DUI Checkpoints

DUI Checkpoints – Constitutionality & Consequences

     A checkpoint occurs when a barrier or blockade is constructed on a road.  Drivers are then stopped by law enforcement for an inspection.  Such inspections include DUI checkpoints, drug checkpoints, or border checkpoints.  At these barriers, cars are stopped, and police can check for documents, weapons, or drugs.  Police can also check to see if the people in the vehicle are intoxicated (usually only the driver), fugitives, or missing persons. 

     The purposes for such checkpoints can include public safety, border security, or in furtherance of a criminal investigation.  For example, police can establish a checkpoint on the highways out of a city to find a missing child.  With checkpoints come many different complications.  For example: what is a lawful checkpoint?  One of the most litigated and common checkpoints are DUI checkpoints.

     DUI is an acronym for driving under the influence.  Similarly, one might use the term DWI – driving while impaired, or OUI – operating under the influence.  Generally, all three refer to the same thing: operating a car (or motorcycle) after drinking alcohol or taking some other drug that impairs one’s ability to operate a vehicle and make rational decisions.  Another common term for these checkpoints is sobriety checkpoints.  At these checkpoints, police barricade a certain road and briefly stop every car.  The purpose of DUI checkpoints is to investigate and determine if any drivers are impaired.  Once a car is stopped at a checkpoint, an officer inspects the driver to see if they are intoxicated.  If the officer believes the driver is intoxicated, the officer will perform a field sobriety test or a chemical test to confirm their belief. 

     A standard field sobriety test consists of three parts.  With these steps, an officer can observe the driver’s cognitive abilities and physical coordination and balance.  One part is called the “horizontal gaze nystagmus.”  When someone is intoxicated, the eye involuntarily twitches when one looks to the side much more than to an unintoxicated person.  An officer therefore inspects the driver’s eyes to determine if there is evidence of intoxication.  This is done by having the driver follow with their eyes an object, like a pen, or sometimes the officer’s finger.  A second test that is conducted is the “walk and turn” test.  During this test, the driver is required to walk along a straight line putting one foot directly in front of the other, turn around, and walk back the same way.  This tests the driver’s balance, as an intoxicated person would wobble excessively during this activity.  The last test – “the one leg stand” has the driver stand on one foot and count for about thirty seconds.  An intoxicated person would, again, wobble, and have difficulty balancing on one foot.

     Other field sobriety tests include the driver reciting the alphabet, raising their finger to their nose while their eyes are closed, or counting backwards.  All these tests would be difficult to someone who is impaired as they require balance or a certain level of cognitive function.  Sometimes, a chemical test is performed.  This involves a breathalyzer which measures the driver’s blood alcohol concentration, or BAC.  Other tests include a blood or urine test which is performed at the hospital.  The test performed depends on the laws of the jurisdiction where the checkpoint is located.

     Most DUI cases are state cases.  However, if a driver is caught driving while intoxicated on federal land, federal law applies.  For example, under federal law, any person driving with a BAC level over .08 is deemed intoxicated.  Federal land includes federal roads, near federal buildings, national parks, or military bases.  For example, if a driver is caught by an officer speeding through a federal courthouse parking lot in Virginia, federal law would apply because the courthouse parking house is owned by the federal government.

     The Supreme Court has held that general checkpoints violate the Fourth Amendment.  For example, the City of Indianapolis established vehicle checkpoints and arrested various persons for both drug related offenses and other offenses.  The Supreme Court held that a suspicionless checkpoint violated the Fourth Amendment.  There must be an actual suspicion of a crime to institute a roadblock, not just a desire to catch any crimes there may be at that roadblock. [Indianapolis v. Edmond, 531 U.S. 32 (2000)]

     DUI checkpoints, on the other hand, are a specific type of checkpoint.  Nevertheless, since their inception, one of the main issues with DUI checkpoints was that they are unconstitutional under the Fourth Amendment.  However, in 1990, the Supreme Court ruled that such stops were not a violation of the Fourth Amendment. [Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990)] In that seminal case, the Michigan State Police constructed a DUI checkpoint.  Any vehicle that came across the checkpoint was stopped, and officers checked to see if the drivers were intoxicated.  If they were, the officers asked to see the driver’s license and registration and would then conduct sobriety tests.  If the drivers were not intoxicated, the police permitted the drivers to continue past the checkpoint.  If they were intoxicated, the drivers would be arrested.  One of the drivers who was arrested for drunk driving sued the Michigan Department of State Police claiming the checkpoints violated his Fourth Amendment rights. 

     The Supreme Court recognized Michigan’s interest in curbing drunk driving.  Because drunk driving is a persistent problem, establishing DUI checkpoints to deter such behavior was permissible.  Further, most drivers are only stopped briefly.  The intrusion on the driver is minimal, while the objective of protecting the roadways was an important prerogative of the state.  Thus, such checkpoints are consistent with the Fourth Amendment. 

