Neoprohibitionist Update: Preemptive War Continues in Texas

As most of you are aware by now, they’re busting people inside of bars in Texas for drinking. That’s pretty much the same as arresting people at Wal-Mart for shopping or busting people at church for worshipping. The Houston Chronical gives us the up-to-date count:

More than 2,200 people have been arrested in Texas bars in the six months since the Texas Alcoholic Beverage Commission announced a crackdown on public intoxication, primarily targeting bars.

Quite a few people are calling this a preemptive war against drunk drivers. Radley Balko calls it “The March to Neoprohibition.” George W. Bush, the former governor of Texas, has certainly set the stage, as Jon Swift details:

Recently, President Bush reaffirmed his doctrine of “preemptive war.” The President’s rationale for preemptive war is a simple one: Prevent terrorist attacks before they happen by invading countries that might possibly be loosely linked to potential suspected terrorists. Already his ideas are having far-reaching effects in unexpected ways. The Texas Alcoholic Beverage Commission has decided to follow the President’s lead by launching preemptive assaults against would-be drunk drivers in order to stop drunk driving accidents before they happen. Their unique and ingenious solution: Arrest people in bars for being drunk.

The Boston Globe has a good take on the Fourth Amendment implications:

The next step in the crackdown will be letting the police take the blood samples themselves-something Texas and Utah are already trying. ”Would you want a police officer to stick a hypodermic in you?” asks Taylor.

But the point of his crusade, Taylor says, is not saving drunk drivers from a clumsy jab with a needle. It’s not really about drunk drivers at all. Taylor believes that a series of Supreme Court decisions upholding harsh drunken driving laws means that authorities can now abridge civil liberties almost at will, as long as they invoke public safety. The decisions affect the defendant’s right to a jury trial, to examine evidence, to confront an accuser, and, perhaps most notably, to be free from self-incrimination and unreasonable search and seizure.

Taylor thinks the implications extend far beyond cases of driving under the influence to all areas of criminal law, including murder trials, and even to the measures taken by the Bush administration in the war on terror. Taylor likes to close his stump speech with a humorous paraphrase of Martin Niemoeller’s famous warning about creeping fascism-“First they came for the drunks, but I was not a drunk, so I did not speak up”-but he’s quite serious. ”Law is based on precedent,” he warned. ”When you start dismantling constitutional protections, you’re setting precedents. I don’t think people understand what we’re doing constitutionally.”

The Dallas Morning News provides more details about how the arrests are made:

So no blood alcohol or breathalyzer tests are required, and convictions — usually class C misdemeanors, with fines but no jail time; often depend on officers’ observation of certain symptoms: slurred speech, staggering or loss of balance, bloodshot eyes.

And as with drunken driving, Ms. Beck said, police don’t have to wait for a person to harm somebody or themselves to make an arrest.

“Lots of people drive under the influence every day and get home without hurting anybody,” she said. “It’s the likelihood that you’ll hurt somebody if you’re driving drunk: that’s why they made it illegal.”

Mike Lessard, 45, was arrested at Texas Bar & Grill on Las Colinas Boulevard and also spent the night in jail.

He said he was having a pleasant evening, downing a few beers after work, when a plainclothes officer summoned him outside to be arrested.

“I had no idea that some guy could just tap me on the shoulder and say they’d like to see us outside,” the Irving resident said. “I was thrown by the whole thing. I didn’t know they had any right to do that.”

Mr. Lessard, they don’t have the right. Even if the courts end up upholding TABC actions, they don’t have any right to invade private property and arrest people for something they might or might not do later.

I was sitting in a bar in Alabama last night where the staff and patrons there were livid about the goings-on in Texas. WorldNetDaily provides some typical responses from “the people”:

  • “Your state sucks!” one woman being arrested shouted to authorities, as she was caught on camera by KXAS-TV, the local NBC affiliate in Fort Worth.
  • “This is reminiscent of a police state action. Completely out of line. What’s next? Coming into our houses and arresting us?”
  • “I think this is insanity. Being drunk in a bar is not public intoxication. The legislative intent of those statutes obviously was not to criminalize drinking in a bar. Will someone please put together a class action lawsuit against states that go nuts?”
  • “I hope somebody sues the s— out of them. I thought the law was about public intoxication. These people were in a private establishment and should not have been arrested unless/until they went out on a public street.”
  • The Daily Record advises:

    BEST cross the Lone Star State off your holiday list now. Texas has begun sending undercover agents into bars to arrest drinkers for being drunk.

    I’m considering traveling to Texas. If I make it there, I’ll be meeting with a lot of old friends and family members in Houston, Austin and Dallas — staying in hotels most of the time. Trips like this usually mean a lot of restaurant meals spent catching up on each other’s lives and reliving old times — activities which are accompanied by alcohol for most Americans. I’m not buying plane tickets until TABC backs down, though.

