Justification for detaining driver? None

[larrymeyer]

http://www.mcall.com/news/local/all-...lumn?track=rss


Justification for detaining driver? None
Dan Hartzell | The Road Warrior
March 2, 2009

A sign reminds of DUI enforcement, but did police go too far in detaining a driver who was drinking, but below the legal limit? (Allentown Morning Call / March 2, 2009)



Q: In a January column regarding an encounter at a DUI checkpoint, you said a motorist tested below the 'legal limit,' yet police did not allow him to continue driving. Officers said this was standard practice, a protection against even partially impaired motorists being involved in accidents after police knowingly allowed them to continue driving -- a liability concern for police, according to them. I think you owe it to your readers to explain: What gives police the authority to stop someone who has a valid license and is not in violation of any law?

Peter Crownfield

Bethlehem

A: You're right, Peter, there is an obligation to explain from whence police derive the power to forbid a properly licensed motorist, in violation of no law, from driving after being stopped at a checkpoint.



Dan Hartzell Bio | E-mail | Recent columns

The driver in the Jan. 12 column displayed a level of honesty to which the Warrior can only aspire when police asked if he'd been drinking: ''Yes,'' he replied. Had he lied and said no, he almost certainly would have been sent on his merry way. Instead, he got a breath test, which, at 0.06, he passed.

Though he wasn't charged with DUI or anything else, officers told him he could not drive home. What statute grants them this authority?

The answer is, none. Police have no such authority under Pennsylvania law.

Two state police officers and Lehigh County's DUI prosecution guru cited chapter and verse about why it makes real-world sense to prevent impaired drivers from continuing on from checkpoints. Public safety and police liability were the major themes.

However, asked for a specific statute, neither state police Lt. Craig Summers nor Cpl. Linette Quinn, nor Renee Smith, chief deputy district attorney in charge of DUI cases, could cite any that apply.

After having the matter researched, Sara Mullen of the American Civil Liberties Union of Pennsylvania put it bluntly: ''There is no legal basis for what they're doing,'' she said.

Lehigh County spokeswoman Debbie Garlicki, after consulting Smith, pointed to the part of the state DUI law that says you can be cited even if you test below 0.08. And it's true, you can be cited, and convicted, if a judge agrees your driving ability was sufficiently impaired. The ''legal limit'' simply sets a mark at and above which you are presumed guilty.

But to apply the under-0.08 portion of the law, police need probable cause to pull you over in the first place -- generally, they see you driving erratically in some way -- and that doesn't happen at checkpoints, where everyone is stopped (a debatable practice in itself, though sanctioned by the courts).

When dealing with motorists at checkpoints who test positive, but below 0.08, Summers' sense is that police tend to issue orders, not requests. That's clearly how the motorist in the previous column understood it: that police told him outright he could not drive home.

So we have the right to insist on driving away from a checkpoint, Peter, as long as we're below 0.08. But let's face it, only a fool would do so.

You'd be handing police an opportunity for abuse of authority, which is your basic concern in the first place. Forget about driving in order to drive home a point. Even if you had to pay for a 40-mile cab ride home, you'd still be way ahead in the long run.

The government certainly has the right to take appropriate actions to help prevent the kind of horrific events that result from some DUI cases.

The Warrior's sense is that, after early success in cutting highway deaths and injuries stemming from drunken driving, the DUI enforcement vehicle in some ways has drifted off course. In what celebrity DUI defense lawyer Lawrence Taylor calls the ''punitive vengeance'' model, everyone at 0.08 is cited for a costly offense, the social stigma is immense, but the real trouble is caused by the 0.18 people.

Where does it end?

By the way, in response to a related, long-ago question from Dick and Jackie Perry of Lower Macungie Township, the ACLU provides excellent, comprehensive information regarding legitimate police power, and its limitations, at aclu.org, or by contacting what the Warrior considers one of America's most treasured organizations.

[JIDinPhilly]

A good friend of mine got a DUI after failing the road side test even though he was under the legal limit. He says he failed the sobriety test due to shear nervousness. Gotta love the garbage state. I mean garden state.

[Dannytheman]

http://www.mcall.com/news/local/all-...lumn?track=rss


Justification for detaining driver? None
Dan Hartzell | The Road Warrior
March 2, 2009

A sign reminds of DUI enforcement, but did police go too far in detaining a driver who was drinking, but below the legal limit? (Allentown Morning Call / March 2, 2009)



Q: In a January column regarding an encounter at a DUI checkpoint, you said a motorist tested below the 'legal limit,' yet police did not allow him to continue driving. Officers said this was standard practice, a protection against even partially impaired motorists being involved in accidents after police knowingly allowed them to continue driving -- a liability concern for police, according to them. I think you owe it to your readers to explain: What gives police the authority to stop someone who has a valid license and is not in violation of any law?

Peter Crownfield

Bethlehem

A: You're right, Peter, there is an obligation to explain from whence police derive the power to forbid a properly licensed motorist, in violation of no law, from driving after being stopped at a checkpoint.



Dan Hartzell Bio | E-mail | Recent columns

The driver in the Jan. 12 column displayed a level of honesty to which the Warrior can only aspire when police asked if he'd been drinking: ''Yes,'' he replied. Had he lied and said no, he almost certainly would have been sent on his merry way. Instead, he got a breath test, which, at 0.06, he passed.

Though he wasn't charged with DUI or anything else, officers told him he could not drive home. What statute grants them this authority?

The answer is, none. Police have no such authority under Pennsylvania law.

Two state police officers and Lehigh County's DUI prosecution guru cited chapter and verse about why it makes real-world sense to prevent impaired drivers from continuing on from checkpoints. Public safety and police liability were the major themes.

