Monthly Archives: December 2015
As the New Year approaches, law enforcement efforts to halt drunk driving is more elevated than it has been all of 2015. Part of the anti-DUI efforts will inevitably include DUI checkpoints. When I warn friends and family of the DUI checkpoints, often I get the question: how are DUI checkpoints constitutional?
Normally, if an officer wants to stop a vehicle, they must have probable cause to believe that the driver committed a crime. And normally when an officer pulls someone over, the driver commits a traffic violation in the officer’s presence thus giving them the probable cause to be pulled over.
Such is not the case with DUI checkpoints. While officers do, in fact, stop drivers at checkpoints, unfortunately they don’t need the generally required probable cause.
The U.S. Supreme Court in Michigan v. Dept. of State Police v. Sitz held that, while random checkpoints technically violate the 4th Amendment right against unreasonable search and seizure, the governmental interest in preventing drunk driving outweighs the relatively minor infringement on the right not to be stopped absent probable cause.
The Court said, “[T]he balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment.”
The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are considered “administrative procedures” instead of “criminal investigations” making them more 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. However, most checkpoints have officers waiting in idle patrol cars ready to chase down 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.
While officers who witness motorists driving away from a checkpoint might be suspicious, there’s not much they can do about it…that is, unless they see you commit a traffic violation in the process of turning around.
If you don’t opt to turn around, exercise your 5th amend rights and remain silent. The officers posted at the checkpoint will likely ask where you’re coming from, where you’re going to, and whether you’ve had anything to drink. You do not need to answer these questions and you can respectfully decline.
The officers may request that you take a preliminary screening alcohol test, otherwise known as a pre-arrest breathalyzer. This too you have the right to decline and you should. The only time a drive must submit to a chemical test, whether a breath test or a blood test, is after that driver has been lawfully arrested on suspicion of a California DUI.
Lastly, the officers at a DUI checkpoint may ask drivers to perform field sobriety tests. As I’ve said multiple time before, field sobriety checkpoints are notoriously unreliable and subject to the self-serving interpretations of the officer. Fortunately, these too are optional. Never voluntarily perform these tests. While you may think you can “pass” them, many times even sober people fail.
Yes, California DUI checkpoints are constitutional. However, there are things that you can do this New Years to protect yourself should you find yourself driving through one.
On December 16, 2015, the Los Angeles Times published an editorial entitled “Sobriety tests and the Constitution.” The article can be found here:
The editorial was partly in response to the United States Supreme Court’s decision to decide whether people can be criminally punished for refusing a post-DUI arrest chemical test absent a warrant.
The author’s stance is clear when they say, “It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the 4th Amendment; they also effectively provide an end run around the court’s 2013 decision [to require law enforcement to obtain a warrant prior to a forcible blood withdrawal].”
I wholeheartedly agree.
On December 18, 2015, the Los Angeles Times published responses to the December 16th editorial in a section entitled “Readers React – The risk of giving more rights to drunk driving suspects.” The responses can be found here:
In the first of two responses, a retired deputy district attorney for Santa Barbara County wrote, “Let drunk-driving suspects refuse a mandatory biological sample (such as the option of breath or blood in California) without consequences, and watch alcohol-related roadway deaths spiral upward. Why? Without the objective and usually conclusive evidence of a breath or blood sample available for trial, prosecutors will be left with largely subjective evidence. That enables defense attorneys to endlessly second-guess officers’ observations. This will leave legions of drivers undeterred by the perceived legal consequences of alcohol-impaired driving.”
Another response, in part, says, “Your defense of individual rights as they relate to prosecuting suspected drunk drivers goes too far. Police personnel have to do their job, and a drunk driver endangering people’s lives on a road needs to be punished, end of story.”
Plain and simple, the 4th Amendment was included in the Bill of Rights to protect the people from unreasonable and warrantless governmental searches and seizures of places and things where there existed a reasonable expectation of privacy.
Nowhere do we have a higher expectation of privacy than with our bodies. Consequently, nowhere does the 4th Amendment become as important as it does when it comes to searches of our bodies.
Just as the 5th Amendment requires that people cannot be punished for asserting their right to remain silent, so too can they not be punished for asserting their right against a search of their body without a warrant.
Requiring law enforcement to obtain a warrant prior to subjecting a person to a chemical test, which is a search for 4th Amendment purposes, will not leave prosecutors without “objective and usually conclusive evidence of a breath or blood sample” nor will “prosecutor be left with largely subjective evidence,” as the first response asserts. All it is doing is requiring that law enforcement play by the rules before getting what they want. Play by the rules (i.e. the Constitution), and get the evidence needed to legally prosecute drunk drivers. Stop looking for shortcuts and prosecute drunk drivers within the parameters of the Constitution.
Yes, police personnel “have to do their jobs,” but, again, they must do it lawfully. And the law requires that they obtain a warrant before searching.
