DUI/Sobriety Checkpoints

Are DUI/Sobriety Checkpoints Legal?

Prior to 1990, DUI/Sobriety Checkpoints were mostly unheard of. Police agencies have been stopping and arresting drivers at “roadblocks” for years but establishing “checkpoints” that are specifically aimed at arresting drunk drivers is a relatively new concept. Prior to 1990, it was common for police agencies to use roadblocks as a means to conduct safety inspections or to ensure drivers were properly licensed.

These early roadblocks had no real standards for operation and were often set up whenever and wherever a patrol officer decided to stop cars.  Over many years, these roadblocks proved successful in identifying and arresting impaired drivers, and so the notion of the “DUI/Sobriety Checkpoint” was born.

One of the first police agencies that employed the DUI/Sobriety Checkpoint was the Michigan State Police. In 1986, the Michigan State Police developed a DUI/Sobriety Checkpoint program that caught the attention of many legal experts. The first DUI/Sobriety Checkpoint was conducted by the Michigan State Police and the Saginaw County Sheriff’s Department during which 124 drivers were stopped and evaluated and 2 drivers were arrested for DUI.

 A Michigan driver by the name of Rick Sitz challenged the legality of the checkpoints and actually won his argument in Michigan’s lower courts. The case eventually made its way through the court system and wound up before the United States Supreme Court.

 In 1990, the United States Supreme Court issued its ruling in the matter of Michigan Department of State Police v. Sitz. In its truly landmark decision, the high court ruled that a brief intrusion into a driver’s 4^th Amendment protection against unreasonable search and seizure was outweighed by the need to eradicate the dangers of drunk driving. Essentially, the high court created a “DUI Exception” to the United States Constitution and decided that DUI/Sobriety Checkpoints were legal. Chief Justice Rehnquist did say, however, that “minimal safeguards” must be in place to avoid checkpoints from becoming overly intrusive.   Even though the United States Supreme Court found DUI/Sobriety Checkpoints to be constitutionally permissible, it left the individual states to construct their own “guidelines” for the operation of such checkpoints.

Despite being found constitutionally permissible, many states believe that DUI/Sobriety Checkpoints violate their State’s Constitution and do not permit the use of checkpoints. California IS NOT among those states.

In the State of California, the issue of DUI/Sobriety Checkpoints came to a head in the matter of Ingersoll v. Palmer. The California Supreme Court took up the matter and used the Sitz case as a basis for creating the guidelines for the use of DUI/Sobriety Checkpoints by Law Enforcement.

So, in the State of California, DUI/Sobriety Checkpoints have been held to be lawful provided they are set up in accordance with the “minimal safeguards” required by Ingersoll v. Palmer.

How are DUI/Sobriety Checkpoints Set Up?

In 1987, the California Supreme Court heard the case of Ingersoll v. Palmer. This case challenged the constitutionality of DUI/Sobriety Checkpoints at the state level. Using the United States Supreme Court decision in Michigan Department of State Police v. Sitz, the California Supreme Court echoed their belief that DUI/Sobriety Checkpoints were minor intrusions into a driver’s protection against unreasonable search and seizure because the need to take drunk drivers off the road was greater.   Following the United States Supreme Court’s requirement that there be “minimal safeguards” in establishing DUI/Sobriety Checkpoints, the California Supreme Court, looked to a report from the National Highway Traffic Safety Administration (NHTSA) to establish California’s guidelines for checkpoints. The California Supreme Court listed a number of requirements that law enforcement agencies must follow to make DUI/Sobriety Checkpoints legal in the State of California. Known as the “Ingersoll Standards,” Law Enforcement Agencies must ensure:

• Decision making is made at the supervisory level. This ensures that the reason for the checkpoint and the location of the checkpoint are decided by senior officials rather than field officers. This is so regular patrol officers do not set up unlawful “roadblocks” at their whim.
• Officers operating the DUI/Sobriety Checkpoint must use a neutral formula in stopping motorists. For example, they must stop every car, or every third car, but the pattern must be uniform and can only be changed by supervisory personnel and for good reason.
• The DUI/Sobriety Checkpoint must be operated in a fashion to ensure the safety of officers and motorists. For example, a checkpoint may not be set up on a freeway or in the middle of a “blind curve” in a roadway. There must be adequate lighting, signs and other signals to warn drivers they are approaching a DUI/Sobriety Checkpoint.
• There must be established limits on when the checkpoint is operated and for how long. The checkpoint may not be operated for endless periods of time.
• There must be sufficient information to advise drivers that the DUI/Sobriety Checkpoint is of an “official nature.” There must be sufficient, lighting, signs, police vehicles and officers in uniform to reassure drivers that they are safe.
• Officers may only detain a driver for the minimum amount of time necessary to accomplish their task.
• There must be advance publicity of the DUI/Sobriety Checkpoint to reduce intrusiveness and to increase its deterrent effect.

 The legal theory is that DUI/Sobriety Checkpoints that are either set up or operated in violation of the Ingersoll Standards are “per se” not lawful. The reality, however, is often much different.

