Maybe their faces will turn up on milk cartons

Neutral and detached magistrates are looking more and more like an endangered species -- particularly in Missouri, according to this piece in the ABA Journal.

In southwest Missouri law enforcement types have decided to declare open season on motorists' 4th Amendment rights and run No Refusal Weekends at DWI checkpoints. That's right, not only will motorists be subject to being stopped without probable cause, they will be compelled to produce evidence that will be used to prosecute them.

Once again we have the police pontificating about the dangers of drunk driving and that motorists should be aware that it's against the law. Points taken. It is dangerous, and illegal, to get behind the wheel of a car if you're intoxicated. The problem is that everyone of us is different and our bodies process alcohol in different ways. Checkpoints don't prevent folks from breaking the law. All they do is allow the police to cherry pick whomever they wish to stop - absent any evidence of bad driving.

But I digress. The new twist in Missouri is the appearance of prosecutors and judges at these checkpoints. Now the officers can fill in check-the-box formatted search warrant affidavits and have a judge sign them on the spot without ever questioning the need to execute a forced blood draw. The presence of the prosecutors allows the state to have little confabs with the men in black robes before the motorist ever gets to speak with an attorney.

If we're going to be fair, then there should also be court-appointed attorneys or public defenders present to consult with the motorists whom are facing the needle and to argue the merits of a search warrant before the judge. But, of course, we'll never see that because our presence would just gum up the works and might actually cause the police and prosecutors to work to obtain convictions in DWI cases.

It's always so nice to see judges who are willing to prostitute themselves out in order to favor curry with the voters for being so tough on crime. If these judges cared one iota about the Constitution they swore to uphold when they took their oath of office, they wouldn't accept fill-in-the-blank or computer generated "auto-texted" search warrant applications for forcible blood draws. If these judges were interested in being neutral and detached, they would question the officers for the need to strap a motorist down and extract a blood sample for a misdemeanor that's just one step removed from a traffic ticket.

But they don't.

Washington's latest assault on the Fourth Amendment

The existence of sobriety checkpoints on our roadways is an affront to the Fourth Amendment. The very notion that it's okay for the police to stop folks without cause simply because they are driving on the road should have all of us up in arms.

Of course it doesn't because most folks are lemmings who are more than happy to hand over their liberty in exchange for the "protection" of the state.

The Fourth Amendment says that the police can't arrest you without a warrant absent probable cause. Our courts managed to screw that up by proclaiming that the police can stop a person if the officer has reasonable suspicion to believe that criminal activity might be afoot. This lowering of the standard had led to police arresting motorists for driving while intoxicated even though they can't point to a single traffic violation as the basis for the stop.

Now the Constitution has never gotten in the way of our beloved senators and representatives in Washington. Quite a few senators are up in arms over a couple of apps available for your smartphone that will tip you off to the location of sobriety checkpoints. The senators called on Apple, Google and Research in Motion to remove the apps from the online stores.

As a result, if you own a BlackBerry, RIM sold you down the river. (But you can still get a game the glorifies Al Capone.)

PhantomALERT and Trapster will provide motorists with notices of nearby checkpoints as well as speedtraps and red light cameras.

"These applications are nothing more than a how-to guide in avoiding law enforcement and they provide drunk drivers with the tools they need to go undetected, putting innocent families and children at risk." Sen. Charles Schumer (D-NY) 

Hey, Chuck, since you took that oath to uphold the Constitution, you might want to revisit the presumption of innocence and the Fourth Amendment. It's not against the law to have a drink and then get behind the wheel of a car. It's against the law to do so if you've lost the normal use of your mental or physical faculties.

Sure, there will be drivers who are intoxicated that avoid a checkpoint thanks to their smartphone -- but there will be many more drivers who are able to avoid the assault on their civil liberties and privacy. Contrary to what Mr. Schumer and his ilk believe, we shouldn't be subjected to mandatory encounters with the police just because there are some folks out there breaking the law.

Texas court gives checkpoints the thumbs-up

Back in February 2006, Gerardo Lujan and a passenger were driving around when they came across a checkpoint set up for the (alleged) purpose of checking for valid driver's licenses and insurance. According to police, if a motorist showed a valid license and proof of insurance, he was sent on his way. If a motorist did not have a valid license and proof of insurance the officers would cite them and check for other violations and for warrants. Of course the police had a K-9 unit on hand.

