Santa Barbara DUI checkpoints; a misnomer?

Now that the holiday season is behind us, it's time to reflect on Santa Barbara law enforcement agencies' "DUI checkpoints" and, in particular, whether the checkpoints amount to an intelligent use of public funds.  First of all, let me clarify that they really aren't strictly DUI checkpoints.  Both in name and substance, they are DUI and driver license checkpoints.  In California, it is unlawful to have a checkpoint to detect just DUI or just unlicensed drivers.  The second point that should be made is that as much as the Santa Barbara law enforcement agencies, as they band together in the "Avoid the 12" campaign praise the checkpoints as an effective deterrent of driving under the influence, they know better than anyone does that the checkpoints are ineffective at detecting DUI drivers as compared with other methods of detection (namely, "saturation patrols").  I won't take the time to cull and study the hard data, but my sense from having read article after article about checkpoints, and from my work as a dui defense lawyer in Santa Barbara for over 10 years, where I regularly study the checkpoint arrest data made available to me by the Santa Barbara District Attorney's Office, is that checkpoints yield, on average, between one and two DUI arrests each.  Sometimes they don't arrest anyone for DUI at all.  Goose egg.  The number of vehicles that pass through any given DUI checkpoint in Santa Barbara is often in the high hundreds or even over 1,000.

So, if DUI (aka DUI/license) checkpoints in Santa Barbara are ineffective at detecting DUI, why have them?  Well, that's a fair question to ask local law enforcement.  Is the deterrent value really more powerful with a checkpoint than the press releases warning of the checkpoint and reporting the arrest results after the fact?  I don't think anyone knows.  What one might say is that without the news of a checkpoint, the news media wouldn't publish a press release having to do with DUI and the associated dangers of arrest, accidents, etc.  I disagree.  The new news media, in the digital age, reports everything that law enforcement puts out there.  Edhat, the lead news blog in Santa Barbara, apparently does this without any evaluative/editorial decision-making whatsoever.  Santa Barbara Police could send out a press release that the officers issued three parking tickets last Sunday, along with the names of those cited, and Edhat, per their policy (or maybe lack thereof) would probably publish it.  The other local news outlets would not necessarily run a story or blurb in reaction to every single SBPD news release, but I don't think, on the whole, the police would say that they are ignored by the local news media when they issue warnings to the local population, in the form of press releases, about the dangers of drinking and driving and their decisions to increase personnel on patrol.  I've seen many a story, and blurb, about that. 

Pueblo, a local political action group, has spent a lot of time and energy educating the public about what they see as selective enforcement in this realm.  A dirty little secret is that Santa Barbara DUI checkpoints are primarily motivated by two things:  (1) the infusion of state and federal grant money ear-marked for this purpose and (2) the revenue generated by impounding the vehicles of unlicensed drivers.  The fees, fines and proceeds of sale at auction of these vehicles generates a significant amount of revenue for law enforcement, the courts and, yes, the  local tow yards.  Ever since California started requiring proof of legal status before issuing drivers licenses (back in the 90's), more and more people have been driving while unlicensed in our community.  These, of course, are largely the undocumented laborers all around us.  They are the gardeners, the housekeepers, chefs, cooks, dishwashers, painters, skilled and unskilled construction workers, and "heavy lifters" out there.  They scrounge together what little money they have to put food on their tables and buy jalopies to get to their work sites from Goleta, Hope Ranch, down to Montecito and beyond only to have local law enforcement stage checkpoints that make grand claims about protecting the public through this method.  They cite dusty statistics while claiming that unlicensed drivers account for the great majority of traffic accidents to rationalize the economic suffering imposed on undocumented drivers by these checkpoints.  They do so in reckless disregard of the fact that these statistics do not reflect the new realities of who make up this bigger than ever population of unlicensed drivers.  In fact, there is more than enough reason to suppose that undocumented aliens are more careful drivers than the rest of the population because they are often mortified at the possibility of getting stopped for a minor traffic violation and are, therefore, less likely to commit one.  While a licensed driver might get a ticket, an undocumented and, therefore, unlicensed driver might lose their vehicle and, worse yet, be deported and excluded from the U.S. permanently.  It's a good time to discuss further the problems posed by DUI Checkpoints and, in particular, the problems they are directed at solving, the problems they don't really solve (but are claimed to) and the problems and injustices (in they eyes of many) that they cause.

Bill of Rights on the Table

The U.S. Supreme Court in District of Columbia v. Heller just held a D.C. law banning handguns violative of the Second Amendment to the U.S. Constitution. For the first time the Supreme Court struck down a law prohibiting firearms on Second Amendment grounds. The NRA is celebrating and so should the broader set of civil libertarians. This is not to say that there is anything particularly positive about the surge in handgun purchase and possession that this case will bring about. More guns means more shooting. More shooting means more death and maiming. Deaths and maimings are not generally cause for celebration. Justice Scalia, however, reasoned, essentially, that the clear (and "enshrined") language of the Second Amendment necessarily takes certain policy considerations off the table. In other words, arguing that a law banning handguns furthers a positive policy agenda (because it saves lives) is not going to compel the Supreme Court to ignore the plain language set forth in the Bill of Rights.

