Sunday, August 18, 2013

Does a DUI Checkpoint Need To Provide Signs and Turnouts?

The question comes up frequently whether a DUI checkpoint must provide a sign to those approaching it.  Put another way, must a sobriety checkpoint give advance warning to the driver and allow them an opportunity to turn out and avoid the operation if they desire?  The U.S. Supreme Court specifically rejected a lower state court's finding in that case that a checkpoint is unreasonable if law enforcement fails to demonstrate that motorists are made aware of their option to make If-turns or turnoffs to avoid DUI checkpoints.  The U.S, Supreme Court stated the lower court erred by misreading its precedent on what was an improper "subjective intrusion" that a checkpoint could make on an individual driver. A checkpoint's intrusion on motorists by causing "fear and surprise" in them is "not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the stop."

 According to one Long Beach DUI Attorney, The U.S. Supreme Court observed:  "The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop .... At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' [Citation]" Martinez-Fuerte, 428 U.S., at 558." (Sitz, supra, 496 U.S. at p. 452.) Nowhere in Sitz does the U.S. Supreme Court state that a turn off must be provided before the announcement of a DUI checkpoint. It only states that checkpoints cannot cause fear and surprise in drivers by randomly stopping vehicles without reasonable suspicion, something which the Fourth Amendment guarantees against. To be reasonable under the Fourth Amendment, the checkpoint must provide visible signs of the officers' authority, must be regular in routine and not arbitrary or random, and provide visible evidence that the stops are duly authorized and serve the public interest. (Sitz, supra, 496 U.S. at p. 453; Martinez-Fuerte, 428 U.S., at p. 559.) It is true that in Ingersoll, the California Supreme Court found that the checkpoint had a road sign placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint. (Ingersoll. supra, 43 Cal.3d at p. 336.) However, the U.S. Supreme Court in Sitz subsequently rejected that same objection made by defendants in that case.

In many DUI prosecutions, there is substantial evidence that the DWI checkpoint provided indicia of its official nature. There are usually uniformed personnel manning the checkpoint. The lanes are typically  divided with bright orange reflective cones. Police cars line the shoulder of the roadway and activated their flashing amber overhead lighting equipment. There are electronic construction-type sign at the beginning of the checkpoint area that are reflective orange in color, and bad light bulbs upon which is written "DL DUI checkpoint."  Most Courts will conclude that there was sufficient notice announcing the checkpoint given to drivers in advance of the checkpoint location to permit motorists to turn aside and avoid the checkpoint under these circumstances.  Most Judges will conclude that there is no constitutional requirement that a sign announcing the checkpoint be located prior to a turn off.

A History of Court Decisions on the Constitutionality of DUI Checkpoints

In 1987, the California Supreme Court addressed the question of whether DWI sobriety checkpoints were permissible under federal and state constitutions. (Ingersoll v. Palmer (1987) 43 Ca1.3d 1321, 1325.) "Federal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative; that the seizure is 'carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.' (Brown v. Texas (1979) 443 U.S. 47, 51, citing Delaware v. Prouse (1979) 440 U.S. 648, 663 and United States v. Martinez-Fuerte (1976) 428 U.S. 543,558-562.) As part of its analysis, the California Supreme Court in Ingersoll applied the federal test that was enunciated in Brown v. Texas, supra, 443 U.S. 47. 51 for determining whether the detention of the driver was reasonable.  The Brown test was a balancing test weighing the gravity of the governmental interest or public concern served and the degree to which the program advances that concern against the intrusiveness of the interference with individual liberty. 

The California Supreme Court "determined that (1) '[d]eterring drunk driving and identifying and removing drunk drivers from the roadways undeniably serves a highly important governmental interest,' and (2) sobriety checkpoints advance this interest. (Ingersoll. supra, 43 Cal.3d atpp. 1338-1341.) In examining the third prong of the Brown balancing test, which [it] rephrased as 'the intrusiveness on inclividua1liberties engendered by the sobriety checkpoints: [it] identified eight 'factors important in assessing intrusiveness,' noting that such factors 'provide functional guidelines for minimizing the intrusiveness of the DUI checkpoint stop." (People v. Banks (1993) 6 Cal. 4th 926,936.) It found these eight factors were important in assessing intrusiveness, noting that these eight factors "provide functional guidelines for minimizing the intrusiveness of the sobriety checkpoint stop."  These eight factors are:

(1) Whether the decision to establish a sobriety checkpoint, the selection of the site, and the procedures for the operation of the checkpoint are made and established by supervisory law enforcement personnel;
(2) Whether drivers are stopped according to a neutral formula, such as every third, fifth or tenth driver;
(3) Whether adequate safety precautions are taken, such as proper lighting, warning sign,and signals, and whether clearly identifiable official vehicles and personnel are used;
(4) Whether the location of the checkpoint was determined by a policymaking official, and was reasonable, i.e., on a road having a high incidence of alcohol-related accidents or arrests;
(5) Whether the time the checkpoint was conducted and its duration reflect "good judgment" on the part of law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop);
(7) Whether the average length and nature of the detention is minimized;and
(8) Whether the checkpoint is preceded by publicity.

