Random or "dragnet" breath-testing is a dangerous road to go down and would be an unnecessary violation of civil liberties, writes Tom Cooney
Over-zealous road-safety advocates, with unimpeachable motives, have created a hydraulic pressure forcing the Government to introduce dragnet breath-testing for drivers. They claim that this draconian measure is defensible because the need to combat driving under the influence outweighs any interference with civil liberties. They are wrong.
Ridding the roads of the scourge of driving under the influence is a legitimate objective. But dragnet breath-testing would violate three basic essential principles of democratic legality without any compelling need to do so to achieve a legitimate objective.
First, drivers have a right of privacy and dignity against unwarranted physical intrusions. The great jurist Samuel Brandeis warns against laws that imperil "the right to be let alone - the most comprehensive of rights and the right most valued by civilised man". Coercing drivers to submit to annoying, distressing, humiliating, public, breath-testing, absent particularised suspicion of wrongdoing, invades their right to personal privacy and dignity.
Second, recognising how intrusive mass breath-testing is, the State must insist that the police have individualised suspicion based on reasonable, objective, grounds that a driver is impaired before forcing him or her to undergo this invasion. Our stake in privacy and dignity, which the principle of individualised suspicion protects, forbids any intrusive trawling on the highly speculative chance that evidence of driving under the influence might be obtained. If we forfeit this hard-won principle, then we may not object to laws allowing the police arbitrarily to search us on the street, or search our homes, on the mere chance of netting drugs.
Third, if we take civil liberties seriously, we will ensure that laws serving legitimate objectives interfere with our rights as little as possible. Especially in times of social panic, we must keep a sense of proportion. An indispensable analytical device involves determining if we can achieve the legitimate objective by using the least intrusive alternative.
The least intrusive alternative would involve training traffic police to spot the signs of erratic driving and then providing them with the resources to conduct roving patrols to identify drivers who fall under objective suspicion of driving under the influence.
Roving patrols operating under the individualised-suspicion standard are more effective and more efficient than dragnet roadblocks involving mass breath-testing. In Tennessee, police used 900 dragnet roadblocks to stop 145,000 vehicles. They arrested 773 suspects. Thus, netting one suspect at each roadblock required detaining 144,000 innocent drivers. This policing method requires massive resources. It takes about 21 per cent more police manpower hours to make an arrest at a dragnet roadblock than a roving patrol. If we factor in administrative work, then the figure for manpower hours rises to 53 per cent. Roving patrols and highly visible patrols at staked positions in strategic locations are the answer.
An argument of last resort for mass breath-testing says it will deter drivers from driving under the influence. It is implausible that mass breath-testing will deter them from using alcohol. Most people do not drive expecting that the police may stop them. Even if they are conscious that they might be stopped, if the risk of serious personal injury or death does not deter their abuse of alcohol, it seems unlikely that the additional threat of arrest would have any effect on their behaviour. This is like saying that children who mitch from school to go to the park will not climb a tree because their offence might be discovered if they fall from the tree.
Using dragnet roadblocks will have nasty downstream effects. The surface randomness of the operation may be used to target minorities or young people. Mothers who turn away from roadblocks to get to the creche in time to collect their children will be prosecuted for evading the breath-test. Radio stations that inform motorists about the locations of roadblocks to explain the traffic chaos will find themselves in trouble. We will harass the innocent and criminalise them, too.
We should not opt for quick-fix, counter-productive draconian law enforcement to tackle driving under the influence. Preserving the individualised suspicion standard is crucial. But we must also create non-punitive options for giving people who drive under the influence incentives to correct their attitudes and behaviour. We could, for example, drop charges against first-time offenders who successfully undergo designated education courses about the abuse of alcohol before going to trial. Alternatively, we could provide for conviction but erase the conviction if the driver completes an approved course. Educating young drivers is vital, but it must be tailored to their perspective. We must also make client-centred services for alcohol abuse more easily available.
The upshot of this analysis is that the draconian approach errs even under its own technical analysis. Not only does it trivialise the raw intrusiveness of mass breath-testing, it also overlooks the serious conceptual and operational flaws in this form of heavy-handed policing.
The Government has succumbed to panic, hoping to reap votes. It has bent the principle that the police must have objective, individualised suspicion when they propose to invade a person's privacy. We should be appalled by the spectre of mass intrusions upon the integrity of the person that mass-testing threatens. Don't expect the courts to safeguard our liberties. They still admit confessions from interrogations even though the Government promised over 20 years ago to provide for the recording of interrogations. Basic civil liberties, once bent, do not snap back easily.
Tom Cooney teaches law at UCD Dublin law school