Random Breath Testing

These are the statistics from the TAC (victoria)
for reference the total population of victoria in 2005 was 5,022,346 Thats from the ABS for reference (not that i think i will have to defend this statistic

Please Register or Log in to view the hidden image!

)


First some history, Im not sure what year it was and I cant find the exact number but one year victoria had a road toll of 1966 deaths. After that the police, the goverment, health groups ect all decided this had to stop and they introduced things like speed traps, random licence and veichal checks and random breath testing.

For starters i would like to point out that Australia has a 0.05 blood achole limit (unlike the US)

These are some recent statistics or deaths where achole was a factor

Please Register or Log in to view the hidden image!

(hope that works)

Please Register or Log in to view the hidden image!

Viewed on the 31\01\08 at 14:16

How many of those 5,500 would have gone on to have an acident if they hadn't been stoped. I would also like to point out that only 6% were p-platers (you can get your licence at 18 in victoria and you can also legally drink at 18)

I know it means a change in the consitution but maybe this is worth that change

 

Log in or Sign up to hide all adverts.

The problem(s) at hand

Would it be safe to presume you're referring to the United States Constitution?

The Fourth Amendment, as it currently stands:

Now, this is always a fun part of the discussion with Americans, because nobody ever gives a good answer. How would you change the Constitution to allow breath tests?

Americans tend to look at the Constitution as a "broad" document. There are single-issue amendments, to be sure, but, generally speaking, they're never this specific. It's why an "anti-abortion", or "heterosexual marriage", or "flag-burning" amendment doesn't have much chance.

So how to tailor the Constitution in order to allow random breath testing without opening the door to all sorts of intrusive searches?

Example: it used to be, heading out to the Gorge Amphitheatre to see a concert, one risked random search. A gauntlet of police sat at the end of an exit, directing cars to pull over at random, at which point they rifled through camping gear, duffel bags, anything they could find. Knowing the law helps. One year they pulled us over, so I shoved the marijuana and and the pipe into my jacket, put it on, and got out of the car. The thing is that they can't search your person without a specific reason. A couple years later, the racial profiling scandals broke out, and the police were at risk of being accused, so they changed their profiling tactic. We got pulled over, and I noticed that, regardless of skin color, the occupants of every car pulled over included at least one balding male who had the then-trendy Michael Stipe buzz-job and a beard. Same routine. Just keep it on your person. I think it was the next year that the cops were actually told to knock off their searches, which constituted a roadblock.

And the thing is that it's never the marijuana that's a problem at the Gorge. It's the alcohol. And, hell, they sell alcohol at the Gorge. In fact, at Sasquatch last year, security was so lax that people were carrying in fifth-bottles of whiskey. We only took a couple of joints; hell, we could have taken all the dope and the pipe. There was a circle in the grass where people were smoking bongs. And I don't recall that it was any more troublesome an event than any other I'd seen.

With DUI laws, it's an interesting predicament. We do have a legal limit, which is 0.08% blood alcohol content. The thing about this limit is that a few years ago the state of Washington actually pulled down most of its road signs because they were deceptive. People started believing that with a lower BAC, they were legal to drive, and that's simply not the case. 0.08 is simply the cutoff point at which you no longer get to argue.

And here's the thing: the police are not actually required to have a clue what's going on.

It seems strange, then, that they would have searched people heading on their way to the amphitheatre, while I've never seen a roadblock coming out. It's a matter of priorities. Just get the people the hell out of the parking lot and onto the road. Seriously.

And that's where things get strange. Because the police do sit along the roads leading out, and look for any excuse to pull a car over. But I've been pulled over—in a different jurisdiction—for avoiding a car parked in the road. There is a question of whether or not the reason the police initiate a search must accurately reflect reality. In my case, the officer purported to not have been aware of the vehicle parked halfway out into the lane along the right edge of westbound Highway 22 just outside Salem, Oregon. (He determined I was sober because the shit I gave him for pulling me over was coherent enough that he didn't want to go forward with his planned arrest.)

