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.