Jim Porter: Sobriety checkpoint at wrong location
Special to the Sun
TRUCKEE/TAHOE, Calif. and#8212; I have not yet experienced the nightmare of driving through a sobriety checkpoint, nor am I looking forward to it, but there is a new case outlining the minimum legal requirements for a roadside sobriety checkpoint should you be interested. I hope you arenand#8217;t.
On July 6, 2007, between the hours of 9 p.m. and 2:20 a.m., several officers of the San Diego Police Department staffed a vehicle sobriety checkpoint at the 4300 block of West Mission Bay Drive in San Diego.
At around 1 a.m., Christopher Arthur drove his car into the checkpoint lanes which were identified by traffic cones. Realizing what was happening, Arthur, who had been drinking, tried to turn out of the cone-marked lanes to avoid the stop.
The officers gave chase and pulled him over. Arthur exhibited alcoholic breath, bloodshot and watery eyes, slurred speech and dilated pupils (by the way, thatand#8217;s what they always say if you are arrested). Arthur agreed to take a field sobriety test, which he failed. His blood alcohol was later determined to be .08 percent. Just hit the limit.
Arthur challenged the arrest in an administrative hearing at DMV, claiming the car checkpoint violated guidelines set by the California Supreme Court in the well-known Ingersoll case.
In Ingersoll, the Court wrote that the primary purpose of a sobriety checkpoint is and#8220;not to detect evidence of a crime or arrest drunk drivers, but to promote public safety by deterring intoxicated persons from driving on the public streets and highways.and#8221; I guess.
In examining the intrusiveness of such checkpoints, the Ingersoll Court identified eight guidelines to be met: (1) decision making at the police supervisory level; (2) limits on discretion of field officers as to who is to be stopped; (3) maintenance of safety conditions; (4) reasonable location of the checkpoint; (5) a reasonable time and duration; (6) indicia of the official nature of the roadblock; (7) the length and nature of the detention; and (8) advance publicity regarding each checkpoint.
Under the law it is presumed a checkpoint is operated legally, so it is up to the driver to show there is some irregularity.
Arthur claimed the San Diego checkpoint failed to comply with three of the eight Ingersoll factors. He argued the selection of the site and the procedures for the checkpoint operation had to be made by supervisory law enforcement personnel, not an officer on site. He was right, but the San Diego operation was set up by supervisory officers, not the officers stopping cars that evening.
Arthur next challenged the stop based on the arresting officerand#8217;s statement in court that he did not know if there was a mathematical selection process for stopping vehicles, such as every driver or every third or tenth driver. As it turns out, every car was stopped. There was no discretion by the officers in the field, which would have been illegal.
Arthurand#8217;s best argument was that the screening was done at 4300 West Mission Bay Drive, when 1300 West Mission Bay Drive had been advertised to the public. I thought Arthur was going to win on this point because, as the Court wrote, advanced publicity of the site and#8220;reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock and establishes the legitimacy of sobriety checkpoints in the minds of motorists.and#8221;
That is what I thought. I was wrong. The Court found that if all of the other checkpoint guidelines are met except the advanced publicity was missing or incorrect, the stop is not an unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution. DUI conviction upheld.
The holidays are a particularly good time to be careful about drinking and driving.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governorand#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s web site http://www.portersimon.com.
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