NCJ Number
101247
Journal
Prosecutor Volume: 19 Issue: 3 Dated: (Winter 1986) Pages: 29-35
Date Published
1986
Length
7 pages
Annotation
The legal concerns related to the use of passive devices for determining an individual's alcohol level will probably center around the issue of whether the use of these devices constitutes a search under the fourth amendment and whether the standard of probable cause or of reasonable suspicion will be required.
Abstract
In contrast to devices that require a person to blow into a device, a Passive Alcohol Screening Device (PASD) samples the air around the person. The device produces only rough estimates of blood alcohol and normally allows the person to remain passive and undisturbed while the test is being given. The device's main use will be similar to that of the preliminary breath test devices, which are screening devices that can produce probable cause to arrest when used together with other facts. No court decisions yet exist regarding the use of PASD. However, the closest analogy seems to be use of drug-sniffing dogs. Courts have held that the sniffing of a trained dog is a plain view seizure rather than a search. Courts are likely to use the rationale found in United States v. Place in cases involving PASD. Courts that do not use this rationale and that consider the use of PASD to be a search will probably recognize its minimal intrusiveness, however. Thus, they will probably require reasonable suspicion rather than probable cause for its use. Following the reasoning in Delaware v. Prouse, the courts will probably also uphold the use of PASD in roadblocks or traffic checks.