Wednesday, March 25, 2009

The best sobriety checkpoint bill I ever opposed

I'm not a fan, at all, of "sobriety checkpoints" on the roadways. Having grown up in the Cold War era, the whole idea has a bit too much of a "Can I see your papers, Comrade?" flavor to it for my tastes. Checkpoints where armed, uniformed agents of the state stop and question average citizens driving down the street were the kind of thing we used to point to under Communism in the old Soviet Union and say, "That doesn't happen in America."

But today, in many states, it does. And perhaps soon in Texas, too.

That said, SB 298 by Sen. John Carona authorizing sobriety checkpoints is one of the best efforts I've seen to focus the tactic in tightly on its stated goal of reducing drunk driving while avoiding Big Brother-esque pitfalls and revenue generation schemes that make civil libertarians wince at the tactic. Carona's bill was placed on yesterday's "intent calendar" in the senate (meaning it was eligible to be debated and voted on), but was usurped on the agenda by debates over higher education and the top ten percent rule. It could be voted on in the Texas Senate as soon as today.

I still oppose sobriety checkpoints and thus on principle I oppose this bill. I just don't like the idea of police stopping motorists without probable cause, believing traditional DWI enforcement tactics work better and are less invasive. But if you think drunk driving is so bad that it warrants use of more totalitarian tactics, the limits Sen. Carona places on checkpoints are a laudable effort to address the main criticisms of the practice while still authorizing its use.

Here's a summary of the legislation, which passed 9-0 out of the Senate Transportation and Homeland Security Committee:
  • Law enforcement agencies may establish sobriety checkpoints for the sole purpose of enforcing drunk driving laws, not as a way to check for warrants, liability insurance, etc..
  • Agencies must put procedures for choosing sites and operating checkpoints in writing and publish them online along with dates and times (but not locations) of the checkpoints.
  • Procedures for selecting who to stop must be "reasonably predictable and nonarbitrary."
  • "The criteria for selecting the location ... must include the number of traffic accidents in the vicinity ... in which the use of alcohol was a factor ... in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months."
  • Signs ahead of the checkpoint must advise oncoming motorists it's coming up.
  • Officers conducting the checkpoint must wear uniforms.
  • Encounters with motorists must be videotaped. (Note: Shouldn't there be audio?)
  • Officers may not ask to see motorists' drivers' license or insurance unless there is reasonable susupicion to believe they've committed an offense.
  • Each stop should take less than three minutes unless there is reasonable suspicion to think an offense has been committed, and police must make "reasonable efforts" to ensure each stop won't take more than one minute.
  • The total time motorists must wait to get through the checkpoint should not exceed ten minutes, and "reasonable efforts" must be made to get traffic through in less than five.
  • "A law enforcement agency may not operate a sobriety checkpoint at one location for more than four hours and may not operate a checkpoint at the same location more than once in a 12-month period. For the purposes of this subsection, sobriety checkpoints located within one mile of each other are considered to be at the same location."
  • Finally, records about the event - including time, location, duration, procedures, number of stops and arrests, and which officers were involved - must be maintained for at least five years.
That's a pretty nifty piece of bill writing.

I've long believed the reason law enforcement so badly wants "sobriety checkpoints" was as a platform for revenue generation schemes, either nabbing the 10% of Texas drivers with outstanding arrest warrants or the 25% with no liability insurance. But this proposal essentially eliminates those motives by disallowing officers from asking for ID without reasonable suspicion and videotaping the encounter. That forces agencies to operate sobriety checkpoints transparently, without improperly expanding their focus to other areas.

Carona has crafted a serious, interesting compromise on a subject that's been a biennial source of bitter contention. Indeed, part of me almost wants to support SB 298 just so we can stop fighting about it at the Lege every two years and move onto something else.

This is by far the best sobriety checkpoint bill I've ever opposed.


Anonymous said...

As an older dude from Texas, I remember the 'sobriety checkpoints' that were rampant in Tarrant and Dallas Counties in the early and mid 70's. Even then, when traffic was lighter, and the roads picked were relatively remote it was still a chore to get through those in any reasonable amount of time. I also remember it was always a hassle for mom digging through the glove box to find insurance that it would take a few minutes to get through the stop.

Although I am strongly apposed to anyone getting behind the wheel of a vehicle if they have had even ONE drink (affects are different for everyone), I find the whole police as Brown Shirt Agents to be absolutely despicable. I agree the 'where's you papers?' line will be used, as other laws allow for officers to request or demand to see your drivers license on contact as well as the simplicity of saying they smell alcohol if a license comes back as a hit on the warrant database.

I know that some that read your blog will disagree, stating it's good for Texas, it protects the community, or some other such nonsense. To that I counter with, Do Police not already have the ability to pull over drivers that seem to be driving erratically?

Giving up my freedom to drive down a road on a whim without being harassed by the members of the local Hitler Youth is not an option in a Free Society.

Anonymous said...

If you think the "reasonable suspicion" part will work you are very naive. These checkpoints are not a good thing for Texas. Revenue generators is a good point...

Anonymous said...

Signs ahead of the checkpoint must advise oncoming motorists it's coming up.

LOL, how far ahead??

Anonymous said...

"But this proposal essentially eliminates those motives by disallowing officers from asking for ID without reasonable suspicion and videotaping the encounter. That forces agencies to operate sobriety checkpoints transparently, without improperly expanding their focus to other areas."
No it won't. If anyone can get around the law, it's a cop looking for a way to achieve a successful arrest. Simply look at how, no matter what the law or the Constitution says, a cop can search alnmost anyone almost anywhere. It's simply a "harmless error" and the evidence or crime would have "otherwise been discovered".

123txpublicdefender123 said...

