This being St. Patrick’s Day weekend, a popular drinking holiday, there is one thing you can count on: A police crackdown on drunken driving.
And the Ohio State Highway Patrol did not disappoint.
There were at least 15 sobriety checkpoints as well as saturation patrols across the state this weekend. While the U.S. Supreme Court has given its blessing to these sobriety checkpoints, they are not without controversy. In addition to the legal arguments, there are arguments against their effectiveness and their deleterious effect on civil liberties.
Looking at the numbers, it is hard to argue that drunken driving is not a problem in the United States.
The National Highway Traffic Safety Administration, which is part of the U.S. Department of Transportation, reported that more than 10,000 people died in 2010 in alcohol-impaired driving crashes. That amounts to one every 51 minutes. These crashes cost an estimated $37 billion annually.
The administration considers a crash alcohol-related when at least one driver has a blood-alcohol content of 0.08 grams per deciliter or higher (usually expressed as a percentage). That level is the legal limit for drunken driving — or operating a vehicle under the influence of alcohol or drugs as Ohio words it — in all U.S. jurisdictions for drivers 21 and older. For commercial drivers, the limit is 0.04 percent and for those under 21, there is in most jurisdictions a zero-tolerance limit.
Of the 10,228 people who died in alcohol-impaired-driving crashes in 2010, 6,627 (65 percent) were drivers with a blood-alcohol content of 0.08 percent or higher. The remaining fatalities consisted of 2,872 (28 percent) passengers and 729 (7 percent) nonoccupants.
Closer to home, the Ohio State Highway Patrol said there were 12,168 alcohol-related crashes on Ohio roadways in 2012, killing 431 and injuring 7,299. Impaired drivers were responsible for 40 percent of the fatal crashes on Ohio roadways in 2012.
However, it is not all gloom and doom. The numbers are in decline, at least nationally.
The national rate of alcohol-impaired-driving fatalities in motor vehicle crashes in 2010 was 0.34 per 100 million vehicle miles traveled, a 29 percent decline from the 0.48 per 100 million vehicle miles traveled in 2001. The National Highway Traffic Safety Administration has said that alcohol- and drug-related traffic fatalities are at an all-time low.
Still, the state clearly has an interest in keeping the roadways safe, but the question is, how far can it go in doing it.
The 4th Amendment
The two biggest tools in the drunken-driving enforcement tool bag are saturation patrols and sobriety checkpoints.
At sobriety checkpoints, law enforcement officials evaluate drivers for signs of alcohol or drug impairment at certain points on the roadway. Vehicles are stopped in a specific sequence, such as every other vehicle or every fourth, fifth or sixth vehicle. The frequency with which vehicles are stopped depends on the personnel available to staff the checkpoint and traffic conditions.
Saturation patrols involve an increased enforcement effort, targeting a specific area, to identify and arrest the impaired driver. Multiple agencies often combine and concentrate their resources to conduct saturation patrols.
Here in Ohio this holiday weekend, the Ohio State Highway Patrol said more than 78 local law enforcement agencies around the state will be conducting more than 2,100 hours of enforcement activity and 1,900 hours of saturation patrols in addition to 15 sobriety checkpoints, funded by federal grants provided through the Highway Patrol’s Ohio Traffic Safety Office.
The police checkpoints, at least, raise serious constitutional and privacy concerns among civil libertarians. Still, most states permit them.
The Fourth Amendment to the federal Constitution reads: “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.”
The Ohio Supreme Court has said the federal and state constitutions offer the exact same level of protection when it comes to searches and seizures.
So what about sobriety checkpoints?
Legally, the U.S. Supreme Court settled the matter in a 1990 case called Michigan v. Sitz.
Ironically, Michigan has since banned sobriety checkpoints. In all, 38 states, the District of Columbia, the Northern Mariana Islands and the Virgin Islands conduct sobriety checkpoints. In 12 states, sobriety checkpoints are not conducted. Some states prohibit them by state law or constitution (or interpretation of state law or constitution). Texas prohibits them based on its interpretation of the U.S. Constitution.
