Pending Litigation Determines Whether Alcohol “Sniffing” Device Violates the Fourth Amendment
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A recent program has been initiated by the National Traffic Safety Board, and it is referred to as the “Sniffer.” The “Sniffer,” has been overshadowed by another proposal to decrease BAC levels from 0.08% to 0.05%; however, if enacted, it may have just as serious implications to drivers apprehended for driving under the influence.
The “Sniffer” relates to the enforcement of DWI laws that are related to high visibility enforcement, well publicized media campaigns, visible enforcement efforts such as saturation patrols and sobriety checkpoints, and swift and certain penalties for drivers arrested for DWI. None of this, however, adequately explains what the Sniffer is; so, what is the Sniffer?
When officers employ traditional methods of determining driving impairment at a sobriety checkpoint, only about half of all drivers with BAC levels above the legal limit are identified. The NTSB has recommended that officers use “passive alcohol sensors” which can tip them off to the presence of alcohol. These sensors are housed within a flashlight or a clipboard, and their job is to detect alcohol vapor sampling the driver’s exhaled breath, as well as the air in the car. Further, it analyzes the sample for alcohol and provides for some information about the relative amount of alcohol detected.
The display on the Sniffer ranges from green to red, corresponding to BAC ranges, and they have been used by law enforcement officers across the country for years. In the past, however, law enforcement officers have been prevented from using the device to determine probable cause that a driver has committed an implied-consent offense. Now the question is whether the Sniffer, if implemented, is a violation of one's Fourth Amendment rights.
Due to the enactment of various techniques in place to detect whether someone has been drinking such as an officer's own personal perceptions, it may not be too difficult for the NC legislature to enact passive alcohol screening devices. However, the fact that the device is held within inches of a potential offenders face may be similar to a dog sniff of a person, and the fact that the device detects from within the car may also add some legal implications.
The constitutional inquiry may implicate the US Supreme Court case, Kyllo v. United States, 533 U.S. 27 (2001), where law enforcement use of a thermal imaging device to detect heat within a private home implicated the Fourth Amendment. The holding stated that "obtaining sense-enhancing technology information regarding the interior of a home that could not have otherwise been obtained without physical intrusion into a constitutionally protected area is a search, at least where 'the technology in question is not in general public use.'" Therefore, the major question is whether the heat sensing technology in Kyllo is similar to the alcohol sensing devices and thus not in general public use. Litigation is the only way to find out how this is going to work.
ABOUT THE AUTHOR: Robert Reeves
Robert Reeves is a seasoned criminal defense attorney with more than 20 years of legal experience.
Copyright Reeves, Aiken & Hightower LLP - Google+
More information about Reeves, Aiken & Hightower LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
When officers employ traditional methods of determining driving impairment at a sobriety checkpoint, only about half of all drivers with BAC levels above the legal limit are identified. The NTSB has recommended that officers use “passive alcohol sensors” which can tip them off to the presence of alcohol. These sensors are housed within a flashlight or a clipboard, and their job is to detect alcohol vapor sampling the driver’s exhaled breath, as well as the air in the car. Further, it analyzes the sample for alcohol and provides for some information about the relative amount of alcohol detected.
The display on the Sniffer ranges from green to red, corresponding to BAC ranges, and they have been used by law enforcement officers across the country for years. In the past, however, law enforcement officers have been prevented from using the device to determine probable cause that a driver has committed an implied-consent offense. Now the question is whether the Sniffer, if implemented, is a violation of one's Fourth Amendment rights.
Due to the enactment of various techniques in place to detect whether someone has been drinking such as an officer's own personal perceptions, it may not be too difficult for the NC legislature to enact passive alcohol screening devices. However, the fact that the device is held within inches of a potential offenders face may be similar to a dog sniff of a person, and the fact that the device detects from within the car may also add some legal implications.
The constitutional inquiry may implicate the US Supreme Court case, Kyllo v. United States, 533 U.S. 27 (2001), where law enforcement use of a thermal imaging device to detect heat within a private home implicated the Fourth Amendment. The holding stated that "obtaining sense-enhancing technology information regarding the interior of a home that could not have otherwise been obtained without physical intrusion into a constitutionally protected area is a search, at least where 'the technology in question is not in general public use.'" Therefore, the major question is whether the heat sensing technology in Kyllo is similar to the alcohol sensing devices and thus not in general public use. Litigation is the only way to find out how this is going to work.
ABOUT THE AUTHOR: Robert Reeves
Robert Reeves is a seasoned criminal defense attorney with more than 20 years of legal experience.
Copyright Reeves, Aiken & Hightower LLP - Google+
More information about Reeves, Aiken & Hightower LLP
View all articles published by Reeves, Aiken & Hightower LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
