Sunday, August 17, 2008

MADD'S Madness

MADD has a bad idea--and wants Wisconsin's Leggies to codify it.

Laura Dean-Mooney, the national president of Mothers Against Drunk Driving, said today the Wisconsin Legislature should fight drunken driving by...allowing roadside sobriety checkpoints

(The elided text has to do with ignition interlocks for convicted offenders, an idea about which I have no objections.)

But this "roadside sobriety" stuff smacks of 4th Amendment violation, and not just at the margins. Pulling over a passel of motorists for a smell-check, or to dance on the roadside of I-94, for no particular reason other than "it will save lives" (a questionable assertion) is not law-enforcement; it's the State exercising power for the sake of exercising power because some people have problems with alcohol. Not exactly a good precedent.

Either one has probable cause or one does not. And since when is merely driving down the road "probable cause"?

This is not "for the children." It is not going to prevent drunken driving. It is merely unjustified intrusion, time-consuming, and, by the way, a utilization of resources (cop-time) which is questionable.

It's purely good intentions. Makes no difference that 38 other States allow random intrusions.

Ask Paul Bucher about how that idea plays...


Prosqtor said...

Not probable cause for a stop of a vehicle. "Reasonable suspicion."

But get ready to hear the phrase "community caretaker" in this context.

For community caretaker to allow a warrantless seizure and search where there is no probable cause or reasonable suspicion, several items must be established. Most relevant IMO with regard to checkpoints, community caretaking functions must be "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Anderson, 142 Wis.2d 162, 166, 417 N.W.2d 411 (Ct.App.1987).

Checkpoints won't pass constitutional muster.

Dad29 said...

Thanks for the correction and clarification.

But if DUI is NOT a criminal offense (and it is not, yet, in Wisconsin) then the clause you cite from Anderson is not operative, right?

Perhaps that's why MADD is not pressing for criminalization of DUI/First offense?

Prosqtor said...

I think there is going to be a lot of appellate litigation on this issue if MADD shrieks loudly enough to change the law.

The standard for a vehicle stop is the same for violations of ordinances (loud music, concealed license plate, dark tint in windows, dragging muffler) as it is for criminal behavior (fleeing, OWI). A stop for a first-offense drunk driver is treated the same as the stop for a 10th-offense drunk driver; the cop simply doesn't know who's driving, or what their history is. Only later can priors be "counted" and appropriate actions -- citations and/or criminal charges -- be accomplished.

So I would venture an educated guess that the courts would treat OWI checkpoints as the same as checkpoints for, say, drug trafficking. The legal standard to stop a vehicle is the same, and deserves the same analysis. Thus, it fails to pass muster.

Of course, logic doesn't always win court cases, and it certainly doesn't affect MADD.

Anonymous said...

I yield to prosqtor, but I thought the SCOTUS found them to be constitutional, as long as a laundry list of rules were followed, including a formula to guarantee randomness. That said, our court could find otherwise.

Before I was promoted off the highways, I arrested an average of 50 drunks a year and never lost one in court. They were all caught by patrolling and looking for the signs. Some recent Wisconsin case law has tightened that up, but it still works. My dislike of drunk drivers remains, but I don't care for sobriety checkpoints for some of the reasons prosqtor mentioned.