Jingle Bells, Whiskey Smells, Checkpoints up ahead


DUI Check points and the Constitution


The holidays always bring on overindulgence- in food and alcohol- with the countless office parties, New Year’s soirees and for some just an attempt to cope with stress and family during this demanding time of year.   Many have also probably noticed the increased publicity regarding drunk driving around this time of year as well as an increase in check points.   DUI arrests increase around drinking holidays such as New Year’s Eve, Fourth of July and even smaller days such as Cinco de Mayo (Cinco de Drink-o) and St. Patty’s.

Not only is it dangerous to drink and drive, even if everyone ends up unharmed, a DUI arrest will cost a lot of money and potential employment.   This article is in no way intended to educate people on how to avoid a DUI arrest when driving after drinking; it is simply an exploration of Sobriety Checkpoint law in California.  It never hurts to know your rights, right?

The Constitution (in theory) protects individuals from unreasonable stops, search and seizure.  A DUI checkpoint involves the stop of a car without observing any sort of violation.  How is this ok?

Well, DUI checkpoints are authorized by California Vehicle and Government Code sections in order for California Peace Officers to educate motorists about DUI dangers and deter DUIS by handing out leaflets and not make the purpose of a checkpoint to gather evidence of a crime and make arrests.    Sounds a bit like a façade but this has been tested and case law has held that these check points pass constitutional muster if the meet certain standards.

What are these standards?  These stops are considered administrative stops and only an Officer in charge or command level personnel can approve and organize sobriety checkpoints.  This was established to that inferior officers would not have the power to make arbitrary stops under the guise of a DUI checkpoint.

In addition to authority to set up a check point, there must be “predetermined neutral criteria” in which cars are stopped in the field- it cannot be left to officer discretion.  This means something like “stop every 3rd car.”

A motorist may not be ordered to move to the side or get out of the car unless there is DUI evidence.

The checkpoint must have safe conditions such as lighting, uniformed officers, flashing emergency lights and be visible to drivers from a great distance.

As for the location of the checkpoint and advance notice, it must be at a reasonable location decided by the higher up and a warning sign must be posted early enough to allow motorists to turn off and avoid it.  In addition to this, advance notice time and location of checkpoint is required which is why you see websites posting them.

Most importantly, checkpoint investigations must NOT turn into prolonged detentions or then they are unconstitutional.  The police must conduct these checks quickly and if there are no objective symptoms of DUI, the driver must be sent on his or her merry way.  What are these symptoms?  The obvious: bloodshot, watery eyes, odor of alcohol on the breath, slurred speech.  If it looks like the driver is impaired then the officer may order them to pull to the side and do further investigation and field sobriety tests.

The benefit of a sobriety checkpoint is that it is random and the police need to get through all of the cars.  It isn’t the same as a traffic stop where the officer has already presumably witnessed a traffic violation and might be fishing for more to turn a ticket into arrest.    In a sobriety checkpoint, cars are regularly stopped for short periods of time.  A traffic stop can take much longer if the officer has witnessed an infraction which can already point toward impaired driving.

Be safe out there and remember that cab fare is always cheaper than a DUI- even that wild $357 Uber ride is much smaller than the first time DUI fine which is about $1890 right now when you tack on penalty assessments.

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