Category Archives: Sobriety Checkpoints

DUI Sobriety Checkpoints in California – Do Police Need Probable Cause?

No, California law enforcement officers do not need probable cause to stop a motorist at a DUI sobriety checkpoint. You could get arrested legally at a DUI sobriety checkpoint without the officer having probable cause to stop you.

You could, however, challenge the arrest if the checkpoint did not meet all the legal requirements our state law imposes on DUI sobriety checkpoints. A California DUI attorney can talk with you and examine whether a dismissal of the charges could be possible.

The Requirements for a DUI Sobriety Checkpoint to be Legal Under the California Constitution

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court compared sobriety checkpoints to other administrative inspections, like airport screening searches. The Court held that law enforcement officers do not have to follow the 4th amendment at DUI roadblocks because these are administrative inspections, not searches and seizures.

The Court explained its decision to treat sobriety checkpoints as administrative inspections, not as searches and seizures, because “the primary purpose of the stop here was not to discover evidence of a crime or to make arrests of drunk drivers but to promote public safety by deterring intoxicated persons from driving on the public streets and highways.” 

As such, the California Supreme Court said that sobriety checkpoint stops do not require an individualized suspicion of wrongdoing. Instead, the Court said that the California constitution requires balancing the intrusiveness of the detention against the governmental interests.

Other Types of Regulatory Inspections and Stops

The Court in Ingersoll gave several examples of regulatory inspections in the stops that are legal according to the United States Supreme Court and California courts without the need for an individualized suspicion of wrongdoing. These include:

  • Border Patrol or immigration checkpoint inspections
  • Agricultural inspection checkpoints
  • Vehicle mechanical inspections
  • License and registration inspection checkpoints

The California Supreme Court in Ingersoll said that DUI sobriety checkpoints create a lesser intrusion on the individual’s 4th amendment interests than Border Patrol or immigration checkpoint inspections because, during the brief sobriety detention, neither the vehicle nor the occupant gets searched. The driver only needs to answer a question or two and possibly show the officer one’s driver’s license, registration, and proof of insurance.

The Justification for California DUI Sobriety Checkpoints

Law enforcement agencies across the United States have used a variety of approaches to try to address the drunk driving problem. Public awareness campaigns, increased patrols and arrests, and more severe penalties for DUI convictions have done little to tackle one of the most significant challenges, which is that the public knows that their risk of getting caught driving while intoxicated is quite low.

The California Highway Patrol (CHP) developed a pilot project of sobriety checkpoints in order to try to discourage people from driving after consuming alcoholic beverages. The CHP said they would rather deter drunk driving than have to make arrests and charge people with DUIs. The goal, according to law enforcement, is to decrease DUI arrests and alcohol-related accidents, not increase them.

Of course, when law enforcement officers break the rules and set up an illegal DUI sobriety checkpoint for the purpose of trapping unsuspecting drivers, there might be grounds for challenging an arrest.

California Supreme Court Created Functional Guidelines to Minimize the Intrusiveness of DUI Sobriety Checkpoint Stops

The Ingersoll court articulated eight requirements for legal DUI sobriety checkpoints in California. These guidelines are:

