The Death Of A Free Country: Saliva And Blood To Be Taken From Drivers At New Year's Checkpoints
There was some lame LA Times story about this that deemed the drug swabbing of Los Angeles motorists to be "voluntary." I knew that had to be bullshit.
Here's a more likely scenario from PoliceStateUSA:
LOS ANGELES, CA -- As drivers prove their innocence at warrantless police checkpoints this New Year, they will not only be scrutinized over their potential consumption of alcohol. A new technology will enable the police to detect and arrest drivers for having marijuana, narcotics, and "other drugs" in their bloodstreams.The recently unveiled device is a portable saliva swab analyzer, capable of immediately sampling body fluids for the presence of foreign intoxicants. The machines were paid for by grants from the state.
...During police roadblocks, drivers are stopped without probable cause and forced into non-consensual interactions with government agents in which they must demonstrate their sobriety before being allowed to continue traveling down the public street.
The saliva swabs are but one of the searches that police can coerce a driver into allowing. Should the driver refuse a saliva search, the police can seek a warrant for a forced blood draw. Often in large checkpoint operations, a judge is placed on-call or on-site to sign such warrants to confiscate blood.
Such events are called "No Refusal" checkpoints, and they are gaining popularity in many states, such as Tennessee and Georgia. And with the new focus on targeting marijuana and narcotics, we can probably expect to see more of them than ever.
Officials claimed the device could detect marijuana, narcotics, and "other drugs." With approximately 7 out of 10 Americans taking some sort of prescription drug, according to the Mayo Clinic, the question is raised about how many drivers will be arrested because of their prescribed medications.
In a free society, people would not have to be hassled and forced to prove their innocence while traveling down public streets. Police would be better utilized by spreading themselves out and actually looking for reasons to justifiably stop vehicles for breaking traffic laws.
It is one thing if cops see somebody driving recklessly -- whether it's because they had one-too-many beers or they're putting on their mascara in the rear-view. But we have these stops -- treating all citizens behind the wheel as criminals unless they prove otherwise -- because so few people care about the ongoing diminishment of civil liberties in this country.
And if you believe that the only thing they want your blood for is for checking for drugs, then I have a bridge to sell you.
(And even if they were merely checking for drugs, that doesn't necessarily make this right.)
Unfortunately, we gave our consent to this with our quiet acceptance of random breathalyzers. This, I'm sure, is simply seen as the next logical step.
Anyone noticing a pattern? We let the minor violations pass without any vehement objections. Once law enforcement has a foot in the door, they up the game.
We have been allowing metal detectors in airports for decades. The body scanners are simply the next step.
On the highways, we've similarly had police stops with mandatory breathalyzers for years. Once that was accepted with nary a peep, law enforcement is upping their game with blood draws.
And I can't wait to see what the next step is from the "stop and frisks."
That's how these things happen.
As an aside, I wonder how the police deal will with trypanophobes. They can get pretty out of hand with their objections.
Patrick at December 30, 2013 2:49 AM
Just to clarify - the heated rhetoric of the article does not make it clear that the 'no-refusal' aspect of checkpoints (involuntary blood draws, saliva tests, breath tests ASF) only come into play after a driver has been arrested for DUI (or whatever term/acronym is used in the state in question.) The purpose is to prevent an arrested suspect form trying to 'game' the process by delaying providing a sample for as long as possible, in order to try and reduce the BAC that the sample shows.
Unless and until you have been arrested for DUI (which must in turn have been based on probable cause) you are perfectly free to refuse to give any sample and/or participate in any evidentiary test of sobriety, and your refusal to participate does not create probable cause to arrest you and so force you to comply.
Once you have been arrested, then the 'implied consent' provisions of your driver's license kick in and if you do not provide samples voluntarily, you will be compelled to do so by a warrant and the use of force if necessary. But only after arrest.
