[critter]

First off, please understand that I DO NOT support drinking and driving!

However, AR state police now have and are using a new 'weapon' to fight drinking and driving. It is a 'flashlight' with a built in 'air sniffer' that registers if there are alcohol fumes in a car and/or around the driver of the car. It will not, they say, be used to convict a person of DWI but may be used to indicate more 'field testing' is needed. It also may be used as PROBABLE CAUSE to search the car!!!!!! Now, THAT seems to me to be a problem. Other substances (mouth wash or other personal grooming materials) may cause the 'sniffer' to show positive tests for alcohol. Then your car gets searched!!!!!???

Now a legal question. Suppose I get 'sniffed'. My Lysterine sets the thing off. My car gets searched. They find something else that they find objectionable-for example, my CCW if I am in a state where it is not covered by my permit. Is that a legal search and seizure since it was ALCOHOL that was the cause of the search and the alcohol was not the drinkable type?

TOO much government intervention in this case or not?

Thanks for your input.

[GregoryTech]

TOO much government intervention in this case or not?

In my opinion, it slaps the 4th amendment in the face. Will the sheeple complain? Probably not.

[Graystar]

It is the nature of such questions to be answerd by the next judge faced with the issue.

When a search warrant is issued, it is issued for something specific. Generally, a person can successfully fight any charges arising from illegal items found during a search, when those items had nothing to do with the circumstances under which a search warrant is issued.

If you give a cop permission to search your car, then anything he finds can be used against you.

This particular senario that you present seems to fall somewhere in the middle. There is no official search warrant listing specific items to be searched for. Nevertheless, the clear reason for initiating the search is to find evidence of alcohol or drugs. I would imagine that you would be able to fight any charges arising from anything other than alcohol or drugs.

Just keep in mind though, that your gun will be seized and you won't get it back. Just because you can't be charged doesn't mean you get to continue illegal activity.

[brownie0486]

If the search is valid, they can arrest for anything found in the vehicle where the search would have been appropriate for what they are looking for " fruits of the crime"

Ex:

The sniffer goes off at the drivers window. He then has a reasonable suspicion you have been drinking or there is open alcohol in the vehicle or alcohol has been present recently in the vehicle which makes the subsequent furtherance of his actions as to searching the vehicle a reasonable action [ he has reason to believe a law may have been or is being violated ].

He may search anywhere alcohol could/may be hidden in the vehicle. If he is searching a film case and finds drugs, that may not fly as it would not be considered within the scope of the search [ it isn't reasonable to believe alcohol would be hidden in a film cannister.].

Thats not to say this new sniffer will give them the right to search, it may and may not, and will be tested in court where precedence will be set eventually.

Brownie

[erikm]

All right then, what about if I have a van running on alcohol (specifically, spiked ethanol) and get stopped?

So I get stopped (for any or no reason), a trooper sticks a flashlight in my face and the detector goes off because of the fuel. The trooper searches the vehicle and finds nothing. He notes that the alcohol fuel isn't drinkable (and in fact poisonous). I take down the name and number of the trooper as a matter of course.

Would I now have grounds for a complaint or suit about an unreasonable search? After all, alcoholic vehicles, as opposed to alcoholic drivers, are legal as far as I know.

Cheers,
ErikM :evil:

[TheeBadOne]

This sniffer is nothing new, it's been around for quite a few years, and brownie summed it up nicely. The sniffer is 'non-invasive', it is passive.

[brownie0486]

All right then, what ifs are so easy to come up with in any scenario really aren't they.

What if I took some Nyquil for my cold and the sniffer went off? Same scenario I think.

You are probably presumed to have consumed alcohol based on the sniffer flagging the odor/fumes. You are then asked to alight from the vehicle and maybe perform a field sobrierty test. Pass the test, good to go. Don't pass the test, search the vehicle for alcohol use while driving [ this can be a normal assumption, people drink and drive at the same time not just at bars/parties and then drive.

The sniffer will be a tool to alert LE of the presence of alcohol, no more or less without other testing being performed and accompanying the initial indication [ from the sniffer ].

I would think if you had an alcohol driven car, the officer might just be smart enough to know that 66 chevy you are in is not run on alcohol.

Brownie

[another okie]

In principle it's not much different from the officer smelling beer on your breath, or marijuana fumes, or whatever, and using that as probably cause to search. It does seem different because of the use of technology and because it is a deliberate effort to find out if there is alcohol on your breath, an extra step taken, rather than just standing there sniffing, which he would have to do to ask for your license. We'll see. This is why there is litigation - not everything is black and white.

[another okie]

In principle it's not much different from the officer smelling beer on your breath, or marijuana fumes, or whatever, and using that as probably cause to search. It does seem different because of the use of technology and because it is a deliberate effort to find out if there is alcohol on your breath, an extra step taken, rather than just standing there sniffing, which he would have to do to ask for your license. We'll see. This is why there is litigation - not everything is black and white.

[brownie0486]

Actually, the presumption and rule is you will show me your license and registration to the vehicle upon the stop.

That will document who you are, where you are from, that the license is current and present, and that the vehicle has been registered properly with the DMV.

I agree the principle behind the sniffer is the same as the officer "smelling" it while talking to you. It may enable the officer to better judge, through technology, your present impairment if any.

It should be accepted readily by those who oppose an officers intrusions into their lives for any reason. It takes the impetus to the device for reasonable suspicion and would no longer leave it in the officers hands to make the initial determination.

Hey, he may want to get you out of the car, but if the sniffer doesn't register anything, he really is not going to be able to articulate his reasoning behind his actions of doing so if the sniffer was used and did not alarm. Otherwise, like it is now, it is the officers observation alone and that does give leeway to abuse/misjudgement in that venue.

Brownie

[Smurfslayer]

A deputy friend of mine relayed the following info to me when we discussed this a while back. Don't roll the window down all the way, just enough to slide the license and registration through. Legally speaking (in VA) you are (allegedly, it's not like I'm advocating it) not required to surrender them, only _show_ them - in other words, you *can* hold them up against window for the officer (who definitely will not let you off with a warning now) to take down.

Of course, I don't keep illegal stuff, much less in my vehicles. I don't drink & drive, nor do I like those who do.