Texas Police Set Up Checkpoints To Collect Blood And Saliva From 'Volunteers'

from the all-completely-voluntary,-if-you-don't-mind-playing-20-questions-with-a-cop dept

Remember that American ideal of being able to travel freely within the country without being detained or questioned by government officials? Well, the inland creep of CBP (a.k.a. border patrol) checkpoints has made traveling within certain US states without being asked about your citizenship a thing of the past. The installation of TSA agents in every airport means producing identification repeatedly and possibly enduring an awkward conversation with a Behavioral Detection Officer as he or she performs a mental coin flip.

Now, thanks to the National Highway Traffic Safety Administration, citizens can’t even travel across a single city without being routed off the road and asked (nicely) to cough up a little DNA.

The Fort Worth Police Department (FWPD) installed the roadblock north of the city during daytime traffic. They flagged down some motorists at random and asked them to give breath, saliva, and blood samples. The FWPD claims the effort was “100 percent voluntary” and anonymous.

It acknowledges that most of the drivers had broken no law, but it said the effort was valuable to federal contractors working to complete a 3 year, $7.9M USD survey on behalf of the The National Highway Traffic Safety Administration (NHTSA) aimed at collecting medical data for use in combating drunk driving.

The problem is, some drivers didn’t get the impression this DNA sampling was voluntary.

Kim Cope contacted KXAS after she was pulled over because she said it “just doesn’t seem right that you can be forced off the road when you’re not doing anything wrong.”

But Cope questioned how it could be voluntary if uniformed officers forced her off the road.

“I gestured to the guy in front that I just wanted to go straight, but he wouldn’t let me and forced me into a parking spot,” she recalled. “They were asking for cheek swabs… They would give $10 for that. Also, if you let them take your blood, they would pay you $50 for that.”

The contractors also wanted to test her breath for the presence of alcohol, but weren’t willing to pay anything for it.

“I finally did the Breathalyzer test just because I thought that would be the easiest way to leave,” she explained.

When cops flag you down and route you toward a detainment area (like a parking spot), while using smiles and using words like “please,” it still often seems to citizens like they have no choice but to comply. They do have a choice, but the cops aren’t going to let them know that.

Obviously, if officers are going to pay you for a blood sample or cheek swab, then the “detainment” is obviously voluntary. Cops normally don’t pay citizens for DNA they collect. But Cope’s experience shows that even voluntary “surveys” seem mandatory when officers make every effort to conceal the voluntary aspects of the stop until after the citizen has already complied. These officers could have placed a sign up front stating it was a NHTSA survey and that volunteers would be paid, but that probably would have resulted in a whole lot of citizens deciding $10 or $50 just wasn’t worth the hassle.

Worse yet is the fact that even if you opted out of everything including the unpaid breathalyzer test, the Ft. Worth police department was still performing one check without securing permission from any drivers.

Apparently on the consent form that officers gave “voluntary” participants, fine print informed the driver that [the police had taken] “passive alcohol sensor readings before the consent process has been completed.”

It’s unclear whether drivers could ask for that data to be deleted if they didn’t want it to be collected, but what is clear is that most drivers did not notice the fine print or were unable to read it. As a result what the FWPD claimed was a “voluntary” scientific study became what appears to be an involuntary search of citizens who were breaking no law.

The NHTSA defended these non-stops by stating everything was “voluntary” and that law enforcement officers were only on hand for “safety” reasons. But the passive alcohol test wasn’t voluntary. And the officers never bothered to point out stopping was voluntary until after the test subjects had actually stopped.

DailyTech points out the NHTSA has done this sort of testing four other times since 1973, with the last one being in 2007. But none of those utilized passive alcohol sensors to gather additional “data” without the volunteers’ approval.

The Ft. Worth Police Department issued this non-apology to irritated Texans.

We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey.

Sorry, but that’s all wrong. The correct phrasing is:

We apologize for the offensive and inconvenient “survey” we participated in.

Something addressing the passive alcohol testing would have been nice to see as well.

Beyond the problematic tactics deployed and the intrusiveness of the “survey” (which is in no way mitigated by the NHTSA’s offer to pay people for their bodily fluids) is the fact that voluntary stops are frequently portrayed by law enforcement officers as obligatory.

Even if you ignore all the cop talk that’s deployed (“please,” “could you do me a favor?” “would you mind…”) to steer people towards compliance while still giving LEOs an out when it comes to accusations of wrongful detainment (“they were always free to go”), you still have a power imbalance that instantly creates a deferential attitude in most citizens. Even if one believes they are well within their rights to drive through a “voluntary” checkpoint, they often realize compliance is the path of least resistance. Why put yourself on a cop’s “radar” when you can simply blow into a tube and be on your way?

This is how rights disappear. It doesn’t take audacious actions to destroy civil liberties. All it takes is a small amount of force, applied frequently and repeatedly.

