DUI & Military Issues

Question: A client gets stopped by U.S. Air Force security personnel at the gate at Wright-Patterson Air Force Base on suspicion of drunk driving.  Civilian client is then taken onto the base where he is given a breath test by a U.S. Air Force technician.  Civilian client is then cited and receives a summons to appear in Federal Court.  At no time during this process does he come in contact with any “civilian” law enforcement officer.  When the client comes to my office he asks how “military” forces have jurisdiction to enforce Ohio laws against civilians.  Going on he asks, “Doesn’t my arrest violate the Posse Comitatus Act, 18 U.S.C. sec. 1385?”  The Posse Comitatus Act prohibits the use of military personnel in civilian law enforcement matters.  So how can they get away with arresting civilians for DUI at WPAFB?

Answer: In Anchorage v. King, 754 P.2d 283 (Alaska App. 1988) a defendant was arrested by Air Force police at the gate of an Air Force base.  At trial he moved to suppress the subsequent breath test on the grounds that the Posse Comitatus Act prevents the “willful use” of the military for enforcement of civilian law.  The trial court agreed.  The Court of Appeals reversed, holding that the purpose of the Posse Comitatus Act was to “limit the direct and active use of the military by civilian law from the exercise of regulatory or proscriptive military authority.  The Court of Appeals relied on Harker v. State, 637 P.2d 716, 719 (Alaska App. 1981), affirmed 663 P.2d 932 (Alaska 1983), which held that “passive activities of military authorities that incidentally aid civilian law enforcement…are not precluded by the statute.”

Washington also addressed this issue. In AirwayHeights v. Dilley, 724 P.2d 407 (Wash. App. 1986) a defendant was taken to the closest and most convenient testing facility which happened to be on an Air Force base.  Relying upon a decision from the United States Court of Appeals for the Eighth Circuit which held that “[i]t cannot be said that the Posse Comitatus Act was violated, given the practically non-existent military force used here. While it may be wrong to engage military force to enforce civilian law, engaging military expertise alone does not violate the Act.”

Public Policy Considerations:  I would love to challenge roving patrols, participation in saturation patrols, roadside checkpoints or DUI task forces which involve use of military personnel.  To my knowledge no personnel from WPAFB are used for these purposes.  It is also practical to note that the gate area is United States property and that those posted there have a duty to protect the persons on the base from drunk drivers.  Using this pragmatic approach, as long as the drunk driver goes to the base and the base does not come after the drunk driver, the Posse Comitatus Act is not violated.

Research: Defending Drinking Drivers, Vol. 1, Barone (2009 ed.)