Random checkpoints have a controversial past in America. For many years, law and order proponents basically argued that if you have nothing to hide, you have nothing to fear. But high-profile wrongful arrests, such as the unfortunate Richard Jewell saga here in our hometown, clearly demonstrate that’s not always the case.
Because of these concerns, and also because of a little thing called the Fourth Amendment, the Georgia Supreme Court finally out the matter to rest and ruled that DUI roadblocks were legal, as long as these roadblocks strictly adhered to certain requirements. Some of those requirements are discussed below.
So, although a Marietta criminal defense lawyer cannot successfully challenge the initial stop in a DUI checkpoint stop, a lawyer can invalidate the checkpoint itself. If that happens, it doesn’t matter if officers had reasonable suspicion for the stop or not. The stop is illegal, and so is the subsequent arrest. As a result, the prosecutor’s case falls apart like a house of cards.
High-Level Authorization
Individual patrol officers, or small groups of patrol officers, may organize speed traps almost whenever they feel like it. But one thread that connects these different requirements is that a DUI checkpoint is not just a DUI-trap as opposed to a speed-trap. Additional rules apply.
One such rule is high-level supervisor setup. Legislators, along with the Supreme Court, theoretically approved all DUI checkpoints. A high-level supervisor must authorize a specific checkpoint. With a few exceptions, this authorization must include specific rules for the checkpoint, such as location and hours of operation.
Usually, the supervisor must be a person who’s accountable to the public, such as a county sheriff or police chief. Captains and other such lower echelon supervisors are acceptable in some cases. Sergeants and corporals definitely aren’t supervisors in this context, although these individuals have authority over subordinates.
Pre-Checkpoint Publicity
We mentioned the Fourth Amendment above. This provision prohibits unreasonable searches and seizures, or in this case, unreasonable stops. A police officer cannot detain a person unless s/he has some evidence that the person committed a crime. Driving isn’t a crime. The Constitution guarantees the right to travel.
So, motorists must know when and where a checkpoint will operate, so they may avoid the area altogether if they want. This requirement means the law enforcement agency must give lots of people fair notice.
No hard and fast rules apply. A Tweet or Facebook post might constitute mass notice. That’s especially true if, as is often the case, at least one mass media outlet published a story about the checkpoint (e.g. officers announced that a checkpoint will be in place at this place and at this time). Speaking of time, as a rule of thumb, officers must publish that Tweet or Facebook post at least twenty-four hours before kickoff.
Clear Visibility
For this requirement, we go back to the speed trap analogy. Speed traps are invisible. That’s why they call them “traps.” DUI roadblocks must be clearly visible, for several reasons.
First, signs must convey the nature of the detention (“DUI Checkpoint Ahead”) and give general instructions (“Have Drivers’ License and Proof of Insurance Ready”). These instructions relate to another Constitutional right, which is examined below.
Second, visible checkpoints are safe checkpoints. Speed trap safety doesn’t matter. DUI checkpoint safety matters. Drivers stop, seemingly for no reason. So, officers must deploy traffic cones or other such obstacles well ahead of the actual checkpoint, so motorists slow down.
Third, the checkpoint must be visible so motorists may turn around and avoid it. Officers immediately assume that U-turners are probably drunk drivers. So, a patrol car will probably tail these drivers for at least several blocks. However, the tailing officer must have reasonable suspicion, which is basically an evidence-based hunch, to pull over the motorist.
Limited Detention Time
Once again, no hard and fast rules apply in this area. Compliant checkpoints give officers limited Fourth Amendment immunity, and this immunity is quite limited. Therefore, if drivers must wait in the checkout line longer than about thirty seconds, that’s too long.
Officers have some limited operational discretion in this area. They can change the formula to speed up the line. For example, instead of stopping every third vehicle, they may switch to every fourth or fifth vehicle.
The formula must remain neutral. Random checkpoints aren’t random. Officers cannot stop certain motorists because they don’t look right and wave others through,
Incidentally, DUI checkpoints must target likely DUI suspects. A checkpoint in a mostly white area (since most DUI defendants are white) during the July 4th holiday is a legitimate checkpoint. A roadblock in a mostly nonwhite area is probably an illegal pretext checkpoint. That’s especially true if officers make a number of non-DUI arrests for drug possession and other unrelated offenses.
Respect for Constitutional Rights
We mentioned limited Fourth Amendment immunity above. DUI checkpoints limit search and seizure protections, but they don’t limit Fifth Amendment protections, specifically the right to remain silent.
Therefore, during checkpoint detentions, motorists don’t have to answer any questions. In fact, they don’t have to roll down their windows, as long as they produce the requested documents for inspection and comply with other basic commands.
Once again, officers will assume these motorists have something to hide, and a patrol car will follow them. Not to get too preachy, but the way things are now, that’s the price we pay for asserting our Constitutional rights.
July 4th DUI checkpoint arrests don’t necessarily hold up in court. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
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