Coming soon to a town near you?

Upon being stopped, Mr. Lujan told the officer he did not have a driver's license. He was told to pull over at which time police questioned his passenger - who was not carrying a license either. The two men gave officers similar stories of where they had been (the only significant difference being the name of the friend they were visiting). A check showed the passenger had outstanding warrants and he was taken into custody. All of this without any evidence that the passenger had committed any criminal act.

After placing the passenger under arrest the officer informed Mr. Lujan that he needed to pat him down for safety reasons (again, no reason given). Lo and behold, the officer discovered over $1,000 in cash in Mr. Lujan's pockets (no crime in carrying cash). The officer then asked for permission to search the car and Mr. Lujan (apparently in the midst of a brain fart) consented. Needless to say the police found cocaine hidden in the passenger-side door with the help of their drug-sniffing canine friend.

While the trial court (surprise, surprise) denied Mr. Lujan's motion to suppress, the El Paso Court of Appeals overturned the conviction on the grounds that the checkpoint violated Mr. Lujan's Fourth Amendment right against unreasonable search and seizure.

The Texas Court of Criminal Appeals then reversed the Court of Appeals' ruling and reinstated the conviction. One of the reasons given for the reversal was that without findings of fact and conclusions of law from the trial court, the CCA was left to assume that the trial court made implicit findings of fact consistent with the evidence on the record. The CCA found that the checkpoint was valid because they could interpret, from the record, that the primary purpose of the checkpoint was to check driver's licenses and insurance and that the police would only investigate other potential criminal acts if warranted by their observations.

Said the Court:

If the primary purpose of the checkpoint is lawful- a license check as opposed to general law enforcement-police can act on other information that arises at the stop. The checkpoint's primary purpose of license and insurance verification does not prohibit police from considering other unrelated offenses that they discover during the stop. Edmond, 531 U.S. at 48. In Edmond, the Supreme Court made clear that officers are not required to conduct the license and registration check wearing blinders and ignoring any other violations of the law that they observe. Officers can still act on what they learn during a checkpoint stop, even if that results in the arrest of the motorist for an offense unrelated to the purpose of the checkpoint. Id.

A brief suspicionless stop at a checkpoint is constitutionally permissible if its primary purpose is to confirm drivers' licences and registration and not general crime control. Id., at 39. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was a permissible license and insurance check. Ross, 32 S.W.3d at 855.

With its ruling in Lujan v. State, No. PD-0303-10 (Tex.Crim.App. 2011), the Texas Court of Criminal Appeals is signaling to law enforcement that sobriety checkpoints may just be alright in the Lone Star State. The rationale from the Court seems to be that so long as the police can claim that the checkpoint is set up for the purpose of checking driver's licenses, then anything goes. In its haste to legalize checkpoints, the CCA managed to avert its eyes when evidence was presented that demonstrated the stated purpose of the checkpoint was a sham.

However, Judge Meyers, in his dissent, noted that the explanation of the stop given by the police officers seemed a little bit shady considering a K-9 unit was on hand:

The checkpoint in this case included a K-9 unit. So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers' licenses and insurance, then the deputies did not need drug-sniffing dogs. This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based upon the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was to "uncover evidence of ordinary criminal wrongdoing," in contravention of the Fourth Amendment.

Local law enforcement has just been given a blueprint by the CCA on how to run a sobriety checkpoint that will pass muster in Austin. Don't be surprised to see local police setting up driver's license checkpoints on weekend nights near entertainment districts.

Oh, and if you argue a motion to suppress, always, always request that the court issued conclusions of law and findings of fact. If you don't you're setting yourself up for a fall before the CCA.

Constitution, be damned! Man the roadblocks!

Never let it be said that Montgomery County Assistant District Attorney Warren Diepraam is one to let the law get in the way of his crusades. In fact, after this past weekend, never let it be said that Mr. Diepraam would let the Constitution get in his way.

