Sobriety Checkpoints – Are DWI Stops in Texas’ Future?

Every year there’s an effort by politicians and groups like MADD (Mothers Against Drunk Driving) to make sobriety checkpoints legal in Texas. It’s no surprise that with nearly 1,300 alcohol related driving fatalities in 2010 alone that concerned citizens want the Texas government to take a more proactive stand on preventing drunk driving. This past week San Antonio Police Deputy Chief Anthony Trevino asked the Texas House Criminal Jurisprudence Committee to once again try to legalize sobriety checkpoints.

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Despite having the highest number of fatalities, Texas only institutes 4 of the 11 recommendations put together by the National Transport Safety Board to stop drunk drivers. Sobriety checkpoints are one of the eleven recommendations and it’s a policy that’s been instituted in all but eleven states. Advocates have worked tirelessly since the mid-90’s on this issue, and it’s only natural to wonder – Why are sobriety checkpoints so controversial in Texas? It’s a controversy based on the very nature of government and how we interpret the U. S. constitution at Texans.

Sobriety Checkpoints – Understanding the Process

If you’ve lived most of your life in Texas like I have then you’ve never even seen a sobriety checkpoint. It’s basically a road block set up by law enforcement officers who check drivers for signs of impairment. A sign is put up near the checkpoint letting drivers know what is up ahead. Vehicles are stopped in a specific sequence like every fourth or sixth vehicle. If the officer believes a driver may have been drinking, that driver will take a breathalyzer. For most law-abiding folk, the whole things takes up about as much time as a stop light would.

Sobriety checkpoints are often placed in “hot spots” where statistics indicate DWI accidents are more common. By allowing police officers to get a good look at each driver, the chances that a drunk driver will slip by law enforcement undetected are much smaller. Sobriety checkpoints also act as a deterrent. If a driver thinks they may have to be stopped and looked over by a cop on the way home, he or she may be a lot less likely to get behind the wheel drunk.

Certain states set up checkpoints during holidays or special events like the Superbowl where many people might be out drinking. The frequency of checkpoints can range among different states from weekly to monthly. Each state has a slightly different program, but the general procedure is the same: stop traffic and check drivers. It’s those same founding principles that cause division among Texan lawmakers.

The Constitutional Argument – Search, Seizure & Sobriety

In Texas the argument is that sobriety checkpoints are illegal under the U. S. Constitution. Despite the current Texan view, it’s important to note that the U. S. Supreme Court itself found properly conducted sobriety checkpoints to be constitutional in Michigan v. Sitz. The constitutional conflict centers on the question, Can the police stop me if I haven’t done anything wrong? The U. S. bill of rights generally prohibits law enforcement from searching or targeting someone who has not given the police any reason to be suspicious as a part of the fourth amendment against illegal search and seizures.

Our civil rights are essential, but many state courts along with the national Supreme Court feel drunk driving is an exception. Part of the exception is the high number of deaths that result from drunk driving and how those deaths can be prevented.

Like many constitutional arguments, the devil’s in the details. In this case it’s the idea of “I haven’t done anything to give the police probable cause.” Driving while under the influence or driving while intoxicated is a crime that happens the minute you turn your car on if your blood alcohol level is past a certain limit. How well you drive is actually irrelevant in terms of the law. Technically, you don’t really have to “do” anything to become a suspect. This makes probable cause very hairy.

Stopping someone who is behind the wheel while intoxicated is actually stopping them “in the act” even if they are not behaving strangely. The idea of I haven’t “done” anything wrong is tricky because if you are intoxicated behind the wheel your state of being is in itself illegal. How do you check someone for a crime that is based only on blood alcohol limit and not on specific behaviors? This legal interpretation means that anyone could be a drunk driving suspect, in which case the fourth amendment is not relevant.

Checkpoints – Personal Inconvenience vs. Public Good

Beyond the legal details, the heart of the argument in favor of sobriety checkpoints is about protecting the public. There are many lives at risk and while a sobriety checkpoint is far from ideal, it is necessary.

In many ways a sobriety checkpoint and a security checkpoint are similar. Most people find security checkpoints at the airport or at a courthouse to be somewhat annoying. We’re used to moving through places quickly and we’re used to being trusted. Having to stop and open a bag or a briefcase in front of someone else is no one’s idea of fun. We grumble, but we do it anyway and not simply because it is required. We do it because we realize that ultimately a minor inconvenience is a small price to pay for safety.