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Comments on “Texas Police Set Up Checkpoints To Collect Blood And Saliva From 'Volunteers'”

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51 Comments
aldestrawk says:

Re: Re:

According to their methodology they do not collect license plate numbers. You have to trust them that they really mean it when they say the tests and your survey responses are anonymous. As much as I approve of such studies in general, it is hard these days to trust the government. It would be better if the police weren’t involved at all. One indication that they are not out to get you is that drunk drivers are not arrested. Instead they make sure you “get home safely” which probably means parking your car there and taking a cab, under threat of being reported to the police if you disagree. Unfortunately, I don’t see how they can keep the police from recording the license plates of such parked cars.

Anonymous Coward says:

Re: Re: Re:

All it takes is for the survey team to number the samples in order, ans the police to record the number plates in order. These days the police do not seem to regard any records held by a third party to be private, so they could put all together later so they know which cars to stop in the future. This matching can be sloppy, as it is generating a suspect list, and not being used as evidence.

georgied says:

It sounds like they should have got a proper survey team in to do this and not the police

The way it works in the UK, the police will accompany whoever is carrying out the survey and set up a road side stop area. The police will randomly, or at the request of the surveyors, flag down motorists.

That is the extent of the police involvement. To flag down motorists, as they have the authority to do so. The surveyors would not.

The surveyors identify themselves and what they are doing and state that the survey is voluntary and confidential. Mostly it’s just questions but occasionally alcohol/breath analysis.

It sounds like they should have got a proper survey team in to do and not the police.

Anonymous Coward says:

Re: It sounds like they should have got a proper survey team in to do this and not the police

“It sounds like they should have got a proper survey team in to do and not the police.”

No – It sounds like they should not be doing this at all.

Overlooking for a moment the obvious intrusions by and arrogant behavior of the “authorities”, one might consider that with all the ridiculous austerity measures being forced upon us and their detrimental consequences, how does one justify these expenditures? This is simply a slap in the face – why? – because they can.

The obvious intrusions by and arrogant behavior of the “authorities” should be dealt with immediately in court. I hope some of these victims seek legal council.

The people behind this are a disgrace.

John Fenderson (profile) says:

Re: It sounds like they should have got a proper survey team in to do this and not the police

To flag down motorists, as they have the authority to do so. The surveyors would not.

Anybody can flag down motorists. What wrong with having someone hold a sign saying “$$$ for participating in our survey, this way”?

The only reason to have the cops there is to force people to pull over for their “voluntary” survey.

Anonymous Coward says:

Re: Re:

Really?

Lets see – DNA sample ahhhh yeah – not highly technical at all. In fact, it has been common practice for centuries.
Sheeesh – amirite?

Seems your post is just another I hate the “I hate the cops posts” post.

And after all the stories one reads (I assume you are aware of current events) how can one not be at least a bit concerned about the behavior of the cops in these numerous stories? Just an anomaly you say? Nothing to worry about you say? Uh-huh, and I’ll bet you have a bridge to sell.

Reality Check (profile) says:

Re: Re:

If Tim searched all day long on the web, and posted the ones he finds, the anti-cops stories would be all you could find on techdirt. There are police brutality / anti-cop blogs out there that have no shortage of stories to publish.

Tim picks up one that shows a trend in encroaching on our freedoms. But, if you would bother to search, you would know that there are hundreds of other mainstream articles about individual cops raping, killing, assaulting, lying under oath, destroying evidence, killing dogs, bullying and assorted other crimes against civilians. Tim misses all of those, contrary to your asinine assertion.

You may not be using your freedoms, but I like being able to drive my car wherever I want and not have to stop and provide DNA to random people.

In case you’ve never read the techdirt blog before, it’s about more than ‘tech’. It also has opinions and trends related to privacy, intellectual property, politics and various other themes.

So if your one track focus is ‘tech’, you really should not open this site again. Go find a blog or site that tells you the latest about ‘tech’, or better yet, go find a blog that tells you exactly what you already believe.

Alt0 says:

Re: Shocking

I believe that (if you read the whole article it identifies

“federal contractors working to complete a 3 year, $7.9M USD survey on behalf of the The National Highway Traffic Safety Administration (NHTSA)”

and the woman who complained to the press stated

“The contractors also wanted to test her breath for the presence of alcohol, but weren?t willing to pay anything for it.”

So, it seems the cops just forced you off the road into a parking lot of some sort where they would hand off to the “contractors”.

Which begs to ask the question of over-site on these “contractors”.

Anonymous Coward says:

People are conditioned for "Implied Consent"

It’s been hammered into drivers for a generation that having a driver’s license means you’ve already “consented” to any warrantless DUI testing the police demand, and that refusal of any test is a felony and will result in the revocation of your license.

