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Couldn't the same be said for a breathalyzer? Forcing someone to breathe into a machine could be seen as forced "speech" in the same way giving up a password is

Couldn't the same be said for a breathalyzer? Forcing someone to breathe into a machine could be seen as forced "speech" in the same way giving up a password is. That seems to be allowed since the only penalty for refusing is losing your license (as opposed to some kind of criminal charge). Honest question btw.

koolba 10y ago
Most states have laws on the books that require you to agree to a sobriety check as a precondition of getting a driver's license. I think that also includes agreeing to a blood-draw if you get booked for DWI. Refusing is grounds for revocation of your license. Now all that aside, this is quite a stretch ... If the 5th amendment protects you from disclosing a password under a court order, there's no reason you should have to unlock your phone just because a police officer asks you too. Come to think of it, pretty sure that applies that unlocking your trunk either unless the officer has a warrant.
magicalist 10y ago
> Couldn't the same be said for a breathalyzer? Yes, actually, and that question (wrt criminal penalties some states have heaped on) happens to be in front of the Supreme Court right now in Birchfield v. North Dakota[1] (though not for the first amendment, GP is off course there). Sibling comments are correct on the legal theory behind allowing punishments for refusing to take a breathalyzer test, but it's clearly questionable whether a state should be allowed to issue criminal penalties for availing yourself of your rights. If such a thing were generally allowed, warrants wouldn't be necessary in most cases: let us search your person/phone/car/house/papers without a warrant unless you want severe automatic penalties, etc. [1] http://www.scotusblog.com/2016/04/argument-analysis-criminal-penalties-for-refusal-to-take-a-breathalyzer-test-in-jeopardy/ http://www.scotusblog.com/2016/04/argument-analysis-criminal...
- ams6110 10y ago
  If we would simply hold people liable for the consequences of their actions we would not need DUI laws or breathalyzer "implied consent" attached to driving.
  - smileysteve 10y ago
    Seriously. Distracted and reckless driving have been laws long before cell phones or laws against drinking while driving. Distracted and reckless driving already carry large fines and are much more subjective with much less burden of proof than finding a text message on a phone.
    - pdkl95 10y ago
      Drunk driving laws are really addressing the problem indirectly. The whole point is that EtOH affects stuff like reaction time, motor control, situational awareness, and risk assessment. The source doesn't matter, if you are not able to meet a minimum ability in those skills, then driving is a going to be dangerous. The source of the problem doesn't matter. Instead of the breathalyzer (or other tests for EtOH) we should be testing for ability. I suspect this shouldn't be hard or expensive, for example, to make a portable device that implemented objective tests[1] of ability. Obviously some research would be needed to determine which skills need to be tested and to calibrate the minimum-ability cutoffs. [1] like this reaction time test: https://faculty.washington.edu/chudler/java/redgreen.html https://faculty.washington.edu/chudler/java/redgreen.html
- 0xcde4c3db 10y ago
  > unless you want severe automatic penalties Isn't that basically how traffic tickets work in general? As far as I understand it, you have the option of rejecting the ticket as long as you're willing to be arrested for the offense instead.
  - ams6110 10y ago
    Not really. The ticket is just documentation of the officer's charge that you violated whatever law. You can sign it or not, tear it up, you'll still be on the docket at the local courthouse at some date in the near future, and if you don't show up you'll get a bench warrant for failure to appear.
    - taneq 10y ago
      So basically a traffic infringement notice is a standardized plea-bargain?
filiwickers 10y ago
It's called "implied consent". You have to agree to submit to a breathalyzer when driving in order to get your license. All states use this type of law for breathalyzer among other things.
- npizzolato 10y ago
  My point being, if you can be made to agree to submit to a breathalyzer when driving before you get a license, why can't you be made to agree to submit to this text-analyzer when driving before you get a license? I'm not saying this would be a good thing, but they seem very similar to me.
  - koenigdavidmj 10y ago
    Implied consent still generally (up to your state) requires reasonable suspicion. It would likely be unconstitutional to have an implied consent law to search your trunk (or your phone). The breathalyzer has the immediacy requirement described elsewhere in this thread, which doesn't apply to your phone. The only reason to avoid getting a warrant is convenience.

