The holiday season brings time well spent with friends and family, beautiful decorations, well cooked meals with loved ones, and the joy of giving gifts to those that you love.

It’s also the season of quasi-constitutional things like roadblocks.

You’ve seen the commercials and heard the warnings on the radio, and perhaps you have even been stopped and made to blow into a breathalyzer. Perhaps you have been made to do that strange ballet where you have to close your eyes, stand on one leg, and throw your head back, which is practically impossible to do even if you haven’t been drinking.

As you are being made to breathe into a tube or play hopscotch on the side of the road, a few questions might occur to you, the first one being “Is this even legal? Isn’t there something in the Constitution about probable cause or search and seizure or something?”

The answer is yes, there certainly is. But in Virginia, there seems to be a loophole big enough to roadblock the truck that you would drive it through.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That is from the Fourth Amendment, and this is the sort of thing that keeps the police from entering your house for no apparent reason and rooting through your belongings. The police CAN in fact enter your house and root through your belongings, but they have to go to a judge and present a lot of good and solid legal reasons as to why they want to.

You would assume that the Fourth Amendment would apply to people’s cars, and you would be right. The police cannot legally search a car in a parking lot for no reason, unless there is something called “probable cause.” For instance, if the police see a car in a parking lot with a marijuana leaf painted on the hood, and the license plate reads “DRUGDEALR,” and there is funny smelling smoke coming out of the windows, that is a fine example of probable cause. But if the car is a minivan with nothing strange about it, the police cannot search it just because they feel like it.

So how on earth are DUI checkpoints legal, where they can stop every car that comes down the road? Or every second or third car? How did they manage to hang an asterisk on the fourth amendment? Why are you freezing on the side of the road, or, even worse, why is your life being ruined because of the two glasses of wine that you had with your Christmas Dinner?

Michigan Checkpoints

In 1986, the Michigan State Police announced that they were going to start placing well publicized and well staffed sobriety checkpoints on some roads that had experienced high levels of drunk driving accidents. Before the checkpoints were even put into action, a Michigan citizen named Rick Sitz filed suit to stop it. It should be mentioned that Rick Sitz did not do this because he enjoyed drinking and driving, but because he quite rightly thought that stopping everyone at random to see who had been naughty or nice was a gross violation of privacy and fourth amendment rights.

The lower courts of Michigan agreed with Mr. Sitz, but the case was appealed all the way to the U.S. Supreme Court. Michigan Department of State Police v. Sitz was heard in 1990. In a 6-to-3 decision, the Court held that the roadblocks did not violate the Fourth Amendment. The Court noted that "no one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." The Court then found that "the weight bearing on the other scale--the measure of the intrusion on motorists stopped briefly at sobriety checkpoints--is slight." Perhaps the justices had been chauffered around DC for so long that they forgot what it was like to be arbitrarily pulled over and told to blow in a tube. The Court also found that empirical evidence supported the effectiveness of the program.


What was the empirical evidence that supported it? According to the brief:


The first - and to date the only - sobriety checkpoint operated under the program was conducted in Saginaw County with the assistance of the Saginaw County Sheriff's Department. During the 75-minute duration of the checkpoint's operation, 126 vehicles passed through the checkpoint. The average delay for each vehicle was approximately 25 seconds. Two drivers were detained for field sobriety testing, and one of the two was arrested for driving under the influence of alcohol. A third driver who drove through without stopping was pulled over by an officer in an observation vehicle and arrested for driving under the influence.

Out of 126 vehicles, they got two guys. One made it obvious by trying to run the stop, and the other was given the field sobriety test, which is, as mentioned before, difficult to complete even when you are sober. While groups like MADD make it seem like you can’t go out to get the newspaper without coming across a highway full of drunken drivers, the numbers simply don’t back up this supposed need for draconian measures like roadblocks.

The dissenting opinions, led by Justice Brennan, stated that "the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative." So aside from not really working, they also violate our fourth amendment rights. As stated by Justice Brennan: "That stopping every car might make it easier to prevent drunken driving ... is an insufficient justification for abandoning the requirement of individualized suspicion.”

As constitutionally correct as Justice Brennan was, he was still in the dissenting opinion, so on a federal level, sobriety checkpoints are okay. But there are still states that view sobriety checkpoints as unconstitutional. Unfortunately, Virginia isn’t one of them.

I’m at a checkpoint. Now what?

As with any routine stop, you are required to provide identifying information such as your name, address, driver's license, and registration. By law, you do not have to say anything. But what you should do is say as little as possible. Anything you say could potentially be used against you. Admitting to drinking or consuming drugs (even in small amounts: “I just had one!”) can be construed as admitting guilt.

And always remember, don’t give up. A DUI conviction can absolutely ruin your life. It costs you time, money, and freedom. A skilled attorney could get the charges reduced, or even get the charges thrown out.

If you or a loved one is facing a DUI charge, contact Bob Battle for a free legal consultation today.

Bob Battle
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100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts