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California DUI Checkpoint Law

Here’s a summary of San Diego & California DUI Checkpoint Guidelines:

1) Decisions regarding the execution of DUI Checkpoints in San Diego County must be determined by law enforcement supervisors, rather than field officers.

2) Field police officers are subjected to limited discretionary practices within preset boundaries.

3) Safety conditions must be maintained and meet prespecified standards.

4) California DUI Checkpoints must be situated in a reasonable location.

5) The DUI checkpoint must be clearly marked and officially identified as to its purpose.

6) Precisely established parameters as to the scheduled start and end times, and total duration of the DUI checkpoint.

7) Duration and essential criteria for detaining drivers.

8) Media notification must be publicly announced in advance.

Analysis

There is no law that reverses the general rule of the unlawfulness of warrantless seizures and instead provides that sobriety checkpoints are presumptively legal and warrantless roadblock stops, being at least a seizure, are presumptively illegal, absent justification. People v. Glover (1979) 93 Cal.App.3d 376, 382-383; see also People v. Gale (1956) 46 Cal.2d 253, 256 and Brewer v. Inyo (1989) 489 U.S. 593, 597.

A checkpoint stop program which is “ultimately indistinguishable from the general interest in crime control” [as here] violates the Fourth Amendment. Indianapolis v. Edmond (2000) 531 U.S. 32, 44. Edmond is understood to make checkpoint stops for crime control/investigation of the driver himself unconstitutional, absent the requisite degree of particularized suspicion, in contrast with a stop of the driver to briefly inquire about his observations of crimes committed by others at other times. Illinois v. Lidster (2004) 540 U.S. 419, 423-424 [explaining the difference between the two sorts of stops].

If certain criteria are satisfied, then that presumptive illegality can be made legal, but not just because the government or its patrons wants the outcome: they have to comply with the Fourth Amendment. Those criteria are evidentiary facts of which the accused or the driver has a right to discovery. There’s a due process-based right to discovery necessary to mount an effective Fourth Amendment attack, on pain of dismissal. People v. Brophy (1992) 5 Cal.App.4th 932, 937.

One should be especially concerned about one area of proposed, possible, and clearly objectionable efforts the executive might have made to elevate this constitutional sow’s ear to respectability about which we need due process-based discovery before they could ever be deemed to have lawfully carried their burden. The United States Department of Transportation developed a set of guidelines about how states should do these checkpoint programs, expressly to bring such programs into compliance with Michigan v. Sitz (1990) 496 U.S. 444, entitled “The Use of Sobriety Checkpoints for Impaired Driving Enforcement,” and one of the recommendations is:

Judicial Support – When officials decide to use sobriety checkpoints, they should involve their prosecuting attorney (district attorney, attorney general, etc.) in the planning process to determine legally acceptable procedures. This person can assist in identifying any legally mandated requirements and the types of evidential information that will be needed to prosecute cases emanating from checkpoint apprehension. The jurisdiction’s presiding judge should be informed of the proposed checkpoints and procedures, an essential step if the judiciary is to accept their use. The judge can provide insight on what activities would be required to successfully adjudicate such cases. Prosecutors, judges, and other involved members of the criminal justice system can be invited to observe the actual operation of the checkpoint.

Most everyone knows that the national executive has been increasingly oblivious to the horizontal and vertical balance/assignment of powers scheme envisioned by the Framers over the years, but there is no need to overstate the point by proclaiming that if any of the local judiciary participated in the establishment of this checkpoint program, the accused or driver needs to know the details of such advisory assistance immediately. It is only fair to request any information anyone has of this odious matter. [Of course, if the local police did not follow the Department’s recommendations, then query how this program complies with the established standards for a checkpoint.]

The California Supreme Court in Ingersoll v. Palmer (1987) 43 Cal.3d 1321 suggested that a warrantless sobriety checkpoint seizure might pass Fourth Amendment muster as an administrative search where the government does certain things, “related to the operation of the checkpoint in this case….” Id, @1335. Neither Palmer, nor any other authority, recognizing that warrantless liberty intrusions are presumptively illegal, ever pronounced that DUI checkpoints, just by that label, without attending to some combination of provable safeguards, are legal. That is because a search or seizure without individualized suspicion of wrongdoing is ordinarily unreasonable. Chandler v. Miller (1997) 520 U.S. 305, 308.

In Fourth Amendment discussions [as with all constitutional discourse], “we must never forget that it is a constitution we are expounding.” McCulloch v. Maryland (1819) 17 U.S. 316, 407. One cannot assess these things in terms of what best suits the puritanical political ends of the MADDs and SADDs of the world, lest self-serving fringe lunacy dethrone the Constitution.