So, theoretically, some random person could come out of nowhere and wander into the road, and if the police "don't see him", and stop and search someone, what is their obligation to be correct? If you even move the meter, you can be arrested on the officer's discretion. This actually happened to a guy in an ADIS° class I took while settling my own DUI accusation. They do this bit where you add up your expenses to date and divide by the number of drinks you had before being arrested. I came up at around $1,700 a pop for four drinks. This other guy came up with $13,000 for one beer.

Now, there is a question, like I said. Among the various reasons my charges were dropped was that we intended to call the arresting officer and grill him about the discrepancies between reality and his report. No prosecutor looks forward to that°. Additionally, the courts checked in a few years ago about anonymous tips because of an arrest that did not match reality. Apparently, a young man was arrested after a "probable cause" search revealed he was carrying a small amount of cocaine. The problem was that the "anonymous tip" was not available for the defense to question and, furthermore, the cops had the wrong guy. What happened, apparently, was that someone called in that a young black man was behaving suspiciously at a bus stop. So the cops showed up and arrested the first young black man they found. Problem was, this guy wasn't at the bus stop at the time the call was made. So the question arises: must the probable cause for search and arrest reasonably reflect reality?

This falls under the purview of the Fourth Amendment, which must be changed in order to accommodate roadblocks for breath testing. And these issues are, technically, the merest tip of the iceberg. Imagine there is a rape complaint. Why not just go through the neighborhood and draw blood from everyone for DNA comparison? Maybe a witness says, "I saw a black man running from the house." Why not go take blood from every black man you can find?

Point being that, while many conservatives complain about activist judges°, a certain form of activism—e.g., "A judge said a search for firearms in a red car was legal during a murder investigation ten years ago, so searching this guy because he wears a blue jacket is legal now"—has always benefitted law enforcement. Part of the way decisions are made about what is legal or not is what conservatives complain is judicial activism. Depending on what you want, there is a precedent for nearly everything. It's the way things work in the United States.

So I'm curious how you'd amend the Constitution to allow for one specific set of intrusive searches while preventing any extension of that power in the state's hands. And while there are wordings that would do the trick, the challenge you would face from there is getting two-thirds of each house of Congress to say yes, and then getting majorities in two-thirds of the states' legislatures to agree. The Twenty-Seventh, for instance, was ratified by the states in 1992. It passed Congressional muster in 1789.
____________________

Notes:

° ADIS — Alcohol, Drug, and Information School, a puerile propaganda program generally included in sentences for DUI, and often engaged by defendants on the advice of counsel before trial in order to leverage pretrial motions.

° No prosecutor looks forward to that — It's easiest explained by an illustrative rhetorical question: "An incident is alleged to occur; what is the job of the police?" If you said it is the job of the police to investigate and figure out what happened, well, I would agree, and we'd both, in the practical sense, be wrong. Once the police decide they have a suspect, they write their reports to foster convictions. And that's their job. To make it easier for the prosecutors to get a conviction. Not only were things out of sequence and predictably exaggerated, but the amount of information omitted from the report on my arrest was troubling. And the prosecutors knew it. They had to decide whether to go forward on a very old case they probably wouldn't win—and see the State Patrol embarrassed in the process—or move on to more important matters. They chose the latter; I much appreciate their wisdom.

° conservatives complain about activist judges — There is also a compelling argument that, historically, judicial activism has favored conservative causes.

 

Log in or Sign up to hide all adverts.

Tiassa i would ask you a question, If a police officer pulls you over for a random licence check (im ASSUMING thats legal) and says to EVERYONE "oh i can smell achole on your breath blow in this tube" that would be acceptable?