     At DUI checkpoints, everyone is stopped and inspected.  This is to ensure that the checks are being carried out without bias as to who is being stopped.  It is important to note, however, that not all states permit DUI checkpoints.  The states of Idaho, Iowa, Wisconsin, and Wyoming prohibit DUI checkpoints via state legislation.  The state of Alaska does not authorize DUI checkpoints.   DUI checkpoints are deemed illegal under the state constitutions of Michigan, Minnesota, and Oregon.  Rhode Island’s Supreme Court held that such checkpoints were illegal.  Similarly, the Washington Supreme Court stated that without state legislation, DUI checkpoints were illegal.  In Texas, DUI checkpoints are illegal under its interpretation of the U.S. Constitution.  In all other 39 states, DUI checkpoints are permitted and conducted regularly.  For a list of state DUI checkpoint legality and frequency, please see the Governors Highway Safety Association webpage on DUI Checkpoint Legality.

     It is important to note that while DUI checkpoints do not violate the Fourth Amendment, other constitutional rights apply.   For example, the police cannot search a person’s car without consent.  If an officer asks to search a driver’s car, the driver can refuse.  Police cannot search the vehicle without probable cause.  Further, unless the police have probable cause that the driver committed a crime, the person cannot be detained.  Thus, the driver must ask if they are under arrest.  If the police say no, then the driver does not have to remain at the checkpoint.

     To that point, however, exceptions to the Fourth Amendment warrant requirement applies.  If there is anything incriminating in the officer’s view, that can be used against an individual because of the exception to the Fourth Amendment – plain view doctrine.  For example, if a driver stops at a checkpoint and the police see an open beer bottle in the cupholder next to the driver and a bag with a white substance next to it, the officer can arrest the individual for DUI and possession of a controlled substance because both were in the plain view of the officer.

     Drivers should act calmly at these checkpoints.  Further, when speaking with police, it is important to be courteous.  A driver should always keep their hands in view, so police do not think the driver is searching for a weapon.  Lastly, a driver should not attempt to flee a checkpoint.  Nor should they try to circumvent the checkpoint once they realize what is happening.  Many times, police are ready for this, and the driver will be in a worse situation. 

     All states and the federal government have “implied consent laws.”  These laws mandate that any drivers who are stopped at DUI checkpoints comply with the chemical or field sobriety tests.  If a driver refuses, the driver’s license can be suspended, the time length depending on state law.  Sometimes these penalties are the same or worse than if the driver had taken the test and failed.  Refusing to submit to a test is a misdemeanor offense under federal law.

     Failing a DUI test can result in a variety of penalties, depending on the jurisdiction.  After a conviction, there are many different penalties that can be imposed on the driver.  A driver’s first DUI conviction is usually a misdemeanor.  Depending on the jurisdiction, a DUI preceded by other DUIs can be a felony.  A driver can be sentenced to spend time in prison.  Often, a court allows for such time to be spent under house arrest, at a community residence center, or at a treatment center in lieu of jail.  Further, a driver usually faces some type of post-conviction license suspension whether for thirty days, one year, or more, depending on the severity of intoxication and how many prior DUIs a driver has.  Further, a court can mandate the driver participate in education, counselling, or treatment programs to reinstate their driver’s license.  Fines are also a common penalty, as is victim restitution.  All states have an ignition interlock program for certain offenders.  An ignition interlock device is installed on a steering wheel of a car.  A driver must breathe into a mouthpiece on the device which then measures their BAC level.  The car will not start if they are intoxicated.  Harsher penalties are imposed if certain other factors are present, such as the existence of prior offenses, if someone else is injured, or if there is a minor in the vehicle. 

     For a list of state penalties for DUI offenses see the Governors Highway Safety Association on State DUI Penalties.  For federal offenses, if a driver is caught on a national park, the Code of Federal Regulations applies. [36 CFR § 4.23]  For an offense on any other type of federal land, the Assimilated Crime Act [18 U.S. Code § 13] applies.  Under this Act, any offenses not punishable by an act of Congress that occur on federal land, state law applies.  In other words, if there is no applicable federal law, state law would apply for offenses on federal land.  For example, for the driver caught by police in the Virginian federal courthouse parking lot, Virginia DUI law would apply.

     DUI checkpoints are constitutionally permissible, as the government’s interest in protecting its citizens is more important than the brief inconvenience when a driver is stopped at a checkpoint.  A driver must remember their rights at a checkpoint and know that without their consent, the police cannot search their vehicle.  Further, consequences of a conviction of a DUI last beyond the penalties imposed from the conviction.  Their driving record will always be tarnished and their ability to apply for and obtain certain jobs may be negatively impacted.  Thus, DUI checkpoints aid state and federal authorities in their goal to deter drunk driving. 

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