After all, it has long been understood that “[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a[n] [independent!] magistrate to pass on the desires of the police before they violate [one's] privacy….” McDonald v. United States (1948) 335 U.S. 451, 456.

The People’s burden has to be carried, of course, with “evidence” (Penal Code section 1538.5(c)), which has the same meaning for suppression motions as for trials. Hewitt v. Superior Court (1970) 5 Cal.App.3rd 923, 927.
The people will surely want to argue that the defendant’s wish that he had not been caught does not invalidate the roadblock. We agree. The defendant, and his wishes, wants and desires are largely irrelevant to these proceedings.

What is relevant is the 4th Amendment to the Constitution of the United States of America, and the right to travel, which is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment to the Constitution of the United States of America.

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. 12 Chafee, Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandall v. Nevada, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274; Edwards v. California, 314 U.S. 160. “Our nation,” wrote Chafee, “has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” Id., at 197.

Milton v. Rowland, (1993)14 Cal. App. 4th 508, held:

The touchstone for all issues under the Fourth Amendment and article I, section 13 of the California Constitution is reasonableness.”]) Thus, for example, although the court in Davis determined that airplane passengers are deemed to have consented to the customary pre-boarding search, 2 it nonetheless recognized the need under the Fourth Amendment to examine the reasonableness of the search procedure. (482 F.2d at pp. 908-912.) Similarly, in McMorris v. Alioto, supra, 567 F.2d 897, 901, the court determined that courthouse visitors impliedly consent to search, yet concluded the search nonetheless must be limited and reasonable.

2 In this respect, the court observed, “a prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a ‘consent,’ granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment.” (482 F.2d at p. 913.)

The police have the right to set up DUI checkpoints (not roadblocks), but each time they do, it is the burden of the prosecution to justify their use (if the citizen accused raises such a challenge) pursuant to the guidelines set out in Ingersoll v. Palmer, (1987) 43 Cal. 3rd 1321. The fact that there was an escape route for motorists to utilize was predicate to the courts’ establishment of the 8 point criteria:

1. Decision Making at the Supervisory Level

The decision to establish a sobriety checkpoint, the selection of the site and the procedures for the checkpoint operation should be made and established by supervisory law enforcement personnel, and not by an officer in the field. This requirement is important to reduce the potential for arbitrary and capricious enforcement.

2. Limits on Discretion of Field Officers

Motorists should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver should be employed.

3. Maintenance of Safety Conditions

Primary consideration must be given to maintaining safety for motorists and officers. Proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are necessary to minimize the risk of danger to motorists and police.

4. Reasonable Location

The location of checkpoints should be determined by policy-making officials rather than by officers in the field. The sites chosen should be those which will be most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests. Safety factors must also be considered in choosing an appropriate location.

In this regard, it is the burden of the State to produce relevant admissible non hearsay evidence proving the high incidence of alcohol related accidents and/or arrests. It is not enough to simply offer unsupported conclusions through hearsay.

5. Time and Duration

The time of day that a checkpoint is established and how long it lasts also bear on its intrusiveness as well as its effectiveness. For example, a nighttime stop may be more hazardous and possibly more frightening to motorists, but it will also probably prove more effective.

6. Indicia of Official Nature of Roadblock

Those aspects of a sobriety roadblock, which evidence its official nature, are critical in minimizing its intrusiveness. The roadblock should be established with high visibility, including waning signs, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are such factors important for safety reasons, advance warning will reassure motorists that the stop is duly authorized.

7. Length and Nature of Detention

Minimizing the average time each motorist is detained is critical both to reducing the intrusiveness of the stop on the individual driver and to maintaining safety by avoiding traffic tie-ups. Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.

8. Advance Publicity

Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.

But see People v. Banks, (1993) 6 Cal. 4th 926 where the court said that although advance publicity remains a factor to consider, the lack of advance publicity alone will not render a roadblock unconstitutional.

As a matter to consider at any hearing, there is a difference between proof that the media was notified, and proof that the public was notified. The advance notice described in Ingersoll and Banks, was ‘advance notice to the public’, through the media, not just ‘notice to the media’.

9. Detention for Avoiding the Roadblock

With regard to the citizen’s right to avoid the stop, at page 1336, Ingersoll said, Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint.

It is important to note that in each of the California Supreme Court cases (Ingersoll and Banks) there was an escape route for which no retribution could follow if the driver decided to take advantage thereof.

What Ingersoll did say on the matter of escape routes was as follows:

“A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.” Ingersoll v. Palmer, (1987) 43 Cal. 3rd 1321

And thereafter, Banks said of the matter of escape routes:

Officers were instructed not to pursue motorists who turned their vehicles away before reaching the checkpoint.
People v. Banks, (1993) 6 Cal. 4th 926 at 932.