"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. "

I cant actually see anything in that, that STOPS cops either searching a car or stops a breath test except a rather wide interpritation of "person"

I would like to point out that your right, driving while impared IS a crime (never seen it aplied to fatigue but it would be valid i would assume) AND briving with a BAC of 0.05 or above (although if you ARE at 0.05 and the police officer isnt pissed off and your not doing anything to piss him off then he MAY let you go with a warning for that)

In australia its illegal to take a blood sample without a court order. I have however herd of a case in a small town (or island or something, sorry dont rember the full details of the case) where all the men in the town but 2 volenterally came forward for a DNA test to check if they were involved in a sexual assult. However this has never been interpreted to include random breath tests. This could be because that comes under a different set of legilation to the Traffic Act.

From my reading of the amendement it seems all the cops have to do is pull you over for a random licence check (I assume they can do that) and then say to everyone they pull over that you smell like achole please blow in here. Its a stupid little lie but it would get around that idiocy. Just for your refference i have tried some of those road side DUI tests while sober and I CANT do them while sober, I dont have the balance. However i would have blown 0.00 on a breathlizer. So is it better to have a subjective test or an objective one?

The other thing is what is the point of legislating a legal limit if you cant enforce that?
or is it only when you turn up at a hospital AFTER a crash that is enfoced?

The strange thing is that all these sort of operations are carried out in England, Australia, NZ ect. I would guess that they would be carried out in Canda as well. Actually that would be quite funny having an op 10m the other side of the border catching all the Americans driving across

One thing i might not have made clear but you CAN refuse to submit to a breath test. If you do you will be taken to the nearest hospital and a warrent issued for a blood sample, so you have the choice of the easy way or the hard way but it IS legal to refuse to submit to a breath test

 

Log in or Sign up to hide all adverts.

The police can already stop people like this in the US, for the purpose of controlling drinking and driving. First they evaluate you, then if they think you're drunk, they do the standard tests, and if they still think so, you get a breath test, which you can refuse, although you then lose your license. I was stopped this way once, the pigs were staking out the bars downtown, and stopped almost everyone who left after the bars closed. Somehow I passed, even though I had been partying since 8PM (this was about 10 years ago)!

 

Why waste time on the second step at least?

The tubes cost 10cents How much time to the police waste making you stand on one leg?

Personally i think they shouldnt waste time on the first step either because its to subjective

 

(Insert title here)

Nope. Can't pull you over just to see if you have a license. They need probable cause. Like, if you look like a twelve year-old, a cop might pull you over to make sure you have a license. But "random" license checks? Not a chance.

It falls under their effects, as well. And "random" is generally looked down upon as a reasonable search; additionally, "random" is insufficient under probable cause.

While random license checks don't fly, the cops can make up any excuse for probable cause once they've got you pulled over. It's one of the reasons video cameras in police cars are getting so important. There was a time when the crime was called "DWB", or "driving while black", and anything from cologne to chewing gum and breath mints were said to "smell like alcohol". These days, once they have you for a traffic violation, they can make up any pretense they want as probable cause to conduct a sobriety test. And while weaving the lanes might be reasonable, so, apparently, is driving with a busted taillight. And even if a cop is flat-out lying when s/he says, "I smelled alcohol," the court doesn't really care.

And, of course, one of the problems with that is that the police lie, frequently. Anecdotally, I know the son of a police officer whose father once told him that every officer will lie in an official capacity at some point in their career. Personally, I saw the incident report for my arrest, and while I'm glad the state dropped the charges, I was, at least a little, looking forward to putting the cop on the stand.

Of more relevant interest, a King County (Seattle area) judge ruled against the state toxicology lab, throwing potentially thousands of prosecutions into jeopardy. This is the latest chapter in a scandal that broke last summer:

At the time, law enforcement spokespeople did not expect the issue to affect DUI cases, but the latest ruling, according to the Seattle Times, means that the breath tests are open to challenge to the point that a King County Prosecutor noted, "We'll prosecute [suspected drunken drivers] without breath tests, which we've had to do at other times under other circumstances". What began in Thurston County (Olympia and environs) has spread to other counties, an King County is the latest to acknowledge the state toxicology lab's disrepute. It's a f@cking disaster, and nobody's being charged with screwing the state so badly. A local defense attorney who argued the King County issue pointed out that "it was obvious the judges took note of how many people at the toxicology lab are implicated", and declared that, "Following scientific practices couldn't be more critical when someone's liberty is at stake".