In 1993, a court decision weakened the Ingersoll Standards by finding a DUI/Sobriety Checkpoint was lawful despite the fact there was no advance publicity.

 Selection of Site:         Before a DUI/Sobriety Checkpoint can be established, officials at the “policy making” level of the police agency must be able to articulate a logical reason for why the checkpoint is necessary and why a particular location is to be chosen. Often Law Enforcement Agencies will determine that a particular location is appropriate because of a high instance of DUI arrests or traffic collisions. There must be some reason for the choosing of a site, it cannot be arbitrary. Advance notice of the DUI/Sobriety Checkpoint is placed into local newspapers or other sources of media to advise the public of the general area where the DUI/Sobriety Checkpoint will be operating and when it will occur.

Briefing: Prior to the set-up and operation of a DUI/Sobriety Checkpoint, supervisory personnel are to conduct a briefing with all officers who will be operating the checkpoint. Officers are assigned to particular locations or assignments and specific instructions are to be given to ensure that all officers follow established procedures.

Set-Up of Site: Prior to the activation of the Dui/Sobriety Checkpoint, officers will set up the site. Keeping in mind the standards established by Ingersoll v. Palmer, the checkpoint site will often utilize large signs to warn drivers they are entering an official DUI/Sobriety Checkpoint. Often times, officers will use cone patterns or flare patterns to reduce active traffic lanes to one or two lanes that actually pass through the checkpoint. Safe areas will be established to allow for field sobriety testing and the safe processing of arrested drivers. Emergency medical personnel are on stand-by and tow trucks are ready to store/impound vehicles.

 Checkpoints are then generally set-up in three stages:

• Primary Screening Area: Officers will man points in the active traffic lanes to meet with and assess drivers as they pass through the checkpoint. This is where officers will briefly speak with a driver and quickly evaluate him or her for any signs of intoxication.
• Secondary Screening Area: A secondary screening area is set up away from the traffic lanes where officers may conduct additional screening of drivers. This is where a driver will be subject to extensive questioning, field sobriety testing and the use of hand-held breath devices known as Preliminary Alcohol Screening (PAS) devices.
• Processing Area: The third and final stage of the check point is the processing area. This is where arrestees are processed and where evidentiary blood or breath samples are collected. Decisions are made regarding a driver’s release from the checkpoint or their transport to a jail facility.

The DUI/Sobriety Checkpoints are a scene of great activity. Cars are moving, drivers are performing field sobriety tests, arrestees are providing evidentiary blood or breath samples, passengers are being ushered away from the site, cars are being towed and prisoners are being transported.

When the specified period of time has elapsed for the operation of the checkpoint, it is disassembled and the roadway is returned to normal traffic flow.

How are DUI/Sobriety Checkpoints Used at a DMV Administrative Per Se Hearing?

 Any time a driver is arrested for DUI in the State of California, they have two distinctly separate battles to fight:

• Criminal: The driver will be ordered to appear in the Superior Court that holds jurisdiction over the area of arrest. This is where the driver fights to prevent being convicted of a criminal allegation.
• Administrative: The same driver will be facing the automatic suspension/revocation of their driver license unless they schedule and win an administrative hearing before the California Department of Motor Vehicles (DMV).

Known as an Administrative Per Se (APS) Hearing, this administrative process occurs at a regional office of the DMV known as the Driver Safety Office. At the APS Hearing, the person sitting in judgement of the driver is a DMV Hearing Officer. Acting as Judge, Jury and Executioner, the DMV Hearing Officer must make three “necessary findings” to justify the suspension of a person’s driving privilege. The three necessary findings are:

• Did the arresting officer have a lawful reason to come into contact with the driver, and upon doing so have reasonably cause to believe that he or she had been driving with a blood/alcohol concentration of .08% or greater?
• Did the arresting officer have a lawful reason to arrest the driver?
• Was the driver operating a motor vehicle with a blood/alcohol concentration of .08% or greater (.01% or greater if under 21 years or on DUI probation)?

In Administrative Per Se Hearings where the driver was arrested at a DUI/Sobriety Checkpoint, the DMV Hearing Officer will seek to establish the first element of their case by determining that the driver was lawfully stopped at the DUI/Sobriety. So, essentially, the Hearing Officer will try to establish that there was probable cause for the original contact of the driver because the DUI/Sobriety Checkpoint was set up in accordance with the Ingersoll Standards, and therefore the stop was legal, even though there was no evidence of bad driving.

Call CDA Today to Fight the Suspension of Your Driver License.

 At California Drivers Advocates (CDA), our DMV Defense Team is made up of experts from many different fields. Our team includes former police officers who made thousands of DUI arrests in their law enforcement careers. Our team members have set up and operated dozens of DUI/Sobriety Checkpoints. We know the mandates established by State Law and we know how to find errors when they occur. Combining that knowledge and experience with years of fighting the DMV, our experts bring a level of professionalism and preparation that are unmatched in the field.Call CDA today and let our experienced team of Defense Experts go to work fighting to win your DMV Hearing.