DUI Checkpoints are unconstitutional?

In My Humble Opinion
1

[Moderator(s): Maybe this goes in GQ, but I don’t normally subscribe to that forum so I put it in IMHO where I tend to throw my NSHO around all the time.]

Okay, so don’t bother posting “I hate 'em” or “I love 'em” responses, or personal anecdotes, here. I want some legal opinions from professionals:

A California town* is in the news lately because the city council reversed it’s stance on taking grant money offered to help the city combat the problem of drunk driving. The reversal of votes occurred because the organization offering the grant said the larger portion of the grant couldn’t be separated from the $50K to be used for DUI checkpoints so the council had to accept both grants or take nothing.

The lone resistance this time came from the same guy who argued against the $50K portion last time.

“Councilman Travis Kiger had said checkpoints violate the U.S. Constitution’s Fourth Amendment – which guards against unreasonable searches. . .”

Huh? What?

Again, don’t bother posting “I hate 'em” or “I love 'em” responses here. I don’t wanna know and I won’t tell you my stance, either. Can you legal experts (lawyers, enforcers, lawmakers, judicial scholars, constitutional historians, etc.) tell me how…

…is violated when the police set up a way station on a public thoroughfare near Tavern Row after the football game and check each and every person in the driver’s seat of a vehicle for excessive inebriation?

[ul]
[li] I don’t see unreasonableness by way of profiling if they’re checking everybody who goes by;[/li][li] I don’t see how the security of persons/houses/papers/effects is abridged on a public street;[/li][li] I think there’s definitely probable cause to believe a whole lot of people are going to be driving-while-intoxicated when they’re coming out of a bar after a televised competition (particularly those that involve a local team)[/li][li] The “place” to be searched is the drivers’ breath (it can be done non-invasively with a special flashlight beam)[/li][li] Things ‘to be seized’ would be the lawbreaker’s license and keys, maybe the vehicle as well.[/li][/ul]
Tell me what I’m missing in my legal misinterpretation here.

–G?

I have a limo
Ride in the trunk
I lock the doors
In case I get drunk
. --Joe Walsh (The Eagles)
. Life’s Been Good to me, So Far (Live)
. The Eagles, Live (1980)
*It’s a college town and there are lots of bars catering to that client base. There are tons of kids who are new to drinking (legally) and perhaps not quite able to judge their tolerance levels (etcetera) before hopping in a car to head home or to the next party.

2

Michigan v Sitz – they are constitutional, and Kiger is wrong.

3

Whadda you gonna do about it?

4

Checkpoints where they test every single driver: If the police do not have reasonable cause to believe that I am under the influence, they do not get to test me.

Pulling people over after observing their driving and testing them: Not a problem.

5

I’ve been through a few DUI checkpoints over the years. In each case, the experience went something like this:

Officer: “Good evening. Have you been drinking at all tonight?”
Me: “No” (truthfully)
Officer: “Thank you sir. Have a good evening, and drive safely”
Me: “Thanks, you too”

I find nothing “unreasonable” about that interaction.

6

Unconstitutional here in RI. The issue is murky. One locality ran checkpoints after announcing the locations and posting signs telling drunks to detour to other routes to avoid entrapment claims. The state court recently banned father-daughter dances also. We’re a little strange here.

7

(Since the OP seems to be answered…)

The experience with the ones I’ve been through include looking at your driver’s license and insurance though. This is the criticism most people have of them: at least around here, they catch large numbers of people with expired registrations, licenses and insurance cards and very rarely an actual drunk. They’re basically general motor vehicle code compliance checks that merely use the DUI justification to make them politically palatable.

8

Simply operating a motor vehicle on a particular road does *not *constitute probable cause that the operator is impaired. Operating a motor vehicle while driving erratically, though, does. Obviously the law differs in different jurisdictions, though. I’ve not yet been voted Queen of the Universe. But if I were, this shit wouldn’t fly. Of course, I’d also invent and attach uncircumventable breathalyzers to everyone’s vehicle (don’t worry, they wouldn’t make you stop and breathe into them every 5-50 miles). And every Friday would be free ice cream day! yay!

9

They are against the state constitution here in Oregon and not allowed. For a state by state breakdown, here:

http://www.ghsa.org/html/stateinfo/laws/checkpoint_laws.html

10

You’re suggesting that the increased likelihood of drunk drivers justifies searching everyone in a particular area to see if they’ve been drinking.

