CHP Device Tests Air Exhaled by Suspected Drunk Drivers

California Highway Patrol officers will soon be checking the breath of motorists for alcohol content with a device that resembles a flashlight, but it’s not.

With a go-ahead from Atty. Gen. John K. Van de Kamp, the CHP plans to use the devices to sample air that the drivers exhale, spokesman Sam Haynes said Wednesday.

The controversial devices will be used at the CHP’s roadside checkpoints. The agency conducted 122 such checkpoints last year, mostly on holidays.

Haynes said the CHP hopes to have the new devices in field offices by Christmas, “but New Year’s is more realistic.” He said they will be used to enforce a new statute that, beginning Jan. 1, will lower the blood alcohol level for presumed drunkenness from 0.10% to 0.08%.

Any driver who fails the preliminary test will be given a full sobriety test, which could be used in court, Haynes said.

American Civil Liberties Union lawyers immediately questioned the constitutionality of the new device, saying it does away with the standard of probable cause that police must meet before arresting someone.

“We have a Fourth Amendment that’s supposed to do away with unreasonable searches,” said ACLU lawyer Margaret Pena. “This is becoming more and more of a police state.

“It’s the same idea as someone standing on a corner flashing people with metal detectors looking for weapons,” Pena added.

Another opponent, Oakland attorney Ed Kuwatch, called the program “flashlight judge and jury.”

But Van de Kamp’s opinion, issued in response to a question by CHP Commissioner Maurice Hannigan, said laws prohibiting breath testing of motorists before arrest apply only to devices that measure blood alcohol content--not to those that simply measure the presence of alcohol.

The opinion said the preliminary test could provide the police with the probable cause needed to arrest a person for drunk driving.

“A driver has the opportunity to avoid going through the checkpoint,” Haynes said. “By going through the checkpoint, he establishes implied consent (to the new test).”