DUI Checkpoints: The Constitutionally Suspect Secondary Screening Stage

With Super Bowl Sunday upon us, law enforcement agencies throughout California will be participating in DUI Checkpoints this evening. Ever since these warrantless stops were sanctioned by the California Supreme Court and the United States Supreme Court under very strict guidelines, officers have pushed the envelope with respect to the questions they ask and the basis upon which they further detain motorists for field sobriety testing.  In many of these DUI Checkpoint operations, officers ask overly intrusive questions such as “Where are you coming from?” and “Where are you going tonight?” This is what happens when you start giving law enforcement the authority to detain and question people without any reasonable suspicion of criminal activity. Equally alarming is the more recent practice of prolonging detentions for drivers who merely admit to having had a drink, without displaying even the slightest sign of impairment from alcohol or drugs.

The constitutionality of detaining drivers beyond the initial screening area of a DUI Checkpoint, based solely upon an admission of drinking, is the subject of today’s blog by California DUI defense attorney Paul Burglin.

In State v. McPartland, 212 ME 12, 36 A.3d 881 (2012), a driver approached a DUI Checkpoint at approximately 2:00 a.m., traveling at a rate that was ten miles per hour over the speed limit, and admitted to consuming “a Martini.” She contended on appeal that her mere admission to having had a single Martini was not grounds for the officer to detain her to a secondary screening area for further investigation.

          In this case of first impression, we determine what constitutional standard

          law enforcement authorities must apply when deciding whether a motorist

          who has been lawfully stopped at a sobriety checkpoint may be detained for

          secondary screening.

          …

          Given the authority from other appellate courts that have addressed

          the question presented in this appeal, as well as our own cases interpreting

          the Fourth and Fourteenth Amendments of the United States Constitution

          and article I, section 5 of the Maine Constitution, we conclude that an

          officer questioning a motorist stopped at the initial roadblock must have

          an objectively reasonable basis for suspecting that the motorist is

          driving under the influence before the officer can refer the motorist

          to secondary screening for impairment.

Id., at 883-84.  The Maine Supreme Court deferred to the trial court’s findings and affirmed its denial of appellant’s motion to suppress evidence based on the totality of circumstances. It rejected appellant’s assertion that the only basis for the secondary screening detention was her admission of drinking, specifically noting that in addition to the admission of drinking she had sped up to the Checkpoint at 10 mph over the speed limit at two o’clock in the morning.  It was these additional factors, coupled with the admission of drinking, that made the further detention objectively reasonable.

Although the admission of drinking may be a factor to consider in the totality of the circumstances, the mere admission to having consumed just one or two drinks is not enough to make secondary screening detention objectively reasonable.  Thus, People v. Bruni, 406 Ill.App.3d 165, 940 N.E.2d 84 (2010), also found a secondary screening detention objectively reasonable based on the officer’s observations of “glossy” eyes and odor of alcohol, as opposed to just the driver’s admission of drinking.

The Bruni Court noted that “[t]he leading fourth amendment scholar has stated that ‘the officer [conducting the sobriety checkpoint stop] should have an articulable suspicion that the motorist is intoxicated before detaining the motorist for an extended [DUI] investigation.’ 5 W. LaFave, Search and Seizure § 10.8(d), at 378 (4^th ed. 2004), quoting Note, 71 Geo. L.J. 1457, 1486 (1983). When such a suspicion exists, the detention is tantamount to an investigatory detention under Terry v. Ohio, 392 U.S. 1 (1968), which held that a police officer may effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime.” Bruni, at 168.

As noted by the Bruni Court, there is a split of authority as to whether an odor of alcohol alone constitutes reasonable suspicion of intoxication.  People v. Rizzo, 243 Mich.App. 151, 622 N.W.2d 319 (2000) held that a strong odor of alcohol on a driver’s breath is a sufficient basis to detain a motorist for field sobriety testing (id., at 320-21), while other jurisdictions have reached a contrary conclusion.  See, e.g., City of Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002) (smell of alcohol on defendant’s breath while he was at police station because the police had “picked up” his daughter, combined with his false statement to an officer that he was walking—not driving—home, did not give rise to a reasonable suspicion that defendant was intoxicated and too impaired to drive).

DUI Checkpoints only pass constitutional muster where the initial screening is minimally intrusive and brief, and where only those drivers exhibiting signs of impairment are further detained to a secondary screening area. See Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) and Ingersol v. Palmer, 43 Cal.3d 1321 (1987).  Where a motorist merely acknowledges to having had a drink or two, but the officer does not detect any sign of impairment (either in the manner of driving or by the operator’s physical manifestations), then there is no constitutional basis for further detention to a secondary screening area.