Checkpoints are interesting. The general rule is that police have to have a good reason, before they can stop you, to prevent you from going about your business. That’s rooted in the Fourth Amendment, which says you’ve got to have protection against unreasonable searches and seizures. And our courts have decided that in order for the search or the seizure to be reasonable, they need to at least have some reason to believe you’re doing something wrong.
That is completely different in the situation of a checkpoint. Police set up a checkpoint, or a roadblock, or whatever they want to call it, and they’re stopping everybody on the road, and they have no reason to believe that anybody has done anything wrong. That is exactly what is prohibited by the Fourth Amendment.
That is the definition of an unreasonable search and seizure. The police are stopping you even though they don’t think you’ve done anything wrong. But, our courts decided that drunk driving is such a big problem that they’re going to allow a very limited, sort of they’re chipping away at that Fourth Amendment, they’re going to allow that sort of a very brief limited stop if it’s done in a certain way.
They’ve got to have written procedures and stick pretty close to that. It’s got to be a brief encounter. It’s supposed to be no more than a few seconds. And that’s why … because otherwise, it’s an absolute violation of the Constitution.
When you see one can you avoid it?
Yes. You do not have to go through a checkpoint, if you can drive away from that checkpoint without breaking laws. Sure. All my clients seem to slam on the gas and make a U-turn, crossing double yellow lines, and cutting somebody else off, and drawing attention to themselves by committing other violations trying to avoid the DUI checkpoint.
But if there are signs that say, hey, a mile ahead there’s a DUI checkpoint, and there’s a road to turn down, you’re free to turn down that road before you get to the checkpoint. There’s nothing wrong with that. What you can’t do is commit some other violation.
Once you pull up to the checkpoint, and you’re engaged with an officer, now you have that same decision to make. What am I going to do here? Am I going to answer his questions or am I going to not answer his questions?
If there’s any reason to believe that you’re somebody that needs to be further screened, they’ll move you over to a second staging area, and go into the full DUI investigation. If you sort of pass that initial screening, they’ll just waive you on your way and you’ll pull right on through.
Most of the checkpoints they don’t talk to every vehicle. I shouldn’t say that. I guess it depends on how busy the traffic is. But they will have a plan. That plan that they have for the checkpoint will dictate whether they’re talking to every vehicle, every third vehicle, and every fifth vehicle, whatever it is. And the others have to be able to pass through without being stopped at all.
But if you’re one of the ones they’re engaged in conversation with, and if they smell alcohol, they’ll process you over, push you over to that other staging area and have that same old DUI investigation that they would have had if they’d caught you speeding, or doing some other violation.