  1. The typical law enforcement officer in the field cannot decide on his or her own to set up a sobriety checkpoint. The risk of allowing that conduct is the potential for arbitrary and capricious enforcement of the law. Instead, supervisory or command-level law enforcement personnel are the only ones who can legally decide to use a checkpoint, select the location, and create the operational procedures. The upper-level law enforcement personnel must distribute detailed program regulations to the officers who will work at the checkpoint.
  2. Officers in the field will have strict limits on their discretion when working at DUI sobriety checkpoints. An officer will not be allowed to decide to stop any particular driver or car without a legitimate basis for that decision. The field officers must use a neutral formula, for example, stopping every single driver who pulls up to the checkpoint or, in the interest of keeping traffic flowing, only stopping every 5th or 12th driver or some other neutral formula.
  3. The sobriety checkpoint must not create an unsafe condition for motorists or officers. To minimize the risk of danger to drivers, passengers, and police, the law enforcement personnel must be clearly identifiable as officers. They must use clearly marked official vehicles. The checkpoint must have sufficient warning signs, signals, and lighting to create a safe environment. If traffic becomes backed up because of the randomized stops, the field officers can adjust the neutral formula or temporarily suspend making stops until traffic clears.
  4. The location of the checkpoint must be reasonable. Because the governmental interest is to deter people from driving while impaired by alcohol, the supervisory law enforcement personnel who select the locations should choose sites that will be most effective in achieving that interest. In other words, sobriety checkpoints should be set up on streets that have a high number of alcohol-related arrests or accidents. 
  5. A checkpoint must balance intrusiveness and effectiveness in terms of the time of day that the officers operate the checkpoint and how many hours the checkpoint will be operational. Safety is also an issue. A DUI sobriety checkpoint is more likely to be effective if it operates during the hours when people are more likely to drive while impaired by alcohol, for example, late at night and in the very early morning hours. Operating a checkpoint doing during those hours, however, could be more hazardous to motorists and officers.
  6. Motorists need to be able to tell at a glance that the DUI roadblock Is official and authorized and is not operated by rogues waylaying unsuspecting motorists. The general public is wary of criminals who impersonate police officers. The roadblock should incorporate flashing lights, warning signs, and adequate lighting. The fact that it is a sobriety checkpoint should be highly visible. Uniformed officers and marked police vehicles must be present. The government agency must provide advance warning of a DUI checkpoint to minimize intrusiveness to motorists and to reassure them that the roadblock is legitimate.
  7. Supervisory law enforcement personnel must promulgate detailed guidelines on the length and nature of the detention of the random drivers who get stopped in DUI sobriety checkpoints. The stops must be as brief as possible for the officer to ask the driver one or two questions and look for signs of intoxication. If the driver does not show symptoms of being impaired by alcohol, the driver should not be delayed any further from driving on down the road. When an officer observes signs of alcohol use, the officer can direct the driver to a separate area of the checkpoint for field sobriety tests. In the separate area, those officers would have to have probable cause to conduct further investigation. The incident would no longer be an administrative inspection, but rather, the constitutional protections around traffic stops and arrests would apply to the situation.
  8. As mentioned earlier, the government agency must provide advance publicity. A DUI sobriety checkpoint without sufficient advanced publicity could be considered arbitrary and capricious and violate the constitutional rights of motorists. The general public should get informed that law enforcement will be conducting sobriety checkpoints at specific locations, dates, and times. This publicity would serve the governmental interest of deterring drunk drivers from using those streets. The ultimate goal of the warning is that people would do their driving at home, take a taxicab if they have had too much to drink, or choose not to drink to the point of impairment from alcohol before driving.

When police departments set up DUI sobriety checkpoints that violate one or more of these eight guidelines, a person arrested at such a stop might have grounds to ask the judge to dismiss the criminal charges. The enforcement of traffic law must comply with state and federal constitutional protections. Police officers must minimize intrusiveness on the lives of the general public.

Signs of Intoxication

Officers working at sobriety checkpoints in California are allowed to ask one or two brief questions of the people they briefly detain. The purpose of asking the questions is to give the police officer the opportunity to look for symptoms of alcohol impairment of the driver, including:

  • Fumbling when trying to locate one’s driver’s license to show the officer
  • Bloodshot or glassy eyes 
  • Slurred speech when talking to the officer
  • Smelling alcohol on the breath of the driver or in the vehicle

The police officer is not limited to these examples of intoxication symptoms. The officer can direct the driver to another area of the checkpoint for additional investigation as long as objective facts support probable cause or reasonable suspicion that the driver is impaired by alcohol.

What Happens if a Driver Does Not Cooperate with the Officer at a DUI Checkpoint

The consequences of refusing to comply with the instructions from a law enforcement officer at a DUI sobriety checkpoint depend on the point at which the driver does not cooperate. California law requires everyone who operates a motor vehicle on public streets to cooperate with DUI sobriety checkpoints. 

You will likely be charged with violating the traffic laws if you do not follow the directives of uniformed law enforcement at a legal California sobriety checkpoint. 

Because the checkpoint is an administrative inspection, not a regular traffic stop, taking a field sobriety test, breathalyzer, or other tests before getting arrested is optional. If you refuse, however, the officer will likely arrest you for DUI, at which point refusing a breathalyzer or similar test will get your license suspended automatically for one year, in addition to other consequences.

If you or someone you know is facing a DUI, a California DUI attorney can help to protect your legal rights and aggressively pursue the best possible outcome in your situation.

DUI Stop After an Anonymous Tip

The holiday season is fast approaching and before you know it, law enforcement will be ramping up its efforts to catch drunk drivers. Their efforts will inevitably include saturation patrols and DUI checkpoints, but they might also include, as they’ve done in the past, an ad campaign encouraging motorists on the road to contact law enforcement if they suspect that another driver is under the influence.

If an anonymous caller tips off police that someone might be driving drunk, the officer has no personal knowledge of facts that would lead them to believe that someone is driving drunk. The officer is only going off of what the tip had said. The tip could be accurate, it could be a lie, or it could just be mistakenly inaccurate. An officer must have probable cause to stop a driver on suspicion of a DUI, and probable cause means that the officer has reasonable and trustworthy facts that the driver is drunk.