    One bar owner recently left a comment at HoT:

    As a bar owner, I can say it is completely ridiculous. Yes, TABC can come into my establishment, hand-pick any patron/employee and give them a “field sobriety” test right there on the spot. In turn, they will make a call to the DA, yes, at that very moment, and if the DA wants to press charges they take you to jail. No questions asked, and there is nothing you can do about it. The best part? My bartender was arrested and taken to jail at 2:20 a.m. Yes, after the bar was closed. He was having a beer while counting his tips. The reason? Consuming and serving. Even though no patrons were in the bar.

    This new law isn’t only directed to public facilities; if you’re in your own HOME and are in view of the public (have your curtains open), and you’re intoxicated, you can be arrested for public intoxication. Yes, that analogy is extreme and the chances of that happening is rare. But it is legal.

    I’d say it’s time to do a couple of things. As I suggested yesterday, one thing we can do is keep the TABC buffoons too damned busy to engage in these ludicrous raids. You can e-mail their complaint line, call their complaint line at 888-843-8222, or call the TABC executive department at 512-206-3221. I’ve received several copies of e-mails, and would have laughed my ass off if the situation wasn’t so serious. Keep ’em coming.

    The bars I hit last night were filled with sympathetic people. Only a few didn’t already know about the situation in Texas. Several people have suggested sit-ins and drink-ins to protests. If you live outside of Texas, why not go to a local bar and raise a toast to your compatriots in Texas who are likely to get busted tonight. It might help raise awareness of the situation and further bombard the Texas authorities with angry phone calls and e-mails.

    If I lived in Texas, I know what I’d be doing tonight. In the spirit of our founding fathers (who were also known to frequent a tavern or two), I’d be exercising my free slurred speech rights by assembling peaceably in a bar with imbibers to petition the government for a redress of our grievances.

    Stephen Gordon

    I like tasteful cigars, private property, American whiskey, fast cars, hot women, pre-bailout Jeeps, fine dining, worthwhile literature, low taxes, original music, personal privacy and self-defense rights -- but not necessarily in this order.

    1. I just realized that I was talking to some coworkers at my night job and one of them said that a favorite thing for the cops in a nearby town to do is to wait for the bar EMPLOYEES to get off work and go after them.

      One thing people should be aware of is that Breath Alcohol tests are inherently inaccurate – the National Motorists Association has run stories on this; it pertains to alvelior (sp?) air sacs within one’s lungs and the machines use a constant for something that is highly variable.

      There was also a recent court case where one vendor of alcohol breathalyzers wouldn’t produce the source code to their unit.

      Further, it is well known that shaking and perhaps other methods performed on the field units can actually falsely raise their readings. That’s why if you have ever taken one, the cops shakes it fiercely after you have taken it. He’s trying to get raise your BAC, without giving you any drinks.

      Welcome to the Fourth Reich. Sieg Heil! Ain’t it glorious

    2. Hopefully, the authorities will kill a few people and really overreach all over the place. Then we can get the drug war into this and bring all prohibition to an end at once.

    3. First they came for the drinkers, people stood up against them (via jury nullification), then they changed their minds.

      Then they came for the pot smokers, and are arresting over 775,000 of them each year.

      Now they are coming after the drinkers again. Will anyone stand up and fight? Will anyone care enough? Or is everyone “too busy”?

      Are you still paying taxes to these thugs? All businesses that care about Liberty should quit witholding and quit collecting sales tax. If you continue to do these two things, you’re part of the problem.

    4. Back in September, 2 undercover TABC agents went into a bar, an Austin landmark, known to be a quiet neighborhood bar. 5 of the regulars were arrested for over-drinking. 4 lived in the neighborhood and had walked to the bar. The cops had a paddy wagon all ready for them. The bartender was also arrested. (From what I hear, the bartender is always arrested in these cases, as a matter of policy, because otherwise the case will not hold up in court). The customers were released from jail the next morning. The bartender was kept in jail for about 35 hours. Supposedly the reason this bar was hit was because some guy had gone in there had a few bars, then drank some whiskey at a friends house and was subsequently in an accident crossing a street. Anybody who knows this bar knows it to be a just a quiet neighborhood bar. They are very conscientious about checking for underage drinkers. They were already hurting because of the ridiclous smoking ban. Now business is off even more.

    5. I love you guys’s images. Time to start writing letters and calling, since me staging a drink-in…well, there’s no question of arrest there.

    6. And our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.

      It seems our foreign policy of preemptive action has been turned inward. I really don’t get these so-called conservatives.

    7. TABC complains that internet sales of alcohol causes a problem. It’s because it reduces the sale of alcohol in Texas. Well, do they realize they are bound to reduce sales w/this sting operation? From their site: “Negative tax impacts : Even a small (5 to 10 percent) reduction in taxes paid by the Texas-based tier-two and tier-three businesses could have a notable negative effect on the funding available for essential state and local government programs such as education, health care and transportation.
      Additional concerns:
      Furthermore, because companies utilitizing Internet and catalogue sales can bypass the three-tier system’s licensing, safeguard and tax requirements, there is no telling what kind of impact direct shipment from out-of-state companies could have on Texas jobs created by our three-tier system. ”

    8. This reminds me a little of the movie “Minority Report” with Tom Cruise where the police arrested people for crimes before they were supposedly going to commit them. They never committed the crime but were sentenced for it anyway.