Recently, US v. Faulkner, (9th Circ. 2006) 450 Fed. 3rd 466 at p. 468 stated in the second paragraph last sentence:

There was sufficient adjacent space on the Paradise approach road for a vehicle to turn around before reaching the information station, as several drivers had successfully done in the past.

In State v. Binion, 900 S.W.2d 702 (Tenn. Crim. App. 1994) in Footnote number 2, the court said:

[I]t may be that the lack of such a condition renders any roadblock conducted pursuant to the order unconstitutional.

To claim there is no case law on escape routes and checkpoint avoidance is incorrect: There are at least Twenty (20) published cases from eleven (11) other States as well as one Federal Court, and additionally one Law Review article on the very subject, nationwide (that’s almost two (2) dozen published cases from a little more than one fifth of the entire Nation, which is a very, very far cry from “no… authority has held that … checkpoint(s) must have an escape route”). Citing: 1) Murphy v. Commonwealth, 9 Va. App. 139, 384 SE 2d 125 (1989) 2) State v. Binion, 900 S.W.2d 702, 706 (Tenn. Crim. App. 1994) See Sec. 11.1.1 (“Evasion of Sobriety Check-points”) in “Drunk Driving Defense, 5th Edition”, 3) People v. Rocket, 594 N.Y.S.2d 568 (Just. Ct. 1992), 74 ALR 5th 319 at § 14; 4) Howard v. Voshell, 621 A.2d 804 (Del. Super. Ct. 1992), 5) State v. Powell, 591 A.2d 1306 (Me. 1991), 6) State v. Badessa, 373 N.J. Super. 84, 860 A.2d 962 (App. Div. 2004) Order granting suppression upheld on appeal by the people in State v. Badessa, (Badessa II) 185 N.J. (2005) 303; 885 A. 2nd 430; 7) People v. Bigger, 771 N.Y.S.2d 826 (J. Ct. 2004). 8) Com. v. Scavello, 734 A.2d 386 (Pa. 1999); 9) Com. v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); 10) Com. v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992); 11) State v. Talbot, 792 P.2d 489 (Utah Ct. App. 1990); 12) State v. McCleary, (1997) 251 Neb. 940, 560, 560 N.W. 2nd 789; 13) Bass v. Commonwealth, (2000) 259 Va. 470; 525 S.E. 2nd 921; 14) Pooler v. MVD, (1988) 306 Or. 47, 755 P.2nd 701; 15) State v. Hester, (2004) 268 Ga. App. 501; 16) People v. Banks Cal. considered the case of (17) People v. Rister, 803 P. 2nd 483 (1990); 18) Orr v. People, 803 P. 2nd 509 (1990), Rister, was also cited in 19) McDonald v. Department of Motor Vehicles, 77 Cal. App. 4th 677 (2000). See also US v. Faulkner, (9th Circ. 2006) 450 Fed. 3rd 466 at p. 468.

Murphy v. Commonwealth, 9 Va. App. 139, 384 SE 2d 125 (1989) held that merely making a legal turn 350 feet before a road block is not enough for a stop. See also State v. Binion, 900 S.W.2d 702, 706 (Tenn. Crim. App. 1994)
See Sec. 11.1.1 (“Evasion of Sobriety Checkpoints”) in “Drunk Driving Defense, 5th Edition”, which also mentions People v. Rocket, 594 N.Y.S.2d 568 (Just. Ct. 1992), in which the New York court agreed with the Oregon decision in Pooler, holding that a legal turn into an intersecting roadway immediately before a DWI roadblock did not constitute probable cause to justify an investigatory stop. The court said that it
…was compelled to find that extension of sobriety checkpoints which include the stopping of every vehicle which lawfully turns off onto a public right of way prior to entering the checkpoint would be unduly evasive of the individual rights and freedoms protected by the U.S. Constitution and the Constitution of the State of New York. [Id. at 570]

See 74 ALR 5th 319 at § 14; Impermissible to chase and detain:

In the following cases, the courts indicated that, based on the facts presented, it was not permissible to chase and detain the driver of a motor vehicle that appeared to attempt to avoid a sobriety checkpoint.

In Howard v. Voshell, 621 A.2d 804 (Del. Super. Ct. 1992), a case involving an appeal of a license revocation due to a DUI stop, the police officer stopped a driver who avoided a roadblock. Indicating that “a legal U-turn made 1,000 feet before a roadblock is beyond the purview of the roadblock,” the court held that “as to the general issue of avoiding police confrontations, the majority of jurisdictions which have addressed the issue of flight have held that the mere act of avoiding confrontation does not create an articulable suspicion.” As such, the stop was ruled impermissible.