In a way we are making a trade. We are trading this little piece of our personal space and time for the well-being of the community as a whole. We have to balance our individual civil rights with the needs of others. Most times in the United States, particularly in the great state of Texas, we lean towards the side of personal freedom – which is something to be proud of. However, there are times where we must make an exception. This is one of those times.

Solutions At Work – No Refusal Campaigns Set the Stage for Checkpoints

When thinking about the balance between civil rights and drunk driving, keep in mind that in certain counties there are already holidays where the police institute “no refusal campaigns.” A no refusal campaign is where the officer can require you to give a blood sample that is tested for blood alcohol level. You don’t have the usual right to say “no” to the test, and if the blood test shows that you are over the limit, the evidence can be damning in court.

A no refusal policy touches on the same civil rights arguments as a sobriety checkpoint. Yet, it has become more accepted in North Texas counties and is not held to be unconstitutional in the state. Like a checkpoint, the campaign is equal parts catching violators and deterring potential violators. These campaigns have been largely successful and grants have raised money to expand the local program in Fort Worth.

Now that we know that North Texan law enforcement is capable of handling anti-drunk driving campaigns like these with overall efficiency, why not give the police a chance to institute sobriety checkpoints? The public has been able to accept the first step forward, isn’t it time we took the next step towards rooting out drunk driving?

In states where sobriety checkpoints are already in place, some studies measured the public approval rating as 90%. If the Texas state government takes the imitative, public support is statistically likely to follow.

A Matter of Life & Death

Sobriety checkpoints save lives, and that’s more important than anything else. If there comes a time where we have more effective means of preventing drunk driving, and lives are no longer at stake than we can revisit the issue of personal freedom. Right now, we can’t afford to take that chance. Texas continues to have a higher than national rate of drunk driving accidents and fatalities. We have to do more to combat this problem. A sobriety checkpoint system is one more tool that we could be using to improve the safety of Texans.

Instead of looking at sobriety checkpoint as Why are they stopping me? I’m innocent? Start thinking of it like, If they hadn’t have stopped him. He would have hit my car and injured my family. Those who have lost loved ones to drunk drivers in the past know that the hindrance of a checkpoint is a small price to pay.

Keep our neighborhoods and families safer during this holiday season by encouraging your State representative to support sobriety checkpoints. In 2010 a law made it past the House and nearly through the Senate. As the new year begins it’s time to make drunk driving prevention a priority once more. Let’s finally make sobriety checkpoints legal in 2013.

Beating The Heat Behind Bars – Summer Deaths Lead to Lawsuits Against Texas Prisons

As a personal injury attorney, I file wrongful death lawsuits, and I like to stay informed about major wrongful death cases throughout the state. Recently, wrongful death lawsuits have been filed in Austin against state prisons over the prisoners who died from heat related causes last summer. What’s happening in Austin courtrooms today could set precedents for cases across the state and even the nation.

The McCollum Story

The Texas Civil Rights Project and Austin attorney Jeff Edwards are suing the Texas Department of Criminal Justice for the wrongful death of Larry Gene McCollum who died of hyperthermia last summer in a Dallas jail. McCollum entered Hutchins State Jail in July when he was convicted of forgery and sentenced to eleven months. The 58-year-old father was overweight but in reasonably good health when he arrived at Hutchins. The temperature inside the jail was only slightly cooler than outside. Prison employees are supposed to give out additional water and fans to inmates under these conditions. McCollum was new to the prison and did not yet have the identification card that he needed to receive water or a fan. After three days of heat and dehydration, McCollum collapsed. His body temperature was over 109 degrees when he was taken to the hospital. He was unable to recover and died on July 28, 2011.

McCollum’s son Stephen McCollum expressed his shock and grief at the harsh conditions that caused his father’s death at a press conference in Austin. He said, “For this to happen to any human being is beyond my belief. There’s pets in pounds that have better conditions.” Sadly, Stephen McCollum is not the only one to lose a loved one from prison heat conditions. There have been many deaths and debilitating injuries as a result of a lack of air conditioning. The Texas Civil Rights Project believes that there were at least nine deaths last summer alone including inmates Togonidze, Martone and James. The non-profit has filed lawsuits like these in the past including a 2008 case where a prisoner became ill in what expert’s determined was a cell with a heat index of 134 degrees.

Texas Adheres to a Lower Standard

Last summer’s deaths are indicative of an on-going health risk within Texas prisons. Of the 111 prisons owned by the Texas Department of Criminal Justice, only 21 are fully air conditioned. Many of the partially air-conditioned facilities do not have air conditioning in the cells where inmates spend most of their time. According to state law, county jails must have a temperature no higher than 85 degrees, but state prisons don’t have to conform to county jail standards. The Texas Department of Criminal Justice has also chosen to ignore the national standard set by the American Correctional Association which recommends that temperature and humidity be mechanically lowered to an acceptable level. As temperatures rise this summer, reports of more incidents are expected to come through. There have been sixteen heat-related illness reported in 2012 alone, and that number will only go up.

