With Memorial Day and the summer season coming soon, many should be aware of DUI checkpoints. Generally, probable cause to stop and question the driver-—observing a traffic violation, defect in the vehicle or driving pattern that indicates the driver may be under the influence of alcohol, narcotics or both. However DUI sobriety checkpoints is an exception to this rule and courts have upheld the power of the police to conduct systematic traffic stops.
To pass constitutional muster under both federal and state laws specific guidelines are outlined in cases such as Ingersoll v. Palmer in California. If the police do not follow the protocol described such as in Ingersoll, the checkpoint is not lawful, and any evidence gathered during arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The California Supreme Court identified eight factors that minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
(1) Supervisors Decide: The establishment and location of sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This is important in order to reduce the potential for arbitrary and random enforcement.
(2) Field Officers Discretion Limited: A neutral mathematical formula, such as every sixth driver etc. is used in determined in who to stop. Again with the purpose that field officers do not get to stop any driver he/she chooses.
(3) Safety Conditions Installed: In order to minimize risk of danger to motorists and police, proper lighting, warning signs and signals must be clearly visible. Clearly identifiable official vehicles and personnel must be present.
(4) Reasonable Location: The sites chosen should be those which will be most effective in actually stopping drunk drivers. They must provide documentation and history that at or near the location, high incidents of alcohol-related accidents and arrests have occurred.
(5) Time and Duration: Police are expected to use reasonable and good judgment in determining the duration of the checkpoints. The goal is to insure effectiveness of the operation coupled with the safety of the general public.
(6) Indicia of Roadblock: It should be established with high visibility, including warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are these factors important for safety reasons, but advance warning is necessary to reassure motorists the stop is officially authorized.
(7) Length and Nature of Detention: Only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, bloodshot eyes. If no impairment exists, the driver should be permitted to drive on without further delay. If the officer observes signs of impairment, the driver will be directed to a separate area for further investigation and the general principles of detention and arrest would apply.
(8) Advanced Publicity: There must be notice to the public prior. The thought is that, it limits intrusion on a
person’s security and those stopped would understand what was happening.
What happens at these checkpoints? The police will section off a portion of the road so that vehicles will merge into one or two lanes before coming to a stop. If the officer asks you to roll down your window, you may be asked some questions (again, the goal is to ascertain based on their expertise who is intoxicated). Further requests such as asking for your driver’s license may follow.
The police officers are looking for cues such as slurred speech, red, watery eyes, or any signs of physical impairment. If there is a reasonable belief that you are impaired, the officer with ask you to take a Preliminary Alcohol Screening (PAS) breath test at the scene. If you PAS test is .08 or greater, you will be arrested at the scene.
Many clients have asked me if it is legal to avoid a roadblock. Yes, it is. A driver may not be stopped and detained merely because they attempted to avoid the roadblock. However, if an illegal act, such as making a U-turn at a no U-turn intersection occurred, probable cause is triggered and a legal investigatory stop occurs.
If you are arrested, you are then transported to the police station where the booking process (photo, fingerprint, bail set) will occur. It is critical at this point to contact or immediately after release from custody a criminal defense attorney. An attorney will review the constitutionality of the underlying checkpoint, the arrest and other relevant factors that could assist in a dismissal or reduction of charges.