In State v. Powell, 591 A.2d 1306 (Me. 1991), the defendant was stopped after he turned his vehicle around some 700 yards before a sobriety checkpoint and 500 yards before the first cones or signs warning of that roadblock. The defendant was stopped by a police officer whose specific duty was to stop vehicles avoiding the roadblock. The officer did not observe the defendant to be driving erratically or violating any traffic laws. Indeed, the defendant pulled over immediately after the police officer activated the lights of his cruiser. Based on these facts, the Supreme Judicial Court of Maine upheld the trial court’s earlier suppression order and rejected the state’s argument that the defendant’s lone act of turning around as he approached the checkpoint gave rise to a reasonable and articulable suspicion of criminal wrongdoing. In addition, the court held that the stop at issue did not fall within the scope of the roadblock itself, which would have negated any requirement of individualized suspicion. The court noted, however, that it was not deciding whether avoidance of a roadblock gives rise, per se, to an articulable suspicion of criminal conduct.

Warnings at driving while intoxicated (DWI) checkpoint failed to advise motorists that no turns were permitted at the un-barricaded intersections within the checkpoint zone, and thus stop of defendant after defendant made turn onto intersecting road in checkpoint was unlawful. U.S.C.A. Const Amend IV. State v. Badessa, 373 N.J. Super. 84, 860 A.2d 962 (App. Div. 2004).

In People v. Rocket, 595 N.Y.S.2d 568, 156 Misc.2d 641 (Just. Ct. 1992), the court declared that making a U-turn or turnoff to avoid a sobriety checkpoint does not, without more, give rise to the requisite articulable suspicion necessary to stop a vehicle. Based on this premise, the court invalidated the stop of the defendant’s vehicle where the defendant had merely turned off of the highway on which the roadblock was established onto an adjoining roadway. The court noted that there were many potential, legitimate reasons for people to be turning onto the adjoining public way.

Police officer lacked objective articulable reason to stop defendant’s vehicle on ground that defendant turned around in attempt to evade sobriety checkpoint, where officer was not part of sobriety checkpoint detail, there was no written established procedure for stopping motorists that appeared to be evading sobriety checkpoints, and defendant was driving his vehicle in no apparent violation of any law. U.S.C.A. Const Amend IV. People v. Bigger, 771 N.Y.S.2d 826 (J. Ct. 2004).

The court in Com. v. Scavello, 734 A.2d 386 (Pa. 1999), held that when police are conducting a sobriety roadblock, they may not stop and detain a driver simply because he has turned to avoid passing through the roadblock. The motorist, who was driving toward the sobriety roadblock, saw it ahead and made a legal u-turn in order to avoid the roadblock. A state trooper gave chase and stopped the motorist a short distance away from the roadblock. The trooper smelled alcohol on his breath and gave him a field sobriety test. The motorist failed the test, and was subsequently convicted of underage drinking and driving under the influence of alcohol. The court below [FN18] held that because avoidance of a roadblock does not give rise to reasonable suspicion, the stop was illegal.

The Commonwealth argued that the lower court erred for two reasons. The first was that the Motor Vehicle Code, 75 Pa. Cons. Stat. § 6308(b) authorizes such stops without individualized suspicion of illegal activity. However, the court noted that since being engaged in a systematic program of checking vehicles is something that occurs at the roadblock, it does not occur at some other location distant from the roadblock, for at that location there is no systematic program of checking, and that if a stop is to be made at a location away from the roadblock, the officer may stop a vehicle, as provided for in the statute, only if he has “reasonable grounds to suspect a violation of this title.”

The Commonwealth also argued that avoidance of the roadblock is itself sufficient justification for the traffic stop. The court noted that although there is statutory authority in the Motor Vehicle Code at 75 Pa. Cons. Stat. § 6308(b) for police to conduct roadblocks, and although the court to date has declined to rule this practice unconstitutional, as noted in Com. v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987) (plurality opinion), discussed in § 4, and Com. v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992) (implementing the guidelines set out in Tarbert), an opinion concerning the constitutionality of systematic, non-discriminatory, non-arbitrary roadblocks for the purpose of insuring safety on the highways by disclosing registration, licensing and equipment violations, a case out of scope for this annotation, there is no requirement that a driver go through a roadblock. Failing to go through the roadblock in and of itself, therefore, the court held, provides no basis for police intervention.

