65.04(d) The criteria for selecting the location for a sobriety checkpoint must include the number of traffic accidents in the vicinity of the location in which the use of alcohol was a factor and that occurred in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months. The selection of the checkpoint must be made without regard to the ethnic or socioeconomic characteristics of the area in which the checkpoint is located.
First, I love the Orwellian phrase sobriety checkpoint. How does one go about determining whether another person is sober? What is sober? How do you prove a negative - I am not intoxicated?
I also want to know how law enforcement determines whether alcohol was a factor in an accident. Does that mean that the driver at fault was intoxicated? Does that mean that either driver was intoxicated? Does that mean that the driver at fault consumed an alcoholic beverage? Does that mean that either driver consumed an alcoholic beverage?
65.04(h) ...a peace officer may not request a person operating a motor vehicle at the sobriety checkpoint to display the person's driver's license or concealed handgun license or to furnish evidence of financial responsibility unless the officr has reasonable suspicion or probable cause to believe that the person has committed or is committing an offense...
Obviously the handgun lobby was involved in the final markup of this bill. And what would constitute reasonable suspicion that someone was driving without insurance?
65.04(i) A peace officer at the sobriety checkpoint may not require a motor vehicle operator to perform a sobriety test unless the officer has reasonable suspicion or probable cause to believe that the operator is in violation of Section 49.04 or 49.045, Penal Code. A peace officer who requires or requests an operator to provide a specimen of breath, blood or urine must comply with Section 724,Transportation Code.
Reasonable suspicion or probable cause for what? If you've got no moving or equipment violation, you've got no basis to stop the motorist. As it's not against the law to have a drink and drive - so long as you haven't lost the normal use of your mental or physical faculties - the smell of an alcoholic beverage on one's breath doesn't give rise to an inference that a law has been broken.
65.04(c) The procedures for the operation of a sobriety checkpoint must ensure that the selection of motor vehicles to be stopped is reasonably predictable and nonarbitrary.
If you enjoy playing the lottery then you'll love being caught up in one of these DWI checkpoints. But this does beg the question, again, of what constitutes reasonable suspicion or probable cause in the context of a DWI checkpoint.
There is no other crime on the books in Texas for which the police can line people up against a wall without any articulable reason and look for a reason to arrest them. Such a procedure would violate the very notion of due process. But, we are talking about driving while intoxicated, for gosh sakes.