« Law at the old ballgame | Main | The Big City as Gated Community: Is an unholy and unwitting alliance between big developers and neighborhood activists strangling our cities? »
Monday, September 05, 2011
No Refusal Checkpoints
Up until the end June, I had been in England for two years. As I was sitting on the couch catching up on my television watching, I noticed a string of commercials warning about an upcoming "no refusal" weekend (which have apparently been going on for some time). On doing a little research, I found out this meant that if you refused a breathalyzer test at a police checkpoint, a judge on hand would issue a warrant for a blood test to determine your blood alcohol content. So I got to thinking, how is this constitutional?
I know of two constitutional cases relevant to this discussion: Michigan State Police v. Sitz, which upheld random checkpoints for the purposes of detecting drunk driving, and Schmerber v. California, which upheld blood tests for those suspected of drunk driving. But in order to make an arrest at a checkpoint in Sitz, police officers still needed probable cause. Likewise, in Schmerber, the blood test was permissible only because there was probable cause to suspect the defendant had been driving under the influence.
If a judge at a no refusal checkpoint orders a blood test, however, it is clear that he is doing so without probable cause to suspect the driver is under the influence, because if there were probable cause, the police officers wouldn't need the judge at all. This leaves two alternatives. Either the judge issues the warrant without probable cause, or the judge finds probable cause somewhere else. But that somewhere else can only be the exercise of a constitutionally protected right (whether we want to call it a Fourth Amendment right against unreasonable searches and seizures or a Fifth Amendment Right against self-incrimination), and surely the exercise of a constitutional right cannot be a sufficient condition for a judge to find probable cause.
Maybe courts will accept the above analysis but find a substantial government interest in preventing drunk driving. But I don't see why states have a lesser interest in, say, waging the war on drugs, with the result that a refusal to consent the search of one's home would also provide probable cause for that same search.
Naturally, I accept that drunk driving is a serious problem worthy of the government's time. But I don't agree that the method some states follow to prevent drunk driving--predicating probable cause on the exercise of a constitutional right--is a legitimate way to combat that problem. Still, I'm willing to admit that this is not my area of expertise, so I welcome comments from those more knowedgeable than I.
Posted by Patrick Luff on September 5, 2011 at 10:24 AM in Constitutional thoughts, Criminal Law | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef015391544840970b
Listed below are links to weblogs that reference No Refusal Checkpoints:
Comments
And to respond to Adam's response about handgun registration, my point is not that handgun registration is unconstitutional, either under the Second or Fifth Amendments, and nor am I contending that the requirement of filing tax returns or answering passport questions is unconstitutional.
I am saying that performing one constitutionally protected activity (purchasing guns) routinely creates obligations that limit another constitutional right (right to silence). It is no answer to say that the constitutional right to silence is also limited in other contexts by other considerations, such as the by the need to administer the tax laws. The question is whether the exercise of a constitutional right (here purchasing the handgun) can ever be the trigger that restricts the right to silence. It can and it is.
The overarching intuition--that one should not be penalized for exercising a constitutional right--crops up in lots of places, but is always quickly cabined. Yet another example is the unconstitutional conditions doctrine, which at its extreme would say that states should not be penalized for exercising their Tenth Amendment reserved powers. The moribund nature of unconstitutional conditions doctrine shows how tempting this principle is in the abstract, and how descriptively inaccurate it is in practice.
Posted by: TJ | Sep 6, 2011 2:35:38 AM
Adam, I don't think that the fact that lobbying involves petitioning for "someone else" makes it unprotected. The First Amendment surely protects the letter I write to my Congressman arguing for, say, repealing DOMA, even though I am not gay. So the argument still stands. What is normally protected First Amendment activity (petitioning the government) creates a limit on that same activity if you do it too much (registration and other limits on lobbying).
Posted by: TJ | Sep 6, 2011 2:03:15 AM
TJ,
Our intuitions differ here, not just because of the theoretical appeal of Patrick's suggestion, but because I think courts have not allowed the bootstrapping he describes. In the Second Amendment/Terry stop context, here's an illustration that at least sows some doubt about your example:http://volokh.com/2010/03/08/does-the-presence-of-a-licensed-firearm-create-a-threat-to-officer-safety-justifying-a-search/ Post-Heller, I'm not sure why the presence of a lawful weapon could create probable cause. I assume, having not read Terry in many years, that handgun possession was then unlawful in Ohio. This seems like the kind of question the tireless Orin Kerr might resolve for us.
In your other example, I'm not sure this is correct, either. My embarrassingly cursory look at the following, http://lobbyingdisclosure.house.gov/amended_lda_guide.html#section5, is consistent with my assumption that registration is required for lobbying on behalf of someone else, not petitioning the government for redress of your own grievances.
I don't know enough about background checks for gun purchases to answer your other Second Amendment hypo; perhaps this is more like information on a tax return, or perhaps it's more like answering questions at the passport office (which are statements to federal officers, chargeable as perjury if false).
We also disagree on what "taken literally" - which I'm not sure is a helpful guide - might mean here. I would think that Patrick's anti-recursion principle would mean that the exercise of one's right of silence could be used to draw an inference of guilt. So, I'm coming out somewhere between your interpretation (coerced confessions) and Patrick's (indictment). I think the best way to resolve our competing intuitions and definitions here would be to examine some actual cases - which I can only hope our more crimpro-oriented colleagues will graciously provide to us.
