Daily Archives: July 7, 2014
With the amount of law enforcement and checkpoints out on the streets this past weekend, it was inevitable that I would be asked questions at the party I attended for the 4th of July. Over the years, I’ve gotten used to being the go-to person for legal questions even on my days off. In discussing checkpoints with another guest of the party, they were surprised to learn that they were legally allowed to turn away from a checkpoint. They reacted like most do when learning that it is, in fact, completely legal to turn away from DUI checkpoints.
The United States Supreme Court, in the landmark case of Michigan Department of State Police vs. Sitz, held that, unlike a normal “seizure” which requires probable cause, checkpoints need not have such probable cause. The Court reasoned that the slight intrusion into the motorist’s privacy rights was outweighed by the government’s interest in keeping drunk drivers off the road.
The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are “administrative procedures” rather than “criminal investigations” and, as such, are akin to agricultural checkpoints and airport screenings. The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:
1.) The location of the checkpoint should be made at the supervisory level.
2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.
3.) The checkpoint must be safe with proper lighting and signs.
4.) The checkpoint must be visible to oncoming motorists.
5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.
6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.
7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.
8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint. In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.
In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. Most checkpoints have officers waiting in idle patrol cars ready to chase after motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.
But here’s the catch: They cannot pull someone over unless they have probable cause to believe the motorist committed a crime or a traffic violation.
Merely avoiding a checkpoint does not give them that probable cause.
Making an illegal U-turn does. Driving improperly does. A malfunctioning break light does. And it doesn’t matter that the officer has the ulterior motive of investigating for a DUI as long as the officer has the probable cause to pull someone over independent of the motorist’s avoidance of the checkpoint. But you can be sure that if the officer does pull someone over, they’ll be looking for the telltale signs of a drunk driver: bloodshot eyes, smell of alcohol, slurred speech, etc.
In fact the Court in Ingersoll said, “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.”
So if you decide to avoid a DUI checkpoint, make sure that you do so legally and know that even if you do, law enforcement will be watching you and waiting for you to slip up.