The problem(s) at hand
Asguard said:
I know it means a change in the consitution but maybe this is worth that change
Would it be safe to presume you're referring to the United States Constitution?
The
Fourth Amendment, as it currently stands:
Amendment IV
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.
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.
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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.