In State v. Binion, 900 S.W.2d 702 (Tenn. Crim. App. 1994), while the court indicated that the mere act of avoiding a roadblock may, by itself, constitute sufficient reasonable suspicion to warrant a police officer in chasing and detaining a motorist, the court held that such suspicion was not present in the instant case. What amounts to reasonable suspicion, the court said, must be determined on a case-by-case basis, applying a totality of the circumstances standard. One of the factors to consider in making this determination is whether there is any objective evidence that the motorist was intentionally attempting to avoid the sobriety checkpoint. Such evidence may include how far the motorist was from the roadblock when the motorist made the evasive maneuver, whether the motorist could see the roadblock from that distance, and the manner in which the individual operated the vehicle. The police officer’s experience may also be considered as a factor in making this determination.
Applying these factors to the case, the court found that the police officer did not have reasonable suspicion to chase and detain the defendant. The court took particular notice of the fact that the defendant turned around some 1,000 feet before the roadblock and the absence of any other evidence to suggest that the defendant was intentionally attempting to avoid the checkpoint. The court further noted that it was significant that the roadblock was not “controlled”: approaching drivers could avoid the roadblock by making safe, legal U-turns. In Footnote number 2, the court said: [I]t may be that the lack of such a condition renders any roadblock conducted pursuant to the order unconstitutional.

In State v. Talbot, 792 P.2d 489 (Utah Ct. App. 1990), the defendant was pursued, stopped, and arrested after being observed turning his vehicle around approximately 1/4 mile before a roadblock purportedly established for the purpose of checking for driver’s licenses and registrations. The arresting officer followed the defendant for a period of time before stopping him, and did not observe the defendant driving erratically or in violation of any traffic codes. The state argued that the stop was justified because the defendant’s act of appearing to avoid the roadblock, by itself, created a reasonable suspicion of criminal activity. The court disagreed. In reaching its conclusion, the court first adopted what the court viewed as the opinion of a majority of other jurisdictions–that flight, without more, is never sufficient to create a reasonable suspicion for stopping and detaining an individual. The court then cited the United States Supreme Court’s position that, absent reasonable, objective grounds for detention, individuals are not obligated to listen to or answer a police officer’s questions and are free to go on their way. Indeed, the mere act of refusing to listen to or answer questions, without more, the court noted, does not give rise to such reasonable, objective grounds. If an individual can avoid and ignore a police officer when approached on the street, the court continued, then it only makes sense that an individual can do the same when confronted by a sobriety checkpoint. In so ruling, the court readily acknowledged that its decision was at odds with the opinions handed down by courts in several other states. See also: State v. McCleary, (1997) 251 Neb. 940, 560, 560 N.W. 2nd 789; Bass v. Commonwealth, (2000) 259 Va. 470; 525 S.E. 2nd 921; Pooler v. MVD, (1988) 306 Or. 47, 755 P.2nd 701; State v. Hester, (2004) 268 Ga. App. 501.
Banks considered the case of People v. Rister, 803 P. 2nd 483 (1990), which held a roadblock to be valid, in part because the state patrol officers would take no action against motorists who make an apparent attempt to avoid the checkpoint@ by turning around or turning off the highway before reaching the checkpoint. Rister at p. 485.

Another Colorado roadblock case,; Orr v. People, 803 P. 2nd 509 (1990), which cited Rister stated:

a sign warning of the sobriety checkpoint was visible to motorists, thereby allowing motorists the opportunity to avoid the checkpoint. Orr, at p. 512.

(Rister, was also cited in McDonald v. Department of Motor Vehicles, 77 Cal. App. 4th 677 (2000) if only to state that the laws regarding DUI in Colorado were substantially the same as those in California.)

Moreover in Ingersoll and Banks, not every car was stopped, and the choice of which cars to stop was random.

The classic post September 11, 2001 checkpoint example would have to be an Airport Security checkpoint. While It is true, everyone who is going to get on the plane must que up into the security checkpoint line, each person is free to exit that line, and will not automatically therefore be searched for such choice to exit (though they would of course be denied access to board the plane).

Even before reaching the que to board a plane (post September 11, 2001) automobiles attempting to enter the airport drop-off or pick-up area must pass through a Security Checkpoint. The sign warning of the up-coming checkpoint is placed sufficiently in advance of the Checkpoint to allow any driver wishing to avoid the Checkpoint to turn out without breaking any laws, in order to avoid being subjected to the Checkpoint.

Thus the difference between a “checkpoint” and a “Roadblock” is the presence or absence of an “escape route”.
In the case of the airport checkpoints for both cars (at the entrance to the airport itself), and people (at the area which separates the ticket counter from the boarding gates), in the event a terrorist got through either of the checkpoints, thousands of people could be killed (as we saw on September 11, 2001). Yet, we are not “hell bent” on stopping every car, or every person, even if only because they attempted to avoid the brief detention.

Yet, in the case of a DUI Roadblock, if a person inadvertently avoided a DUI Roadblock, even if s/he had a fatal accident, it could never reach the proportions of 911. Therefore, if National Security must allow for a turn out, then how much more should a DUI Roadblock?

