Officials running a voluntary federal survey secretly collected breath data on drivers at roadblocks even before the drivers could consent to participate.
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The survey, which asked drivers to give breath, saliva or blood samples after they were stopped, gained attention last year with questions about its constitutionality. With more people taking notice, a provision in the methodology published online revealed that some tests were conducted even if a driver's consent was not given.
Conducted in 60 cities around the nation, the National Roadside Survey of Alcohol and Drugged Driving yields the government's best estimate of the prevalence of impaired driving. It works like this: Motorists are randomly selected — either by a uniformed police officer or a private contractor working for the National Highway Traffic Safety Administration — and waved into a parking lot, where they are questioned about their drinking and driving habits, asked to take a breath test, and offered money if they provide saliva and blood samples or agree to answer a more extensive written survey.
U.S. transportation officials call the survey, which has been conducted five times since 1973, a vital tool for monitoring the safety of America's roadways.
Some motorists and civil liberties advocates contend the government's methods are intrusive and unconstitutional. One reason is that "passive alcohol sensors" are used on drivers stopped at roadblocks even if they don't consent to the survey.
Passive Alcohol Sensor devices were used to pick up on alcohol on drivers' breath, whether their consent to participate in the survey was given or not. (Image source: NHTSA)
"While the interviewer conducted the verbal informed consent process ... 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). This provided the researchers with an indication of alcohol level for all drivers and helped identify the potential need for intervention even among those drivers who did not participate in the data collection," the 2007 National Roadside Survey's methodology stated.
In addition, "Passive sensor measures were attempted on all drivers reaching the bays, whether they agreed to the survey or not."
To take a reading with a PAS, the researchers held it within six inches of a person's face as they spoke. The researchers did try to hide the PAS by attaching it with Velcro to another device they were using take electronic notes, the document stated.
If the PAS reading registered that the river could be impaired, a survey manager was directed to administer a breathalyzer test, which if above .05 would require the driver to be taken home by alternative means.
NHTSA said the 2013-2014 survey is being conducted in the same manner as the 2007 version that includes this methodology referencing the use of PAS.
As the $7.9 million survey is now nearing completion, it has been met with lawsuits.
One is from Ricardo Nieves of Reading, Pa.
"The Fourth Amendment clearly states that I'm allowed to go about my business without government intrusion, that I'm allowed to go about freely where I need to go," he said. "And on that day, no one here, in my city government or that police department, was protecting me."
But Nieves "was in no way compelled to stop, and, indeed, hundreds of other vehicles completely ignored the civilian data collector and continued on their merry way," the lawyer of the company contracted to conduct the survey stated.
In this image from a Jan. 29, 2014 video, Ricardo Nieves stands in a parking lot where he says he was stopped and motions in the direction he says he'd been driving from during the National Roadside Survey of Alcohol and Drugged Driving on Dec. 13, 2013 in Reading, Pa. Nieves filed a federal lawsuit over the survey, saying his rights were violated when a government contractor forced him into the parking lot, where he was questioned about his driving habits and asked to provide a saliva sample. (AP/Michael Rubinkam)
The city of Reading likewise said that Nieves "suffered no injury or damages." City officials declined to comment to the Associated Press, citing the pending lawsuit, but promised they won't participate in future surveys, according to a legal memo filed by the Pacific Institute for Research and Evaluation's attorney.
The city of Reading isn't the only one refusing to participate in future surveys. Some police departments have refused to partner wake of public outcry. In Tennessee, legislation that would ban law enforcement from helping out on the survey unanimously passed in the state Senate last month.
The Associated Press contributed to this report.