Suppose instead we were talking about illegal firearms. The police know that certain areas of certain cities are inhabited by a preponderance of gang members who are carrying illegal firearms. They choose to wander through the neighborhood, stopping every person they encounter to see if that person has a gun. This is clearly unconstitutional. So why should a DUI checkpoint be any different?

As it turns out, you don’t have to (fully) cooperate with the cops at such checkpoints. here’s a guy who knows his rights and exercises them; he chooses not to answer any of their questions, and gets them (eventually) to verbally confirm that this is a mutually consensual encounter, i.e. that they are not detaining him and he is free to leave whenever he wants to. The problem, of course, is that the initial contact is not consensual: if you choose not to stop at all, you will end up in serious trouble.

11

Strange. That site lists Michigan as DUI checkpoints being “Illegal under state Constitution” but the case Bricker referred to was decided as he said - the DUI checkpoints were found constitutional.

12

I think the issue here is one of conflating probable cause, which as I understand applies to individuals, with probability, which applies to the whole of the population being considered (in this case the population of drivers on a particular thoroughfare).

To suggest another example, let’s say there’s a part of town with a lot of crack houses. Does that grant the police the right to enter and search every house in the neighborhood looking for drugs? It would seem clearly not.

Similarly, one could argue that the police don’t have the right to stop and examine every driver on a particular road, even if it’s in an area with a lot of bars. However, there is the aspect that driving is a privilege granted and licensed by the state, so there may be regulatory powers beyond those that apply to one’s home, or to one’s person walking down the street. It would seem that the various states have differing opinions as to what is allowed.

I imagine this is also affected by the political climate, with MADD and some portion of public opinion seeing protection of the public as taking precedence over the rights of individuals to be free from search. I can see a parallel to the issue of gun control, and suspect that we’re unlikely to see a definitive and universally applied legal stance on the matter.

13

[ul]
[li]I don’t see unreasonableness by way of profiling if they’re checking everybody who goes by;[/li][/ul]
Some people have claimed this violates the US Constitution but apparently has been tested in the courts and has been found constitutional. However, the objections are based on the idea that the Fourth prevents the government from harassing citizens, and the founding fathers may have feared the government targeting political enemies and then trumping up charges. This certainly happens in other countries without the same Constitutional protections. Checking everybody doesn’t make it any better. You are still going on a witch hunt and pulling people over with no indication whatsoever that a crime has occurred.

[ul]
[li] I don’t see how the security of persons/houses/papers/effects is abridged on a public street;[/li][/ul]
Are you suggesting that the security of your person cannot be abridged just because it’s in public? How would you feel if a policeman stopped you walking down the sidewalk and frisked you because today is the day they chose to frisk everybody?

[ul]
[li] I think there’s definitely probable cause to believe a whole lot of people are going to be driving-while-intoxicated when they’re coming out of a bar after a televised competition (particularly those that involve a local team)[/li][/ul]
Yeah but that’s not the way the law is supposed to work. You are supposed to have probable cause that a particular person did something, not that there is some likelihood that some fraction did something out of a large group of people. And just because common sense says that there is a likelihood, that is different than a specific facts required to establish probable cause (IANAL).
[ul]
[li] The “place” to be searched is the drivers’ breath (it can be done non-invasively with a special flashlight beam)[/li][/ul]
Not sure what your point is here, it’s a search of my body.
[ul]
[li] Things ‘to be seized’ would be the lawbreaker’s license and keys, maybe the vehicle as well.[/li][/ul]
This seizure would only occur after evidence of a crime so I don’t think anyone objects to that. The objection is to going on a witch hunt to find them.
I am not necessarily opposed to such roadblocks, I am just trying to present the objections, even though the courts may have found no legal basis in them.

14

“Texas prohibits them based on the its interpretation of the U.S. Constitution.”

That silly Texas, no Supreme Court is going to tell them what the Constitution says!

15

Michigan v. Stitz was based on a federal constitutional claim. Subsequent to that decision, the Michigan Supreme Court found that the practice violated the state constitution. Nine other states also have such rulings. California, where Kiger is, is not one of those states. DUI checkpoints in California do not violate the state constitution (Ingersoll v. Palmer, 743 P.2d 1299 (1987)) nor the federal constitution.

16

A buddy of mine used to own a bar in a small town nearby. He caused the local town council some embarrassment in a matter he spearheaded. The town police then began harassing his business; shining a spotlight through the window around closing time, etc.

His lawyer got them to stop that, but then they began setting up a checkpoint every night around closing time. The main street ran North/South and they would set up at a random end.

