This is a proceeding wherein the defendant, ND, charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood (Vehicle and Traffic Law § 1192 ) and operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law § 1192 ), has moved to suppress any statements attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her.
Based upon the People’s responding affidavit, which effectively concedes the truth of all allegations necessary to the court’s determination of this motion under CPL 710.60  [a] and People v Gruden, and after giving both parties an opportunity to be heard on 17 July 2008, the court denies the People’s request for a Dunaway/Scott hearing and decides the instant motion on the papers.
On 2 September 2007 at about 1:00 A.M., defendant’s vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. After allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample, which resulted in a reading of a .13% blood alcohol content level. Defendant challenges the constitutionality of the checkpoint stop upon the grounds that the New York State Police failed to follow their own self-established, written guidelines.
In addition to establishing a seemingly stringent protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, the written guidelines of the New York State Police call for the making of certain records and/or reports before, during and after the date of the checkpoint.
When a sobriety checkpoint “is first scheduled,” a “DWI (Driving While Intoxicated) Program Notification” message is supposed to be transmitted to Assistant Deputy Superintendent JS, using a prescribed format. This memorandum is essentially a list of particulars pertaining to the planned checkpoint, including time and location, enforcement personnel and system of stop (every vehicle, every third vehicle, etc.).
During the checkpoint, the “DWI Investigative Note Card (TB-38) should be used to record pertinent impairment information” including the officer’s observations, the motorist’s responses to specific questions and the specific cues, or signs of impairment, observed during field sobriety tests. Not later than two business days following the completion of the checkpoint, a “DWAI Program Activity Record” is required to be received at “Division Traffic Services.” This record appears to be a data collection tool, containing useful post-checkpoint information, e.g., the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DWI or Driving While Intoxicated. These guidelines provide that it is imperative that these reports be completed in a timely and accurate manner. These documents are further described as legal records that are often referenced in both criminal and civil proceedings.
The parties’ submissions agree on one essential point, to wit: that none of the above-described documents was ever prepared, let alone transmitted to the appropriate official or division of the New York State Police. Thus, the stage is set for the court to consider the legal consequences of an admitted failure to strictly or substantially observe sobriety checkpoint guidelines.
Whether a law enforcement agency’s failure to follow its own sobriety checkpoint guidelines renders the stop unlawful under the Fourth Amendment of the United States Constitution or article I (§ 12) of the New York Constitution appears to be a question of first impression.
People v Scott, Michigan Dept of State Police v Sitz, Indianapolis v Edmond, People v Jackson and People v Trotter settled that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment. As a general rule, a seizure of an automobile, whether on a highway or at a roadblock, requires an individualized suspicion of wrongdoing. The United States Supreme Court has recognized only limited circumstances in which the usual rule does not apply. In general, a sobriety checkpoint aimed at removing drunk drivers from the road does not violate the Fourth Amendment.
New York DWI Attorneys also known as New York Driving While Intoxicated Attorneys at Stephen Bilkis & Associates will gladly entertain your queries regarding the case mentioned above. Please do not hesitate to call our toll free number or visit our place of business for an in depth discussion of the issues and how it can relate to your rights.