Since my last post touched on the madness of MADD, I thought this a good time to bring up MADD’s next pet project: sobriety checkpoints.  Fortunately, Texas is one of 11 states that do not allow checkpoints.  MADD, however, doggedly tries to get enabling legislation enacted whenever the state legislature is in session.  Since the next Texas legislative session begins in January, we can expect to see more MADD press-releases pushing checkpoints disguised as news articles.  We’ve already seen a couple of early ones in print and on TV over the past couple of months.  Further, State Sen John Carona (R-Dallas*) has introduced SB 298 for consideration in the coming session.

As those of you who know me would expect, I don’t like checkpoints.  I think they are an unreasonable and unwarranted seizure and that they violate the plain letter of the Fourth Amendment, regardless of what the Supreme Court may think. 

* I would have hoped that a Republican, being supposedly for limited government, would have been against checkpoints, but I should know better by now.  The only real difference between Democrats and Republicans is in which form of statism they want to enact.

The Freedom Argument

I know that arguing for freedom and for the Bill of Rights is not very popular these days, but as it’s my personal windmill at which I must tilt, please indulge me in a few words in that direction.  Those who don’t care for the freedom argument may skip down to the Utilitarian Considerations section.

Let us begin by considering they very plain, and easily understandable, language of the Fourth Amendment to 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.

Being stopped by police is a seizure, as you are not free to leave.  The SCOTUS acknowledged that a checkpoint constitutes a seizure in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).  Unfortunately, the court somehow then leapt to the conclusion that while the seizure is an intrusion on individual rights, it’s somehow “reasonable” because it is “minimal” as balanced against the costs of drunken driving.  I think this is one of those cases where the majority got it wrong. 

The ability to go about your business without being seized and searched is supposed to be one of the cornerstones of our freedom.  In general, if you’ve done nothing wrong, then the police have no business detaining you.  This principle goes to the very heart of what is wrong with sobriety checkpoints.  If an officer observes a vehicle being operated in a suspicious or unsafe manner, he or she may stop the vehicle and investigate the driver to ascertain whether the driver is impaired.  In this instance, the officer is operating on “individualized suspicion.”  In other words, the officer has some probable cause or a reasonable suspicion that the driver may be in violation of the law.  With a checkpoint, we have all people going through the checkpoint being seized for investigation without any suspicion whatsoever. 

The dissent from Michigan Dept. of State Police v. Sitz captures the essence of the constitutional argument:

The majority opinion creates the impression that the Court generally engages in a balancing test in order to determine [p457] the constitutionality of all seizures, or at least those “dealing with police stops of motorists on public highways.” Ante at 450. This is not the case. In most cases, the police must possess probable cause for a seizure to be judged reasonable. See Dunaway v. New York, 442 U.S. 200, 209 (1979). Only when a seizure is “substantially less intrusive,” id. at 210, than a typical arrest is the general rule replaced by a balancing test. I agree with the Court that the initial stop of a car at a roadblock under the Michigan State Police sobriety checkpoint policy is sufficiently less intrusive than an arrest so that the reasonableness of the seizure may be judged, not by the presence of probable cause, but by balancing

the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

Brown v. Texas, 443 U.S. 47, 51 (1979). But one searches the majority opinion in vain for any acknowledgment that the reason for employing the balancing test is that the seizure is minimally intrusive.

Indeed, the opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is “slight,” ante at 451, it asserts without explanation that the balance “weighs in favor of the state program.” Ante at 455. The Court ignores the fact that, in this class of minimally intrusive searches, we have generally required the Government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. (emphasis added)  See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 882-883 (1975); Terry v. Ohio, 392 U.S. 1, 27, (1968). Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action.  See Prouse, supra, 440 U.S. at 654-655; Martinez-Fuerte, supra, 428 U.S. at 577 (BRENNAN, J., dissenting) (“Action based merely on [p458] whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment”).  By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police.  I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework.

Presumably, the Court purports to draw support from Martinez-Fuerte, supra, which is the only case in which the Court has upheld a program that subjects the general public to suspicionless seizures.  But as JUSTICE STEVENS demonstrates, post at 463-466, 471-472, the Michigan State Police policy is sufficiently different from the program at issue in Martinez-Fuerte that such reliance is unavailing.  Moreover, even if the policy at issue here were comparable to the program at issue in Martinez-Fuerte, it does not follow that the balance of factors in this case also justifies abandoning a requirement of individualized suspicion.  In Martinez-Fuerte, the Court explained that suspicionless stops were justified because

[a] requirement that stops . . . be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.

