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Constitutionality of DWI Check Points Challeged


A vehicle was stopped at a State Police sobriety checkpoint. After allegedly displaying certain outward sign of intoxication and failing four out of five field sobriety tests, the accused was asked to give a breath sample which resulted in a reading of a .13% blood alcohol content level. The accused challenges the constitutionality of the checkpoint stop on the grounds that the State Police failed to follow their own self-established written guidelines.

A New York Criminal Lawyer said that in addition to establishing a seemingly strict protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, the written guidelines of the State Police call for the making of certain records and reports before, during and after the date of the checkpoint. When a sobriety checkpoint is first scheduled, a DWI Program Notification message is supposed to be transmitted to Assistant Deputy Superintendent using a prescribed format. The memorandum is essentially a list of particulars pertaining to the planned checkpoint, including time and location, enforcement personnel and system of stop of every vehicle, every third vehicle, and so on. During the checkpoint, the DWI Investigative Note Card 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. No later than two business days following completion of the checkpoint, a DWI Program Activity Record is required to be received at a Division Traffic Services. The record appears to be a data collection tool containing useful post-checkpoint information such as the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DUI and DWI.

While the guidelines do not specifically mandate the use of the DWI Investigative Note Card, the guidelines speak in more absolute terms about the DWI Program Notification and DWI Program Activity Record. A New York Criminal Lawyer said the guidelines provide that it is imperative that the reports be completed in a timely and accurate manner. The documents are further described as legal records that are often referenced in both criminal and civil proceedings. The parties’ submissions agree that none of the above-described documents was ever prepared, let alone transmitted to the appropriate official or division of the 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 appears to be a question of first impression. It is well-settled that a roadblock or checkpoint stop is a seizure within the meaning of the law. As a general rule, seizure of an automobile on a highway or at a roadblock requires an individualized suspicion of wrongdoing. The 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 law. On the other hand, a vehicle checkpoint whose primary purpose is indistinguishable from the general interest in crime control has been declared unconstitutional.

The jury’s burden of proof as to the programmatic purpose is derived from the constitutional principle underlying the reasonableness of a unsuspicious roadblock stop such as weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. In the absence of such proof, a court is left without any basis to assess the gravity of the public concerns served by the seizure or the degree to which the seizure advanced the public interest. The primary programmatic purpose must be determined by examining the underlying reason for undertaking it as opposed to the particular manner in which the checkpoint was conducted.

In order to remove the legal disgrace of allegedly violating the law prohibition against warrantless and unsuspicious stops, the government bears the burden of satisfying additional requirements. First, a checkpoint must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Second, the Supreme Court has insisted that the discretion of the official in the field must be circumscribed. Thus, primarily because of the legal disgrace attached to warrantless and unsuspicious stops, the government bears the burden of proving at a suppression hearing that the particular checkpoint in question was conducted in a non-discretionary manner and that the officers did not exercise individual discretion as to which cars to stop or what questions to ask. Third, there should be adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint. Fourth, the location of a fixed checkpoint should be chosen not by officers in the field, but by officials responsible for making overall decisions as to the effective allocation of limited enforcement resources. The plan, directive or guidelines should emanate from the higher echelons of the police department, sheriff or State Police.

Collectively, the foregoing requirements constitute a substitute for the constitutional norm of individualized suspicion. While the list may seem formidable, law enforcement agencies have a choice of routes. One is the familiar road of individualized suspicion and the other is the less traveled and more exotic road built by Court of Appeals and Supreme Court precedents.

Inasmuch as the plan should emanate from the higher echelons of the law enforcement agency and inasmuch as the discretion of the individual officers in the field must be circumscribed, logic dictates that the plan must be followed. A plan whose execution is left to the whim and caprice of officers in the field is no plan at all.

If you have been charged with a DWI, a drug possession offense or sex crimes, contact Stephen Bilkis and Associates for advice and a free consultation.

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