So when the police pull you over and insist you have to take a breathalyzer test, does a reasonable person feel free to refuse?

Anonymous Coward says:

Re: People are conditioned for "Implied Consent"

Just on a technical point, it’s not having the license that means they think you’ve “consented”, it’s that you’re driving on the road. Not having a license does not mean you can refuse. (At least in my state.)

Police should not be able to pull over cars without a better reason than “someone wants to conduct a survey”. To make matters worse, the officers were off duty, yet still in uniform. There’s only one reason to wear the uniform – it’s because drivers will obey a uniformed officer, because ordinarily they HAVE to. This action is borderline “impersonating an officer” territory – they’re impersonating an on-duty officer to get people to comply.

I would also question the validity of any such survey. They’re likely to get enough refusals that the data they collect won’t have reasonable accuracy. They won’t know how many people saw the checkpoint in advance or knew about it, and avoided it. Furthermore, the NTSB is conducting this survey because they want evidence to justify stricter drunk driving laws. Everyone knows that you should not trust a survey given by an organization that wants a specific outcome.

And what on EARTH are they collecting DNA for?

Anonymous Coward says:

how could this be a voluntary stop if the police prevented drivers from going in any direction other than the one they ‘gestured’ people to? how could the whole stop be voluntary if you had to give a sample of one sort or another, minimum?

‘This is how rights disappear.’

is this only just dawning on people? wake up and smell the coffee, people! bit by bit, there is more being taken from us on a daily basis! but remember, it’s all in the name of catching those naughty terrorists, so no problem! i am wondering though, after everything that took centuries to put in place and all our rights have been removed, and think back that this started via Hollywood and the USA entertainment industries abject disapproval of joining the 21st century and desire to be able to track everyones on-line website movements and the governments pathetic excuses of stopping terrorism, what is going to be achieved for society in general and what will be used as the excuse to take anything left? surely, all that will be are our lives? with us gone, even the ones left, the ones that are forcing all this on to us, the megalomaniacs, will have no one to rule!

V says:

How did this happen? Who's to blame?

Well, certainly, there are those who are more responsible than others, and they will be held accountable. But again, truth be told, if you’re looking for the guilty, you need only look into a mirror. I know why you did it. I know you were afraid. Who wouldn’t be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to the now high chancellor, Adam Sutler. He promised you order, he promised you peace, and all he demanded in return was your silent, obedient consent.

Anonymous Coward says:

Many people who were stopped by police and *believed* they were free to go have been tasered, screamed at, or even shot dead (sometimes by a different cop). Do you really want to take that chance?

Unless you know your rights with 100% certainty — and are willing to fight for them — the best choice is always to do whatever the cop asks.

Anonymous Coward says:

Re: Re: Re:

Re: It’s also good to ask outright: “Am I free to go?” or “am I being detained?”

Don’t ever expect a yes or no answer – you simply won’t get one. There are videos on YouTube showing cops exploding in anger whenever either of those questions is asked (which must be done repeatedly if they expect to get a response)

You might as well wear a sign that says, “yes, I’m one of those cop-hating anarchists (or worse)” because that’s how it will be interpreted.

Since the police risk their lives every day to keep all of us safe, the very least you can to is show some appreciation and cooperate with them. Refuse? Then what crimes are you hiding?

John Fenderson (profile) says:

Re: Re: Re: Re:

Don’t ever expect a yes or no answer – you simply won’t get one.

Then you state that since you haven’t been detained, you’re leaving now, and good day to you, sir. The cop will then make your status clear.

Most of the YouTube videos I’ve seen of cops exploding in anger over this sort of thing involves the citizen acting like an asshole while asserting his rights. That doesn’t mean I think it’s OK for the cop to lose his cool, however it’s unnecessarily provoking to act like a jerk in the first place. Often, cops will respond just fine to people asserting their rights in a polite, friendly fashion.

Anonymous Coward says:

Re: Re: Re:2 Re:

I strongly suspect that one problem with a lot of Youtube videos that show cops acting badly is that the “citizen acting like an asshole” part gets cut out.

But assholery in itself is not against the law, and if cops can’t restrain themselves from responding to bull-baiting tactics (something most of us learned in elementary school, i.e., “sticks and stones …”) then they’re in the wrong line of work. They’re supposed to conduct themselves like professionals, not act like street thugs. I’d be surprised if it’s not part of standard police training.

nasch (profile) says:

Re: Re: Re: Re:

Since the police risk their lives every day to keep all of us safe, the very least you can to is show some appreciation and cooperate with them. Refuse? Then what crimes are you hiding?

Did you really just write that? Is this just flame bait, or do you actually believe anyone not interested in doing whatever a cop asks of them for any or no reason is a criminal? It’s exactly that attitude on the part of police (anyone who doesn’t roll over for me must be guilty of something) that causes a lot of the bad feeling toward police in this country.

