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 1^st to September 5^th. 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.

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.”

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

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.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1^st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4^th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.

The 4^th 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. So how can law enforcement do this without having a warrant?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

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 4^th Amendment.

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 5^th 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 5^th Amendment right and respectfully decline to answer any of your questions.” Now keep you 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 summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.

A few years ago, the United States Supreme Court held that DUI sobriety checkpoints were constitutionally valid.  Michigan v. Sitz.   In a 5-4 decision, Chief Justice Rehnquist admitted that such checkpoints violated a citizen’s rights under the Fourth Amendment, but held that this was only a "minimal intrusion" into those rights, and that violation was "outweighed" by the government’s interest in apprehending drunk drivers.  See my posts The Slow Death of the Fourth Amendment and Sobriety Checkpoints: The Slippery Slope.

As part of that decision, however, the Court held that law enforcement must provide certain minimum safeguards in establishing those checkpoints.  However, the Court left it up to the states to set up these procedures.  The guidelines are typified by those named by the California Supreme Court in Ingersoll v. Palmer.  These include the requirement that the police agency publish advance notice to the public of the checkpoint, so that citizens could choose to avoid them if they wished.  Since then, cases have also established the principle that drivers who are approaching a checkpoint can turn away — if they can do so safely and without violating traffic laws; the police cannot pull them over for trying to avoid the checkpoint (a restriction that police routinely ignore).

If advance publicity is required, and if drivers can choose to turn away, can’t a citizen lawfully warn drivers that a checkpoint is ahead — assuming he is not obstructing traffic?  

Ohio Man Sentenced to 240 Days for Recording Cops and Holding Up a Sign Warning Drivers of DUI Checkpoint
 
Cleveland, OH.  Feb. 12 - An Ohio man was sentenced to 240 days in jail Thursday for First Amendment-related activities, including attempting to video record police in public and warning drivers of an upcoming DUI checkpoint by holding up a sign….

Odolecki, who was on trial for two incidents involving the Parma Police Department, was convicted of one count of misconduct at the scene of an emergency, two counts of obstruction of official business and one count of disorderly conduct…

The first incident took place on June 13, 2014 where Odolecki was standing on a sidewalk, holding up a sign reading “Checkpoint Ahead. Turn Now!” to warn motorists of an upcoming DUI checkpoint.

He was approached by two cops, one who told them he had the right to stand there with the sign, but he needed to remove the phrase “Turn Now!” from the sign…

Police cited Odolecki for obstructing and had his sign confiscated…

Then on July 29, 2015…Odolecki came across a group of cops gathering around a teenager near a bridge off a busy thoroughfare.  Thinking the teen may have been getting unlawfully harassed, he began recording from across the street before crossing the street to get a better angle.  He stood about 40 feet away with a railing separating himself from the cops when the cops told him to get lost because the teen was having “a real bad day.”…  

Odecki was charged with obstructing and misconduct at the scene of an emergency in the second incident, and was later convicted for both incidents and received the maximum jail time.

Eight months in jail for holding up a sign and filming police on a cell phone from 40 feet away….