Adam
Posted by: Adam Scales | Sep 5, 2011 10:06:35 PM
Patrick, I'm not sure what you mean by "the exercise of a right is used to justify restricting that same right." Taken literally, that would only happen if the exercise of a right to silence were used to justify a coerced confession. Your example (using the invocation of the right to silence to charge an individual) is using the exercise of one right (silence) to restrict another right (presentment and indictment). The fact that both rights happen to be found in the Fifth Amendment seems pretty irrelevant to me.
There is an intuition against using the exercise of a constitutional right against someone (which is why I acknowledge that the principle is tempting in the abstract). But it is far from absolute. This is easiest to see when the right being invoked and the right being limited are different, as my Second-Fourth example has demonstrated. An even easier example is that invoking your Second Amendment right to purchase a gun will require you in many states to register, which requires you to provide lots of information to the government that might be used against you in a criminal proceeding, which otherwise would violate the Fifth Amendment. Your principle, using the exercise of a right to limit the same person's exercise of the same right, is rarer but still happens. If you petition the government for a redress of your grievances on a regular basis, you will be required to register as a lobbyist, which limits your right to petition the government.
Posted by: TJ | Sep 5, 2011 8:18:53 PM
I see what you're getting at TJ, and the same would be true of other things too. But the sort of situation you bring up strikes me as different that one in which the exercise of a right is used to justify restricting that same right. For example, it would be odd if, absent any other information, exercise of the 5th Amendment right against self-incrimination were the basis for probable cause to charge an individual with a crime.
Posted by: Patrick Luff | Sep 5, 2011 7:38:43 PM
OK, take gun possession protected by the Second Amendment. You might answer that gun possession should not by itself give rise to probable cause. But I will bet you that there are many cases where gun possession is the but-for determinant of probable cause (e.g. for a full search after finding a gun during a Terry stop, as happened in Terry itself).
Posted by: TJ | Sep 5, 2011 4:06:48 PM
I agree with the substance of the post. But the vast majority of the public probably supports such measures, so they'll keep doing it, whether or not it's intellectually defensible.
The public used to be too cavalier about drinking & driving, but I think the pendulum has swung the other way, so that the public now overestimates the risks and dangers of drinking and then driving. The public does not want to accept, however, that driving while speaking on a cell phone, or driving while tired, or driving with a car full of wild children, is just as dangerous as driving with a BAC of 0.08.
Posted by: GU | Sep 5, 2011 3:24:44 PM
TJ--
As the paragraph following that quotation suggests, the point is that the exercise of the right shouldn't be sufficient to justify nullifying the protection that right provides.
Posted by: Patrick Luff | Sep 5, 2011 12:49:58 PM
surely the exercise of a constitutional right cannot be a sufficient condition for a judge to find probable cause
Might be a tempting principle in the abstract, but surely not an accurate description of Fourth Amendment doctrine. Saying "I just shot someone" is protected speech, but will surely provide probable cause.
Posted by: TJ | Sep 5, 2011 12:12:50 PM
Another reason to worry about such practices, if they are as you describe:
Breathalyzers are surely not 100% accurate, so there will be some false positives. The number of false positives can be reduced by only applying the test when there is independent reason to think the person fits the relevant criteria (in this case, is driving like a drunk person.) But if the test is applied to everyone, w/o any independent criteria, we should expect there to be a number of people wrongly found to be driving drunk while they were in fact not doing so. Even with "random" tests, this will be the case. (Though "random" should be put in scare-quotes here, since such things are rarely really random, I think.) But, if applied indiscriminately, the risks of many false positives, even from pretty accurate tests, is high. This is a good reason to refuse to take the test is one hasn't been drinking or otherwise showing relevant behavior, and would seem to indicate that the constitutional arguments are directly relevant. Again, this is premised on the facts being as described above, though I think a less strong version applies to "random" tests, too.
Posted by: Matt Lister | Sep 5, 2011 11:40:13 AM
Another possibility: the warrant's required under state constitutional law.
Posted by: Patrick Luff | Sep 5, 2011 11:36:41 AM
It seems that some (and maybe all) states do it only in cases of suspicion of drunk driving, and you're right that in that case there's probable cause. But if that's all that's going on here, I don't understand where the judge comes in at all, because under my reading of Schmerber, you don't need a warrant for the blood test because of the fleeting nature of the evidence (and the 5th Amendment argument was the one made in Schmerber which, as you note, the Court rejected). Maybe states just want to cross their Ts and dot their Is?
Posted by: Patrick Luff | Sep 5, 2011 11:31:36 AM
Question: Do you mean *everyone* who is stopped must undergo a breathalyzer or a judge is called for a warrant? Or just those people who are pulled over and otherwise display evidence of being intoxicated? B/c then you would have probable cause right? And you still would need a judge for a warrant for a blood test if someone refused a breathalyzer as a blood test is more invasive. I thought that if someone who appears intoxicated refuses a breathalyzer then an adverse inference can be drawn. I do not know anything about these no refusal checkpoints but from your description the difference is that instead of drawing an adverse inference, a judge is called to get a blood test. I agree that if everyone single person who is pulled over --even those with absolutely no sign of being intoxicated -- is forced to either take a breathalyzer or have a blood test, that would pose a 4th amendment problem. Not seeing 5th amendment though. I thought 5th amendment was about testimonial evidence.
Posted by: anon | Sep 5, 2011 11:02:15 AM
The comments to this entry are closed.