You’ve probably seen them before – a few signs, probably some cones, and a whole bunch of police officers with flashlights, usually slowing down a busy road to a crawl on a Friday or Saturday night. A sobriety checkpoint. These stops can either create a small annoyance or a huge concern, depending on your activities that night.

One familiar with the protections entitled by the Fourth Amendment of the U.S. Constitution, which prevents unlawful searches by police, would probably wonder… how is this legal?

In 1987, the California Supreme Court established basic policies law enforcement must follow to ensure the sobriety checkpoints comply with the Constitution. A failure to follow these policies means the checkpoint is illegal – and any arrest resulting from the checkpoint is illegal as well.

First, decisions as to the location of the checkpoint and the procedures to be followed must be made by supervisory law enforcement personnel, rather than an officer in the field. This is intended to prevent important decisions being made by officers with little or no knowledge of the Constitutional requirements. In addition, the length and nature of stops must be as minimal as possible.

Vehicles must be stopped by a predetermined, neutral system – this means they must check, for example, every third car, as opposed to officers in the field making determinations as to who to stop based on appearance. Failure to do so is a clear Constitutional violation and the resulting stop is illegal and should be thrown out in court.

The location must include proper safety precautions, including proper lighting, official markings of law enforcement, and warning signs of the approaching checkpoint, so as not to surprise or frighten the motorist. Depending on the circumstances, it may also be necessary to provide an opportunity for a motorist to turn down a side street to avoid the checkpoint. Further, a person cannot be arrested for merely avoiding a checkpoint without further indication of illegal activities. Simply making a legal turn, even for the specific purpose of avoiding a checkpoint, is not probable cause, and any stop based on solely on this activity is illegal.

Finally, there should be advance publicity made as to the existence of the checkpoint.

If the above policies are not followed, then the checkpoint does not conform to the requirements of the Fourth Amendment and is an infringement of the right to be free from unreasonable search and seizure. If you have been cited for driving under the influence, or in fact, ANY criminal charge based on a stop at a sobriety checkpoint, it is important to understand these policies. If the stop was illegal, then any resulting evidence or statements made are inadmissible in a criminal proceeding, and your case should be dismissed.

For further information contact us today. Consultations are free and completely confidential.