428 U.S. at 557.  There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists.  See Prouse, supra, 440 U.S. at 661.  That stopping every car might make it easier to prevent drunken driving, but see post at 469-471, is an insufficient justification for abandoning the requirement of individualized suspicion. (emphasis added)

I don’t know about you, but if I’m not free to leave, I would consider myself “seized,” and not quibble about how “slight” the seizure is.

Unfortunately, though, the majority opinion is what we’re stuck with, which (at least at the national level) makes these things “legal.”  Fortunately for us in Texas, though, the Texas Court of Criminal Appeals in Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994) (no online cite available) interpreted the 1990 Sitz decision to mean that checkpoints violate the Fourth Amendment unless specifically authorized by the legislature.  So I am somewhat heartened to see that at least our own Texas courts understand the U.S. Constitution and its amendments. 

Beyond the legalities, though, these checkpoints also provide another avenue for police to go on a fishing expedition for other activities.  Consider the following bit from the CDC about how to get police officers to get behind checkpoints:

Support among the police officers conducting checkpoints is important. Because checkpoints tend to result in few arrests for alcohol-impaired driving, it is important for officers to understand that the primary goal is to prevent such occurrences. Checkpoints can also lead to the arrest of drivers for other offenses, such as weapons possession. (emphasis added)

Ah… the good-old CDC… they’ve never been known to pass up a chance to stick it to gun owners in this country, constitution be-damned.

Anyone who truly understands the concepts of freedom and liberty that were gifted to us by the founders will abhor sobriety checkpoints as an unreasonable search and seizure.  Those who would ignore and limit our freedom are not so moved, which leads me to the next section.

Utilitarian Considerations

If our freedom is to be limited in trade for some nebulous assurance of “safety,” then we should examine these claims to see if that will truly be the case or if we’re being sold a bill of goods.  In addition, what are the costs of running checkpoints and do they provide a useful return on investment?

First, I’ve learned that checkpoints aren’t so much about arresting drunk drivers as they are about “education” and “awareness.” 

Consider the following from Battling DUI: A comparative analysis of checkpoints and saturation patrols – driving under the influence – FBI Law Enforcement Bulletin, Jan 2003:

Used to deter drinking and driving, sobriety checkpoints are related more directly to educating the public and encouraging designated drivers, rather than actually apprehending impaired drivers. Typically, sobriety checkpoints do not yield a large volume of DUI arrests. Instead, they offer authorities an educational tool. Education and awareness serve as a significant part of deterrence. Frequent use of checkpoints and aggressive media coverage can create a convincing threat in people’s minds that officers will apprehend impaired drivers—a key to general deterrence. In addition, public opinion polls have indicated that 70 to 80 percent of Americans surveyed favored the increased use of sobriety checkpoints as an effective law enforcement tool to combat impaired driving.

As an aside, I really have to wonder about who was surveyed and how the questions were worded if 70 to 80 percent of Americans really favored checkpoints.  Or perhaps not, given the sad state of understanding that most people have of their civil liberties these days…

Also consider some numbers related to the number of arrests with checkpoints as compared to saturation patrols and other methods:

Since 1989, the Ohio State Highway Patrol has participated in 156 sobriety checkpoints and arrested 807 drivers for DUI.

…

The agency arrests an average of 25,000 DUI drivers per year through all DUI-related operations.

Think about that for a moment.  If the period of operation is 1989 through 2002 (the article was written in early 2003), that means that over 13 years they arrested a total number of DUI drivers at checkpoints that comes to only about 3% of what they arrest in a single year! 

But then, if all of the above is true, the “authorities” don’t care how many arrests they make.  They will simply declare checkpoints a success just because they existed!

Although the program only netted 773 arrests for DUI, the deterrent factor created by the continuous use of the checkpoints and the media attention received resulted in the program’s success.

But even if these checkpoints are effective at raising “awareness,” they’re very costly PR:

This holiday weekend, New Jersey’s “Over the Limit, Under Arrest” campaign will assign hundreds of officers to run sobriety checkpoints throughout the state. Officers spend hours screening hundreds, sometimes thousands, of vehicles that pass through a previously announced location.

