Monder Law Group - News
DUI Checkpoints San Diego
Decision making at the Supervisory Level
The decision to establish a sobriety checkpoint, the selection of the site and the procedures for the checkpoint operation should be made and established by supervisory law enforcement personnel, and not by an officer in [*1342] the field. This requirement is important to reduce the potential for arbitrary and capricious enforcement. (See United States v. Martinez-Fuerte, supra, 428 U.S. at p. 559 [49 L. Ed. 2d at p. 1129].)
Limits on Discretion of Field Officers
Motorists should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumscribe in its decisions in Prouse, supra, 440 U.S. 648, Almeida-Sanchez, supra, 413 U.S. 266, and Camara, supra, 387 U.S. 523.
Maintenance of Safety Conditions
Primary consideration must be given to maintaining safety for motorists and officers. Proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are necessary to minimize the risk of danger to motorists and police. (Cf. Jones v. State (Fla. Dist. Ct. App. 1984) 459 So.2d 1068, 1079.) The checkpoint should be operated only when traffic volume allows the operation to be conducted safely. Screening procedures may at times be altered consistent with traffic volume, such that, for example, every car might be stopped when traffic is light, but if traffic began to back up, a different neutral formula might be applied, such as every fifth or tenth car, or operations might be temporarily suspended until traffic volume permitted resumption of safe checkpoint operation.
The location of checkpoints should be determined by policy-making officials rather than by officers in the field. The sites chosen should be those which will be most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests. (See State v. Coccomo, supra, 427 A.2d 131, 134.) Safety factors must also be considered in choosing an appropriate location.
The Olgaard court’s concern in State v. Olgaard (S.D. 1976) 248 N.W.2d 392. with lack of permanency was solely based on its worry about surprise and lack of publicity in connection with the checkpoint. Although it is not precisely clear from the record in Olgaard, it is inferrable from the circumstances that the Olgaard checkpoint was set up on a surprise basis. The checkpoint was operated by only four officers utilizing nothing but the red flashing lights on several patrol cars. They stopped all traffic in both directions. No lights or signs were used that would have given advance notice of the checkpoint. There was no advance publicity about the checkpoint. The checkpoint plainly also lacked sufficient indicia of legitimacy in terms of staffing strength. In addition, there was no showing who made the decision to set up the checkpoint, or how the location was selected. Thus the Olgaard court appears to have acted with propriety in holding the checkpoint unlawful.
Similarly, the “temporary” border patrol checkpoint at issue in United States v. Maxwell (9th Cir. 1977) 565 F.2d 596, was deficient with respect to notice and indicia of legitimacy. The checkpoint was marked only by a “stop ahead” sign with battery operated blinking yellow lights, half a dozen traffic cones, one ordinary stop sign, and a border patrol car with a flashing red light. Whereas motorists know or may learn of a permanent immigration checkpoint, the checkpoint in Maxwell was in operation on an intermittent basis without advance notice. There were no structures or electrical equipment connections. So far as the motorist was concerned, he was called to a halt on a lonely road by a blinking red light which could belong to anybody. In addition, the location of the checkpoint may have been inappropriate for an immigration checkpoint. The immigration checkpoint in Martinez-Fuerte, supra, 428 U.S. 543, was justified in part by its being placed on a major highway to prevent easy access by illegal aliens into the interior. Just as a sobriety checkpoint would be improper at a location without any significant traffic or incidence of drunk driving, the location of the Maxwell checkpoint on a route without any significant traffic, by illegal aliens or otherwise, may have been improper. ( United States v. Maxwell supra, 565 F.2d. 596, 597-598.)
Time and Duration
The time of day that a checkpoint is established and how long it lasts also bear on its intrusiveness as well as its effectiveness. For example, a nighttime stop may be more hazardous and possibly more frightening to motorists, but it will also probably prove more effective. While mentioned as a factor in State v. Deskins, supra, 673 P.2d 1174, time and duration have received little attention in the decisions addressing sobriety checkpoints, although most of the checkpoints approved have been operated in the late evening and early morning hours. ( People v. Scott, supra, 473 N.E.2d 1; Little v. State, supra, 479 A.2d 903; State v. Coccomo, supra, 427 A.2d 131; State v. Golden, supra, 318 S.E.2d 693; State v. Deskins, supra, 673 P.2d 1174.) We agree with the assessment of the Court of Appeal that no hard and fast rules as to timing or duration can be laid down, but law enforcement officials will be expected to exercise good judgment in setting times and durations, with an eye to effectiveness of the operation, and with the safety of motorists a coordinate consideration.
Indicia of Official Nature of Roadblock
Those aspects of a sobriety roadblock which evidence its official nature are critical in minimizing its intrusiveness. The roadblock should be established with high visibility, including warning signs, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are such factors important for safety reasons, advance warning will reassure motorists that the stop is duly authorized.
Clearly visible warning lights and other signs of authority have been present in most of the checkpoints upheld by the courts of other states. (See People v. Scott, supra, 473 N.E.2d 1, 3; Little v. State, supra, 479 A.2d 903, 905-906; State v. Golden, supra, 318 S.E.2d 693, 694.) In contrast, most of the checkpoints found unlawful have not provided adequate warning to motorists. (See State v. McLaughlin (Ind. Ct. App. 1984) 471 N.E.2d 1125, overruled in State v. Garcia (Ind. 1986) 500 N.E.2d 158, 162 [holding checkpoints lawful]; Com. v. McGeoghegan (1983) 389 Mass. 137 [449 N.E.2d 349, 353]; State v. Olgaard, supra, 248 N.W.2d 392, 394; State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, 993; State v. Hilleshiem (Iowa 1980) 291 N.W.2d 314 [vandalism roadblock]; cf. State v. Smith (Okla. Crim. App. 1984) 674 P.2d 562, 564.)
The checkpoints in San Diego, CA may not have complied with requirements for proper lighting, signing, and official presence, both in the comprehensive regulations developed for the checkpoint operation and in actual practice.
Length and Nature of Detention
Minimizing the average time each motorist is detained is critical both to reducing the intrusiveness of the stop on the individual driver and to maintaining safety by avoiding traffic tie-ups. As occurred in the Burlingame and CHP checkpoints, each motorist stopped should be detained 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, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.
If you have questions about DUI checkpoints San Diego contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Defense