The Sobriety Checkpoint Debate

Sobriety checkpoints are controversial for a variety of reasons. On one side of the coin, civil liberty activists and lawyers view sobriety checkpoints as an infringement of constitutional rights. And on the other side, sobriety checkpoints are understood to be effective deterrents to intoxicated drivers.

What Are Sobriety Checkpoints?

Sobriety checkpoints are locations on the roadway where officers check drivers for signs of intoxication. Currently, there is disagreement among states about the legality of conducting checkpoints. A large number of states require advance notice of a checkpoint to the public, and a few States require police studies to show why a particular checkpoint location is selected. According to the Governors Highway Safety Association, thirty-eight states, Washington DC, the Northern Mariana Islands and the Virgin Islands conduct sobriety checkpoints. The judicial branch in a majority of states have ruled on the legality of sobriety checkpoints based on interpretations of both the state and federal constitutions.

Twelve states do not conduct sobriety checkpoints, including Texas, and have banned them through the use of legislation or explicitly in their constitution. Sobriety checkpoints “are not permissible in Texas under the federal constitution only because Texas has no statutory scheme authorizing them,” according to the National Traffic Safety Administration. Texas also banned these checkpoints because they raise Fourth Amendment concerns. The Fourth Amendment protects us from unreasonable searches and seizures and many argue a checkpoint subjects a person to a seizure without any reasonable suspicion that an offense occurred. Courts typically consider three main factors when determining whether a DWI roadblock constitutes a seizure:

  1. The state’s interest in preventing accidents caused by drivers under the influence;
  2. How effective the checkpoints are in preventing DWI accidents; and
  3. The level of intrusion the sobriety checkpoint has on an individual’s right to privacy.

In Texas, these checkpoints are unconstitutional. In State v. Holt, 887 S.W. 2d 16 (Tex. Cr. App. 1994), the Court of Criminal Appeals of Texas held that because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional under the Fourth Amendment of the U.S. Constitution unless and until a politically accountable governing body sees fit to enact constitutional guidelines. The U.S. Supreme Court case Michigan v. Sitz, 496 U.S. 444 (1990) affirmed that a highway sobriety checkpoint was consistent with the Fourth Amendment’s prohibition on unreasonable seizures.

Checkpoints Throughout the Nation

Other states are currently facing subtle challenges to sobriety checkpoints from attorneys, law enforcement, and citizens. In Florida, attorney Warren Redlich has created a simple, yet popular method for drivers to navigate a sobriety checkpoint. Redlich’s recipe includes a plastic bag that contains a driver’s license, insurance, registration, and a piece of paper that is known as the “fair DUI flier.” The flier states “I remain silent. No searches. I want my lawyer.” A YouTube video that has been viewed over 2 million times accounts the use of Redlich’s flier by a driver at a New Year’s Eve checkpoint, where the driver was allowed to pass through without resistance from law enforcement.

The Boca Raton criminal defense attorney asserts that his method protects sober motorists from being falsely arrested, claiming that DUI checkpoints are unconstitutional. Still, Redlich’s method has not come without criticism from law enforcement. Some county sheriffs asserted that they will arrest motorists on site if they use the DUI flier. Some legal experts are not sure whether Redlich’s flier will hold up in court. While these types of roadblocks are illegal in Texas, any action taken to avoid a police stop will most likely raise suspicion to the cops, sometimes leading to a legal stop, giving officers the ability to investigate any sign of intoxication. For that reason, being aware of your rights regarding any type of sobriety checkpoint no matter what state you are in is very important. Don’t hesitate to contact the Law Offices of Tad Nelson & Associates if you are unsure of your rights, or if you need help with a DUI defense.