires or requests an operator to provide a specimen of breath, blood or urine must comply with Section 724,Transportation Code.
Reasonable suspicion or probable cause for what? If you've got no moving or equipment violation, you've got no basis to stop the motorist. As it's not against the law to have a drink and drive - so long as you haven't lost the normal use of your mental or physical faculties - the smell of an alcoholic beverage on one's breath doesn't give rise to an inference that a law has been broken.
65.04(c) The procedures for the operation of a sobriety checkpoint must ensure that the selection of motor vehicles to be stopped is reasonably predictable and nonarbitrary.
If you enjoy playing the lottery then you'll love being caught up in one of these DWI checkpoints. But this does beg the question, again, of what constitutes reasonable suspicion or probable cause in the context of a DWI checkpoint.

There is no other crime on the books in Texas for which the police can line people up against a wall without any articulable reason and look for a reason to arrest them. Such a procedure would violate the very notion of due process. But, we are talking about driving while intoxicated, for gosh sakes.


Anonymous said...

Isn't there an equal protection problem in saying that only citizens in certain counties are subject to these checkpoints? Why are we subjected to greater scrutiny and punishment than people in San Marcos?

EsqVoz said...

It seems to me that a dwi checkpoint causes a person or persons to be stopped without any probable cause or reasonable suspicion. Therefore, it would further seem to me, that a dwi checkpoint is unconstitutional based on the USSC's decisions in longstanding, well-settled cases. People in high drug areas are not (supposed) to be stopped just because they are in a high drug area. It would seem that, here, people in high dwi areas are being stopped without probable cause to justify the stop. How can this be constitutional?

Paul B. Kennedy said...

Thank you for your comment.

The courts have decided that if the checkpoints are set up for safety purposes and not just to catch drunk drivers that they will pass muster.

I say, if the purpose of the checkpoints is to deter drunk driving, why not detain the driver until such time as he sobers up or someone can take him home?

DWI is the only criminal offense I can think of that your right to remain silent, your right to an attorney, your right not to incriminate yourself and your right not to be subjected to unreasonable search and seizure don't apply.