Police DUI Check Points and the Rules for Lawful Check Points
DUI checkpoints are possible because of a number of state and federal legislative acts and the decisions made by the United States Supreme Court. The federal constitutional amendment that lays the legal foundation for DUI checkpoints is the Fourth Amendment. The Fourth Amendment states that all citizens should be free from unreasonable searches and seizures and many of the decisions made by the United States Supreme Court deal specifically with these problems. Clearly, under the Fourth Amendment, any search and seizure that is deemed to be unreasonable is not permitted.
Pennsylvania DUI checkpoints are possible because of Section 6302 of the Pennsylvania Statutes. This is the Motor Vehicle Code and allows police in Pennsylvania the legal authority to set up DUI checkpoints. The statute has been interpreted by lower courts and the Pennsylvania Supreme Court has ruled on a number of cases that have set the boundaries regarding the authorities that enforcers have.
As far as federal law goes , there are a number of significant rulings that have had a dramatic impact on DUI checkpoints. One of the most noteworthy is the Sitz Ruling. This decision, also known as Michigan Department of State Police v. Sitz, was a ruling by the United States Supreme Court in 1990 that allowed for the use of DUI checkpoints on the presumption that they improved the safety on the road. In the Sitz ruling, the United States Supreme Court noted that the primary purpose of a DUI checkpoint was not to collect evidence to prosecute drunk drivers, but to deter drinking and driving in general. This ruling gave forces the green light when it came to the legality of DUI checkpoints in Pennsylvania.
Constitutional Issues
Checkpoints have been challenged in Pennsylvania and elsewhere on constitutional grounds, under both state constitutions and the federal constitution. Some of these challenges have been successful, leading to a patchwork of law.
For example, various states’ courts have prohibited the use of DUI checkpoints in certain situations, such as when there is not a compelling state interest. Miller v. State Police for the Town of Newington, 472 A.2d 1259 (Conn. 1984). Other states’ courts have limited the area in which checkpoints may be used. See, e.g., Baker v. City of Jacksonville, 752 So. 2d 613 (Fla. 3d DCA 2000). But other courts have held that the state can create checkpoints so long as certain requirements are met. See, e.g., State v. Kelly, 463 A.2d 3 (Me. 1983).
The federal courts have never ruled on the constitutionality of DUI checkpoints nationwide. But that does not mean that the law is uniform. In Michigan v. Sitz, 496 U.S. 444 (1990) the U.S. Supreme Court held that roadblocks are not a violation of the Fourth Amendment provided certain procedural requirements are met. Prior to that case, various federal courts had considered the individual state constitutions and state statutes in determining whether the State had complied with both the U.S. and state constitutions. See, e.g., United States v. Ortiz, 422 U.S. 891 (1975); United States v. Martinez-Fuerte 428 U.S. 543 (1977).
In Pennsylvania, the courts have ruled that because DUI checkpoints do not result in the seizure of the driver, the checkpoints do not implicate the Pennsylvania constitution. See, e.g., Commonwealth v. Bartram, 551 Pa. 620, 712 A.2d 554 (Pa. 1998); Commonwealth v. Whitfield, 452 Pa. 216, 304 A.2d 80 (Pa. 1973); Commonwealth v. Clay, 488 A.2d 1086 (Pa.Super. 1985), appeal denied, 511 Pa. 613, 513 A.2d 443 (Pa. 1986). The effect on the driver, they found, is "de minimis." Most courts have ruled that DUI checkpoints are not seizures for purposes of the Pennsylvania constitution.
Rules for Lawful Police Check Points
To be lawful, the checkpoint must:
(1) Be a specific time and place, and advance public notice of the checkpoint must be provided to the public at least 12 hours prior to the detention/grand stopping of the first driver. In those "special danger" situations, a law enforcement agency has additional leeway, i.e., they do not need public notice 12 hours in advance. For example, a generally well-publicized sobriety checkpoint may be more beneficial than a traditional police sobriety checkpoint, where motorists are pulled over at random for sobriety checks. Conversely, a pre-announced checkpoint is most likely to deter drunk drivers away from the area than one that is purely random.
