Drunk Driving Sobriety Checkpoints

An increasingly prevalent practice used to detect the drunk driver involves the use of DUI roadblocks or sobriety checkpoints. Commonly, law enforcement agencies will set up a roadblock or sobriety checkpoint on a selected road or highway, much as is done with equipment safety checks or license/registration inspection. If the driver stopped at a sobriety checkpoint has slurred speech or breath alcohol odor, he will be asked to leave the car and perform field sobriety tests at the scene of the sobriety checkpointSobriety checkpoint laws will vary by state.

On June 14, 1990, the U.S. Supreme Court finally handed down its decision long-awaited by every DUI attorney on the constitutionality of DUI roadblocks. In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the Court reversed the state appellate court and held that the checkpoint operation in question did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures.

In a predictable 6-3 decision authored by Chief Justice Rehnquest, the Court acknowledged that roadblocks do constitute a "seizure” within the meaning of the Fourth Amendment. However, the Chief Justice wrote, this must be viewed in the context of weighing the need and effectiveness of the roadblock against minimal intrusion on individual liberties. With demonstrated need and effectiveness, and minimal intrusion, sobriety checkpoints are constitutionally acceptable.

Respondents in Sitz had argued that any balancing tests were inappropriate: The sole question was whether the police had probable cause to stop any individual drivers. There must be a special governmental need beyond the normal need,'' respondents argued, before a balancing test is appropriate. Oddly, however, Rehnquist quickly dismissed this rather obvious point with almost no comment.

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Drunk Driving Sobriety Checkpoints

Justice Brennan, with Marshall joining, dissented:

Presumably, the Court purports to thaw support from Martinez-Fuentez, supra, which is he only case in which, the Court has upheld a program that subjects tile public to suspicionless seizures. . . In Martinez-Fuentez, the Court explained that suspicionless stops were justified because “a requirement that stops be based on reasonable suspicion would be impractical because the flow of traffic tends to he too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.'' [Cite omitted.]  There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists. [CRC omitted.] That stopping every car might make it easier to prevent drunken driving...is an insufficient justification for abandoning the requirement of individualized suspicion. Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the “minimally intrusive'' seizures involved in this case…

Moved by whatever momentary evil has aroused their fears, officials — perhaps even supported by a majority of citizens — may he tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a title balance between the individual and society depends on the recognition of “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. [Cite omitted.]'' [496 U.S. at 458-459.)

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Drunk Driving Sobriety Checkpoints

Justice Stevens, joined by Brennan and Marshall, wrote a separate dissenting opinion. Addressing the question of effectiveness, he observed that the checkpoint that netted only two arrests involved 19 police officers — officers who could have been on patrol searching for drunk drivers. In reviewing the testimony and very revealing statistical data, he noted that the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic saucy is infinitesimal and possibly negative.

As to subjective intrusion, Stevens distinguished the facts in Martinez-Fuentez, so heavily relied on by Rehnquist:

A motorist with advance notice of the location of it permanent checkpoint [as in Martinez-Fuentez] has all opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy.

No such opportunity is available in the case of a random stop or a temporary checkpoint, which both depend lot their effectiveness on the element of surprise. A driver who discovers an unexpected checkpoint on a familiar local road will be startled and distressed....

This element of surprise is the most obvious distinction between the sobriety checkpoints permitted by today's majority and the interior border checkpoints approved by this Court in Martinez-Fuentez.  [Id. at 463.]

Finally, Stevens noted that part of the balancing equation was being ignored: "The most disturbing aspect of the Court's decision today is that it appears to give no weight to the citizen's interest in freedom from suspicion less unannounced investigatory seizures.''

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Drunk Driving Sobriety Checkpoints

Confronted with a DUI case involving a roadblock/checkpoint, California DUI lawyers must consider the adequacy of the procedures employed: Was the roadblock conducted in a constitutionally permissible manner? Even Chief Justice Relinqtnst implicitly acknowledged that there Must exist "guidelines'' concerning such matters as location, publicity, and roadblock operation. Note that in Sitz the roadblock was set up only after a ''Sobriety Checkpoint Advisory Committee'' had been appointed to establish guidelines; this committee consisted of representatives of the stale police, local police, prosecutors, and the University of Michigan Transportation Research Institute.