However, asked for a specific statute, neither state police Lt. Craig Summers nor Cpl. Linette Quinn, nor Renee Smith, chief deputy district attorney in charge of DUI cases, could cite any that apply.

After having the matter researched, Sara Mullen of the American Civil Liberties Union of Pennsylvania put it bluntly: ''There is no legal basis for what they're doing,'' she said.

Lehigh County spokeswoman Debbie Garlicki, after consulting Smith, pointed to the part of the state DUI law that says you can be cited even if you test below 0.08. And it's true, you can be cited, and convicted, if a judge agrees your driving ability was sufficiently impaired. The ''legal limit'' simply sets a mark at and above which you are presumed guilty.

But to apply the under-0.08 portion of the law, police need probable cause to pull you over in the first place -- generally, they see you driving erratically in some way -- and that doesn't happen at checkpoints, where everyone is stopped (a debatable practice in itself, though sanctioned by the courts).

When dealing with motorists at checkpoints who test positive, but below 0.08, Summers' sense is that police tend to issue orders, not requests. That's clearly how the motorist in the previous column understood it: that police told him outright he could not drive home.

So we have the right to insist on driving away from a checkpoint, Peter, as long as we're below 0.08. But let's face it, only a fool would do so.

You'd be handing police an opportunity for abuse of authority, which is your basic concern in the first place. Forget about driving in order to drive home a point. Even if you had to pay for a 40-mile cab ride home, you'd still be way ahead in the long run.

The government certainly has the right to take appropriate actions to help prevent the kind of horrific events that result from some DUI cases.

The Warrior's sense is that, after early success in cutting highway deaths and injuries stemming from drunken driving, the DUI enforcement vehicle in some ways has drifted off course. In what celebrity DUI defense lawyer Lawrence Taylor calls the ''punitive vengeance'' model, everyone at 0.08 is cited for a costly offense, the social stigma is immense, but the real trouble is caused by the 0.18 people.

Where does it end?

By the way, in response to a related, long-ago question from Dick and Jackie Perry of Lower Macungie Township, the ACLU provides excellent, comprehensive information regarding legitimate police power, and its limitations, at aclu.org, or by contacting what the Warrior considers one of America's most treasured organizations.

What always got me was that these checkpoints are legal. Somehow Mothers Against Drunk Drivers (MADD)got Congress to agree that in drinking cases our rights are not valid. I am a member of DAMM(Drunks against Mad Mothers)even though I do not drink anymore! The lawyer at the end of the story was right.. We have hammered the .08 foks and the ones killing people and their pasengers on the road are alway 3 or 4 times the legal limit!!

It does show what a group of sobbing Mothers can do, never lose sight of that fact!

Great article, thanks for posting it!!

[Bmarshall91]

dude, come get me.... haha! i'm .06 .02 below your stupid ass limit in the first place.... follow me home if you wish... isn't there a law somewhere that deals with abuse of power????

[fingers80002]

dude, come get me.... haha! i'm .06 .02 below your stupid ass limit in the first place.... follow me home if you wish... isn't there a law somewhere that deals with abuse of power????

Only if you have connections..........
Common folks need to pay the penalties, and their salaries.

[ADerhammer]

Be glad this country isn't like others where there is zero tolerance and any amount of alcohol in the blood is illegal. I do believe that the police should not have detained him if he had control of his vehicle.

[Whiskey Delta]

He needs to file a civil rights suit, the sooner the better.

Unlawful restraint, coersion and official oppression.

Run them out of Law Enforcement on a rail and make their masters pay.

Fuck those assholes.

[rtrageser]

He wasn't at .08 at the time, but what if he just finished his last beer 5 minutes before. He blows .06, the cop lets him go, then he goes down the road and kills someone a half hour or so later. they take his blood alcohol, and lo and behold, he's at .08. His first response is going to be " i'm not drunk, I just passed at a sobriety checkpoint." Everyone is going to be calling for the cops heads, and all that bullshit. I don't care if it's legal or not, the cops did the right thing. People calling for the cops to lose their jobs over this are insane. How bad to you hate cops to want this?

How bout if this scenario I explained above happened to your wife/sister/brother/parent. How would you feel knowing the cops let the person go less than an hour before they killed your loved one?

I don't like the checkpoints, think they are bullshit, but they have been upheld by the courts, and are in fact legal. Nothing we can do about that.

[Seventy4Blazer]

the legal limit is the cut off where a LEO HAS to fine you.

the laws i have dealt with in cali and AZ state that "the officer makes the final call on weather a person is DUI/DWI"

now, i know we are in PA, but i am not sure how the laws read here, nor do i intend on finding out (sober since november 5th 2007) my guess is they read about the same.

i dont like it, and i would fight it. in the past i fough one charge for the SAME thing in AZ and had all charges removed. i forget the latin term for it, but it makes it so they NEVER existed. null something rather. in cali, it was being under age that got me dinged for a "minor over the .05 bac" but i was charged with DUI on the spot. i proved that i was sober while driving, under the .08 limit, BUT i was over .01 and thats the limit for someone under 21 years old...

laws read funny some times, and you can find a loop hole a lot of the time. not always a good loop hole, but a loop hole...

[c.sander]

He wasn't at .08 at the time, but what if he just finished his last beer 5 minutes before. He blows .06, the cop lets him go, then he goes down the road and kills someone a half hour or so later. they take his blood alcohol, and lo and behold, he's at .08.

it does not matter "what might happen if". this is a legal situation and you cannot detain people nor punish people based upon "but what happens if". that is not how things work, either he is breaking the law and should be charged as such or he should be left alone. we havent reached the minority point yet, and id like to keep it that way.