The Sniffer

The National Transportation Safety Board’s recommendation that states lower their per se blood alcohol concentrations for impaired driving from 0.08 to 0.05 grabbed headlines last week. But the BAC reduction wasn’t NTSB’s only recommendation.  Overlooked in the 0.05 hullabaloo was NTSB’s endorsement of the Sniffer. That’s right.  The Sniffer.  It’s more powerful than a nose. Let me explain. The second recommendation in the NTSB’s report—immediately following the BAC bombshell—is high visibility enforcement of DWI laws. High visibility enforcement involves well-publicized media campaigns (think, Booze it and Lose it), visible enforcement efforts such as saturation patrols and sobriety checkpoints, and swift and certain penalties for drivers arrested for DWI (a la civil license revocations under G.S. 20-16.5). Checkpoints, however, have some limitations. And that’s where the Sniffer comes in. Turns out that a lot of folks who are impaired by alcohol aren’t detected even when stopped by a checkpoint. The NTSB report cites studies showing that officers employing traditional methods of determining driver impairment at a sobriety checkpoint identify less than half of all drivers with BACs above the per se limit. (NTSB at 25). So the NTSB recommends that officers use passive alcohol sensors (the Sniffer is the brand name for one such sensor), which can tip them off to the presence of alcohol. These sensors, housed James-Bond-style in a flashlight or a clipboard, detect alcohol vapor. When a police officer holds the Sniffer near a driver, it samples the driver’s exhaled breath as well as the air in the car, analyzes the sample for alcohol and provides some information about the relative amount of alcohol detected. The display ranges from green to red, colors that correspond to BAC ranges. See Kim Han, The Technological Sniffing Out of Constitutional Rights: Assessing the Constitutionality of the Passive Alcohol Sensor III, 9 J.L. & Pol'y 835, 858-59 (2001). Sniffer devices have been used by law enforcement officers across the country for more than a decade, including, apparently, in North Carolina. Id. Because such devices haven’t been approved by the Department of Health and Human Services, however, G.S. 20-16.3 appears to prevent law enforcement officers from relying upon them in determining whether there is probable cause to believe that a driver has committed an implied-consent offense. Some commentators have questioned whether use of the Sniffer violates a person’s Fourth Amendment rights. See Han, supra, at 860-867. I’m skeptical about that claim. If having a dog sniff around the perimeter of a person’s car during a traffic stop is not a Fourth Amendment search, see Illinois v. Caballes, 543 U.S. 405 (2005), and an officer’s own olfactory perceptions don’t invade a person’s reasonable expectation of privacy, it isn’t a stretch to conclude that use of a passive alcohol screening device likewise is not a search that implicates the protections of the Fourth Amendment. On the other hand, the device has to be held within inches of a person’s face to measure his or her breath. So perhaps the invasion is more like a dog sniffing a person than a dog sniffing a car. And if the Sniffer has to be inserted into a car’s interior to get a good whiff, it might constitute a physical intrusion into an area in which a person has a privacy interest (his or her car) in much the same way that bringing a drug dog to a person’s front door physically intrudes into an area in which a person has a reasonable expectation of privacy. See Florida v. Jardines, __ U.S. __ (2013) (discussed here). Relevant to the constitutional inquiry is whether this sort of sense-enhancing technology is in general public use. See Kyllo v. United States, 533 U.S. 27 (2001) (holding that law enforcement officers’ use of thermal imaging device to detect relative amounts of heat within a private home was a Fourth Amendment search; stating that obtaining by sense-enhancing technology information regarding the interior of a home that could not have otherwise been obtained without physical intrusion into a constitutionally protected area is a search, at least where “the technology in question is not in general public use.”). So, tell us, public. Have you used the Sniffer or similar passive alcohol sensing technology? Been Sniffed? Proffered the Sniffer as proof?