We’ve all heard of radar detectors set up to catch speeding cars on the roads. But could something similar be used to detect impaired drivers? Science Daily reports that there is a new laser device which can be used to detect alcohol vapors in passing vehicles. The article describes the use of the device as follows:
The laser system is set up on the side of the road to monitor each car that passes by. If alcohol vapors are detected in the car, a message with a photo of the car including its license plate is sent to a police officer waiting down the road. Then, the police officer stops the car and checks for signs of alcohol using conventional tests.
The device was invented by Polish scientists and is not yet available commercially. At the testing stage, the device was able to detect alcohol vapors at concentrations of 0.1% and greater. The scientists recognize that the concentration detected might be influenced by some factors such as “driving with windows open, solar screens on the side windows, etc., that can be applied by drivers to deceive the system” but think that these measures are easy to detect by the system which can send the relevant information to the police officer.
Also, because the device only detects the alcohol vapors in the vehicle, a police officer cannot tell whether the driver or the passengers have been drinking. However, the scientists are confident that the device "will surely decrease the number of cars that have to be checked by police and, at the same time, will increase efficacy of stopping drunken drivers."
How would this device work with our understanding of our rights under the Fourth Amendment? The Fourth Amendment states that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The US Supreme Court has held that a “traffic stop is a seizure "even though the purpose of the stop is limited and the resulting detention quite brief."” Historically, traffic stops were reviewed under the standard set out in the US Supreme Court case Terry v. Ohio, under which to make a traffic stop an officer must have “"reasonable, articulable suspicion that criminal activity is afoot." However, in 1996, the US Supreme Court stated in dictum, in the case Whren v. US, that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”
The north carolina Supreme Court resolved the resulting confusion from this dictum in 2008 in State v. Styles. It determined that reasonable suspicion, not probable cause is “the necessary standard for stops based on traffic violations” in North Carolina. The Court described reasonable suspicion as a "less demanding standard than probable cause” which “requires a showing considerably less than preponderance of the evidence." Furthermore, it “is satisfied by “‘some minimal level of objective justification.’”” The North Carolina Supreme Court requires that "[t]he stop ... be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." In addition, a court must look at ““the totality of the circumstances—the whole picture” in determining whether a reasonable suspicion’ exists.”
Based on this summary of reasonable suspicion laid out by the courts, it seems that a detection by the laser device of alcohol vapors in a passing vehicle would provide reasonable suspicion for a police officer to make a traffic stop since it would meet a “minimal level of objective justification.”
However, let’s go back to a more basic question as to whether the use of the laser device itself is a search under the Fourth Amendment? The use of the laser device is certainly not physically intrusive, since it can occur without a driver even knowing. But with the expansion of technology, the government is capable of invasive surveillance without physical intrusion. In US v. Jones (2012), the US Supreme Court held that police must obtain a search warrant before attaching a GPS tracking device to a suspect’s vehicle. However, in that case, the Court focused on the physical attachment to the vehicle of the GPS tracking device.
In the case of the alcohol-detecting laser device, there is nothing physical attaching to the car. It is much more similar to a radar detector used for speeding or a red-light camera used to detect cars that run red lights. Furthermore, once we are in public, our reasonable expectation of privacy decreases. If the device is used on public roads, it seems it will most likely be allowed .
What about implied consent? Wouldn’t the device be allowed under that? In North Carolina, under G.S. 20-16.2(a), “[a]ny person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense,” which means that when the North Carolina DMV issues you your driver’s license, you give your implied consent to submit to breath and blood tests. However, for implied consent to operate, the driver must be “charged” with an implied-consent offense, which means under subsection (a1) of the statute that the person has been “arrested for [the offense] or ... criminal process for the offense has been issued.” The device, on the other hand, is used well before the point of charging the driver for dwi and is instead used as a detector to determine whether the car should be stopped in the first place. Because the device cannot detect whether the driver or the passengers have been drinking, a police officer would not be able to arrest a driver based solely on a positive detection of alcohol vapors by the device.