By Steve Wilson | Mississippi Watchdog
Vampire movies, books and TV series are all of the rage these days. Guess the Mississippi Highway Safety Patrol wanted to get in on the act.
Over the long Labor Day weekend, the patrol ran a no-refusal DUI checkpoint in Oxford, home of the University of Mississippi. In a no-refusal checkpoint, a driver who refuses a sobriety test — either a breath test or a standard field sobriety test — could be compelled to undergo a blood test.
A judge is either on site or on call to rule on probable cause and can issue a warrant for the test. A certified phlebotomist is at the ready, and blood is drawn at the checkpoint.
According to state law, drivers in Mississippi give their “implied consent” to a blood or breath sample if an officer lawfully requests it. A search warrant becomes necessary if a driver refuses, and a first-time refusal results in a 90-day license suspension.
The Mississippi Highway Safety Patrol did not return repeated requests for comment.
Ronald Wright, a professor and associate dean for academic affairs at Wake Forest University School of Law, says the tactic is not in keeping with the spirit of the Fourth Amendment to the U.S. Constitution and its prohibition against unreasonable search and seizures.
“State statutes might give the police certain authority in a traffic setting that they wouldn’t have in other settings,” Wright said. “One thing that worries me is typically a warrant is based on probable cause. Probable cause, in normal doctrine, cannot be based on refusal to cooperate. That’s typically treated as a refusal to give further evidence. We’re allowed to be uncooperative, and police are not supposed to draw any inferences from that.
“To the extent that a judge is issuing a normal warrant and then they’re using the fact someone says no as evidence, I think that’s contrary to traditional Fourth Amendment practice.”
John Bowman, communications director for the National Motorists Association, said about 30 states are performing similar checkpoints, usually on holiday weekends. To Bowman, the tests are an egregious offense to drivers’ constitutional rights.
In addition to the Fourth Amendment, Section 26 of the Mississippi Constitution reads that a suspect “shall not be compelled to give evidence against himself.”
“The NMA is opposed to such constitutionally suspect DUI enforcement practices as roadblocks and no refusal pushes,” Bowman said. “Backers of no-refusal point out that the police secure warrants before the invasive testing, but often the justification for the warrant is flimsy at best. And remember, we’re not talking about breath tests here. We’re talking about taking a person’s blood, sometimes against their will. This has the potential to become a gross violation of personal privacy.
“Such practices also promote ‘assembly line’ traffic justice and make all motorists suspects simply because they’re driving on a certain road at a certain time.”
Oxford Police Chief Joey East said his department only helped the Mississippi Highway Safety Patrol in its weekend checkpoint.
“We assisted them,” East said. “It was more of a promotional thing for the Mississippi Department of Highway Safety to bring awareness to the dangers of drinking and driving. They were bringing people’s attention to the fact they have the capability to do that (get a search warrant for a blood test), in my opinion.”
He said if one of his officers pulls someone over for another violation, such as speeding, and the officer suspects the driver is impaired, the officer has the right to go before a judge and get a search warrant for a blood test — if the driver refuses a field sobriety test. But East said his department won’t be instituting a no-refusal DUI policy at any of its safety checkpoints, which, he said, it conducts periodically.
“We’ve never done that with a judge standing by,” East said. “We’ve never done anything like that.”