Expensive

These roadblocks demand considerable staffing-hours and extensive funding, as towns that participate in the campaign receive $5,000 in federal funding. Across New Jersey, $875,000 has been distributed by the New Jersey Division of Highway Traffic Safety for the 175 participating law enforcement agencies. But checkpoints yield precious few drunken driving arrests.

With our slowing economy and rising gas prices, resources are tight and getting tighter. That reality makes the $29 million in federal funds earmarked to help run these pricey checkpoints in 2009 a luxury we can’t afford.

With overtime for a dozen or more officers, the costs of everyone’s travel delays and the value of other materials and equipment, the average checkpoint costs about $8,800. (emphasis added)

In 2006, states that relied on checkpoints averaged 7 percent more alcohol-related fatalities than those that used other tactics.

The reason for that discrepancy is readily apparent when considering programs like South Dakota’s, where officers ran more than 300 checkpoints in 2006. Even though the overtime alone cost taxpayers $177,000, the roadblocks, on average, only yielded a single arrest.

Just last week, a checkpoint held in Readington caught only three drunken drivers out of 1,100 motorists stopped and inconvenienced. That is a dismal 0.2 percent success rate.

These examples aren’t unique, and supporters often scramble to defend the low numbers. Last week, New Jersey’s director of the state Division of Highway Traffic Safety, Pam Fischer, said of checkpoints: “This initiative increases public awareness.”

But this claim that checkpoints raise “awareness” of enforcement efforts reduces the tactic to little more than an overpriced publicity stunt.

Finally, roadblocks commit the cardinal sin of not actually being effective. Or at least that’s what some data suggest (unfortunately, finding non-suspect data is difficult, as all of the major players such as CDC, NHTSA, and IHS seem invested in supporting checkpoints).  Looking at data from 2004 and 2003, the ABI found some interesting results using NHTSA’s own numbers.  It turns out that there was a reduction of 411 alchol-related deaths in 2004 as compared to 2003.  Of those, 95.9% came from the 11 states that do NOT operate roadblocks, as compared to only 4.1% from the states with roadblocks. 

Despair Not!  There Is A Solution

It turns out that there is a tactic that works for getting drunks off the road and that respects the Consititution and our liberty: increased patrols.  Wow, imagine that!  Good, old-fashioned, police work gets results! 

Some refer to “roving patrols” while others talk of “saturation patrols.”  These refer to dedicated efforts targeting a specific location or time in an effort to catch impaired drivers.  But here in Keller I think we have a great example of where aggressive traffic enforcement works in getting drunks off the streets. 

Consider these remarks from Chief Mark Hafner in the last issue of the
Keller Police Neighborhood Newsletter:

We continue to take a stance against intoxicated drivers on our roadways. Last month we removed 20 individuals from the streets for DWI. We want the message loud and clear “Don’t drive intoxicated in Keller”. By taking this stance our roadways are safer and hopefully we can reduce the amount of alcohol related deaths. Late evening/early morning hours are the prime time for intoxicated drivers. This is one of the reasons why we stop vehicles for minor traffic violations like wide turns, crossing the center of the roadway, failure to use turn signals, and slow speed. Officers will stop you for these violations. If you are not intoxicated they will send you on your way and thank you for being patient during the brief stop. Please understand we are not “harassing” you but doing our job of removing intoxicated drivers off the roads before a collision occurs.

I’ve done a couple of ride-alongs and I’ve observed our officers in action.  Not only do they target infractions that may indicate impairment, they also keep an eye on the local establishments at closing time to catch anyone who may have had a few too many.  This style of policing keeps our officers out on the streets where they can observe other activities and help prevent other types of crime at the same time.  Further, it helps target the worst offenders, the habitual drunks, who will drive drunk regardless of what the law says.  Finally, it respects individual rights by only stopping people when there is some reasonable suspicion that the individual may be impaired.

Checkpoints do just the opposite.  They tie up police resources at a well-known stationary position, allowing drunk drivers to avoid them and giving other criminals more chances to attempt crimes in the absence of the regular police presence.  Further, they corrode respect of the police by the average innocent citizen who is caught up in them.   

Let’s continue to respect the freedom of our citizens here in Texas by saying “No!” to any attempts to enable checkpoints in our state.  Our resources can be better used by aggressively pursuing criminal drunk drivers rather than sitting around waiting for them to come to us.