A new client just called me about being arrested for a DUI from a checkpoint. Yes, as we know the holidays mean festivities and parties more likely than not include alcoholic beverages. So again, checkpoints are legal but the police are required to insure that state and federal laws are followed before they institute a checkpoint.
In California and in many states, police conducting checkpoints must comply with a strict guideline that is laid out by case laws. In California, the landmark case is Ingersoll v. Palmer. Why are these case laws and statutes critical? If the police do not follow the protocol described in Ingersoll, the checkpoint is not lawful, and any evidence gathered during a driving under the influence (“drunk driving”) arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The court established 8 factors to minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
- Supervisors Decide: The establishment and location of sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This is important in order to reduce the potential for arbitrary and random enforcement.
- Field Officers Discretion Limited: A neutral mathematical formula, such as every sixth driver etc. is used in determined in who to stop. Again with the purpose that field officers do not get to stop any driver he/she chooses.
- Safety Conditions Installed: In order to minimize risk of danger to motorists and police, proper lighting, warning signs and signals must be clearly visible. Clearly identifiable official vehicles and personnel must be present.
- Reasonable Location: The sites chosen should be those which will be most effective in actually stopping drunk drivers. They must provide documentation and history that at or near the location, high incidents of alcohol-related accidents and arrests have occurred.
- Time and Duration: Police are expected to use reasonable and good judgment in determining the duration of the checkpoints. The goal is to insure effectiveness of the operation coupled with the safety of the general public.
- Indicia of Roadblock: It should be established with high visibility, including warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are these factors important for safety reasons, but advance warning is necessary to reassure motorists the stop is officially authorized.
- Length and Nature of Detention: 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, bloodshot eyes. If no impairment exists, the driver should be permitted to drive on without further delay. If the officer observes signs of impairment, the driver will be directed to a separate area for further investigation and the general principles of detention and arrest would apply.
- Advanced Publicity: There must be notice to the public prior. The thought is that, it limits intrusion on a person’s security and those stopped would understand what was happening.
Many clients have asked me if it is legal to avoid a roadblock. Yes, it is. A driver may not be stopped and detained merely because they attempted to avoid the roadblock. However, if an illegal act, such as making a U-turn at a no U-turn intersection occurred, probable cause is triggered and a legal investigatory stop occurs. Have a safe holiday.
Feel free to contact my office at 310-601-7144 or email me at [email protected]
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