The bar owner then began having his bartender leave fifteen minutes before close. She would call the bar and report which end the checkpoint was located; this info was then announced to the patrons.

17

Thanks, everyone!
I don’t want to kill a lively discussion, so please carry on!

I see now, however, that my particular misinterpretation was in the Probable Cause section. I figured, “Hey, we can put a checkpoint here '**cause **it’s **probable **that there will be a lot of drunk people driving and our job is to promote public safety” whereas it is supposed to be applied on a person-by-person basis saying things like, “We think it’s likely that Grestarian is involved in [illegal] Smurf Trafficking somehow. Your Honor, let us go to his storage unit and search for proof.”

Cooking with Gas, you called it well (as did others, but your post was quite concise). And, for clarification, the breath being ‘searched’ has left the body of the person being tested. In fact, it’s left the car and is floating in public space at the time of testing.

TriPolar, take that last sentence to another thread. It seems worthy of debate and discussion.

Rachellelogram, I’ve always liked you; you’ve got my vote. And, if I were in charge (not Queen, though, that title will be reserved for you), I’d let checkpoints fly BUT they would be strictly limited to one check at a time: if you’re doing a DUI checkpoint and the flashlight beam doesn’t turn the moisture in my breath green (or purple or whatever color shows I’ve consumed alcohol), then I’m free to go on my way, regardless of the fact that I wasn’t wearing a seatbelt. Set up a seatbelt checkpoint if you want to catch me for seatbelt violations (but you can’t be waving those geeky flashlights around at that checkpoint).

–G!

–A humorous tale instead of a lyric–
A cop is sitting in an alley at 1:55 AM, watching the notorious bar just before it closes at 2AM.
A man comes out of the door, staggers to the curb, drops his keys, falls over while picking them up, then proceeds to stagger along the street, checking each car parked along the curb to see if his key will fit. After the 8th try, he opens a door, flops behind the steering wheel, pulls his door closed, then slumps over to the passenger seat.
The cop waits for the man to start his car, letting other patrons come out and disperse while waiting for an easy citation.
A few minutes after the street has been cleared except for one car, the man drags himself up from the passenger seat, fumbles for a while, then starts his car. As he pulls away from the curb, the cop starts his engine, turns on the light bar, and pulls in behind his target.
“Have you been drinking yourself into a stupor tonight, sir?” the cop asks with a smug little grin.
The driver grins back at the cop and answers with perfect clarity, “I’ve never had alcohol in my life, officer. I was just taking a nap.” :smiley:

18

Do you mean the cop is testing someone’s breath outside of a car that has its windows rolled up? :confused:
BTW, a tangent, but there are cases of people who have been ticketed for DUI while drunk in their parked, not-running car, at least if you believe other threads on the topic here.

19

And yet incest is legal there. Go figure.

States can and do interpret stricter limits than SCOTUS has ruled. As long as it adds to protection of rights rather than takes away. For instance NJ courts have imposed much stricter search and seizure rules than have been ruled on at the federal level. So Texas can state that DUI checkpoints are unconstitutional even though SCOTUS says they are. Texas could not say they are constitutional after SCOTUS said they aren’t.

20

Profiling is not remedial under the 4th AM, that is an Equal Protection claim.

I can not agree, but in the case of DUI checkpoints, I personally have no problem with them, even if I drank.

The 4th AM protects PEOPLE, NOT places. The venue is not at issue. Is a home invasion without a warrant in non exigent circumstances permitted then because it is a NON public place? The PERSON who’s home is invaded is protected, not the home itself.

At one time, but not after a 1979 case, the federal constitution permitted arrests to be made in an home, even if non exigent circumstances, without a warrant.

DUI checkpoints are NOT based on probable cause, NOR individualized suspicion. Would it be practical to secure a warrant for every car driving into the US? NO, administrative searches are permitted.

While the SC has okay’d Driver’s License checkpoints, which my state permits (Ohio), they have struck down Drug interdiction checkpoints. Now in my view they are more important then a DL checkpoint. In another case they permit a stop and ask point to question motorists if they have any info on a major felony that occured in that general area.

This “Plain smell” doctrine, if you will, is NOT a search.

Stopping a motor vehicle IS a Seizure, period. The seizure, confiscation/forfieture, is another matter, if done.

ALL passengers are seized when car is stopped, therefore any can challenge the constitutional validity of the stop, however, since DUI checkpoints have been constitutionally approved, except where a state forbids it, there is no seizure issue.