koolba 10y ago

Most states have laws on the books that require you to agree to a sobriety check as a precondition of getting a driver's license. I think that also includes agreeing to a blood-draw if you get booked for DWI. Refusing is grounds for revocation of your license. Now all that aside, this is quite a stretch ... If the 5th amendment protects you from disclosing a password under a court order, there's no reason you should have to unlock your phone just because a police officer asks you too. Come to think of it, pretty sure that applies that unlocking your trunk either unless the officer has a warrant.

magicalist 10y ago

> Couldn't the same be said for a breathalyzer? Yes, actually, and that question (wrt criminal penalties some states have heaped on) happens to be in front of the Supreme Court right now in Birchfield v. North Dakota[1] (though not for the first amendment, GP is off course there). Sibling comments are correct on the legal theory behind allowing punishments for refusing to take a breathalyzer test, but it's clearly questionable whether a state should be allowed to issue criminal penalties for availing yourself of your rights. If such a thing were generally allowed, warrants wouldn't be necessary in most cases: let us search your person/phone/car/house/papers without a warrant unless you want severe automatic penalties, etc. [1] http://www.scotusblog.com/2016/04/argument-analysis-criminal-penalties-for-refusal-to-take-a-breathalyzer-test-in-jeopardy/ http://www.scotusblog.com/2016/04/argument-analysis-criminal...

ams6110 10y ago
If we would simply hold people liable for the consequences of their actions we would not need DUI laws or breathalyzer "implied consent" attached to driving.
- smileysteve 10y ago
  Seriously. Distracted and reckless driving have been laws long before cell phones or laws against drinking while driving. Distracted and reckless driving already carry large fines and are much more subjective with much less burden of proof than finding a text message on a phone.
  - pdkl95 10y ago
    Drunk driving laws are really addressing the problem indirectly. The whole point is that EtOH affects stuff like reaction time, motor control, situational awareness, and risk assessment. The source doesn't matter, if you are not able to meet a minimum ability in those skills, then driving is a going to be dangerous. The source of the problem doesn't matter. Instead of the breathalyzer (or other tests for EtOH) we should be testing for ability. I suspect this shouldn't be hard or expensive, for example, to make a portable device that implemented objective tests[1] of ability. Obviously some research would be needed to determine which skills need to be tested and to calibrate the minimum-ability cutoffs. [1] like this reaction time test: https://faculty.washington.edu/chudler/java/redgreen.html https://faculty.washington.edu/chudler/java/redgreen.html
0xcde4c3db 10y ago
> unless you want severe automatic penalties Isn't that basically how traffic tickets work in general? As far as I understand it, you have the option of rejecting the ticket as long as you're willing to be arrested for the offense instead.
- ams6110 10y ago
  Not really. The ticket is just documentation of the officer's charge that you violated whatever law. You can sign it or not, tear it up, you'll still be on the docket at the local courthouse at some date in the near future, and if you don't show up you'll get a bench warrant for failure to appear.
  - taneq 10y ago
    So basically a traffic infringement notice is a standardized plea-bargain?

filiwickers 10y ago

It's called "implied consent". You have to agree to submit to a breathalyzer when driving in order to get your license. All states use this type of law for breathalyzer among other things.

npizzolato 10y ago
My point being, if you can be made to agree to submit to a breathalyzer when driving before you get a license, why can't you be made to agree to submit to this text-analyzer when driving before you get a license? I'm not saying this would be a good thing, but they seem very similar to me.
- koenigdavidmj 10y ago
  Implied consent still generally (up to your state) requires reasonable suspicion. It would likely be unconstitutional to have an implied consent law to search your trunk (or your phone). The breathalyzer has the immediacy requirement described elsewhere in this thread, which doesn't apply to your phone. The only reason to avoid getting a warrant is convenience.