I share the concerns of others here about the "reasonable suspicion" requirement not being the bulwark against totalitarianism you hope it to be. What is going to be enough to constitute "reasonable suspicion"? Smelling alcohol? Because the odor of alcohol only menas someone has consumed alcohol--not that they are in any way impaired. And, this also depends on the officers not being willing to fudge things. If all they have to do is say they smelled alcohol to ask for your papers, who is going to contradict their account? The driver with the warrant? Who will the judge believe in a dispute between an officer and a "criminal"? I've been down that road many times, and the answer is very predictable.

I suppose my hope would be that, if this bill passes, it makes things so expensive and such a pain in the ass for law enforcement agencies to do it, with too little hope of generating revenue, that they just decide to forgo them altogether.

And just a comment/question to an earlier poster who said he was "strongly [o]poosed to anyone getting behind the wheel of a vehicle if they have had even ONE drink": Had one drink how long ago? An hour ago? Two hours? Three? When you say you are strongly opposed to it, do you mean that you think it should be illegal to do so, or just, from a moral/ethical standpoint, that's what you believe?

Anonymous said...


It isn't the alcohol cops claim to smell, it is the odor of alcholic beverage: The hops, barely, sugar, etc. Those are the same odors that you smell in one of the non-alcoholic/lookalike beers- beverages. So, if you are drinking an O'Dooles or some other kind of near-beer, you may find yourself being detained and tested.

I cross-examined a DPS Trooper years ago in a DWI case tried before a jury. His probable cause for the arrest for DWI was that he smelled the odor of alcholic beverage on the defendant's breath. The trial judge let me test the Trooper, by placing three paper bags before him containing unopened bottles. He could not see the labels on the bottles. I opened each and asked him to sniff it and tell us which one had an odor of alcholic beverage. He chose the near-beer. It really pissed-off the Trooper, but did not impress the jury, who returned a verdict of guilty.

BTW, how old is that photo of you?

Anonymous said...

The analogy about cold war era Russia isn't too far off. I don't drink and drive and I do feel we need to do what we can to keep drunk drives off the stree, this is not the answer! What's next big brother?

Anonymous said...

Think this power won't creep do you? What's to stop LEOs from breaking every one of the guidelines? (hint: note the specific time limit the DPS has to issue concealed carry licenses.....and they almost always miss it...which bothers them not a whit)

Granting this power to police is asking for trouble and more trouble. Remember, once they get it, it will never go away, just get more intrusive and powerful.

"Reasonable suspiscion" will be satisfied when you drive up in a car to a checkpoint full of police looking to make a quota. You're in a car. They are checking. You're alleged civil rights are non-existant.

Anonymous said...

I guess you have never had a family member killed by a drunk driver. My child was. Texas leads the U.S. in drunk driving deaths - that is embarassing. I strongly support the checkpoints.

Don said...

I agree with most of the bloggers here. I also agree with Scott that it's language is a work of art. It's almost like that, "well, if you don't have anything to hide, you don't mind if I look around, do you?"
The potential for creep, however, is all too clear. 1 minute? The DPS own guidelines say they should try to keep any routine traffic stop to under 7 minutes. How often does that happen? It will become a revenue generator, a red herring, and what all else? The nose of the camel under the tent is this legislation. Get it passed, and MADD will have renewed vigor to strengthen it every year. Doran, don't hit on the PD. :-). Anon: 4:29. I'm sorry for your loss, but sobriety checkpoints have never been shown to reduce these tragedies. A knee-jerk emotional support of bad legislaiton won't bring anybody back, or prevent future tragedies. Let's promote personal responsibility instead of trying to legislate it.

123txpublicdefender123 said...

doran: Sorry, but that picture is not even of me. It's Veronica Mars, former television heroine, and my online alter-ego. Sorry!

Don said...

Shame on you 123publicdefender. Now I recognize it as Veronica Mars. But she was a private detective, wasn't she? I thought it was you all this time.

Unknown said...

This whole mess must be based on some kind of statistical work to convince legislators et al that a tactic such as checkpoints has a real measurable effect. But how good is that work? Rather this is law that makes people feel good, garners votes for politicians, and makes incumbents crow of their accomplishment. Meanwhile as a people we lose more freedoms. Just imagine how short a trip it is to connect this whole mess with "Homeland Security"?

Anonymous said...

I thought maybe it was a photo of txbluesman that he uses for a nom de plume.

Anonymous said...

"I suppose my hope would be that, if this bill passes, it makes things so expensive and such a pain in the ass for law enforcement agencies to do it, with too little hope of generating revenue, that they just decide to forgo them altogether." As a prosecutor, let me assure 123txpublicdefender123 that the bill as written entirely fulfills your hopes. In a session where I seem to be reading a lot of dumb bills, this is definitely in the top 5, and shame on you, Grits, for lauding political pandering as genuinely acceptable lawmaking. The bill is STAGGERINGLY IMPRACTICAL, which means no one will do it. In my reasonably sized city, it would take half my patrol officers for any given shift to meet the time requirements alone. BUT if it passes, despite the fact that it is so arduous as to provide no additional protection to the public safety, this particular lawmaker will have kept his promise to whatever special interest purchased his soul this session. I have considerably less problem just telling cops they don't have the authority to use a particular law enforcement tool (the state of the law now) than I do with telling cops (and the idiot portions of the public, who will then wonder why we're NOT "protecting" them under this new law) that they can utilize a law enforcement tool, but only if they pronounce Supercalifragilicious backwards on each traffic stop while standing on their heads wearing bright yellow t-shirts with black-and-white-striped polka dots. I can't believe that you would approve of the use of the public statute books for such a blatantly politically self-serving stunt.

Gritsforbreakfast said...

11:49 - You do realize, don't you, that I said I oppose the bill?