(2) The checkpoint must be reviewed for appropriateness by the county court, with the following considerations:
(a) The extent to which the checkpoint’s primary purpose is to promote the public safety;
(b) The extent to which the checkpoint is based upon scientific data, or other reliable data, methods or procedures which are designed to eliminate subjectivity and bias in the determination of a location, time and frequency for the checkpoint;
(c) The extent to which the locations and times are reasonably predictable, by reference to the history of motor vehicle crashes, DUI arrests and other relevant factors; and
(d) The extent to which the checkpoint’s methods or procedures are as precise as is feasible in the avoidance of innocent persons being detained.
Simply letting drivers through the checkpoint does not satisfy the review requirement, as drivers may tell the police officer that they have a medical condition, are required to get to work, etc., which is not good enough to automatically let them through – thus, the review must be more precise. Also, the police officer must always apply the same blackout rule, or formula, to all vehicles (and it may not be a racetrack method, e.g., cars 1 through 5, 11 through 15, etc. – the fifth car out must be blackout and then all cars find a way into the racetrack).
(3) The public must be given advance notice of the checkpoint. Per the stop conditions, police officers must publically broadcast the following on a local TV news broadcasting station, as well as a radio station, prior to the checkpoint: The specifics, including the date, time and place of the checkpoint, and if the police have any special concerns, i.e., what is going on that night, such as a major concert, a sporting event, or other things that the police and public should be on the lookout for.
(4) The checkpoint must be selected because it is believed to have a significant number of DUI or drug-related offenses. Thus, the police have to prove that they randomly selected the location of the checkpoint reasonably, or using their blackout formula, based upon past DUI or drug-related offenses, crashes, etc.
How DUI Police Checkpoints Work in PA
Police officers conducting DUI checkpoints are typically required to set forth a plan in advance for the operation of the checkpoint, which includes the time, location and manner in which the sobriety checkpoint will be operated. Any change in the plan must be decided by the officer in charge of the checkpoint. Changes to the plan must be reasonable, and usually concern the amount of officers or equipment needed. The plan must also set forth the standard criteria for stopping cars, the manner in which cars will be stopped, how the police will determine whether probable cause exists to arrest a driver, and the procedure for documenting the above. Observance of the checkpoint requirements will ensure the checkpoint passes constitutional muster. Another aspect to the plan involves the location of signs. According to the Pennsylvania Federal Court in United States v. Johnson, 488 F. Supp. 2d 494, 499 (E.D.Pa. 2007) (distinguishing Ohio v. Johnson, 495 U.S. 81 (1988)), signs documenting the sobriety checkpoint must be posted at least 100 feet in advance of the actual checkpoint and on the shoulder of the road, so as to put approaching motorists on notice of the checkpoint. The signage should advise motorists of a sobriety checkpoint ahead and/or that all vehicles should drive in the right hand lane. The notice should also advise motorists of the designated lane(s) for entering and proceeding through the checkpoint. Motorists should be able to determine, from the signs, the precise manner in which they should proceed through the sobriety checkpoint. As drivers proceed through the checkpoint, there are several things they should expect. At the checkpoint, there should be a marked lane leading directly into the checkpoint. This lane should be marked with arrows pointing straight ahead so as to alert drivers that they do not have to wait in line or swerve around any vehicles. The only lane leading out of the checkpoint should be the exit lane. The lane should not be staffed by police officers as this would open the officers up to a potential civil liability. As noted by the Federal Court in United States v. Johnson, 488 F. Supp. 2d 494, 502 (E.D.Pa. 2007) (discussing Ohio v. Johnson), there should be two officers in an unmarked police vehicle who will stop the vehicles in the marked lane. If the driver presents a valid license, proof of insurance and registration and is not displaying any obvious signs of intoxication, the officer in the unmarked police vehicle can waive the driver through the checkpoint. The driver can then be observed by officers operating the checkpoint. The checkpoint should not be a roving DUI patrol. Ideally, there should be two marked police vehicles on either side of the lane leading into the checkpoint. This will alert drivers that they will have to proceed through a sobriety checkpoint. Roving patrols, which are sobriety checkpoints without proper signage and police presence in advance of the checkpoint, are not permitted in Pennsylvania or under federal law.
