Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4th 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 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. 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:
- The decision to conduct checkpoint must be at the supervisory level.
- There must be limits on the discretion of field officers.
- Checkpoints must be maintained safely for both the officers and the motorists.
- Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
- The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
- The checkpoint must show indicia of official nature of the roadblock.
- 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.
- 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.
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 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.
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