April 22, 2007

Saturday Night Anti-Drunk Driving "Surveys" Proliferate

If I was ruling the world those things would be banned. If only we still had some Cold War conservatives around to remind their right-wing brethern that the whole concept smacks of Soviet all-powerful state tactics. But you know if those who are against freedom and liberty (and the ability to take friends home in a timely fashion, friends could really stand to be in their beds or bathrooms) are going to needlessly and inefficiently complicate our lives, could they at least do so in a manner that doesn't lead one from driving from one survey directly into another one? It's not only Commie-esque, it's tiresome and irritating.

Posted by armand at April 22, 2007 03:37 PM | TrackBack | Posted to West Virginia



Posted by: binky at April 22, 2007 04:22 PM | PERMALINK

No link - just an observation from what was going on last night (of course far, far away from the masses of undergrads cavorting and what not at the bars downtown).

Posted by: Armand at April 22, 2007 06:58 PM | PERMALINK

che significa "surveys"? is this some sort of organized roadblock thingie? i'm fascinated by the constitutionality of these, which is by no means unbounded and is subject to a great deal of caselaw. but i've never heard one referred to as a "survey." is this some sort of innovation?

Posted by: moon at April 23, 2007 12:49 AM | PERMALINK

Yes, it's an organized roadblock thing. And I'm presuming they can't make you actually take the survey. Though they do all they can to talk you into it. I presume it's done to 1) establish probable cause to make you take a breathalizer that'll add to the coffers of their podunk locality, 2) get you to lower your guard and agree to do #1, 3) provide pointless "data" they can give local (supposed) bigwigs re: "assessment" of drinking and driving policies .... or some combination of those kinds of things.

Whatever the reason, I think they aren't merely tiresome, they are also a menace. If I want to go from A to B I don't believe that the state has any business obstructing my ability to do that - presuming my driving is not apparently dangerous.

Posted by: Armand at April 23, 2007 07:39 AM | PERMALINK

I have talked to students who have been arrested (DUI) after taking the survey.

Posted by: binky at April 23, 2007 07:48 AM | PERMALINK

once they're talking to you, it's open season on you as a driver, on whatever they can see in your car in "plain view," and so on. but the survey is definitely a new permutation; probably constitutional, at least under federal law, so long as they stop everyone or select a sample by some consistent, random formula. but obnoxious, just the same -- i'm with you, armand.

Posted by: moon at April 23, 2007 10:27 AM | PERMALINK

So, what can the average citizen do? My suggestion to Armand was a simple, "no thank you, I'm not interested in taking a survey right now," that same attitude I'd take with the Gallup poll.

Posted by: binky at April 23, 2007 10:55 AM | PERMALINK

It seems they often do either stop everyone (the 2nd one I ran into). Though I've also heard of them asking your age first, and you say X, and then there's been a reply along the lines of "drive ahead we've already got our quota for your age group", something like that. But I believe that usually it's stop everyone, look in the car, get as much info/cause as you can ...

Posted by: Armand at April 23, 2007 12:17 PM | PERMALINK

And just as a reminder that issues tied to searches and automobiles continue to be an area in which there's a lot of case law, the Supremes are hearing such a case today. From SCOTUSBlog:

"Tomorrow in Brendlin v. California (No. 06-8120), the Court will consider whether a passenger in a vehicle subject to a traffic stop is “seized” for purposes of the Fourth Amendment and thus can contest the stop's legality. In the decision below, the Supreme Court of California held that Brendlin had not been seized because the police had never given any indication that he was not free to leave the scene. Therefore, the court reasoned, his Fourth Amendment rights were never implicated, and he lacked standing to challenge the stop itself."

Posted by: Armand at April 23, 2007 12:44 PM | PERMALINK

So the implication is that you need to say "no" and then if they try to detain you, then there is a problem, and you can go through the "Officer, am I being arrested?" song and dance?

Posted by: binky at April 23, 2007 04:22 PM | PERMALINK

if they try to detain you, you are in custody, and then the song and dance is all theirs. all you need to do is watch carefully, take very good mental notes, and get a badge number. i posted a longer comment on this yesterday, but i fear it was lost. the upshot was, if it's really just a survey, then they ought to let you go when you protest. they have very little prerogative to interrupt your day for such a ridiculous pretext. the checkpoints that have been approved are random, and go directly to safety -- i.e., they're nominally checking for your papers, registration, insurance, license, and at most making sure your car is safe to operate. their "market research" has no meaningful connection to road safety, and i'm guessing that if they tried to detain you for that purpose ultimately they'd lose. if they keep it up, someone's going to test it, and i'll be very curious to see how that case comes out.

Posted by: moon at April 24, 2007 10:31 AM | PERMALINK

I think I meant the same thing. They ask, "will do you a survey," you say "no thank you" they say "you have to" and you say "then that means I am not free to go?" and that means that you are arrested?

Posted by: binky at April 24, 2007 11:40 AM | PERMALINK

arrested is a loaded term, but "custodial detention" is the operative legal term, and it's tantamount to arrest.

legally, there are three categories of police-person interaction. one, a brief encounter. a cop asks you on the street, "hi there, are you joe smith." he needs no suspicion to do so, but you're under no obligation to cooperate. you can tell him to fuck off. hell, you can look at him, shriek, and run off. in real life, he'll probably chase you, but in the land of the law that's probably not enough for him to do so, unless and until you present a danger to someone.

second, you've got reasonable suspicion, which is the level of suspicion necessary to support what's often called a Terry stop. cop hears report of a burglary in a neighborhood by a 20-something white male in a red t-shirt. that's probably enough to stop anyone within a dozen or so blocks for brief questioning, but not enough to support an arrest. at that level, the cop can briefly detain you. it's non-custodial detention; it's just that you really better talk to me. if the police officer has reason to fear for his safety or that of others -- say, because the burglar was reported to be waving a firearm -- he can briefly pat down the detainees outergarments strictly to check for weapons. anything he feels that way that, by plain feel, is very likely to be contraband, even if not of the sort he's looking for (imagine a very thin jacket, and a zip-loc bag full to bursting of crack vials -- it's pretty hard to imagine what else would feel like that) -- i.e., not a weapon -- he's entitled to grab, but the plain feel standard in the Terry context is pretty strict. it's gotta be pretty obvious, like a gun or a big knife.

finally, there's the full custodial detention, indefinite, absolutely not free to leave, and that can only occur where there is probable cause to believe that there is criminality afoot, or that the detainee has committed a crime.

on the road it gets more complicated, and some states are at least theoretically more protective of privacy than the feds, PA being one. but it's probably easiest to imagine that, while they can ask you for papers anytime, more or less, so long as it's part of a random safety check, they can't go further, or stop you on some non-safety related pretext, since it's the idea of protecting safety that authorizes the random checkpoints in the first place; nothing like that is permissible as to foot traffic, of course, but highways are dangerous places, subject to licensure, so the story goes.

but a survey doesn't contribute to that, at least not as characterized here. if they stop you at such a point, i think you're in the "mere encounter" framework outlined above, where you can pretty much tell them to fuck off and there should be much that they can do (again, though, that's not saying they won't do it, and that many courts won't let them get away with it). notably, though, the thresholds seem to be a little lower across the board for drivers. so it's not going to take much in your conduct with the cop during a survey stop and brief interaction, even one in which you decline and ask to go, to constitute, in the policeman's mind, the diminished level of suspicion necessary under federal law to support a traffic stop.

again, though, i really doubt these checkpoints would survive serious constitutional scrutiny at the federal level.

Posted by: moon at April 24, 2007 12:47 PM | PERMALINK
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