Don’t Get Too Comfortable

One argument against air-conditioning is that it will make prisoners too comfortable. Comfort is not something that prisoners should enjoy, but scorching heat isn’t just a discomfort; it’s a threat to your health. The perception that air condition is a luxury in jails where the heat index has been measured at 134 degrees is simply false. It’s not a luxury if the alternative is at least nine deaths in a single summer. The state of Texas has the death penalty for certain crimes that are judged with due process to deserve that extreme sentence, but the sentence for small-time crook and father McCollum was supposed to be less than a year in Dallas’ Hutchins Sate Jail, not death by hyperthermia. Once is an accident, but multiple deaths each summer in Texas’ prisons isn’t an accident – it’s a choice.

Cruel and Unusual: One Basis for the Suit

One of the core principles in this suit is the idea of “cruel and unusual punishment.” The Constitution outlaws cruel and unusual punishment but doesn’t elaborate on the many different kinds of punishments and environments that can be defined as cruel or unusual. Some practices are obviously barbaric like the electric chair or burning someone alive. In today’s modern world, a non-air-conditioned jail during a Texas’ summer could be considered cruel and unusual. With body temperatures of over 109 degrees, the inmates listed in these suits literally burned to death on the inside with autopsies that indicated heat stroke and hyperthermia. While it may not be as dramatic as medieval-style punishments, the results are still fatal. A prison with an indoor heat index that is rated as dangerous or even extremely dangerous is a serious hazard. One of the aspects in these lawsuits, and of any wrongful death case, is that death could have been avoided. There is no reason in civilized nation like the United States that someone should die because it was too hot outside. The Department of Justice could have prevented these deaths, the question is, why didn’t they?

Government Response

The Texas government has not responded well to the allegations and has replied in a way The New York Times referred to as “not sympathetic” after conducting interviews with state leaders. Chairman of the State Senate Criminal Justice Committee, Democratic State Senator John Whitmire told The New York Times, “Texans are not motivated to air-condition inmates. These people are sex offenders, rapists, murderers. And we’re going to pay for their air-conditioning when I can’t go down the street and provide air-conditioning to hard-working taxpaying citizens?”

Are Texans really unmotivated to improve the system? There are more than 170,000 people incarcerated in Texas and more than 55,000 are from right here in Dallas. Burglary of habitation (habitation is a legal word for home) is the most common crime resulting in incarceration in Texas. As for the crimes that Senator Whitmore mentions – sexual assault, rape and murder – none of those three even make the top five most common crimes that prisoners are serving time for. So let’s start our analysis of Whitmore’s statement by understanding that the majority of prisoners are not those offenders.

Additionally, no one expects to treat prisoners like our own law-abiding neighbors, but even in their condition they have certain rights and needs. As a taxpayer I already pay for inmates’ food, water, electricity, plumbing, healthcare and recreation – just as I pay the taxes that fund the judicial system which takes criminals off my friendly neighborhood street and incarcerates them in the first place. Like most people, I can’t say that I really enjoy paying taxes, but it is my responsibility as a citizen and it is my responsibility as an American to want the prisoners in our state to survive the summer heat. There are numerous expenses associated with the Texas prison system and there is no reason why air conditioning shouldn’t be one of the essential needs like food and water that is met.

What’s The Cost?

Discussions about the massive Texas prison system often come down to dollars and cents. For all our complaints, it’s not always easy to calculate how much our decisions cost. Adding air conditioning units would be expensive, but the need is great and will only grow over time. At the end of the day no matter how the numbers shake out, the monetary cost was never meant to out weight the human cost. The pending lawsuits will serve as a reminder to the government of the emotional and monetary price of neglect.

Lawyers Step In

Over the Fourth of July holiday, we all spent time appreciating our freedom and independence. We watched fireworks and listened to the national anthem. It’s easy to be patriotic when faced with potato chips and sparklers, but it’s more difficult to stand up for the constitution when it involves moral issues we’d rather ignore or government legislators we’d prefer not to offend. The eighth amendment against cruel and unusual punishment is as essential as any of our other freedoms, and it’s important for lawyers and citizens alike to step in to remind the Texas Department of Criminal Justice that human rights are important no matter what you’ve done. So turn up the AC Texas, it’s going to be a hot summer.