In re Tony C. is the seminal case. In that case, the defendant was carrying about 10000 pennies in a bag under his jacket and tried to avoid police contact. How can the police have a reasonable suspicion of “criminal activity afoot” based merely upon ones trying to avoid the once over by the local constables? This is not Nazi Germany where trying to avoid the Gestapo on the train to show “your papers” would raise suspicion. If the People are correct then anyone approaching the court house who decides to turn around to avoid going through the metal detector could be stopped and searched.

Prior to the U.S. Supreme Court’s decision in Terry v. Ohio, any seizure of a person by a police officer had to be justified by probable cause to be reasonable under the Fourth Amendment.

In Terry, the Supreme Court recognized a limited exception to the probable cause requirement for brief seizures and limited searches so long as the officer could point to specific and articulable facts supporting his or her individualized suspicion that the seized person was guilty of wrongdoing. (Terry v. Ohio (1968) 392 U.S. 1, 30.) If an officer cannot point to such facts supporting an individualized suspicion of wrongdoing, a seizure for purposes of criminal investigation is unconstitutional. (In re Tony C. (1978) 21 Cal.3d 888, 895.)

Sobriety checkpoints, however, are not governed by the law applicable to criminal investigatory seizures under Terry v. Ohio and In re Tony C; there need be no showing of individualized suspicion. The constitutionality of a sobriety checkpoint, rather, is measured by the standards applicable to administrative searches . (Ingersoll v. Palmer, supra, 43 Cal.3d at pp 1331-32.)

A court evaluating a sobriety checkpoint for Fourth Amendment reasonableness must balance the public safety interest in preventing drunk driving against the interference with a motorist’s liberty. (Brown v. Texas (1979) 443 U.S. 47, 50-51.) Additionally, in the absence of individualized suspicion, the court must be satisfied that the checkpoint was “carried out pursuant to a plan embodying explicit, neutral limitations of the conduct of individual officers.” (Delaware v. Prouse (1979) 440 U.S. 648, 663; United States v. Martinez-Fuerte (1976) 438 U.S. 543, 558-62.)

The 4-3 majority in Ingersoll conducted just such a balancing analysis and concluded that a checkpoint satisfying eight enumerated factors was reasonable. The eight factors to be considered by a court to determine whether a checkpoint is constitutional are (1) decision-making at the supervisory level; (2) limits on discretion of field officers; (3) maintenance of safety conditions; (4) reasonable location; (5) time and duration; (6) indicia of the official nature of the checkpoint; (7) length and nature of detention; and (8) advanced publicity.

In the only high court case to construe the Ingersoll standard, a 5-2 majority in People v. Banks concluded that the absence of advanced publicity alone would not invalidate a checkpoint. Instead, advanced publicity remains one of the eight factors to be balanced when determining the constitutionality of the checkpoint. (People v. Banks (1993) 6 Cal.4th 926, 933 note 3, 949.)

In Fourth Amendment discussions [as with all constitutional discourse], “we must never forget that it is a constitution we are expounding.” McCulloch v. Maryland (1819) 17 U.S. 316, 407. We cannot assess these things in terms of what best suits the puritanical political ends of the MADDs and SADDs of the world, lest self-serving fringe lunacy dethrone the Constitution.

After all, it has long been understood that “[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a[n] [independent!] magistrate to pass on the desires of the police before they violate [one's] privacy….” McDonald v. United States (1948) 335 U.S. 451, 456.

The State must carry the burden with “evidence” (Penal Code section 1538.5(c)), which has the same meaning for motions as it does for trials. Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927. The California Supreme Court just issued an opinion citing Hewitt approvingly and noting that real evidence, not hearsay, is required for 1538.5 motions. See People v. Johnson (2006) (S119230) — Cal.4th —, —, and fn. 8.

Therefore, it is wrong for the State, to suggest (as they have in the past, and may here) that they can meet their burden by asserting that Evidence Code section 664 is a substitute for evidence, in support of “their” burden.

Evidence Code § 664 states:

It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest … made without a warrant.

The accused or motorist need not specify what was improper about the checkpoint. That places the cart before the horse. The State must justify the warrantless intrusion into the defendant’s constitutionally guaranteed liberties. To hold otherwise would be like saying that when a citizen’s face strikes an officer’s baton, the citizen should be charged with assault upon a police officer.

THE BURDEN OF PROOF REMAINS ON THE STATE

Contrary to any misunderstood suggestion by the State that an accused or motorist has the burden of stating what was wrong with the NAZI GERMANY style roadblock: It has become a First Principle of criminal advocacy that the People have the burden to justify a warrantless search and seizure, (and not the other way around, as the People suggest.) Coolidge v. New Hampshire (1971) 403 U.S. 443, 455, People v. Williams (1988) 45 Cal.3d 1268, 1297 [Williams I], because warrantless searches and seizures are presumptively illegal. Katz v. United States (1967) 389 U.S. 347, 357, People v. Laiwa (1983) 34 Cal.3d 711, 725. That is, warrantless liberty infringements are “per se unreasonable,” People v. Osband (1996) 13 Cal.4th 622, 673 [internal cite and quotation marks omitted], unless the People can show the narrow exception which applies thereto. Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750.