So, here's what I take from that: Unreasonable warrantless searches and seizures, coerced confessions, deprivations of procedural protections, inflictions of cruel and unusual punishment, restraints on free speech, interferances with the free exercise of religion, establishing an official religion, and myriad other deprivations of civil liberties by the government cannot, by Scalia's logic, be justified on the ground that they may further a positive policy agenda. In light of Heller I would now suggest a re-examination of the landmark U.S. Supreme Court case of Michigan v. Sitz, in particular. Why? Because the Court all but ignored the plain language of the Fourth Amendment to allow law enforcement to conduct systematic warrantless searches and seizures, in the shape of DUI checkpoints, to promote the positive policy agenda of preventing drunk driving. To argue that checkpoints are "reasonable" in a free society is to ignore a simple distinction: The other acknowledged exceptions to the warrant requirement (exigency, Terry, Leon, reasonable suspicion, etc.) do not deliberately and systematically cause the seizure and search of large swaths of law-abiding people in the name of crime prevention. The choice to allow these warrantless searches is done clearly in the name of a positive policy agenda which, as Scalia, would have it, should be "off the table".

DUI checkpoints abound...

The City of Goleta just received a grant from the University of California at Berkeley to set up more sobriety checkpoints this year. The applicant cited the CDC's assessment of 23 studies where the data show that "throroughly implemented" checkpoints reduce dui related crashes by 20%. Interestingly, the same studies show that the declines are just as great regardless of how long after the checkpoints the follow-up studies are done. Specifically, if the studies are done less than one year after the checkpoints the drop is 18% and if greater than a year, 17%.
Knowing the substantial and multiple privacy invasions which occur each time a checkpoint is set up (all in the name of reducing traffic fatalities), we can hope that the City of Goleta will excercise some discretion before they become known as the DUI checkpoint capital of the free world. There have already been a number of DUI checkpoints in Goleta since 2004 (24, in fact). As the trend continues, we can expect that the reduction in DUI related traffic fatalities will stay, perhaps, as high as 18%. How many lives will this actually save? Well, none. None, if you consider that Goleta is fortunate enough to have an average of one traffic fatality per year (alcohol related or otherwise). While I'm glad that the funding for these checkpoints does not all come directly from the local taxpayer, I know the local taxpayers are paying dearly in terms of how much their privacy is invaded; and to what end?

DUI Checkpoint...Charlie.

At considerable taxpayer expense, local law enforcement routinely sets up checkpoints to combat the DUI problem. The "DUI problem" is best defined as the problem of people drinking (and/or drugging) to the point where they cannot safely drive a motor vehicle such that they will more likely than sober drivers cause traffic accidents; which, as everyone understands, are a huge nuisance, and worst of all, can cause serious injuries and fatalities. Accordingly, there's no argument in favor of DUI whatsoever. The legitimate criticism of checkpoints is that they stand at odds with the notion that we live in a free society. The Fourth Amendment to the United States Constitution states that we should be free from warrantless intrusions by the Government into our private lives. "Your papers please!" is the classic charicature of the agent of a fascist/police state (presumably from another land, and perhaps, another time). It conjures up images of the Soviet Union's 70 year oppressive fascist autocracy, present day North Korea, and the list goes on. The irony of the "request" is that isn't really a request at all. Does anyone who is asked for their papers by a police officer, anywhere, really feel free to say, "Uh, thanks, but no, I'm not going to hand over my papers"?? Try it. This is why checkpoints are, to some, objectionable. It is where mostly law abiding people are essentially ordered to submit to some form of inspection (of their drivers license, eyes, breath, etc.) For every DUI arrest a checkpoint produces, there are perhaps 100 or more warrantless intrusions into the private lives of law abiding citizens. Maybe it's worth 100 intrusions if that DUI arrest really saved a life, but even the CHP will tell you that many people at .08 or more can drive home without causing a traffic fatality. Simply put, not every DUI arrest saves a life. Does the public nature of a checkpoint send the right message to the public such that the overall awareness of the problem will increase, causing people to be more cautious? Perhaps. However, there is no hard data to support this. The sad part is, in spite of the California Supreme Court's ruling in Ingersoll v. Palmer (which allows checkpoints if certain conditions are met), checkpoints erode the most cherished attribute of the United States of America; our freedom. This erosion should be allowed, if ever, out of dire necessity, and never with casual acceptance. So, while law enforcement might define this intrusion as a "no brainer", don't be so sure. To be so sure, plain and simple, is un-American.