In the Sitz case, the U.S. Supreme Court agreed that checkpoints constitute a seizure for Fourth Amendment purposes but that sobriety checkpoints are reasonable and permissible under certain conditions, despite the fact that the law generally forbids law enforcement officers from stopping drivers unless there is a suspicion that the drivers have violated the law.
The court reasoned that the dangers posed by drunken driving outweighed the Fourth Amendment intrusion.
It came to this conclusion using a balancing test involving three factors: (1) the particular checkpoint’s intrusion on privacy, (2) the state’s interest in maintaining the checkpoint, and (3) the extent to which the checkpoint advances the state interest.
Using this analysis, the U.S. Supreme Court has said that sobriety checkpoints and roadblocks designed to intercept illegal immigrants are acceptable. However, checkpoints for drug interdiction or other ordinary criminal wrongdoing are not. Many states, including Ohio in a 2001 case out of Montgomery County, have used the same three-factor balancing test to permit license checkpoints and the U.S. Supreme Court has hinted that this is also acceptable.
But is this a good approach? Civil libertarians say no.
“When the Supreme Court upheld sobriety checkpoints in 1990, it reasoned that the seizure involved in stopping motorists at random was reasonable in light of the threat posed by drunken driving,” said Jacob Sullum, a senior editor at the libertarian Reason Foundation. “It reached a similar conclusion regarding the threat posed by illegal aliens when it upheld a checkpoint 66 miles from the Mexican border in 1976. This sort of ‘balancing test’ is inherently subjective, potentially allowing suspicionless stops in the name of any perceived threat.”
Such a suspicionless stop can also have other ramifications.
“Once a stop occurs, it can escalate into a more serious and burdensome encounter having nothing to do with the rationale for the checkpoint,” Sullum said. “Under other Supreme Court precedents, for example, police can deploy drug-sniffing dogs at will near any legally stopped vehicle, and an alert by such a dog is enough to justify a search of the vehicle. In practice, especially if the encounter is not recorded, this means an officer with a dog can search cars at will. Such searches may result in nothing more than inconvenience and embarrassment, but they also can result in forfeiture or arrest based on marijuana possession or other minor offenses that violate no one’s rights. Thus an operation ostensibly intended to discourage drunken driving (or prevent illegal immigration) can become a pretext for a dragnet aimed at detecting various crimes unrelated to traffic safety.”
Aside from the legal ramifications, are checkpoints even effective?
Opponents of checkpoints say no. They point to the low arrest rates. The arrest rate in the 1990 Sitz case was only 1.6 percent. Many times no drunken-driving arrests are made at the checkpoints.
However, police officials still believe they are effective under the theory of high-visibility enforcement.
The idea behind high-visibility enforcement is to make it appear that police efforts are more successful than they are. The more the public sees and believes the police are effectively combating drunken driving, the more likely they are to avoid that behavior.
Many jurisdictions that conduct sobriety checkpoints require the checkpoint to be publicized. The National Highway Traffic Safety Administration’s own guidelines on sobriety checkpoints encourage agencies to “aggressively” publicize the checkpoints.
Proponents of checkpoints see this publicity as key to its deterrence effect and that deterrence is more important than actual arrest rates.
The U.S. Centers for Disease Control, combining the results of 23 scientific studies, said sobriety checkpoints reduce alcohol-related crashes by about 20 percent even with the low arrest rates simply from the deterrence effect.
Opponents of checkpoints, though, see them as a waste of resources and time and argue that saturation patrols are much more effective.
The National Highway Traffic Safety Administration has concluded, after numerous field studies, that the number of drunken-driving arrests made by roving patrols is nearly three times the average number of arrests made by officers at a sobriety checkpoint. FBI studies also bear this out.
Additionally, this low arrest rate appears to go against the U.S. Supreme Court’s third factor in its balancing test: the extent to which the checkpoint advances the state interest.
Regardless, sobriety checkpoints, saturation patrols and other high-visibility enforcement efforts will remain for the foreseeable future. So take some advice from the Ohio State Highway Patrol.
“We want people to enjoy the celebration, but we encourage them to do so responsibly,” said Col. John Born, Highway Patrol superintendent. “Don’t press your luck — designate a sober driver.”