Now, in my case, prosecutors could have gone forward and tried to crucify me based on the officer's observations, which is what they're going to have to do with suspects now. I had the law (USC I.9.iii) on my side inasmuch as I was under the limit at the time of my arrest, although prosecutors could easily have driven the point home to a jury that I was in excess of the current standard. Between that and the officer's testimony—at least, to estimate by the incident report—they probably could have convinced a jury. But they didn't. And it raises a question of what to do with other cases.

In the end, a lot of people who would otherwise be convicted or compelled to plead out will be acquitted. And this is how it should be. And some of those people will have blown in excess of 0.08%.

So as a practical consideration, while we cannot automatically presume something so extreme as to say that every state's breath tests are so unreliable, nor should we presume that the Washington State Toxicology Lab is the only one to have behaved so poorly.

And while random breath tests and roadblocks correlate convincingly with reduced vehicular fatalities, the issues at the state lab only reiterate the long-standing fears about government corruption that compelled the creation of the Fourth Amendment in the first place.

So the question remains as to what an amendment to license random searches would look like. One way to look at it is the fearmongering that led to idiocy like the USA PATRIOT Act and the Iraqi Bush War. It's going to take something even more ridiculous to convince people to give over to governments they don't trust anyway something so sacred to us as Constitutional protection against intrusive searches.

There is a common adage that the price of liberty is eternal vigilance. And to a degree, this is true. But there is another cost that we don't generally acknowledge. One name for that cost is "sacrificial lambs". We lose people to DUI, and this is part of the price of the Fourth as it stands. We lose people to idiots with guns, and this is part of the price of the Second Amendment (right to bear arms). We lose people to recidivism, and this is part of the price of the Eighth (no cruel or unusual punishments). The Fifth (grand jury, no double-jeopardy, no obligation to self-incrimination, right to due process) and Sixth (speedy trial, public trial, jury trial, right to confront witnesses, right to counsel) have taken their toll in blood, too. What should we do about those amendments?
_____________________

Notes:

Wilson, Adam. "Toxicology tests open to dispute". TheOlympian.com. August 20, 2007. See http://www.theolympian.com/101/story/194726.html

Bartley, Nancy. "Judges reject DUI breath-test results". SeattleTimes.com. January 31, 2008. See http://seattletimes.nwsource.com/html/localnews/2004155631_breathtests31m.html

See Also:

Kamb, Lewis and Eric Nalder. "Cops who lie don't always lose jobs". SeattlePI.com. January 29, 2008. See http://seattlepi.nwsource.com/local/349169_lying29.html

The Constitution of the United States of America. See http://www.law.cornell.edu/constitution/constitution.overview.html

 

Tiassa that same problem has arisin here and you DO have a choice. If you dissagree with the results of the two breath tests (the second one is the only one amissable as evidence and thats taken 30 min after the initial test to make sure its not breath achole your testing) then you are enitiled to request a blood test taken at the closest public hospital. Normally Blood tests read higher than the breath test but if you KNOW your under the limit its your right. 2 samples are taken one is tested and the other stored to be retested if the defendent desires.

Checks and balances ARE in place and if you CHOSE to drive under the infulance i feel no pity for you. I have seen to many people killed by drunk drivers. The CURRENT road toll is equal to a 747 crashing EVERY YEAR. This is just not acceptable, I WATCHED a guy come off a motocycle and die in a horible fashion. I required counciling for it infact because i suffered PTSD from witnessing it, I can only imagin what his family felt like. Thankfully the counciling was freely provided under the TAC budget for anyone effected by a MVA be them involved, witness, family, friends ect. Now if the police had stoped him 1km up the road before he hit the tram lines he would still be alive. Chris Fergusion (the head of the major crash squad) was telling us about how many times he has had to atend acidents that have traumitsed him because he can only see his daughter in the victoms. As he has said publicly on more than one occasion the police would rather catch people BEFORE they have a crash rather than scraping them up. As someone training to be an ambo i would much rather the police catch them in random breath tests and speed traps rather than trying to keep them alive long enough for the doctors to put them back together if thats even possable. Would DEFINITLY rather the police catch them than they kill MY family

Out of interest whats your road toll per head of population? (i will try to convert mine as well)
What do YOU think the police should be doing to cut it?