Fighting a DUI Arrest From a Police Checkpoint
While sobriety checkpoint programs enjoy a "presumption of constitutionality," there are several different legal arguments that can be advanced to challenge the validity of the stop. One argument is that the procedure did not conform to the statutory requirements of the Pennsylvania Vehicle Code, specifically § 6302.2. Essentially, this provision reads that sobriety checkpoints may only be presented on the bases of "information concerning the location of the activity, specific to each county or municipality in the Commonwealth of Pennsylvania, that indicates a substantial incidence of impaired drivers in portions of that county or municipality."
An attorney can argue that the particular stretch of roadway or highway where a DUI checkpoint was set up did not have a "substantial incidence of impaired drivers" and thus the stop was invalid. This argument is not uncommon, especially in highly populated counties or municipalities where an extremely high volume of traffic is present.
An attorney may also be able to challenge the manner in which the checkpoint was set up. The law states "The operation of the checkpoint presents clearly visible, plainly identifiable locations for the checking operation and the checkpoint is clearly marked."
If the area where the sobriety checkpoint was established was not clearly marked, and/or the area is not highly visible to motorists , a strong argument can be made that the checkpoint was set up in a manner that violated the law.
A driving under the influence of alcohol checkpoint may also be challenged if it can be proven that the checkpoint was not in "the promotion of the government’s (or the police agency’s) interest in reducing the incidence of impaired driving, the safety and security of the public and the welfare of the Commonwealth."
In other words, if there is a different legal reason that the checkpoint was set up that does not specifically support the interests of the state, the stop in question may be challenged. If a recent fatal accident that did not involve alcohol occurred at the site where the sobriety checkpoint was established, an attorney may be able to argue that the interests of the state were not served by imposing the sobriety checkpoint, since the dangers of an automobile versus pedestrian, or automobile versus automobile crash is not specifically related to a sobriety checkpoint.
We should emphasize that the above arguments do not guarantee that a sobriety checkpoint and/or DUI arrest will be invalidated. Depending on the merits of the particular case in question, more or less evidentiary support may be offered to challenge the validity of the impediment of your rights. Some of the best ways to challenge a DUI arrest are specific to the facts of the case. We strongly recommend hiring the services of an experienced, qualified law firm for the best chance at achieving a reduction or dismissal of DUI charges. Fees are typically on a retainer basis, where you pay an upfront fee in order to retain the firm’s services and expertise.
Recent Developments and Court Cases
Looking ahead, the legality of DUI checkpoints in Pennsylvania is likely to continue as a matter of significant legal dispute. In 2013, the legislature enacted 75 Pa.C.S. § 6309, governing the use of traffic enforcement stops in order to combat intoxicated and impaired driving. Its provisions included requiring that any floor plans showing the checkpoint location be kept on file with the Pennsylvania Department of Transportation and that signs be posted at the checkpoint informing oncoming motorists that a checkpoint is ahead. Issues regarding the enforcement of the various provisions of § 6309 were litigated in Commonwealth v. Blouse, 106 A.3d 31 (Pa. Super. 2014). The Court in Blouse held that to comport with constitutional requirements, the State must substantially comply with all provisions of § 6309. Id. at 37. If the State fails to do so, the Court must determine if the circumstances presented "rise above the level of undetectable minimal deviations from the requirements of Section 6309." Id. at 39. The level of scrutiny that any purportedly "material" non-compliance with § 6309 will receive is unclear, however.
The Supreme Court of Pennsylvania has yet to weigh in on the scope of its constitutional decision in Tarbert v. Department of Transportation, Bureau of Traffic Safety, 535 A.2d 1035 (Pa. 1987). In that landmark opinion, the DUI checkpoint at issue was found to comport with constitutional requirements where an adequate law enforcement goal was presented, procedures for conducting the roadblock had been in place in advance of checkpoint implementation, a reasonable level of warning had been given, the checkpoint was calibrated in a neutral manner so as not to significantly interfere with traffic, and unnecessary stops were minimized. The opinion contained no discussion of a requirement for a specific type of site selection factor, site selection factors were considered and deemed sufficient under the totality of the circumstances, and no site selection factor was deemed material. Today, each and every purported site selection factor is susceptible to challenge in court.
