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The latest technological innovation for spotting drunken drivers is raising legal questions in New Jersey, even before its widespread use. The device is the “Sniffer,” a passive alcohol detector that looks and works like a flashlight. A police officer at a roadside stop or sobriety checkpoint can shine the light into a car and at the same time detect alcohol on the driver’s breath. The Sniffer works by sampling “exhaled air” and requires only about four seconds of speech from the person tested. The Web site of the manufacturer, PAS Systems International, boasts “it takes less time to check alcohol level than to check driver’s license!” The site ( http://www.sniffalcohol.com/) also claims that the Sniffer “helps operator formulate probable cause without the subject’s active involvement.” And there’s the rub: not only is the testing done without consent, the drivers don’t even know their breath is being tested. That has drawn attention and criticism by some civil liberties advocates and defense attorneys, who say the Sniffer implicates Fourth Amendment and privacy interests. The company says that positive readings are not used as evidence of drunken driving: They merely provide a basis, beyond what officers can detect with their own noses, to pay closer attention to drivers’ speech, coordination, eyes and other indicators of possible inebriation. But John Whitehead, who heads the Rutherford Institute, an individual-rights advocacy group, takes issue with the manufacturer’s analogy that using the Sniffer is like smelling another person’s bad breath. Whitehead argues that law enforcement personnel are not supposed to use devices that enhance ordinary sensory perceptions to detect crime. NEW JERSEY STILL IN THE DARK While PAS claims broad use of the Sniffer in California, New Mexico, Tennessee and Georgia, company president Jarel Kelsey says that the company, based in Virginia, has not marketed aggressively in New Jersey. State police spokeswoman Lt. Wendy Galloway, says that they don’t use it. Troopers bring DWI suspects back to the station based on indicators like psychomotor balance testing. Princeton police Chief Thomas Michaud, head of the New Jersey Association of Chiefs of Police, has heard of the technology, but he says the association had no position on the Sniffer because “it hasn’t reached us yet.” “Provided the technology is good and reliable,” he says, “the Sniffer would be very helpful to law enforcement, given that one of the main purposes is to keep the streets as safe as possible.” In fact, the company has sold more alcohol detection devices to New Jersey schools than police departments, Kelsey says. He identifies only two police purchasers in New Jersey — departments in Paterson and Hamilton Township in Mercer County — versus at least six school districts that have purchased a less expensive device that allows for either passive or active testing. One of them, Hunterdon Regional High School, was sued by the American Civil Liberties Union of New Jersey last week in Hunterdon County Superior Court over its drug testing policies. Hamilton Sergeant Kurt Pizzullo says the occasional use of the device at DWI checkpoints and by officers on patrol is not evidential. It is merely “something else for the officer to use in overall assessment” of the situation, says Pizzullo. The Sniffer’s limited use in New Jersey means that few practitioners have encountered it or have even heard about it, but some still voiced strong opinions. Clifton sole practitioner Sohail Mohammed, who had partial success with 1998 litigation to stop the use of laser guns to track speeders, sees constitutional problems. “Pulling someone over for bad driving doesn’t give them probable cause to take someone’s breath away,” he says. “What will they do? Use this every time they pull someone over for a minor infraction?” He questions whether the Sniffer is being used “just to fish around, throwing a big net and hoping to catch somebody.” “The person is already pulled over,” he points out. “The officer has the opportunity to observe them and speak with them. Why do they need to put this in someone’s face when a live officer can make the determination, especially when it is not used as evidence that people are drunk?” “A trained officer doesn’t need a device,” he adds. “They’re doing a fine job now with DWI.” Moorestown, N.J., sole practitioner William Buckman, known for his advocacy against racial profiling on state highways, has similar concerns. “When the balance is tipped towards invading privacy at the discretion of the officer, you have upset the Fourth Amendment and the right to privacy,” he says. Eliminating the discretionary aspect by using the Sniffer on all stops would not solve the problem for Buckman. The result would be “a random, roving checkpoint against everyone without any basis to think they might be under the influence,” he says. “The New Jersey Supreme Court recently struck a balance with other high-tech invasions of privacy,” says Buckman, citing the December 1998 decision in State v. Donis, 157 N.J. 44, where the court held that police can make random mobile-computer checks on vehicles but can’t peruse a motorist’s personal information without suspicion of wrongdoing. Morristown municipal prosecutor Daniel Coburn, a former public defender and former Superior Court judge, says he sees no constitutional prohibition, assuming the stop is a valid one. “Speech is protected,” he says, “but not the act of speaking.” He adds that the device can just as readily be used to eliminate suspicion of drunkenness for a suspect whose watery eyes or slurred speech have an innocent cause. He says he doesn’t see a problem “unless you start with the premise that every police officer is making things up.” But, he adds, “A rogue cop could make it up without the device.” Michele Fields, general counsel for the Insurance Institute for Highway Safety of Arlington, Va., doesn’t see a constitutional problem. “You have no privacy interest in the way you smell,” she says, citing the plain view exception, abandoned property law and other legal doctrines. “If you can’t conduct your ordinary affairs without revealing it, there is no Fourth Amendment protection.” Fields says she knows of an unreported ruling in the District of Columbia upholding the Sniffer’s reliability but is aware of no court challenges on the constitutional issue. Kelsey, for his part, dismisses civil liberties criticisms of the Sniffer, saying, “every two or three years the ACLU raises a fit and makes some noise, but trial judges and traffic court judges and prosecutors who take time to understand what it is and how it is used have concluded with certainty that there is no violation of anyone’s rights in using passive alcohol sensors.” PAS sells at least two other such devices that it claims are approved by the U.S. Department of Transportation for testing employees. Coburn says that alcohol testing on New Jersey roads is about to change with the introduction of a portable Breathalyzer called Alcotest. Morristown is one of four areas where the state police will soon begin testing it, Coburn says.

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