 

Um, I must be understanding you wrongly, because my first response is, "That's all?"

 

Im shocked, You see that many people dying unnessarally as "thats all"??????

In victoria in 2005 there were 5,022,346 people and a road toll of 346

Compare that to the murder rate

In other words the Road toll is almost 5 times the murder rate and you think "so what"?????

One death is one to many

out of intrest do you think that droping the road toll from over 1000 to less than 400 happened by acident?
It happened because the cops are out breath testing, checking speeds, enforcing seatbelt laws ect

 

Numbers

I'm looking for some more local numbers, but ....

• 2005 (July 1) estimated U.S. population: 295,895,897
• 2005 alcohol-related motor-vehicle deaths: 16,885
• DUI death rate per capita: 1:17,524

(See U.S. Census Bureau, Centers for Disease Control)​

Compared to the Victoria ratio (1:14,515), that's about 16% more deaths per capita.

Another set of statistics compiled from multiple federal sources notes a 36% decline in fatalities when at least one driver had a BAC of 0.08% or higher. That number was 21,113 in 1982. In 2006, it was 13,470. See AlcoholStats.org (pdf).

Remember, mate, we're Americans. We are accustomed to seeing statistics piled up to put huge numbers in front of us. 346? Yeah, that's a lot of dead when you get down to counting corpses and mourning families. And, yes, that number seems low because we're accustomed to numbers in the thousands.

(Think of it like being a millionaire. I'd love a million dollars. Sure. But compared to Bill Gates, or, say, Alex Rodriguez's new contract, the idea of one million dollars just doesn't seem so impressive anymore. It's a cultural thing.)

And, hey, here's something interesting. See, even I wasn't prepared for this number.

Okay, are you ready?

• 2006 estimated population, Washington state: 6,395,798
• 2006 alcohol-related traffic fatalities, Washington state: 294
• 2006 alcohol-related traffic fatalities, Washington state, per capita: 1:21,754

(See U.S. Census Bureau, AlcoholAlert.com)​

And, yes, I'm actually surprised at how low the number is. I honestly wasn't expecting that.

For comparison, the CDC estimates that between 1997 and 2001, an average of 438,000 people in the United States died each year from causes related to cigarette smoke.

Comparatively, it doesn't make sense to alter the constitution in hopes of shaving a few-thousand off the drunk driving number when our government is already constitutionally empowered to do something about the tremendously larger number of cigarette-related deaths. I've long said that tobacco and marijuana should trade places. This would have at least two desirable outcomes: smoking-related deaths would decline, and Americans would finally start to chill out a bit. And it's a massive cash crop, and therefore a major source of potential tax revenues (estimated swing of $13.9 billion in new taxes and reduced law enforcement costs).

At this point, it's a tough argument that DUI is a good reason to change the Constitution.

 

I'll say it again. Giving police departments the right to do mass stops is not a good thing.

Asguard. You want to look at ONLY the most easily tracked result of changing the Constitution to permit these general random stops. For you it is obvious. Some of us breath in a tube. A 747 load of people survive that year.

But cause and effect get unbelievably complicated when it comes to humans, laws, government powers, etc.

At the very least you need to admit that you don't know all of the effects of allowing police to do this IN THE US. Tiassa has pointed out the complication of tinkering with the Constitution, which is not set up to add a clause DUI stops are an exception. But even allowing we could get those in alone and no other changes in police rights were created or citizen right lost, I still think there is a problem.