A sobriety checkpoint operated by state or local law enforcement is a “seizure” within the meaning of the Fourth Amendment to the United States Constitution. (Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444.) Stops made at a sobriety checkpoint are, by definition, seizures without arrest warrants. A defendant may move to suppress evidence if such a “seizure without a warrant was unreasonable.” (Pen. Code § 1538.5, subd. (a)(1)(A).)

If police conduct in performing a warrantless seizure is unreasonable, then it violates the Fourth Amendment to the United States Constitution. (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329.) The exclusionary rule requires that all evidence obtained as a result of such an unreasonable seizure be suppressed. (People v. Michael Allen Williams (1988) 45 Cal.3d 1268, 1299, citing Mapp v. Ohio (1961) 367 U.S. 643, 646-660.)

Evidence that must be suppressed includes not only that which was seized in the course of the unlawful conduct itself (so-called “primary” evidence) but also what was subsequently obtained through the use of that evidence (so-called “derivative” or “secondary” evidence). (Alderman v. United States (1969) 394 U.S. 165, 171; Wong Sun v. United States (1963) 371 U.S. 471, 484-487.) The “fruit of the poisonous tree,” as well as the tree itself, must be excluded. (Nardone v. United States (1939) 308 U.S. 338, 340-341.)

Once a defendant establishes that an arrest was made without a warrant and the legal grounds for his challenge to it, the burden shifts to the prosecution to prove the warrantless seizure was constitutional. (People v. John David Williams (1999) 20 Cal.4th 119, 136.)

If the prosecution fails to carry its burden, the defendant need do nothing more to be entitled to suppression of the primary evidence: such evidence . . . is automatically subject to suppression. (People v. Michael Allen Williams, supra, 45 Cal. 3d at p. 1300.)

In service to that allocation of burdens, a procedural device has been recognized as inhering in the nature of that allocation: the major pleading effort, upon motion by the accused, is initially on the State to advance its justification for a warrantless liberty infringement. Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96-97. The supreme court tardily boarded that long departed train and finally gave its weighty imprimatur to the compelled and established rule. People v. Williams (1999) 20 Cal.4th 119, 136 [Williams II].

Naturally, “[i]f the prosecution fails to carry its burden [of justification for the warrantless infringement], the defendant need do nothing more to be entitled to suppression of the primary evidence.” Williams I, supra @1300 [emphasis added].

So, even though the moving party has the initial responsibility of raising the suppression issue, “when [he so raises], he makes ‘a prima facie case’ when he establishes that the arrest or search was made without a warrant and … ‘the burden then rests upon the prosecution to show proper justification.’” People v. Manning (1973) 33 Cal.App.3d 586, 600; see also Williams II, supra @134.

Although that burden shift by “warrantlessness” is clear, and has always been the law for the few of us who did not succumb to the temporary contrary heresy, it still causes some confusion in some quarters, because it seems…, well, too pro-defendant. Heaven Forbid! that we have a system favoring other than government power; who do we think is in charge, the Framers!/? But let us focus on some of the clear judicial utterances reinforcing the burden shift doctrine so we don’t have any uncomfortable exchanges at the hearing.

“Therefore, when the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion.” Williams II, supra, @130 [emphasis added]. “The Court of Appeal in Wilder correctly criticized the trial court for ‘erroneously . . . requir[ing the defendant] to assert specific attacks upon the warrantless seizure . . . before [the prosecution] articulated its justification for the seizure.’” Id., @134 [quoting, and citing approvingly, Wilder, supra; emphasis added]. “The assertion of a warrantless search or seizure obligates the prosecution to justify the actions of law enforcement, but it does not raise every possible suppression issue that a defendant may want to assert. As already noted, defendants who challenge some specific aspect of a search or seizure other than the lack of the warrant must specify the nature of that challenge at the outset.” Id., @135 [emphasis added]. “we hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. Id., @136 [emphasis added]. “[I]n the case of a warrantless search or seizure, defendants are not required to anticipate the prosecution’s justifications. Law enforcement personnel, not defendants, are in the best position to know what justification, if any, they had for proceeding without a warrant.” Id., @136 [emphasis added].

The case is clear with searches or full-blown arrests. But since a detention is, of course, a seizure, if it cannot be justified, even its fruits must be suppressed. People v. Shields (1988) 205 Cal.App.3d 1065, 1068, 1072-1073, Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.

