The National Traffic Safety Board has initiated a recent program called “the Sniffer.” This recommendation has been overshadowed by 
another recent recommendation that proposes to decrease BAC levels from 0.08% to 0.05%. However, the second (“Sniffer) recommendation may also have serious implications if enacted.
“The Sniffer” relates to the high visibility enforcement of DWI laws that have been enacted recently such as well publicized media campaigns, visible enforcement efforts such as saturation patrols and sobriety checkpoints, and swift and certain penalties for drivers arrested for DWI. Now, none of these adequately explain the Sniffer. What is the Sniffer?
When officers employ traditional methods of determining driving impairment at a sobriety checkpoint, only about half of all drivers with BAC’s above the legal limit are identified. The NTSB has recommended that officers use passive alcohol sensors which can tip them off to the presence of alcohol. These sensors are housed within a flashlight or a clipboard and they detect alcohol vapor sampling the drivers exhaled breath, as well as the air in the car. Further, it analyzes the sample for alcohol and provides some information about the relative amount of alcohol detected.
The display on the Sniffer ranges from green to red, corresponding to BAC ranges, and they have been used by law enforcement officers across the country for years. In the past, however, law enforcement officers have been prevented from using the device to determine probable cause that a driver has committed an implied-consent offense. Now the question is whether the Sniffer, if implemented, is a violation of one’s Fourth Amendment rights.
Various techniques that are already in place to detect whether someone has been drinking such as an officer’s own personal perceptions, it may not be too difficult for the NC legislature to enact passive alcohol screening devices. However, the fact that the device is held within inches of a potential offenders face may be similar to a dog sniff of a person; and the fact that the device detects from within the car may also add some legal implications.
The constitutional inquiry may also implicate the US Supreme Court case, Kyllo v. United States, 533 U.S. 27 (2001), where law enforcement use of a thermal imaging device to detect heat within a private home implicated the Fourth Amendment. The holding stated that “obtaining 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.'” Therefore, the major question is whether the heat sensing technology in Kyllo is similar to the alcohol sensing devices and thus not in general public use.
If you have been charged with a DWI in North Carolina, or a DUI in South Carolina contact the law offices of Reeves, Aiken & Hightower, LLP for a confidential consultation. You can contact our North Carolina office at 704-499-9000, or our Fort Mill, South Carolina office at 803-548-4444.