Despite these open areas of the law, two 2014 Superior Court decisions are relatively clear. In Commonwealth v. Wright, 100 A.3d 814 (Pa. Super. 2014), a DUI checkpoint was found to comport with constitutional requirements where the following factors were presented: reasonable suspicion that DUI offenses were occurring in the area; an appropriate location; appropriate distance from the intersection; adequate notice; notice of contact with a police officer; conditions that would ensure that minimal traffic disruption occurred, thereby maximizing public safety and minimizing inconvenience; and a calibrated plan for ██ officers to be dispatched to the checkpoints. Id. at 820-21. The Wright opinion is also notable for clarifying the nature of the balancing test that must be applied in order to arrive at a final determination of whether the DUI checkpoint at issue comported with constitutional requirements. The Court stated that because the location of DUI check points to some extent impacts public safety, that "[t]he weight of the factors which promote the general welfare, against those which potentially violate individual rights, falls heavily in favor of recognizing the validity of DUI roadblocks." Id. at 820, n.5.
In Commonwealth v. Wong, 84 A.3d 1095 (Pa. Super. 2014), a sobriety checkpoint stopped 411 vehicles and 76 cars were subjected to further evaluation. Four (4) arrests were made as the result of the checkpoint. Id. at 1099. In rendering its decision, the Court discussed the typical requirements for implementation of a sobriety checkpoint, including: an adequate law enforcement goal; (2) a neutral, pre-planned site-selection process; (3) public notice of the plan; (4) stopping vehicles in the same pattern, rather than on an arbitrary basis; (5) limiting the period of delay of each vehicle; and (6) the calibration of a plan to permit minimal vehicular or pedestrian intrusion of traffic flow, maximum safety for law enforcement personnel, and maximum safety and minimum discomfort for citizens using the public roadway. Id. at 1099-1100.
In short, while the legality of DUI checkpoints in Pennsylvania appears to be settled, issues relative to the implementation of DUI checkpoints on a case-by-case basis remain within the ambit of constitutional inquiry.
Public Sentiment and Controversy
DUI checkpoints remain a matter of controversy in the public eye. Supporters of the practice argue that the benefits of keeping drunk drivers off the road outweigh the perceived invasion of privacy to those passing through the checkpoint.
In their support for the practice, advocates regurgitate many of the same arguments that have been used since the practice began in the 1990s. From the outset, Pennsylvania DUI checkpoint advocates have argued that, out of all the possible ways to combat drinking and driving, free access to checkpoint locations via the press is the best solution. They also argue the necessity of these sobriety checkpoints, stating that each time one of these unlicensed officers stops a motorist "dangerous drunk drivers are being removed from the road." However, most DUI stops have little to do with drunk driving, as opposed to speeding, failure to signal, expired licenses, and other comparatively minor offenses. Controversy abounds regarding the legality of these DUI checkpoints-particularly as they concern First and Fourth Amendment rights.
Advice for PA Motorists who Encounter DUI Check Points
Understanding your rights at a Pennyslvania DUI checkpoint can help you navigate the legal system and avoid unnecessary trouble.
- Be respectful of the police officers. Keeping calm and treating the officers with respect can go a long way toward diffusing what can easily become a confrontational situation.
- Turn on your hazard lights when you approach the checkpoint. This will signal the officer that you are aware of the stop ahead and are not trying to avoid the route.
- Do not be afraid to ask any questions. If you are worried about not understanding what is happening at the checkpoint, feel free to ask the officer anything you would like to know about the safety checkpoint. Respectfully ask why you are being stopped, how long the stop should take, and whether you need to provide any specific information to the officer.
- Ask whether you are free to leave. You have the right to ask this question and should do so . Understand that in some circumstances being free to leave does not necessarily mean you are free to leave without a vehicle search. In addition, the officer may request that you step out of the car if he or she feels it is necessary for safety reasons.
- Do not answer questions about where you been or where you are going. You are not obligated to answer any questions that are not specifically in relation to the DUI checkpoint and you should not volunteer information that is not asked.
- Be polite, but do not panic or engage in any kind of confrontation with the officer. Your best bet if you are asked to field questions at a DUI checkpoint is to politely refuse to answer them and explain that you are unaware of any before speaking to a lawyer.
The best way to protect yourself and your rights at a Pennsylvania DUI checkpoint is to remain calm and respectful, and to ask to speak with a lawyer if you are unsure about what to say or do.