DUI Checkpoints - Are they Constitutional or a Police State Intrusion?
A tactic police agencies are using throughout California to find and arrest those suspected of driving under the influence are DUI checkpoints. These are in essence roadblocks set up to stop cars in an attempt to find drunk drivers. California law requires motorists to stop at clearly designated DUI checkpoint.1
Their legality has been upheld under challenges questioning their validity under the 4th amendment, but not without widespread criticism regarding their constitutionality. When a car is stopped at one of these checkpoints police look for signs of alcohol consumption and impairment. If alcohol is detected on someone’s breathe, or other indicators such has slurred speech, or red bloodshot watery eyes are detected, then they are order out of the car an asked to perform a series of field sobriety tests to determine if they are impaired.
Unfortunately, the United States Supreme Court, as well as the California Supreme Court, has upheld checkpoints with few real safeguards designed to protect citizens from unwanted police contact.
The California Supreme Court in a decision entitled, Ingersoll v. Palmer2,ii decided to euphemistically term checkpoints, “administrative investigations” rather than criminal investigations in a transparent attempt to circumvent the constitutional requirements normally necessary for police to detain citizens. The reasoning the court used was that the checkpoints were to promote public safety by discovering those who may be driving impaired and removing them from the streets. This expansion of police power could arguably be stretched to include an arbitrary invasion of your office, or your work place, or even your home in a preemptive attempt to locate contraband which may threaten “public safety.” The court in Ingersoll v. Palmer proposed some guidelines in an attempt to comply with constitutional requirements; however they do little to accomplish that end.
1) Decisions to be made by supervisors. This requirement was felt to be important by the court since it would reduce the potential for arbitrary and capricious enforcement; however there is nothing to prevent the arbitrary and capricious enforcement occurring at the supervisorial level.
2) Restrict discretion of officers making stops. The court in Ingersoll proposed, “a neutral formula, such as every driver or every third, fifth, or tenth driver, should be employed.” Since when are easily changeable “formulas” any different than arbitrary stops? “The supervisor,” is permitted to change the formula at will, based on little or no justification other than a subjective opinion regarding traffic conditions or other unspecified criteria none of which realistically take into account the intrusion to innocent motorists such a policy creates.
3) Maintenance of safety conditions. This guideline provides no protection to the motorist from the intrusive behavior of the police, rather it only provides for protection from dangerous road conditions created by the police in interfering with traffic.
4) Reasonable location. This guideline concerns only the effectiveness of the checkpoint with little regard for the motorists exposed to the intrusion.
5) Time and duration. In Ingersoll v. Palmer the State Supreme Court stated, “…. [N]o hard and fast rules as to timing or duration can be laid down, but law enforcement officials will be expected to exercise good judgment in setting times and duration, with an eye to effectiveness of the operation, and with the safety of motorists a coordinate consideration.” Nothing here addresses the invasiveness of the policy, just its effectiveness, and the safety concerns that the interference with traffic necessarily creates.
6) Indicia of official nature of roadblock. In practice these markers are always set up in a way that will prevent the motorists from avoiding the checkpoint once the “indicia” are observed even though it has been asserted that a motorist has a right to lawfully avoid this unwanted police confrontation. In truth this guideline is established to help trap the motorist inapposite to their constitutional rights to be free of unreasonable “seizures” by the police.
7) Length and nature of detention. The court fails to providence any guidance other than the discretion of the police into what is meant by this statement.
8) Advance publicity. In theory this is to provide motorists with information allowing them to avoid the checkpoint. In practice it is a joke. Whatever advance publicity means, it appears to be left to the discretion of the police. Newspapers, the internet, flyers, billboards . . . , etc., all could be considered media that may be used for this purpose, and all are distinctly inadequate to give a proper warning to all or even a few of those who may have an interest in the information. Moreover, failure to provide this element has been found not necessarily a basis to judge the checkpoint constitutionally defective.
In my experience in reviewing the published results of these sobriety checkpoints few motorists are actually arrested for drunken driving, most of the publicized arrests are for other offenses such as driver’s license infractions which are not directly related to public safety.