Driver Pull-overs for Breath, Blood Samples Spur Anger, Regret
Fort Worth Police Chief Jeffrey Halstead
Tuesday, 03 Dec 2013 05:04 PM
But the $7.9 million project, headed by the National Highway Traffic Safety Administration, is far from over, with similar police pull-overs slated at about 300 sites in 60 cities around the nation next year.
The latest leg of the operation, staged in late November as part of the NHTSA's National Roadside Survey of Alcohol and Drugged Driving, included off-duty Fort Worth officers wearing police uniforms and directing motorists into a staged area, where they were met by people wearing lab coats who asked them to blow into a Breathalyzer or provide either blood or saliva samples.
Some drivers weren't happy, complaining they felt intimidated and pressured to participate.
Under fire, Fort Worth Police Chief Jeffrey Halstead issued an apology, saying, "I agree with our citizens' concerns, and I apologize for our participation. Any future federal survey of this nature, which jeopardizes the public's trust, will not be approved for the use of Fort Worth police," the Fort Worth Star-Telegram reported.
The American Civil Liberties Union of Texas said the searches "are among the most invasive police can conduct."
"We're glad the police chief recognizes that these supposedly voluntary searches should never have happened," Terri Burke, executive director of the ACLU of Texas, told Newsmax. "People have a right to expect that the police won't randomly stop people who aren't suspected of any wrongdoing and demand blood or saliva samples."
Burke expressed hope that "other cities take a lesson from Fort Worth's mistakes" and abstain from conducting similar tests, but that's not likely, as the Fort Worth operation was only a drop in the bucket of what the NHTSA has planned.
NHTSA spokeswoman Catherine Howden told Newsmax that it's all part of a three-year initiative to collect data about the number of drivers who operate under the influence of drugs and alcohol. The research requires partnerships with local police, who then set up road operations to usher randomly selected drivers into parking lots.
"More than 60 communities across the country will participate this year," Howden said. "The survey is conducted in the same manner in each location nationwide for the integrity of the research."
Howden said that driver participation was "completely voluntary and anonymous."
For some, the voluntary aspect doesn't moot the intimidation factor. One legal expert said the stops, as he understood the way they were conducted in Texas, could be unconstitutional.
Frank Colosi, a lawyer with an office in Fort Worth who received calls concerning the roadblocks, said in a telephone interview that even if the DNA is collected on a voluntary basis, other aspects of the test raise concerns.
"They tell the person, if they give the DNA, that it will go to a lab and that it's completely anonymous, that it can't be traced back," Colosi said. "But where NHTSA gets itself into a jam is if the person is impaired."
Colosi asked: What are the officers going to do then, let a drunk driver leave the scene?
If they do, the liability and legal factors are significant, especially if that impaired motorist ends up hurting somebody or causing property damage, Colosi said.
But if they don't let the driver leave — if the officers pull the impaired motorist's car keys or take the driver into custody — the doors are then open for a lawsuit based on how the police learned of the impairment in the first place.
"It's a ticklish situation," Colosi said of the roadside pull-overs.
Colosi also questioned the methodology, saying the way testers collect data wouldn't be meaningful in terms of statistical sampling.
"If only people who are going to volunteer for the survey are the people who are going to come back with clean results — and let's face it, that's what would happen — that would wreck the randomness of the survey," Colosi said.
To maintain the integrity of the study, those conducting the survey are surreptitiously recording the drivers' breath and at the same time telling them that providing DNA is completely voluntary, he said.
"I think that what makes this an unconstitutional stop is that they pull the person over . . . and while they're telling them it's voluntary, they're testing the person's breath at that moment. Attached to their clipboard or something is a tester," and the lab people are activating that without the driver's knowledge and consent, Colosi said.
Howden said the NHTSA has been conducting the research for 40 years, but Colosi said that gives rise to another issue.
"Does this survey really make a difference? Is it really effective? It would be interesting, for instance, to see what people do in their homes, too," he said. "But that doesn't make it constitutional to break down doors and look inside homes."
Background information from the NHTSA about the study says its purpose is to "estimate the prevalence of alcohol and drugs in drivers on our nation's roadways."
The agency also said that a previous study, conducted in 2007, included the participation of more than 9,000 drivers from around the United States.
The Pacific Institute for Research and Evaluation was in charge of recruiting and collecting the DNA data — in partnership with various county and police officials — and reportedly made considerable effort to ensure the testing was both random and anonymous, the NHTSA said.
In 2,007 cases in which the driver was suspected of operating under the influence, "a supervisor intervened and obtained a preliminary breath test reading. If the driver had a Blood Alcohol Content about .05, we insured he/she got safely home," the NHTSA documents said.
The first NHTSA National Roadside Survey of Alcohol and Drugged Driving was conducted in 1973. Subsequent surveys were conducted in 1986, sponsored by the Insurance Institute for Highway Safety, and in 1998, sponsored by both the NHTSA and the IIHS.
In 2007, the NHTSA sponsored the survey, along with the National Institute on Alcohol Abuse and Alcoholism, the National Institute on Drug Abuse, and the National Institute of Justice.
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