THE BLOG
01/16/2008 01:28 pm ET Updated May 25, 2011

Blumenthal Held in Jail Illegally

Sidney Blumenthal's recent arrest in Nashua, New Hampshire for suspicion of driving while intoxicated provides the opportunity to debunk a pervasive American myth: that it is reasonable and legal to keep a suspected drunk driver in jail for several hours -- until sobriety has been achieved -- following his or her arrest. Actually, in most cases it is neither reasonable nor legal.

Blumenthal, a journalist and close friend of the Clintons, was described by his arresting officer as "a perfect gentleman" while in police custody. Nonetheless, he was reportedly held by cops for about four hours in the state which proclaims on its license plates, "Live free or die."

When it comes to involuntary confinement, it is always legitimate to ask this simple three-word question: What authorizes it? To treat the question as impertinent is tantamount to claiming the police can lock people up whenever they feel like it.

So what authorized the Nashua Police Department to make Blumenthal wait four hours before they let him post bail? Well, nothing. If news stories about the incident are accurate, what those cops did is blatantly unconstitutional.

In County of Riverside v. McLaughlin (1991), the U.S. Supreme Court ruled arrestees may be detained in jail for up to 48 hours if the delay is necessary and due to administrative burdens. But the court has never ruled police may unilaterally deem a person unfit to be in public for an extended period. Doctors and judges are supposed to be involved in making those determinations based on appropriate criteria. By contrast, criteria on which police rely are murky at best, and in some cases, nonexistent. As for logic, don't even get me started.

Okay, get me started. First of all, the mere existence of a DUI arrest doesn't establish that a person is inherently dangerous as a non-driver hours after the arrest. Furthermore, police could easily impound the driver's vehicle and allow transportation to be provided by someone who is sober.

Without a doubt, it is proper for police to arrest suspected drunk motorists, and bring them to jail for booking and testing of blood-alcohol content. But as soon as that process is finished, it is time for either freedom or a judicial review. Like it or not, cops lack authority to do anything else with an arrestee.

Noted civil liberties attorney Stephen Rohde sums it up well: "Whether you're a well-connected 'perfect gentleman' or an ordinary schlub, if you're arrested for a traffic violation, you're entitled to a speedy booking, fingerprinting and prompt release. Four hours without justification is too long."

Obviously, a lot of people contend it is perfectly okay for cops to deliberately hold suspected drunk drivers for a few hours following arrest. But those who make that argument do not deserve to be taken seriously unless they specify what authorizes the detentions. As I see it, the Fourth Amendment prohibits even well-intentioned kidnapping.