But what are the "guidelines"? Rehnquist's opinion in Sitz leaves the question of minimal adequacy of such standards unanswered, presumably to be determined on a case-by-case basis. Counsel may find some guidance in the decisions of sister states. In one of the most influential of these pre-Sitz cases, the California Supreme Court set forth what it felt to be the procedural safe-guards required for a DUI roadblock to comply with Fourth Amendment requirements. Ingersoll v. Palmer, 743 P.2d 1299 (Cal. 1987).

In the absence of guidelines from the U.S. Supreme Court in Sitz, counsel may wish to look to an alternative federal source in arguing the constitutional invalidity of a given checkpoint or roadblock. The National Highway Traffic Safety Administration (NHTSA) has published a report that reviews recommended procedures for drinking/driving roadblocks. See The Use of Safety Checkpoints for DWI Enforcement, DOT  HS-806-476 (National Highway Traffic Safety Administration, September 1983). The report reviews legal issues relating to roadblocks (“safety checkpoints'') and suggests guidelines for their use in drunk driving law enforcement. Ten suggestions are made to help ensure that safety checkpoints are used legally, effectively and safely'':

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Drunk Driving Sobriety Checkpoints

  1. Ongoing DWI Program — Any agency considering safety checkpoints should integrate them with an ongoing, systematic and aggressive enforcement program. The use of checkpoints alone will not sustain the perception of risk so essential to an effective general deterrence program. In fact, if dinking drivers believe that their chances of being caught are only at safety checkpoints, their perception of risk of arrest may he quite low.
  2. Judicial Support — When officials decide that they intend to use this technique, they should involve their prosecuting authority ... in the planning process to determine legally acceptable prosecute. This person can detail the types of evidential information that will be needed to prosecute cases emanating from checkpoint apprehension. The jurisdiction's presiding judge should be informed of hit proposed checkpoints and procedures, all essential step if the judiciary is to accept their use. The judge can provide insight on what activities would be requited to successfully adjudicate such cases. If a judge cannot he persuaded that this technique is acceptable, its implementation will he futile.
  3. Existing Policy Guidelines — Any jurisdiction considering safety checkpoints should prepare mitten policy/guidelines which outline how, roadblocks are to be conducted prior to starting to use them. The courts have been very clear in directing that safety checkpoints be planned in advance. [See State v. Hillesheim, 291 N.W.2d 314, 318 (Iowa 1980).] Failure to do so I has been used as evidence that roadblock techniques were discretionary.
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Drunk Driving Sobriety Checkpoints

  1. Site Selection — Planners should take into consideration the safety and visibility to oncoming motorists: Safety checkpoints cannot be of less public benefit than the behavior they are flying to displace, nor call they create more of a traffic hazard than the results of the driving behavior they are trying to modify. Planners should remember to select a site that allows officers to pull vehicles out of the traffic stream without causing significant subjective intrusion (flight to the drivers and/or creating a traffic backup). Furthermore, offices safety must be taken into account when deciding where to locate the checkpoint. Checkpoint locations should be selected in advance by officers other than those manning the checkpoint according to objective criteria that will maximize contact with DWIs, for example, locations with a high incidence of DWI-related fatalities, nighttime injuries or nighttime single vehicle crashes. If every vehicle is not to be stopped, the method used to determine which ones will be stopped must appear in the administrative order authorizing the use of the safety checkpoints.
  2. Warning Devices — Special care should he taken to provide adequate warning to approaching motorists that a roadblock-type checkpoint has been established. Such notice can be accomplished with warning signs, flares and police cars with warning lights flashing. If possible, warning signs should he placed along the roadway well in advance of the checkpoint to alert motorists that they will be requited to stop. Signs should be placed to provide advance warning as to why motorists are being stopped, but at the same time should not give impaired motorists the opportunity to avoid the checkpoint.
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Drunk Driving Sobriety Checkpoints

