By Maya Kushner, Esq. and Marc Emden, Esq.
Police officers must follow specific rules when they engage members of the public, so you may ask yourself if this applies at DUI checkpoints. For example, the police may approach someone on a public street at any time, but if that person does not wish to speak to them, she may simply walk away and the officers are not allowed to stop her, unless they have reasonable articulable suspicion that criminal activity is afoot. If they do have reasonable articulable suspicion to detain the person, then the detention must be brief: only long enough to either confirm or dispel their suspicion. If they detain the person any longer than that, then the stop becomes a seizure of the person, which requires probable cause.
However, DUI checkpoints, otherwise known as sobriety checkpoints, are an exception to this general legal principle. Police may stop a driver at a DUI checkpoint without having any suspicion that the driver is committing a crime. Because this type of stop appears to violate the 4th Amendment to the U.S. Constitution, which protects persons from unreasonable searches and seizures, DUI checkpoints have been a controversial police tactic since their inception. In 1990 the U.S. Supreme Court approved the use of DUI checkpoints, reasoning that their intrusion upon the driver’s personal privacy was minimal, while the need to combat drunk driving cases was great.
However, the U.S. Supreme Court did not prescribe specif standards for the manner in which police should administer DUI checkpoints, so practices vary by state and even by county. Some states, Idaho and Wisconsin for example, remained convinced that DUI checkpoints violate the U.S. Constitution and thus have outlawed the practice altogether.
In Maryland, the highest court authorized the use of DUI checkpoints and also prescribed some of the standards to be used when conducting them in the 1984 case of Little v. State:
- There must be adequate advance warning of the DUI checkpoint to all approaching drivers. Often police will post signs on the road to warn drivers of the impending checkpoint. In some counties in Maryland, police will also use news stations, radio stations, or social media to announce their intent to set up a sobriety checkpoint later that day.
- The sign announcing the checkpoint must be placed so that a motorist, upon seeing it, will be able to make a lawful U-turn or turn onto a side street before reaching the checkpoint, if she wishes to avoid it.
- Further, the 2001 case U.S. v. Lester determined that if a motorist chooses to make a U-turn to bypass the checkpoint, the police may not use this action as reasonable articulable suspicion to stop the driver.
- At the checkpoint itself, police must have a specific system to determine which cars will be stopped. For example, they can stop all cars, or every fourth car, but they may not randomly select which cars they will stop and which cars they will allow to pass through without examination.
- The court in Little noted that a driver who stops at the checkpoint but refuses to roll down the window would be allowed to proceed without examination. However, even if the police allow a driver to proceed without examination, they may still follow the car to look for lawful reasons to pull the driver over, such as observing behavior indicative of impairment (ex. erratic driving) or violation of any other traffic law (such as running a stop sign or even having a broken tail light).
- If the driver chooses to stop at the DUI checkpoint and speak with the officers, the law requires that the detention be brief, and the officers must ask him the same pre-determined set of questions they ask everyone else.
- However, if officers smell alcohol on the driver’s breath, observe open alcohol containers in the car, the driver admits to consuming alcohol, or appears impaired, the police will have probable cause to detain him further. They may even search his car without obtaining a search warrant first because of the automobile exception.
- If police officers have probable cause for the detention, they may also ask the driver to perform roadside sobriety tests, or submit to a chemical test (blood, breath, or urine) to determine his blood alcohol content (BAC). Refusing some of these tests may have a penalty. Read our FAQs on drunk driving cases to learn more.
As with any police encounter, remember to remain calm and polite. Do not argue with or physically resist the officers even if you believe that they are acting unlawfully. Instead, let your criminal defense attorney handle the matter. If the police did act unlawfully, then evidence they obtained against you will likely be suppressed (excluded from use) by the trial judge.