The question becomes: Can an anonymous tip give an officer the required probable cause to stop a driver on suspicion of driving under the influence?

The United States Supreme Court in 2014 concluded in the case of Navarette v. California that an officer can use an anonymous tip as the basis for a DUI stop.

In Navarette v California, a motorist was pulled over by California Highway Patrol after an anonymous tip. The anonymous tipster told the dispatcher that they had been run off of Highway 1 near Fort Bragg by someone driving a pickup truck and provided the pickup’s license plate number. As the CHP officer approached the pickup, they smelled marijuana and discovered four bags of it inside the bed of the truck.

Officers identified the occupants of the truck as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At trial, the brothers filed a motion to suppress evidence claiming that the officers lacked the reasonable suspicion needed to stop them, thus violating the Fourth Amendment of the United States Constitution. The judge, however, denied the motion. The brothers then pleaded guilty to transporting marijuana and were sentenced to 90 days in jail, but appealed.

At the appellate level, the court ruled against the brothers saying, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”

The brothers appealed again, this time to the United States Supreme Court. Once again, the court concluded that an anonymous tip alone can give law enforcement the justification to pull someone over on suspicion of driving under the influence.

In quoting the previous case of Alabama v. White, the Supreme Court said, “[U]nder appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”

In finding that the anonymous tip was reliably, the court relied on the fact that the caller claimed eyewitness knowledge of dangerous driving, the fact that the tip was made contemporaneously with the eyewitness knowledge of the dangerous driving, and the fact that the caller used 911 to make the tip (knowing that the call could be traced).

According to the Court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip. 

Does anyone else see the problem here?

Justice Scalia did and he voiced his concern in his dissent to the majority opinion in Navarette v. California.

 “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road…are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

Anonymous tipsters are not necessarily reporting on drunk drivers (they don’t know if who they’re reporting on is even drunk). Rather, they are reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving trip is perfect and that all driving trips, no matter how short or simple, contain some mistakes. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be stopped on suspicion of DUI simply because someone else reported their mere driving mistake (even if they are not drunk).

 

Does Entrapment Apply to DUI Stops?

Many people often ask whether a DUI checkpoint is entrapment. Some ask whether it is entrapment when an officer who parks his or her patrol vehicle outside of a bar or another alcohol-serving establishment and catches a drunk driver.

Unfortunately, the answer is no in both cases, and the misconception lies in the common use of the word “trap” and the mistaken belief that it applies to the legal definition of entrapment.

In the case of People v. West, the court defined entrapment as “the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”

Like many things in law, this rather confusing definition was later refined by the court in People v. Barraza when it said, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”

Simply put, entrapment is a defense when the officer forces someone to do something when that person would not have otherwise done so.

With a DUI, entrapment would occur if the police forced the driver to drink when they would not have done so or force the driver to drive when they would not have done so.

Neither is the case with DUI checkpoints or when an officer parks their patrol vehicle outside of an alcohol-serving establishment.

Although many people consider checkpoints to be “traps,” they do not fit within the legal definition of entrapment. If a drunk driver is stopped at a checkpoint, the officer has neither forced them to drink nor drive. If a drunk driver is stopped and arrested at a checkpoint, it’s because they chose on their own to drink and drive before the encounter with the officer. Similarly, if an officer spots a driver coming out of a bar, follows them out onto the streets, then pulls them over for a DUI, the officer has neither forced them to drink nor drive.

Additionally, in both cases, the officers had the legal right to be at the location where they were. DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint (Yes, that’s right, drivers cannot be forced to go through a DUI checkpoint). When an officer parks outside of a bar, typically they are in a public space, such as a parking lot, where they have a right to be.

Having said that, just because a person is driving through a checkpoint or observed leaving a bar does not mean that the officer has a right to arrest them on suspicion of a DUI. The officer must have probable cause (the amount of evidence needed for an officer to make an arrest) to believe that a person is driving drunk before an arrest can be made.

At a checkpoint, the officer obtains the evidence (i.e. probable cause) needed to make an arrest by asking passing drivers whether they’ve had anything to drink, observing symptoms of intoxication, and, of course, breathalyzing drivers. Without additional evidence that a person is driving drunk, an officer cannot make an arrest.

Similarly, the mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.

Can entrapment ever be used as a defense for a DUI? Consider the following.

A person goes to a bar to have a drink. Thinking that they might be over the legal limit of 0.08 percent blood alcohol content, they lawfully sit on a bench outside of the bar. A few minutes later, a police officer approaches the person and demands that they drive out of the parking lot. The person obliges, gets in their car, and drives away.  As the person drives away, the officer stops and arrests the driver for driving under the influence.

