Mike Kueber's Blog

February 4, 2011

DUI checkpoints in Texas

I’ve always been a rebel against authority figures.  Once in high school, I was threatened with expulsion for rebelling against the school dress code.  Although I don’t smoke, I stood in solidarity with smokers opposing anti-smoking rules, first by employers and later by municipalities.  And I joined my brother Kelly’s chapter of D.A.M.M. – drunks against mad mothers.

The latest assault on our liberty by the politically correct in San Antonio – DUI checkpoints.  According to an article in the San Antonio Express-News, the city’s police chief is pushing for legislation to authorize DUI checkpoints.   

DUI checkpoints were initially challenged as an unconstitutional “seizure” under the Fourth Amendment, but the U.S. Supreme Court approved them in 1990 in Michigan State Department of Police v. Sitz.  The Court held that the legality of such a seizure must be determined by balancing three interests – “the state’s interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual’s privacy caused by the checkpoints.

On each of those three points, the Court concluded:

  1. No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”
  2. “Conversely, the weight bearing on the other scale – the measure of the intrusion on motorists stopped briefly at sobriety checkpoints – is slight.”  (Less than 45 seconds.)
  3. Approximately 1.6 percent of the drivers passing through the checkpoint were arrested for alcohol impairment….  By way of comparison… illegal aliens were found in only 0.12 percent of the vehicles passing through [a San Clemente checkpoint set up to detect illegal aliens]….  We sustained its constitutionality. We see no justification for a different conclusion here.”

Despite the Sitz decision in 1990, the Texas Court of Criminal Appeals in 1994 held that DUI checkpoints were invalid in Texas unless the legislature established procedures and guidelines.  

According to an article in CBSDFW.com, Texas is one of only twelve states that don’t authorize DUI checkpoints.  A similar article in USA Today reported:

  • “Legislators in Texas, which has one of the nation’s highest proportions of drunken-driving deaths and is one of 10 states that ban sobriety checkpoints, say they will introduce a bill next year to allow checkpoints. The measure has failed in the past because of resistance from ‘drunks, people who make money off drunks and civil libertarians,’ says state Rep. Todd Smith, a Euless Republican.  Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Washington, Wisconsin and Wyoming also ban checkpoints, MADD says.”   

You could almost hear Representative Smith sneer when he said, “civil libertarian,” like that is a bad person.  Smith is the Texas representative who has proposed the legislation that San Antonio’s police chief is endorsing – House Bill 439.

House Bill 439 authorizes “sobriety checkpoints” only in the 18 counties with more than 250,000 (that should help secure votes from rural legislators) and only in locations with a history of alcohol-related driving violations.  The bill prohibits the officer from asking for a driver’s license or proof of insurance or asking the operator to leave the vehicle.  The bill requires that (a) a video and audio recording be made of each “encounter,” (b) the intrusion be minimized (no more than three minutes), and (c) the inquiry is “reasonably related to determining whether the operator is intoxicated.”

Unfortunately, I was unable to learn how an officer determines intoxication.  I suppose it is the smell of alcohol, slurred speech, or an admission of drinking.  Thus, if you have been drinking, it would be a good idea to roll down your windows before you face the officer and don’t admit that you have been drinking, even if the checkpoint is near a bar at 2am. 

Last summer, I encountered a similar situation during my annual pilgrimage to North Dakota.  After closing down my hometown’s only bar at 2am, I was driving home to the family farm when a highway patrolman stopped me for rolling through the city’s only stop sign.  He asked if I had been drinking, and instead of lying, I told him that I had.  (I did lie when he asked me how many.)  That response earned me a walk back to the officer’s car and a field sobriety test while sitting in his car.  Fortunately, he concluded that I was sober enough to drive and sent me on my way.

I don’t intend to diminish America’s problem with drunk drivers.  And I fully support the effort by the National Transportation Safety Board to eliminate “hard-core” drunken drivers, which they define as drivers with blood-alcohol concentration of 0.15% or repeat offenders within a 10-year period.  But their 11 recommendations to accomplish this objective belie their contention that they are focused on “hard-core” drunks: 

  1. Statewide sobriety checkpoints;
  2. Programs to identify individuals driving on a suspended or revoked license;
  3. Defining a repeat offender as anyone arrested on a DWI offense within 10 years of a prior DWI arrest;*
  4. Imposing tougher penalties, assessment and treatment for DWI offenders arrested with a blood alcohol content level of 0.15 or higher;*
  5. Using administrative license revocation;*
  6. Prohibiting plea bargaining;
  7. Prohibiting diversion programs;
  8. Establishing court-based sanction programs;*
  9. Using vehicle sanctions including ignition interlock devices and vehicle impoundment;
  10. Implementing alternatives to jail confinement such as home detention with electronic monitoring; and
  11. Requiring DWI offenders to maintain a zero blood alcohol content level.

The state of Texas is criticized for having adopted only four of the eleven items on the list (I have placed an * after each of the four items), but it has adopted the only two that are directed at hard-core drunks – #3 and #4.

I have a drinking friend who complains that they keep increasing the penalties and lowering the DUI standard to a point that potentially includes social drinkers.  We remember when driving with an open container was legal in Texas (pre-9/1/01). 

Social drinking is one of life’s pleasures for millions of Americans, and that is something worth defending against unnecessary government encroachment.  Go after the drunks, but leave us social drinkers alone.

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