Thursday, October 22, 2009

The Supreme Court on the DWI Exception to the Constitution

The Supreme Court decided not to hear an appeal on a drunk driving case that was dismissed. Virginia's highest court threw out the conviction in Harris v. Commonwealth (a pdf file). It found that the stop was unconstitutional - based only on an anonymous tip.

Chief Justice Roberts (and Justice Scalia) felt the Court should have reviewed the case. Below are some excerpts of Roberts' opinion). His writing is in italics and mine is in plain text. Citations are generally omitted.

[T]he Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.


The "special context" is troubling. It fits with criticism I've read in the past of a DUI exception to the Constitution (usually credited to California DUI lawyer Lawrence Taylor), as well as similar concerns about a "drug war" exception for drug cases.

In Florida v. J. L. ... we explained that anonymous tips, in the absence of additional corroboration, typically lack the “indicia of reliability” needed to justify a stop under the reasonable suspicion standard. ... But it is not clear that J. L. applies to anonymous tips reporting drunk or erratic driving. J. L. itself suggested that the Fourth Amendment analysis might be different in other situations.
There is no question that drunk driving is a serious and potentially deadly crime, as our cases have repeatedly emphasized. ... The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.


With all due respect to Chief Justice Roberts and Justice Scalia, this argument is just plain rubbish. I'd buy the argument if there was a tip about a terrorist with a nuclear weapon in his car, but taking it to the level of drunk drivers is going way too far.

Roberts' concern about the danger of the drunk driver was resolved in this case - the driver was stopped and taken off the road that night. Once they were in Court, the imminent danger was gone.

Perhaps a more moderate step here would be for Congress to legislate civil immunity for police making stops of suspected drunk drivers. Of course, that would prevent innocent people from suing to enforce their own constitutional rights. But it appears Roberts and Scalia don't care about that.

The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers “one free swerve” before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Nice emotional touch. I'm waiting for the day when Roberts and Scalia explain their rules to the families of innocent defendants abused by cops and prosecutors.

Courts sometimes have to balance competing interests. Roberts and Scalia apparently feel that protecting the public from drunk drivers is more important than protecting people from police abuse. But the language of the Fourth Amendment is clear. It doesn't mention any exceptions, not even for the perceived terrorists - Indians and British loyalists - of that period in our history. Conservatives are supposed to let legislatures do the balancing. So much for Scalia supporting the text of the Constitution.

Drunk driving is a real problem. Eviscerating the Constitution is not the best solution. I've proposed other ideas in the past on my Stop Wasting Money blog. Mass transit is my favorite, but there's more.

To see the opinion, also in pdf: Virginia v. Harris
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