California DUI DMV Roadblock Criteria & Motorists’ Right to Avoid Checkpoint

Here’s what California DMV says about Roadblocks & Checkpoints that may apply to a San Diego DUI lawyers’ case.

Most importantly, the third paragraph in the below DMV Manual correctly states that once licensee raises the issue of the constitutionality of the DUI checkpoint, California DMV must prove the constitutionality (a la Ingersoll v. Palmer’s criteria).

the right to escape the California DUI checkpoint – is set forth in law throughout the U.S. (See below after DMV’s Manual language.)

“12.091 Sobriety Checkpoint Arrests

Sobriety checkpoints or roadblocks involve law enforcement stopping vehicles on a public roadway based on a neutral mathematical formula, and investigating the possibility that the driver might be too impaired to drive. They are often set up late at night or in the very early morning hours, and on weekends, at which time the proportion of impaired drivers tends to be the highest.

Since an official government function is involved, there is a presumption that a checkpoint is constitutional under §664 of the Evidence Code; however, this is a rebuttable presumption. The burden is on the driver to show the checkpoint was constitutionally defective. If the driver can establish this fact, the presumption has been rebutted and the department must establish the constitutionality of the road block.

Roelfsema v. DMV, 199541 Cal.App.4lh 871 the court ruled that DMV is not required to prove the constitutionality of the sobriety checkpoint unless the licensee raises the issue. The two most recent cases related to APS laws are Ingersoll v. Palmer, 1987 43 CaJ.App.3d 1321 and People v. Banks, 1993 6 Cal.4th 926.

The Ingersoll Court suggested the following eight criteria for sobriety checkpoints:

1. Supervisory selection: The site for a sobriety checkpoint should be made by supervisory law enforcement personnel.

2. Limited field discretion to stop: Selection of vehicles to be stopped should be by a neutral mathematical formula, such as every 3rd, 5th, or 10th vehicle.

3. Safety: The conditions should be safe, with proper lighting, signs and signals, etc.

4. High visibility: Drivers must be given advance warning by signs, flashing lights, police vehicles and uniformed officers.

5. Reasonable location: The checkpoint site must be reasonable and most effective in apprehension of DUIs, based on its history of alcohol-related collisions and arrests.

6. Time and duration: Must be carefully set to minimize the checkpoint’s intrusiveness and preserve effectiveness.

7. Length of detention: No longer than necessary to determine any alcohol impairment and avoid traffic congestion.

8. Advance publicity: Is desirable to reduce intrusiveness and increase the deterrent effect.

At the hearing, the “unlawful arrest” objection to the sobriety checkpoint should address a specific facet of the arrest. The hearing officer cannot rule on an objection to an arrest that is based on the “unconstitutionality” of the law as a whole.

If the driver’s objection relates to the facts of the checkpoint arrest, the hearing officer will need evidence to support findings on the issues.

If the driver’s objection is to no advance publicity of the checkpoint, the ruling should be that this is no longer required per Banks. The California Supreme Court ruling in Banks was that detention without advance publicity is reasonable. The criteria in Ingersoll was applied in the Banks checkpoint and the court explained that to require advance publicity would burden law enforcement and the courts.

If the driver’s objection is to another criterion, such as length of detention, the driver must present some evidence that they were unduly detained.

If the presented evidence shifts the burden of proof to the department, the hearing officer
may need to subpoena the officer in charge of the roadblock, as well as the arresting
officer, to show the Ingersoll criteria placed in issue by the driver were met.”

[Pages 12-42 & 12-43 of California DMV Driver Safety Manual, Chapter 12, APS Hearings]

San Diego DUI Attorneys note there is another Criteria – “a not-so-small point” – expediently not mentioned in the above DMV Manual: The Right to Avoid a DUI Checkpoint.

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 Ingersol 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.

After Ingersoll was decided, in 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.

For DMV to omit this important criteria or 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 Aan 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 queue to board a plane (post September 11, 2001) automobiles attempting to enter the airport drop-off or pick-up area must pass through a 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 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.

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.)

Whether the DMV chooses to ignore this law is unclear. The San Diego public has the right to avoid checkpoints by finding locations at this free San Diego DUI Attorney roadblock site.