In the drink

By OTIS JAMES  |  December 30, 2009

The investigation into events surrounding Howe's death, and his death itself, are ongoing.

Secondary issues
Let's return to our hypothetical checkpoint.

What was a pretty happy-go-lucky New Year's Eve has apparently taken a grim turn. Not as consequential as Howe's encounter, but ominous and oppressive nonetheless.

You're pretty sure you're legal, but unsettlingly, not entirely sure. After all, how many of us know what a .08 percent BAC (the legal Blood Alcohol Content limit) buzz feels like? In general, if you're anywhere near a checkpoint, it's not advisable to be anywhere near.08 percent. That's known as a per se law, which means you're automatically guilty if you get behind the wheel when your BAC exceeds this limit.

Even if you "pass" the BAC test, you can still be convicted for impaired driving — if, for example, it's your word against a law-enforcement officer's, and a jury is convinced that you were driving erratically under the influence of alcohol or some drug. And remember, the police have even more latitude in justifying an arrest, essentially requiring no real hard evidence except for their observations. In fact, at a sobriety checkpoint their observations don't even have to include seeing you drive at all. The standard of proof is so low as to almost invite abuse. So . . .

Beware. Once in the secondary-screening area, you are essentially "pwned" by the police. You are now being detained, because the initial-screening officer thought there was reasonable suspicion that you were DUI, a/k/a OUI in Massachusetts. And don't expect the police to get any friendlier: you are no longer merely being asked a few questions in an interview — you are instead being interrogated as a suspect. And your very body — or rather your blood — is the crime scene.

Clearly, by sending you on to the secondary-screening area, the police suspicions have escalated, and so will the intensity of the investigation, as will your chances of being arrested. Though no official statistics have been released to the public, data concerning one recent sobriety checkpoint in Boston — which screened more than 1000 vehicles — have been obtained and examined by the Phoenix. In this one instance, the arrest rate increased from one percent at the initial checkpoint to almost 40 percent at the secondary-screening area.

Once in that secondary-screening area, the police control both the environment and the narrative. Your rights are extremely restricted (it can be even worse in other states, where they can legally restrain you while the police draw your blood); you will likely be asked to submit to a series of controversial tests known as the Standardized Field Sobriety Tests (SFST, which are not mandatory, but refusal to take them will likely lead to an arrest), and your access to legal counsel is disallowed until the investigation is completed.

At which point, you will definitely need a lawyer.

Otis James is a pseudonym. The author has had the unfortunate experience of having his civil rights violated at a Massachusetts sobriety checkpoint.

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