- The Washington Times - Tuesday, September 12, 2000

Big Brother has a new technological toy in his toolbox a "flashlight" that is actually a kind of Breathalyzer that can be used to sample your exhalations for signs of alcohol without you ever knowing you're being tested.

The PAS III Sniffer is able to estimate a person's blood-alcohol content based on just four seconds of conversation such as when a cop asks you for your license and registration during a routine traffic stop. A pump inside the flashlight's body draws in a sample of the subject's exhaled breath through a fuel cell which generates a voltage response in the presence of alcohol vapor; a color display then flashes red for a liquored-up driver, green for teetotaler.

Police love the idea and see it as a more efficient way to corral impaired drivers who might otherwise slip the gantlet but people who are worried about their rapidly eroding civil liberties should be concerned.

Unlike the familiar Breathalyzer, which requires a subject to blow into a device that gives a readout of blood-alcohol levels or even the field sobriety test, where an officer asks a suspected drunk driver to perform simple physical tests that evaluate impairment the PAS III Sniffer does its work without your knowledge or consent.

"For many years, your privacy rights and the right of police to investigate was kept in balance by the available technology," said Kent Willis of the American Civil Liberties Union. "That balance has been destroyed."

The Sniffer dispenses with the cumbersome (to police) Fourth Amendment, which prohibits unreasonable searches and seizures. Law enforcement cheerleaders will counter with the dismissive of "catching dangerous drunks" that lets them evade the issue of whether this noble goal is worth subjecting anyone and everyone to a "search" without their consent or knowledge and before they have done a single thing to suggest they have been drinking.

John. W. Whitehead of the conservative Rutherford Institute, a Washington think-tank, told The Washington Post that the Sniffer is an egregious affront to the Fourth Amendment. "To catch a possible drunk driver, do we throw the Constitution in the garbage can? I say no." The Sniffer, he said, "assumes you're guilty. It reverses the standard of proof. Why are they sniffing you if they don't think you're guilty? Next, they're going to be sniffing for cigarettes," he added.

Police in Fairfax County, Va., are among the most fervent advocates of the $600 Sniffers. Officers have used them at both sobriety checkpoints as well as during regular patrols. "So far they've worked really well," said Lt. Dennis O'Neill.

Certainly. As would body cavity searches of all airline passengers. Or random frisks on the street. The chilling refrain, "Your papers, please" may not have died out with the Nazi Gestapo or the Soviet NKVD. If such "tools" as the Sniffer not to mention asset forfeiture laws and the related apocrypha of law-enforcement overkill are allowed to stand, then we have accepted, at least in principle, the foundation of a future total state that perhaps potentially far worse than the tyrannies of the past.

Technology is making a level of surveillance possible that could not have been imagined by Nazi Minister of Propaganda Joseph Goebbels or Soviet secret police chief Lavrenty Beria though these two would certainly would have salivated at the prospect of having such tools at their disposal.

PAS Systems of Fredericksburg, Va., has already sold several thousand Sniffers to police departments around the country including the federal Park Police.

Naturally, the insurance industry and the ever-overwrought Mothers Against Drunk Driving are falling over themselves to embrace this ugly business. "People who were driving drunk were able to brace themselves up and have a 50-50 chance of getting through a checkpoint," said Tim Hoyt of Nationwide Insurance. "That's what got us interested" in the Sniffer technology. Mike Green of MADD said the Sniffer "saves the police a lot of effort" in trying to figure out if someone has been drinking.

And this is all quite true but entirely beside the point. It would also "save the police a lot of effort" if cops could just randomly stop and frisk people, too or bust down their doors and search their homes without a warrant. Surely, a great many drug dealers, child pornographers, and so on, could be apprehended this way. But we would be living in a police state, then, wouldn't we?

To date, the use of the Sniffer has not been challenged in court. According to some legal experts, the device probably will survive any future legal challenge, too because according to lawyerly cant, the Sniffer only samples the air after it has left the driver's body and is therefore in the public domain. This smacks of the amoral legalistic parsing that has also justified asset forfeiture laws, such as those that enable the government to seize boats, homes, cash, etc., without the owner having been found guilty and often not even charged with any crime.

Legalisms notwithstanding, we have cause to be worried.

Eric Peters is an editorial writer for The Washington Times and a nationally syndicated automotive columnist.

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