What you have is a new pattern where police, en masse, get to investigate - if shallowly - random people in large numbers. This kind of behavior is part and parcel of fascism. That it is going fine in your country or Canada does not assuage my fears. The US is an entirely different can of beans with wildly more gung ho law enforcement agencies already pumped up on the Patriot Act. I do not want the American public to get used to mass searches of non-suspects and mass 'interventions'. It is a step toward martial law, I am not willing to make

Your once a year 747 'improvement' does not take into account the delicate balance - perhaps already broken - that keeps the US from sliding into open fascism. If this latter happened - and tossing in a poor economy - that 747 would look like a drop in the bucket. If New Zealand goes fascist, hell you can swim over to Australia - I also think the chances as vastly less that it would ever do that. If the US goes open fascist, look out world.

 

Tiassa that statistic wasnt the achole related deaths, that was the TOTAL road toll for victoria. The achole related deaths was only 34 not sure how many that would be per 1000 (sorry i cant work out how to do the sum)

 

Oh, well the number of 2006 traffic fatalities in Washington state, according to the site that gave me the alcohol-related number, was 647.

As to thirty-four? Yeah, that's all? Good for Victoria.

 

you want to know whats interesting. Most years victoria is the state with the highest road toll which is why they are the quickest to bring in laws like the "every driver stoped will be breath tested" and the random drug testing ect.

They are also the state with the strongest trafic acident commission (if you ever watch AFL most of the teams are sponced by the victorian TAC, also most of the advertising comes from the TAC). That 34 or the 346 didnt happen by acident, it happened because the achademics worked to find ways of reducing it, which ment the ABS needed bloody good statisics and the police needed to act on these recomendations

How would you suggest the US aim for statistics like that tiassa?


sowhatifit'sdark all i can say to you is vote for a goverment you can actually TRUST and no killing that many people in order to be lazy in who you vote for is not acceptable. Its a copout

 

Just to add tiassa im not a fan of the second amendment either. Its not going to stop ANYTHING (hell an army would take an hour to wipe out people with a shoot gun anyway) and more people are killed with there OWN guns than are murded each year anyway

 

Priorities

We don't.

I mean, we could try education, but that's generally too expensive for the body politic. It's a matter of priorities. People want less crime, people want fewer teenage pregnancies, but then they freak out at the curricula purporting to address those issues. In the end, they'd rather pretend they're square with God, or something.

Likewise with drugs and alcohol. And there's a fine example: look at the f@cking mess we've made with our "War on Drugs".

And you do, realize, don't you, that the War on Drugs laid the foundations for the War on Terror? I mean, think about it this way: the cops fly a helicopter over the town, use alternate-frequency scans to find out if people have certain kinds of light bulbs in their homes. And then they would use those results as probable cause to raid houses. Or scouring through your electrical bills to see how much electricity you're using. If they thought it was too much for the square footage, they would use that to argue for a warrant to raid your house. Or they'd issue subpoenas to find out what books you checked out at the library, or bought at the bookstore. And use those results to get a warrant to raid your house. During the 2000 census, police in Minnesota broke a federal law by posing as census takers in order to look inside people's front doors. If they suspected drug use, they would raid the house and issue citations for ... get this ... "Keeping a disorderly home".

Seriously, kids who go through the DARE anti-drug program in school are more likely to do drugs than their "uneducated" peers. Pot smokers can do more time in prison than rapists. It's a f@cking disaster.

Long-term solutions are hard to figure for Americans, and even harder to implement. And maybe this is part of our American malady. Maybe we like our officials corrupt so that we don't have to trust them. Wouldn't be the dumbest thing we've ever done. Hell, raising our own demons to fight is an American specialty.

Take the probable cause requirement out of our Constitution and you'll see how damned evil we really can be. After all, if our government can treat us that way, why on Earth would you think we'd stop it from treating you that way? Give us a generation under the thumb of American fascism, we'll give you the Fourth bloody Reich.

We're Americans, mate. I can only promise you that your proposition is a numbers game, and it's a lose-lose situation.