DUI Checkpoints: Is your Sobriety Checkpoint Legal?

DUI Checkpoints: Is your Sobriety Checkpoint Legal?

By: William C. Head, www.BubbaHead.com, Atlanta DUI Lawyer

Absent proper prior approval of a written plan for implementation of DUI checkpoints, and prior supervisory identification of a specific date and time period (e.g., between 12:15 Am to 2:15 AM), a proper roadway location, with fully trained police personnel trained in detection of drunk drivers or drug-impaired drivers and the requisite field sobriety test administration skills, and for a pre-approved, limited purpose (i.e., sobriety checkpoint) for seizing citizens. Any non-complying sobriety checkpoints are unconstitutional under the Fourth Amendment. Plus, the public is supposed to be “advised” of the use of such checkpoints, although decisional law in various states differs on whether press releases or merely signage constitutes “prior notice” to drivers. [City of Indianapolis v. Edmond].

DUI checkpoint laws are generally derived from the federal constitution, even if other state constitutional provisions or statutes may also control the legality of a checkpoint. Regardless of the source of the laws sanctioning DUI checkpoints, your criminal lawyer knows that exhaustive investigation is needed to assure that one or more officers has not fudged (cheated) about how, when and where the road block was implemented.

A checkpoint is just another word for a roadblock. Because no probable cause exists to stop or detain or search citizens traveling the highways, the United States Supreme Court has determined that such checkpoint stops are presumptively illegal, until the police can overcome a suppression motion filed by your DUI lawyer. Our highest court has also ruled that only driving safety issues justify random DUI checkpoints, whether a sobriety checkpoint or a driver’s license and registration checkpoint. So, setting up checkpoints to try to interdict drug trafficking is not legal. [Illinois v. Lidster].

Not all states allow checkpoints like these to screen drivers for sobriety or for being properly licensed and insured. Twelve states and the District of Columbia have ruled such checkpoints illegal under either their state constitution, or state statutes, or by their appellate court’s interpretation of the Fourth Amendment. DUI checkpoint locations will not be on an Interstate Highway, or other high speed roadway where high volume traffic will occur. Similarly, you will not see a DUI checkpoint being placed in a curve in the road or just over a hill, where safety issues preclude setting up such road block barriers.

Additionally, all such roadblocks must be stationary, and not a rolling roadblock. A pre-established protocol from a written, publicly-available document from the law enforcement agency that authorized the checkpoint must be in place in order to control the manner of officers stopping vehicles. This guideline typically requires the officers to stop EVERY vehicle, even taxicabs, ambulance drivers, etc. A jurisdiction can set up their protocol to be every other vehicle approaching, or every 3^rd vehicle, so long as the rule is strictly followed and documented. Written, pre-existing sobriety checkpoint protocols have to be in place for dealing with traffic that gets backed up, creating a traffic hazard.

These three tips for drivers facing a DUI checkpoint will be extremely valuable to your DUI attorney in proving lack of reasonable articulable suspicion for arresting you at the roadway:

1.    Remain silent. Only your name and address is required, and any additional talking will be used against you in court, even if no Miranda warning has been given. Only crack your window far enough to slip out your license and other registration documents, so that your privacy is not invaded. SHUT UP and stay seated in your car, unless ordered OUT of the vehicle.!

2.    Never do field sobriety tests of ANY TYPE. DO not take a portable breathalyzer at the roadside. No eye test, no walking test, no one leg balance test, no alphabet. Stand still and wait to speak to a DUI lawyer, if you are arrested.

3.    Submit to the OFFICIAL state breathalyzer test, which is done at a jail or police station, typically. Some jurisdictions have these in a police van or other vehicle at the roadside, but make sure that the test you are taking is what you need to submit to, in order to protect your driving privileges. AFTER testing for the police, demand your own independent test of your blood, for your own private test.

If you live in one of the 38 states where one-party use of recordings of conversations (all states except CA, CT, DE, FL, MD, MA, NV, NH, PA, VT, WA, IL) is allowed should turn on your video camera or your voice recorder of your cell phone to capture exactly what is said and done at the roadway, so that officer's can't claim a different version of the facts leading up to your seizure and arrest for DUI.  If you live in a two party state, tell the officer that you wish to record any conversations unless everything is being recorded on police video and recordings.

When you KNOW and EXERCISE your constitutional rights, you may find that police will cheat to try to make their arrest “stick.” Examples of cheating are to not admit coercive verbal or physical intimidation of checkpoint drivers, or an officer exaggerating your manner of speech or physical manifestations of alleged impairment, or claiming that you were swaying while standing still.

Call Atlanta DUI Lawyer William Head's office for locating a skilled DUI lawyer for your DUI checkpoint case, or go to America's oldest drunk driving lawyer directory, DrunkDrivingDefense.com. 1-888-384-4323 or 1-888-DUI-HEAD.