    9. What’s up with the backward swastika?

      seriously now, the(y) really DO hate freedom.

      Yep, the terrorists in the TABC and the regime in general really DO hate us for our freedom. You’re either with us, or you’re with the terrorists!

      We must fight them in their bureaucratic offices and in our bars or we will have to fight them in our homes…oops, we already have to do that too…

    10. PC,

      I wondered if anyone would notice. I’m just toying with a lot of graphic designs dealing with this issue, and liked the general look. This version looked sort of out of balance the traditional way.

      However, since the neocons don’t wish to be (publically) associated with the traditional swastika, perhaps they’ll accept this version.

    11. Now this is just outrageous. I don’t drink or smoke but am considering going to Texas, find a bar, order a drink and light up. I may not smoke the cigarette or drink the drink but maybe I can be arrested and make the gestapo look like a bunch of assholes.

      I cannot believe this is happening. I am an ex-cop (years ago) could not have imagined this happening. Hell, we used to direct drunk drivers home by following them if they were not jerks and belligerant after they were warned to behave and you might get a free ride home.

      What the hell happened to public safety doctrine? Sounds like cops, even though ABC cops, just enjoy abusing their power and get off on it. What a poor excuse for a cop. Shame on them.

      Maybe it is not the cops but their beauracrat upper management making these decisions. How embarrasing it must be to the decent cops. I do not envy them having been put in the situation they find themselves in.

    12. Right now, Im drinking a Guinness inside the privacy of my house. Thank goodness I dont live in Texas :-D

    13. Well, the nanny-staters must have gotten bored with their knitting, again. Since their own lives seem such empty joyless husks, they figure misery loves company, so they seek to produce some. And the faux arguments of public safety have a sickening undercurrent of overweening paternalism about them that is insulting to say the least. Not to mention dangerous for civil servants to try to encroach on rights and liberties that way. They tried this crap in Fairfax County, Virginia in 2003 and got their ears pinned back. I hope Texans are even less patient with this bull and start legally bruising some prohib backsides, or soon they’ll know what cannabists have experienced for decades.

    14. You just can’t fail to blame anything on Bush, no matter how hard you have to push to invent a connection, can you?

      The connection you’ve got is pretty damn tenuous. You might as well have gone with “Bush is from Texas and he personally chose to quit drinking, so it’s his fault Texas cops are doing this.”

    15. Wow Julian. I think you may understand us yet! You think that we hate all cops, but really, we hate abuse of authority. I am from NOLA, and one night (morning actually) I was pulled over on my way home from a club. New Orleans lets you take your drink in a plastic cup when you leave a bar, so my beer was in the cupholder. The LA state trooper followed me home and made sure I was safe. I was drinking, but not a danger to anyone and he saw that. A cop exercising good judgemnet is a good cop. It is sad that the cops my current home state seem to have lost to have lost touch with the protect and serve credo. The cops that you say make the good police look bad are almost the only ones we know anymore. Why don’t you come out of retirement and teach TX a thing or two?

    16. Michelle Shinghal

      No way would I be a cop again. I really don’t like authority. My problem with being a cop was even thought they could not label writing traffic ticket minimums quotas, if you failed to write a certain amount, then your quarterly review would reflect something such as failure to follow procedures or something to that effect.

      When I was a cop, there was much more discretion allowed. Now cops must toe the line and have very little if any allowances for making independent decisions.

    17. Tom,

      The connection is the concept that one should act preemptively to stop something bad which might or might occur.

      If that logic is to apply (which is happening in Texas and Iraq) we could also arrest everyone with a penis because they might end up being a rapist.

    18. i wish i worked in the convention industry. I’d love to start some advertising campaigns: “don’t drink at night after your convention in texas or risk going to jail…even if you’re in the hotel bar” and other similar facts. drive the business and the tax dollars to other states. hit texas where it hurts.

    19. One thing that no one as mentioned is that in almost every public intox arrest a bartender has also been arrested for “sale to intoxicated person”. I myself was arrested for this almost a year ago. It is a Class A Misdemeanor. I had to pay an attorney $1000 to get put on pretrial divirsion than pay $40 a month for six months than the DA dismissed the case, but the arrest is always going to be on my record. If it takes a TABC officer to perform a sobrity test to see if someone is intoxicated, how can I as a server tell if they are intoxicated just by asking what they want to drink? The person I served did not show any signs of intoxication to me. He did not slur speech, have trouble ordering or anything. TABC said he was not walking straight. I did not even see him walk up to the bar. Everything I had to go on said that he was fine and that he was OK to drink another beer.

    20. I love my job I love to bartend its in my blood but now I’m afraid to serve the next beer in fear the commy pigs will will in slave me to there dougen where they will defile me im ways only one night stands do. I HATE THEM ALL!!We need to stand up and FIGHT FOR OUR RIGHT TO PARTY!!