  1. Visibility of Police Authority —The visibility of uniformed officers and their marked police vehicles makes the power of the police presence obvious and serves to reassure motorists of the legitimate nature of the activity. This is an important aspect of any safety checkpoint. This is also part of the effort to reduce the intrusion to the passing motorists who will be affected by the checkpoint surveillance.
  2. Chemical Test Logistics — Since DWI arrests are to he anticipated at the selected location, the logistics of chemical testing must also be included. A system for expeditiously transporting suspected violators to chemical test sites must be established.
  3. Contingency Planning — If intermittent traffic conditions cause the officers to stray from the predetermined order of selecting motorists to stop (e.g., if a traffic backup occurs), the reasons for the departure must he thoroughly documented. Courts have allowed this deviation as long as records are kept documenting the necessity to deviate from the interview sequence. United States v. Prichard, 645 F.2d 854. If such an event occurs, jurisdictions must have prepared alternative plans in advance to handle the checkpoint. If to much traffic develops at a checkpoint, causing a backup that cannot be easily alleviated, the officer in charge of the checkpoint may consider discontinuing operation at that site and moving to an alternative site. The alternative site should have been identified in advance in the administrative order that first established the checkpoint surveillance, and should be prepared for operation.
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Drunk Driving Sobriety Checkpoints

  1. Detection and Investigation Techniques — An agency considering safety checkpoints should ensure that the officers who staff it are properly trained in detecting alcohol- impaired drivers. The implementation of safety checkpoints that allow legally intoxicated drivers to pass through undetected will not be able to achieve a general deterrence effect. Examples of the kind of actions officers are taking during initial contact with a driver at a checkpoint are:
    1. Request his or her license and registration.
    2. Use a divided attention task (e.g., after requesting the driver's license, while the driver is looking for it, the officer engages him in conversation).
    3. Question the driver regarding his origination/destination, whether he had been drinking, etc.
    Police are using these approaches to try to quickly detect whether a driver has been drinking. Once an officer's suspicion has been raised, further investigation can take place out of the traffic lane without impeding the flow of traffic. These and other approaches are currently being studied. If an officer feels it is necessary to move a suspect's car after he suspects the driver is impaired, it will he necessary for someone other than the suspect to drive the car.
  2. Public Information - To obtain maximum benefit in terms of its general deterrence effect, a safety checkpoint program should he aggressively publicized. The majority of drivers will most likely never encounter a checkpoint, but will only learn of it through media reports (and perhaps by word of mouth). These two valuable forms of public communication will greatly enhance any such program, however, and should be consistently employed.
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Drunk Driving Sobriety Checkpoints

As the Supreme Court becomes increasingly conservative in its efforts to achieve public order at the expense of individual rights, many lawyers and state courts are turning for the first time to their own state constitutions to protect their citizens.

After holding that DUI checkpoints were constitutional, the U.S. Supreme Court remanded the case of Michigan Department of State Police v. Sitz to the Michigan Court of Appeals for proceedings not inconsistent with its opinion. Thus that state court was confronted with the same task that faced the South Dakota court in South Dakota v. Neville when the Supreme Court reversed its finding that evidence of refusal violated the Fifth Amendment (see §11.4.1). And the results were similar: On remand, both state courts sidestepped the federal ruling and upheld their previous results by looking instead to their state constitutions. Sitz v. Department of State Police, 485 N.W.2d 135 (Mich. App. 1992).

The Michigan appellate court began by noting that the state constitution generally offered the same protections as the federal Constitution. However, when the U.S. Supreme Court suddenly adopted a standard permitting suspicionless stops by roving roadblocks, it altered the course of federal rights and created an ''enormous departure'' from earlier Michigan decisions. ''This is especially true where, as here, the effectiveness of the roadblocks in question in preventing drunk driving is negligible, only one arrest after 126 stops.''  485 N.W.2d at 139. The appellate court decided that any such ''radical'' new standard should be adopted, if at all, only by the Michigan Supreme Court.