Disturbing NHTSA Study Coming to a Town Near You

Posted by Richard Lawson | Nov 25, 2013 | 0 Comments

Imagine you're a single female, driving on your way back to the office after having lunch and you're directed by a police officer to pull into a deserted parking lot.  After doing as you're told, he has you roll down your window and asks you for a sample of your DNA.  You are given a few “choices,” including providing a cheek swab for $10.00, or a blood sample for $50.00.  Your other option is to blow into an Intoxilyzer, for which you won't get any money.

There's no reason for the stop; it's being done in the middle of the day. Yet according to NBC Dallas Fort Worth, people are being pulled over as part of a new study being conducted by the National Highway Traffic Safety Administration in conjunction with local law enforcement and the Pacific Institute for Research and Evaluation in more than 30 cities across the Nation.

It is more than an understatement to call the study both creepy and inappropriate. Pulling people over in this manner is a perfect example of government over-reach.   The aim of the 8 million dollar study, methods notwithstanding, is to somehow “reduce impaired driving accidents,” according to a NHTSA spokesperson quoted by the NBC News affiliate in Dallas Fort Worth, Texas.

"It just doesn't seem right that you can be forced off the road when you're not doing anything wrong," said Kim Cope, who said she was on her lunch break when she was forced to pull over at the roadblock.  After trying to gesture to the officer that she did not want to pull over, but instead wanted to continue moving forward, she was directed into a parking spot where the officer (apparently off-duty, but in uniform) approached her asking for her DNA samples.

NHTSA insists that participation in the survey is strictly voluntary and anonymous, though Ms. Cope indicated that it felt anything but voluntary.  Being stopped by an officer in uniform, told to park in an empty parking lot and then asked for a DNA sample does not exactly scream voluntariness.  These are government actors in uniform with the full authority of their office.

When this story came to light, apparently there was some confusion on the part of the local police departments as to what Ms. Cope was even talking about.  Police contacts had virtually no information on any of their officers being involved in this alleged study.

According to the report, "Fort Worth police earlier said they could not immediately find any record of officer involvement but police spokesman Sgt. Kelly Peel said Tuesday that the department's Traffic Division coordinated with the NHTSA on the use of off-duty officers after the agency asked for help with the survey."

According to the report, "Fort Worth police earlier said they could not immediately find any record of officer involvement but police spokesman Sgt. Kelly Peel said Tuesday that the department's Traffic Division coordinated with the NHTSA on the use of off-duty officers after the agency asked for help with the survey."

"We are reviewing the actions of all police personnel involved to ensure that FWPD policies and procedures were followed," he said. "We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey."

I'm sure local citizens were comforted by the apology for the violation of their Fourth Amendment rights, along with the characterization that such an infringement is merely an 'inconvenience.'

The ways in which this 'study' is flawed are almost too numerous to count.

First of all, if this is supposed to be some sort of scientifically legitimate study, the design seems flawed.  If the giving of a DNA sample is truly voluntary, presumably anyone who was under the influence of alcohol or drugs would simply refuse the test.

At issue is also the method of conducting the study.  Does NHTSA actually believe that they are going to come into contact with impaired drivers in the middle of the work day?

And let's assume they do find an impaired driver.  Does he get arrested?  Driven home with a warning?  Held until he's sober?  This sounds suspiciously like a traditional roadblock, under the pretext of a scientific study.  What makes this more suspicious is that Texas law does not allow roadside checkpoints.

In fact, in the United States there are 12 states that outlaw DUI sobriety checkpoints and roadblocks. Texas is one of those states. While not outlawed specifically by statute as in some of the other 12 states that don't allow DUI checkpoints, the Texas Court of Criminal Appeals ruled in a case from 1991 that DWI sobriety checkpoints violated a Texan's Fourth Amendment rights and were thus unconstitutional. The ruling allowed for DWI roadblocks to occur only if the Texas Legislature established guidelines.

So any arrest made pursuant to the study would consequently be dismissed by a judge as unconstitutional.  This leaves us with off-duty police officers, conducting an illegal checkpoint, and then being forced to either allow impaired drivers to drive away, or holding them until they are no longer impaired, amounting to detention, thereby making the study custodial, rather than voluntary.

Much like the standardization of field sobriety testing that NHTSA sponsored, this study seems far from legitimate.  The results of the study are scientifically flawed on their face.  Clearly this is an attempt to justify increased funding requests and whatever other agenda being advocated by NHTSA.  One such agenda is the agency's continued existence and relevance.  In addition to self-preservation, there have been reports of NHTSA wanting States to reduce the per se alcohol limit to .05.  Our Federal Government has tied highway funding to compliance with NHTSA standards.  The states must comply or lose millions of dollars in funding for road construction and repair.

So, as with most studies, the results of their study can mean virtually anything they want them to mean. The results can also justify any police they want to advocate.

What does this mean for Georgia Drivers?

Unfortunately the laws in Georgia are far more skewed against citizen freedom.  Roadblocks are not only allowed in Georgia, but courts have historically given great deference to police departments around the State in conducting them.

The Georgia Court of Appeals has held in Baker v. State, 252 Ga. App. 695 (2001), that compliance with all prongs previously set forth in State v. Golden, 171 Ga. App. 27 (1984) and LaFontaine v. State, 269 Ga. 251 (1998) must be established in order for the checkpoint to pass constitutional scrutiny. It must be shown that:

  • all passing vehicles were stopped as opposed to random stops;
  • the delay to motorists was minimal;
  • the roadblock was well identified as a police checkpoint;
  • screening officers' training and experience was sufficient to qualify the officers to make a determination of which drivers should be investigated for impairment;
  • decisions to implement the roadblock must be made at the programmatic level for a legitimate purpose;
  • The decision must be made by a police officer not in the field. See Brown v. State S12G1287 (2013);
  • the roadblock must be established for a lawful primary purpose other than ordinary crime prevention and control.  See Williams V. State S13G0178 (2013).

Whether courts in Georgia would view a study being conducted by NHTSA as a 'legitimate purpose' or not remains to be seen. My educated guess is that our courts will allow any exception to the 4th Amendment as long as it increases the number of DUI arrests.  Our appellate courts have no history of protecting the rights of people accused of DUI or possessing drugs.  Georgia DUI Defense Attorneys commonly cause this the “DUI Exception to the Constitution.”  I call it intellectual dishonestly.

It is not clear whether there are any cities in Georgia slated for this study, as NHTSA spokespeople did not respond to requests for interviews.  As always, be sure to always have a designated driver, should you be going anywhere at any time after consuming alcohol.  You should never drive after consuming one alcoholic beverage.  That is always the best policy.

Given the deference to which courts generally pay law enforcement, it is likely that even if study personnel stress the voluntariness of the study, if alcohol is detected on your breath, you will be subjected to a formal DUI investigation.  I can foresee Georgia law enforcement will jump at the chance to participate in this study as a means to get around your 'inconvenient' Fourth Amendment rights.  Drive safely and responsibly.

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Richard Lawson

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