Because the driver drove as a result of the officer’s demand when they would not have otherwise done so, entrapment may be a defense for the driver.

While this scenario is uncommon, it has happened. However, in the vast majority of California DUI cases, unfortunately the defense of entrapment cannot be used.

 

Labor Day Checkpoints and Knowing What to Do

Law enforcement agencies throughout Southern California will increase their efforts to thwart would-be drunk drivers this month and on into the Labor Day weekend. One tool I know they plan on using during this time is the DUI checkpoint.

According to the National Highway Traffic Safety Administration (NHTSA), Labor Day weekend is one of the deadliest holidays of the year when it comes alcohol-related collisions. In 2017, there was 376 deadly crashes nationwide for the Labor Day holiday period which ran from September 1st to September 5th. Of those 376 deadly collisions, more than one-third (36%) involved drunk drivers.

Last year, California saw two deaths and 31 injuries on Labor Day.

Since there is an increased chance of getting stopped at checkpoint in the next couple of weeks, it makes sense to remind our readers what their rights are when it comes to a California DUI checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer since by doing so they are looking for evidence of drunk driving.

So, checkpoints can involve both searches and seizures, yet police don’t have warrants to stop and breathalyze drivers. How?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California such that law enforcement doesn’t need a warrant. Those guidelines are:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment (because they don’t have a warrant when they seize and search motorists at DUI checkpoints).

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This Labor Day be on the lookout for sobriety checkpoints. But should you find yourself about to drive through one with no way to legally turn around, know your rights and use them. That’s what they’re there for.

 

North Dakota Bill Outlawing DUI Checkpoint Passes House

Just take a look at last week’s post. According to statistics obtained by Insurify, an auto insurance comparison website, North Dakota was ranked as the worst state when it came to drunk drivers. 5.73% of people who responded to a questionnaire from Insurify indicated that they had a history of DUI. 24.7% of people reported drinking excessively. What’s more, nearly half of all fatal traffic collisions in the state involved alcohol.

Now, to some, this can be interpreted to suggest that North Dakota might need additional DUI enforcement and preventative measures such as DUI checkpoints. However, to others, like the North Dakota House of Representatives, the numbers are an indication that DUI checkpoints, as currently deployed, are not working in that state and maybe, just maybe, state funds should be allocated elsewhere.

North Dakota House Bill 1442, which would prohibit the use of DUI checkpoints in the state, was passed by a whopping majority of 79-14. It’s now headed to the state Senate for consideration.

While the Highway Patrol is not taking a stance on the issue, Fargo Police Chief David Todd and Cass County Sheriff Jesse Jahner oppose the legislation arguing that DUI checkpoints are tools necessary for law enforcement to stop and prevent drunk driving.

The bill’s primary sponsor, Rep. Rick Becker, however, claims that the argument that DUI checkpoints are an effective tool in combating DUI’s is “cliched” and have been “proven inadequate.” There’s something to be said about Beckner’s argument.

Between January 2017 and December 2018, the Highway Patrol conducted 16 DUI checkpoints in North Dakota, which only resulted in 17 DUI arrests. Only 17. This is a drop in the bucket compared to the 1,135 DUI arrests made in 2017 and the 1,158 DUI arrests made in 2018 by the Highway Patrol.

The ACLU of North Dakota issued the following statement regarding House Bill 1445:

“The ACLU of North Dakota supports House Bill 1442. Our constitutional right under the Fourth Amendment to live free of ‘unreasonable searches and seizures’ is one of our most cherished – and most threatened. While traditional Fourth Amendment violations continue, new areas of concern crop us every day. We need to ensure that the Fourth Amendment, written over 200 years ago to protect our ‘persons, houses, papers, and effects’ from intrusive searches, evolves to protect today’s equivalents.”

The ACLU is alluding to the fact that the courts have in the past allowed law enforcement a freebie in stopping motorists (which under the law is a “detention”) without the normally-required probable cause and/or warrant when it comes to DUI checkpoints. The courts have continued to justify this exception to the constitution by claiming that the admitted invasion of privacy of the driver by law enforcement is outweighed by law enforcement’s interest is preventing drunk driving.

Matt Agorist, columnist for freedomoutpost.com, writing on this very topic said it best: “To those who would say, ‘if you are not doing anything wrong, you should have nothing to hide,” and support these checkpoints, you are the problem. Families do not draw the curtains in their homes at night because they are doing something wrong. One does not lock the bathroom door in public because they are doing something wrong. It is about maintaining, asserting, and protecting your rights – without being forced to lose your privacy.”