Three years after Ingersoll, the U.S. Supreme Court decided Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444. In Sitz, the U.S. Supreme Court addressed the issue of whether sobriety checkpoints violated the Fourth Amendment of the US Constitution.  It found that the balancing test used in Brown v. Texas and United States v. Martinez-Fuerte (1976) 428 U.S. 543 [approved fixed immigration checkpoints to investigate the transport of illegal aliens] was the appropriate test. In applying the balancing test, the court held that a state's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighed in favor of a state sobriety checkpoint and was consistent with the Fourth Amendment. Three years after Sitz, the California Supreme Court decided People v. Banks (1993) 6 Ca1.4th 926.)  In Banks, the court considered whether advance publicity, one of the eight Ingersoll factors, was a constitutional prerequisite for a sobriety checkpoint. The Justices held that in light of Sitz and other authority, a DUI checkpoint that lacked advance publicity but otherwise conformed to the Ingersoll guidelines was not a unreasonable seizure.

The evolution of the Drunk Driver checkpoint is nearly 40 years in the making.  Most Attorneys understand that a challenge on fourth amendment grounds will be met with much opposition.  But, checkpoints can be fought if the person understands the cases and the requirements

Friday, August 16, 2013

Why are DUI Checkpoints Constitutional?

The U.S. Supreme Court upheld the constitutionality of sobriety checkpoints in 1990. If conducted properly, DWI checkpoints do not constitute illegal search and seizure in most states. The U.S. Supreme Court decision held that the interest in reducing alcohol-impaired driving was sufficient to justify the brief intrusion of a properly conducted sobriety checkpoint.

Most states, including California,  allow DUI checkpoints. Many states have set up and established their own guidelines to supplement the federal rules.  For instance, most jurisdictions require advance notice of the checkpoint to the public. A few states require the production of police studies showing why a checkpoint location is selected. One state requires police to obtain a Superior Court order before the checkpoint may be conducted. the laws in most states will dictate to what extent the police can go in stopping motorists to determine their sobriety .

According to one Torrance DUI Attorney, if a checkpoint complies with the federal requirements, it does not violate the United States Constitution.  Most states have decided the issue under their own constitutions as well.  In states where sobriety checkpoints are prohibited, the reasons vary as to why they aren’t allowed. Eleven states currently prohibit any type of sobriety checkpoint. California decided back in the 90's to allow the police to stop vehicles following the Federal law standards, put another way, the law in this state is that the cops can stop and search people as long as the stop complies with the U.S. Constitution, not the state Constitution.

So why is a DUI checkpoint legal?  One perspective is that, as citizens, most of us support the police to protect us from theft, burglary and assault. Yet, many otherwise law-biding citizens continue to view impaired driving merely as a traffic offense. Don’t be fooled. Impaired driving is no accident nor is it a victimless crime. s a serious crime that kills more than 16,000 people and injures nearly 305,000 others every year. Every 32 minutes, someone in America dies in an impaired driving crash. Every two minutes, someone is killed or injured by a DUI driver Law enforcement agencies in every State and locality are serving on the front lines in the fight against this deadly threat to this country's communities. Traffic crashes are not only a danger to our citizens but are also the leading cause of death for law enforcement officers on the road. More cities are also beginning to understand the economic cost of this criminal activity. Impaired driving (DWI) cost the public more than $110 billion a year. DUI related car crashes are deadlier and more serious than other accidents and they hurt everyone - annually people other than the drinking driver pay 50 plus billion of the costs of DUI drivers.

Sunday, August 4, 2013

Is a Felony DUI Defendant Eligible For Realignment?

California lawmakers initiated a program in California some time ago allowing for certain offenders to spend time in local county jails versus being sent to state prison.  A Felony DUI carries a sentence of state prison, however, can a convicted offender do that time in county?  The Coorts say no, according to a recent appeals case.  Appellant pled no contest to a section 23152, subdivision (b) violation, admitted a prior conviction under section 23550.5, and was sentenced to a two-year term in state prison. On appeal, he argued he was entitled to be sentenced to local custody because, absent disqualifying factors not present here, Penal Code section 1170, subdivision (h) provides that where the term for the offense is not specified, the underlying offense shall be punishable by imprisonment in a county jail for 16 months, two years or three years. Vehicle Code section 42000 provides unless a different penalty is expressly provided by this code, every person convicted of a felony for a violation of a provision of this code shall be punished pursuant to Penal Code section 1170, subdivision (h). Under appellant's reasoning, since section 23550.5 provides for, "imprisonment in the state prison," but does not provide for a specific term, he was eligible for local custody. The appeals court upheld the sentence. Section 23550, subdivision (a), but not section 23550.5 provides for sentencing pursuant to section 1170, subdivision (h). By failing to include language in section 23550.5 authorizing local custody, the Legislature intentionally excluded those convicted under this statute from serving the term in local custody.   So, no county jail time for felony DUI crimes in California.