A person has been detained whenever, in view of all the circumstances, a reasonable person in his position would believe that he is not free to leave. Wilson, supra @790, citing United States v. Mendenhall (1980) 446 U.S. 544, 554; see also In re James D. (1987) 43 Cal.3d 903, 913.

When a driver attacks and challenges the validity of a DUI checkpoint, the burden shifts back to DMV to establish, by affirmative evidence, the legality of the Checkpoint. [Roelfsema v. DMV (1995) 41 Cal.App.4th 871, 880-881]

A detention can be unconstitutionally prolonged when the initial officer directs the motorist to a San Diego DUI checkpoint secondary screening area.

In State v. McPartland, 212 ME 12, 36 A.3d 881 (2012), a driver approached a
DUI Checkpoint at approximately 2:00 a.m., traveling at a rate that was ten
miles per hour over the speed limit, and admitted to consuming “a Martini.”
She contended on appeal that her mere admission to having had a single
Martini was not grounds for the officer to detain her to a secondary
screening area for further investigation.

In this case of first impression, we determine what constitutional
standard law enforcement authorities must apply when deciding whether a
motorist who has been lawfully stopped at a sobriety checkpoint may be
detained for secondary screening…

Given the authority from other appellate courts that have
addressed the question presented in this appeal, as well as our own cases
interpreting the Fourth and Fourteenth Amendments of the United States
Constitution and article I, section 5 of the Maine Constitution, we conclude
that an officer questioning a motorist stopped at the initial roadblock
must have  an objectively reasonable basis for suspecting that the motorist
is driving under the influence before the officer can refer the
motorist to secondary screening for impairment.  Id., at 883-84.

The Maine Supreme Court deferred to the trial court’s
findings and affirmed its denial of appellant’s motion to suppress evidence
based on the totality of circumstances.  It rejected appellant’s assertion
that the only basis for the secondary screening detention was her admission
of drinking, specifically noting that in addition to the admission of
drinking she had sped up to the Checkpoint at 10 mph over the speed limit at
two o’clock in the morning.  It was these additional factors, coupled with
the admission of drinking, that made the further detention objectively
reasonable.

Although the admission of drinking may be a factor to consider in the
totality of the circumstances, the mere admission to having consumed just
one or two drinks is not enough to make secondary screening detention
objectively reasonable. Thus, People v. Bruni, 406 Ill.App.3d 165, 940
N.E.2d 84 (2010), also found a secondary screening detention objectively
reasonable based on the officer’s observations of “glossy” eyes and odor of
alcohol, as opposed to just the driver’s admission of drinking.

The Bruni Court noted that “[t]he leading fourth amendment scholar has
stated that ‘the officer [conducting the sobriety checkpoint stop] should
have an articulable suspicion that the motorist is intoxicated before
detaining the motorist for an extended [DUI] investigation.’ 5 W. LaFave,
Search and Seizure § 10.8(d), at 378 (4th ed. 2004), quoting Note, 71 Geo.
L.J. 1457, 1486 (1983). When such a suspicion exists, the detention is
tantamount to an investigatory detention under Terry v. Ohio, 392 U.S. 1
(1968), which held that a police officer may effect a limited investigatory
stop where there exists a reasonable suspicion, based upon specific and
articulable facts, that the person detained has committed or is about to
commit a crime.” Bruni, at 168.

As noted by the Bruni Court, there is a split of authority as to whether an
odor of alcohol alone constitutes reasonable suspicion of intoxication.
People v. Rizzo, 243 Mich.App. 151, 622 N.W.2d 319 (2000) held that a strong
odor of alcohol on a driver’s breath is a sufficient basis to detain a
motorist for field sobriety testing (id., at 320-21), while other
jurisdictions have reached a contrary conclusion. See, e.g., City of
Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002) (smell of
alcohol on defendant’s breath while he was at police station because the
police had “picked up” his daughter, combined with his false statement to an
officer that he was walking—not driving—home, did not give rise to a
reasonable suspicion that defendant was intoxicated and too impaired to
drive).

DUI Checkpoints only pass constitutional muster where the initial screening
is minimally intrusive and brief, and where only those drivers exhibiting
signs of impairment are further detained to a secondary screening area. See
Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) and
Ingersol v. Palmer, 43 Cal.3d 1321 (1987). Where a motorist merely
acknowledges to having had a drink or two, but the officer does not detect
any sign of impairment (either in the manner of driving or by the operator’s
physical manifestations) , then there is no constitutional basis for further
detention to a secondary screening area.

Explore this attorney’s free interactive map of DUI Checkpoints Locations in San Diego and Southern California.

Whenever an American’s constitutional rights may be infringed on, it’s always a good idea to get the best possible lawyer who can try to protect those rights.

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By: Rick Mueller

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