Just to be clear - I don't think a lot of 'sobriety checkpoints', or any other kind of 'checkpoint' for that matter. They are hopelessly-inefficient at catching drunk drivers, and all-too-often they degrade into a sort of general fishing expedition for every sort of criminal infraction. And they are virtually tailor-made scenarios for LEOs to mislead and intimidate citizens into giving up their 4th and 5th Amendment rights. It's why they make such a big deal of saying 'No Refusal!', because it allows citizens to form the impression that they cannot refuse any LEO 'request' at such a checkpoint. But just because law-enforcment passively allows the wrong impression to be formed, does not mean that those who oppose these shenanigans should be free to misrepresent them also.
So - If the officer asks 'have you had anything to drink tonight?' and you answer 'Yes, I had a beer with dinner', you just admitted that you consumed alcohol before driving, and you just gave the officer reasonable, articulable suspicion to detain you to investigate whether or not you are driving under the influence. If that's what you want to do, then fine - answer the question. But you are not required to answer the question, or to provide the officer with any other evidence to use against you - until you have been arrested.
So - Unless and until you have been arrested on suspicion of DUI, repeat after me:
I'm not going to answer any questions.
I'm not going to provide any samples or participate in any tests.
I'd like to go about my business. Am I being detained, or am I free to go?
And Nothing Else.
And speak up, because you are likely being recorded.
llater,
llamas
llamas at December 30, 2013 4:41 AM
@llamas: Thanks for the clarifications. Just to ask a really simplistic question: Are you saying that someone who refuses to answer questions will not be arrested just on the basis of that refusal? I.e., can the police not claim that a refusal to answer questions gives them basis to believe that you have something to hide?
I realize this should not be the case - I just wonder what the actual, practical truth of the matter is...
a_random_guy at December 30, 2013 6:06 AM
Amy Alkon
http://www.advicegoddess.com/archives/2013/12/30/the_death_of_a.html#comment-4162312">comment from llamasLA Times said the swabbing of one's cheek is "voluntary."
Amy Alkon at December 30, 2013 6:43 AM
@ a_random_guy - that's a good question. It has two answers, the 'map' answer and the 'terrain' answer.
The 'map' answer is simple - asserting your 5A right not to incriminate yourself, alone and of itself, can never be used as grounds to form a reasonable suspicion/probable cause for further investigation - or else the right would be meaningless, since invoking it would be grounds for overriding it. Even the USSC couldn't swallow that level of Kafka-ism.
The 'terrain' answer is - maybe. Unfortunately, far too many LEOs interpret polite refusal to 'voluntarily' comply with their demands as resistance and defiance, aka 'contempt of cop'. It may well ratchet up the intensity of the interaction, with the cop switching from boring, rote activity to an elevated interest in you and your doings. This can have a wide range of consequences.
In an ideal world, the cop would not be personally affronted by your polite refusal to comply with his questions. Unfortunately, the world is not an ideal place, as YouTube will prove. There are plenty of YouTube videos which show polite refusal being met with aggression, confrontation and sometimes violence by LEOs, often on the flimsiest of pretexts, or no pretext at all.
By the same token, there are plenty of YouTube videos which show polite refusal resulting in the citizen being sent on his way unmolested. The smart copper, who is actually looking for drunks, can use the very interaction of the citizen's polite refusal to form a pretty-good impression of whether the citizen is actually impaired - which is supposed to be the idea. There's a particular YouTube video, I can't be bothered to seek it out but it's not hard to find, of a citizen politely refusing to answer questions, the officer calls his sergeant (female), the sergeant exchanges a few polite words with the citizen, and he's on his way. Between the two of them (more the sergeant than the male officer, who was starting to puff out his chest a bit) they were able to see and hear enough of the citizen to form a decent impression that he was not impaired. That's how it's supposed to be - how the USSC described the limits of these checkpoints - a brief stop of the motorist for the sole purpose of determining whether or not they might be impaired. Unfortunately, many departments, aided and abetted by the vested interests of the CJS, have turned this principle on its head and now seem to think that the purpose of these checkpoints is for the citizen to prove to whatever standard an officer desires that they are not impaired - and not committing any other infractions, either. And to trawl for anything and everything else they possibly can. That's why these checkpoints often have 'drug-sniffing' dogs, and license-plate readers, and weighmasters, and Border Patrol agents, all sitting around using the checkpoint as a pretext for their own fishing expeditions.