I agree with the notion that “A drunk driver endangering people’s lives on a road needs to be punished.” But this statement has nothing to do with refusing a warrantless chemical test. A person cannot be punished before they are found guilty beyond a reasonable doubt of drunk driving. At the time a person submits to a chemical test, they have not been found guilty of anything.
Furthermore, they most certainly cannot be punished for doing something that the Constitution of the United States absolutely gives them a right to do.
Three weeks ago, I posted about the Minnesota Court of Appeals decision which held that a motorist suspected of drunk driving could not be criminally prosecuted for refusing to submit to a blood test. See Is It a Crime to Refuse to Give Blood in a DUI Case? Two days later, I reported that the Hawaii Supreme Court decided that a DUI suspect’s consent to a breath test was invalid — and the test inadmissible — because it was coerced by the threat of criminal prosecution for refusing. See State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent.
Doesn’t this amount to charging the driver with a crime for asserting their Constitutional rights?
Last week, the United States Supreme Court agreed to review three cases from two states involving this increasingly controversial approach to drunk driving of prosecuting DUI suspects for refusing to take chemical tests.
Supreme Court to Rule on Drunk-Driving Breath Tests
Washington, DC. Dec. 11 — Can states charge motorists with a crime for refusing to take a breath test on suspicion of drunk driving when police lack a warrant? The Supreme Court will decide.
The justices agreed Friday to hear cases out of Minnesota and North Dakota in which drivers were charged with a crime after they refused to take "deep-lung" breath tests. Thirteen states make it a crime to refuse blood alcohol tests: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia.
In addition, California, Mississippi, Missouri and Montana have considered such laws, according to lawyers for the challengers in the Minnesota case.
"Nationwide, it is certain that tens, and perhaps hundreds, of thousands of people are subjected to criminal penalties under these statutes every year — and if the arguments presented here are correct, the federal constitutional rights of all of these people are being infringed," their brief to the high court said…
The court ruled in 2013 that police could not conduct blood tests for drunk driving without a warrant. Based on that, the challengers in the Minnesota and North Dakota cases said, refusing such tests should not constitute a separate crime.
Can a DUI suspect be charged with a crime for asserting his constitutional right under the Fourth Amendment — that is, his right not to have his body searched for blood or breath without a warrant?
The following is an excerpt from an editorial appeared in this morning’s Los Angeles Times:
Sobriety Tests and the Law
…Last week the U.S. Supreme Court agreed to decide three cases in which motorists suspected of driving drunk are contending that their constitutional rights were violated….May a state criminally prosecute a motorist for refusing to submit to a blood, breath or urine test in the absence of a warrant?…
It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the Fourth Amendment; they also effectively provide an end run around the court’s 2013 decision….
It will be interesting to see if the Supreme Court finds yet one more "DUI Exception to the Constitution".
According to the Hawaii Supreme Court, a person can no longer be subject to criminal action for refusing a chemical test under Hawaii’s implied consent law.
In 2011, Yong Shik Won was arrested for driving under the influence. After being transported to the police station, he was provided a form which explained that, by virtue of having a driver’s license and operating a vehicle, he had impliedly consented to giving a chemical test following a DUI stop.
The form also stated that Won was not entitled to an attorney prior to providing the chemical sample and that refusal to submit to a chemical test could subject him to criminal punishment.
Unlike many states, including California, Hawaii’s legislature in 2011 made it a petty misdemeanor to refuse a chemical test following a DUI stop. The penalties for a petty misdemeanor are 30 days in jail and/or a $1,000 fine.
Won was convicted and his appeal made it all the way up to Hawaii’s Supreme Court.
"This court has stated unambiguously that for consent to be in fact, freely and voluntarily given, the consent must be uncoerced," Justice Richard W. Pollack wrote for the court majority. "It is manifestly coercive to present a person with a ‘choice’ that requires surrender of the constitutional right to refuse a search in order to preserve the right to not be arrested for conduct in compliance with the constitution."
MADD, who has historically sought to diminish constitutional rights in the name of safety, not-so-surprisingly disagreed with the decision.
“In this Thanksgiving season, we are not thankful and I think it’s very bad timing as we go into a very dangerous holiday season,” said Carol McNamee with MADD Hawaii.
The Court, in its decision, also noted that the coercion was heightened when the jail sentence for refusal was six times greater than that of the actual DUI conviction; five days in jail.
The decision could potentially affect up to 3,000 cases according to City Prosecutor Keith Kaneshiro. Breath and blood tests of active cases, some of which date back to 2011, could be thrown out as evidence. It is, however, still possible to prosecute DUI cases, even without a breath or a blood test, using officer observations and other evidence of intoxication.
It is a breath of fresh air to see a high court acknowledge and address what Lawrence Taylor refers to as the DUI exception to the Constitution. For the record, I do, in fact, support safety in our streets, but not at the cost of our constitutional rights.