Anonymous Coward says:

Just a note on methodology… For any survey to have meaningful results, it can’t be voluntary. The survey takers must be the ones to initiate contact, and record responses and non-responses alike.

That’s the main reason why radio call-in and magazine mail-in “surveys” are essentially meaningless, since the people who respond typically represent only a small subset of the population: those who yearn to express their opinion.

Rekrul says:

In today’s world, especially in the US, cops expect unquestioning compliance from people and to not give that compliance becomes (in their eyes) a crime.

In fact, my state (CT) has basically criminalized non-compliance. Connecticut Statute 53a-167a says that a person is guilty of obstruction when they “resist” a police officer. Elsewhere on the net, in a published set of jury instructions, it specifically says that such resistance does not need to include any kind of physical force for a person to be guilty of obstruction. Simply refusing to show your ID to a cop, even when not suspected of a crime, is now considered a crime under the obstruction law.

John85851 (profile) says:

It's a test to see how far they can push civil liberties

The real “apology” should be:
“We’re sorry everyone is irritated, but every few years we need to push the boundaries of reasonable search and seizure and people’s civil liberties to see who would push back against this policy. The test was a success: we found that people don’t like to be passively searched. We’ll adjust our technique and try again in a few more years. Again, thank you for your voluntary, but coerced, participation.”

And as is always the case in situations like this, people are well within their rights to leave, but who’s going to argue with someone with a gun and power of arrest? As soon as you leave, the cop could decide to charge you with speeding away, reckless driving, endangering people, or anything else.
Or he might be having a bad day (or resent that he’s been assigned to this duty) and he’s going to liven up his day by handing out tickets to anyone who doesn’t listen to him.

aldestrawk says:

corrections and clarifications

I have read the methodology paper for the 2007 study which looks identical to the current study.
http://www.nhtsa.gov/staticfiles/nti/pdf/811237.pdf

There are a couple of errors in the articles linked to here.
The study is not analyzing DNA. I think there was an assumption when people heard there was a cheek swab used that they were collecting cells for DNA analysis. This is incorrect. The swab was used for collecting saliva and had to be in your mouth for 3-5 minutes which is not the same procedure, used for collecting DNA, wherein a swab is used to scrape cells from the inside of your cheek. The saliva undergoes testing in a lab for presence of a bunch of different classes of drugs.

The DailyTech article claims that the use of a Passive Alcohol Sensor (PAS) before getting consent was a new tactic not used in previous studies. This is incorrect as this was done, at least, in the 2007 study as well. I have participated in numerous studies in my life and have read many study protocols and signed many consent forms. I am bothered by this involuntary collection of data. It may be this violates some government mandated protocol for human research subjects. I am not sure about that though. One place to look is here:
http://www.law.cornell.edu/cfr/text/49/11.116
which discusses the general requirements for informed consent.

The purpose for collecting PAS data at this stage is to try to characterize the population of those refusing to participate to gain insight as to how this skew to random sampling affects the overall statistics.
The PAS device, at least in 2007, was a small device that was velcro’d to the PDA which was held a few inches away as the interviewers asked initial questions. It collected your breath as you answered. You could simply talk away from their PDA to avoid being sampled.

If your breath test showed that your BAC was in excess of .08 then they made sure you got “home safely”, apparently, without having you reported to the police and arrested unless you refused their help.

Interesting note for gamblers: They offered a subset of those who refused the study an additional $100 if they would reconsider. I think this subset was around 15% of refusals.

Anonymous Coward says:

SO don’t live in FW. Don’t travel there, don’t conduct business there (you might be sued and forced to appear there), and if you do live there start the process of finding another job somewhere else and more ASAP.

Texas, for all it’s right wing sloganeering, is a hot bed of fascistic impulses where the govt. effectively runs roughshod (“’cause we’re Texans!”) over the citizens. This is well documented in books like “The death of democracy in Texas” (title approximate, can’t recall).

This is something Texas would do and Texans would blindly support, cause’ hey, Freedom and “we’re number 1”, plus, guns!

“Cogntive dissonance? We don’t permit any of them thar fancy pants Eastern Establishment idears ’round here, boy”

aldestrawk says:

From the 2007 methodology document:
“While the interviewer conducted the verbal informed consent process (see below) for the interview, a PAS reading was taken on all subjects, prior to their consent or refusal of the survey. Because this measure was taken passively prior to informed consent, it was deemed to be acceptable under human subjects guidelines (analogous to observing or smelling).”

I disagree with this rational. The collection of data may be passive, but use of a PAS is much more than just smelling alcohol on someone’s breath. you could argue that an Xray was also passive if the device was portable and aimed through the car. After all it is just a different frequency from visible light used to make “observations”. A machine that can quantify your physiological state should require consent.

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