@ our gracious hostess - yes, indeed, the LA Times described (quoting the LAPD) some 50 cases of 'voluntary' cheek swabbing. But they don't really clarify, do they? It could mean cases of un-arrested suspects who 'voluntarily' agreed to the cheek swab, even though they were not obliged to? It could mean cases of arrested suspects who chose to provide the sample required by implied-consent voluntarily, rather than by force? Or it could mean something else entirely. It's poor reporting, although to be fair, I suspect that the LAPD would not provide any more detail than that, if pressed.
llater,
llamas
llamas at December 30, 2013 7:34 AM
"I realize this should not be the case - I just wonder what the actual, practical truth of the matter is..."
I can tell you, based on the experience of a family member, that refusal to submit (to questioning, to a breathlyser or a field sobriety test) in itself constitutes grounds for arrest, at least in California. My brother was once randomly stopped at a checkpoint in L.A. and was arrested because he refused to submit to a breathlyser. Don't think for a minute that there is a state court anywhere in the nation that won't back the police on this. The almighty ticket revenue, plus the compulsive need to demonstrate command and control to the populace, trumps the Constitution as far as they are concerned.
Cousin Dave at December 30, 2013 7:41 AM
"Unless and until you have been arrested on suspicion of DUI, repeat after me....
I'd like to go about my business. Am I being detained, or am I free to go?" - llamas
The only problem with this is that I can not see any way of saying this without it sounding confrontational. I don't care how polite you are trying to be.
I just see it resulting in this response:
"Hold your horses, Mr. Lawyer. I'm trying to decide if we need to detain you. You will be free to go when I say you are free to go. In the meantime, you just sit tight or you'll run the risk of being charged with resisting and obstruction, and then I will have a very good reason to detain you."
Maybe if you asked, "Hey, are we cool? Are we cool here? Is everything cool?"
Unfortunately, that wouldn't hold up in court.
Fayd at December 30, 2013 9:46 AM
@ Fayd, you are right, you may well get pushback along those lines. Many LEOs are now being trained/conditioned to take command of the encounter by aggressive verbal tactics such as you describe.
In fact, any officer who said something like that to you, in that form of words, would actually be very foolish indeed - because he has just admitted that you are being detained, but also that he has no 'reasonable, articulable suspicion' for that detention. Which, he must have to detain you in the first place. IOW, he's detaining you, while he looks for a reason to detain you. No good, says the court. The detention, and any further consequences that might arise from it, including arrest, may well be thrown out of court because of what he said. Hope that it is being recorded. Better yet, record it yourself.
The reason that you must ask the question 'am I being detained?' is because this has a strict meaning under the law - and the officer knows it, or he should. It is the call to either put up or shut up - to either go ahead and detain you (and have to answer for why) or let you go. The courts have held that if you stay where you are, and do not question what your status is, that you are staying voluntarily and are not being 'detained'. This is why you must ask.
And this is why many LEOs hate the question, and they hate even more being recorded while being asked the question - because they would much prefer that you stay in the state of 'voluntary' self-detention (maybe because you are intimidated, or just don't know what you rights are). This allows them to extend their questioning and observation and gives them maximum opportunities to develop 'reasonable, articulable suspicion' or (even better) probable cause to detain or arrest you. The question 'am I being detained?' stops the clock, or it is supposed to - the officer must then decide whether to hold you, or let you go.
Some officers will try and bluster 8 ways from Thursday to avoid answering the question. Some will try humor - why, do you think you should be? Others will try aggressive responses, such as what you described. Stay calm, be polite , and just keep asking the question. You have a right to know what your position is. And if you get response like what you described, with no actual answer, you may (rightly) infer that you are being detained, so continue to refuse to answer any questions or participate in any tests or providing of samples.
llater,
llamas
llamas at December 30, 2013 10:33 AM
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