Sobriety checkpoints were deemed unconstitutional by the Texas Court of Criminal Appeals back in 1985 (See Meeks v. State, 602 SW2d 504 (Tex.Crim.App. 1985)). The problem the Court found was that the checkpoint allowed officers to stop motorists without so much as reasonable suspicion and that the process runs afoul of the 4th Amendment prohibition on unreasonable search and seizures.



Mr. Diepraam's latest attempt to skirt the Constitution involves setting up checkpoints in Montgomery County to determine if a motorist stopped for a traffic violation is intoxicated. Sitting at the checkpoint will be a mobile blood alcohol testing truck staffed by two nurses. Also at the checkpoint will be Montgomery County prosecutors and judges all-too-willing to sign a "check-box" warrant application so that the vampires can do their work. Don Quixote's rational is that an officer had at least reasonable suspicion to stop any motorist brought to the checkpoint and, if anyone sniffs alcohol, it will be game on.

You sure you want to refuse that breath test, son?

According to a little bird up in MoCo, prosecutors met with judges to get their okay before announcing this scheme (apparently white smoke was spotted coming out of the chimney). How's that for neutral and detached?

Sobriety checkpoints: the new cash cow

A study by the University of California's Investigative Reporting Program has found that sobriety checkpoints in California generate about $40 million annually not through the arrest of suspected drunk drivers but from fees associated with impounding the cars of non-licensed drivers. Cities split towing and impound fees with the towing and impound companies.

According to the California Office for Traffic Safety, over $30 million was spent on overtime pay for officers manning the checkpoints. The bulk of this money came from taxpayers across the country as part of a grant program.

Statewide officers manning these checkpoints average seven vehicle impoundments for every DWI arrest. That ratio was 11:1 in Oakland, 15:1 in San Rafael and as high as 60:1 in Montebello. The investigation also revealed that police are seizing vehicles in predominately Hispanic cities at a rate three times higher than in cities with a small minority population.

In 2007 the state seized 15,700 vehicles at sobriety checkpoints. That number increased to 17,900 in 2008 and about 24,000 last year.

In California, towing companies must hold vehicles seized because the driver had no license for 30 days -- running up the fees for the owners of those cars who, often, have no choice but to allow the cars to be sold at auction because they cannot afford the fees. Ironically enough, a person arrested on suspicion of DWI can retrieve his car the next day.

Motorists using Twitter to avoid checkpoints

If local prosecutors want to use Twitter to try to humiliate motorists arrested on suspicion of driving while intoxicated, then why shouldn't motorists use Twitter to avoid sobriety checkpoints?

That's exactly what's been happening in the Fresno (CA) area. Once a law enforcement agency announces the time and location of a checkpoint, messages are posted on Twitter warning motorists in the area.

Law enforcement agencies and prosecutors are up in arms about the use of social media to warn motorists of checkpoints. But, as Fresno criminal defense attorney Brian Andritch points out, the purpose of publicizing the locations of checkpoints is to discourage people from getting behind the wheel after drinking. Whether checkpoints result in more arrests or not is immaterial. Should news of a checkpoint deter one motorist from driving after drinking too much, then the streets are safer.

If you want to increase your arrest numbers, just saturate areas in which there are a concentration of bars and restaurants and pull people over for not signaling lane changes after 2:00 a.m.

And, if you want to find out where those checkpoints are on your own -- well, there's an app for that, too.

What happens at a DWI roadblock?

"If you don't want to provide any tests, we're going to assume you're drunk."

Think DWI checkpoints are a good idea? Listen to this audio from a checkpoint stop in California and see if it changes your mind.

"This has nothing to do with your rights...we're detaining you pending a DUI investigation."

A special thanks to the California DUI Lawyers Association for providing a link to the audioclip.

More on DWI checkpoints

Here are a few of the hidden gems in S.B. 289 which would authorize law enforcement agencies in Texas to set up temporary DWI checkpoints:

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.

Probable cause? Who needs probable cause?

Yesterday the State of Texas came one step closer to ending a 15-year old ban on DWI checkpoints with the passage of S.B. 298 which would add Chapter 65 to the Texas Code of Criminal Procedure creating DWI checkpoints in the 15 most populous counties in the state.

The bill would allow law enforcement agencies to set up temporary DWI checkpoints in counties with a population over 250,000 or in municipalities with populations of more than 500,000. The checkpoints could not be set up on limited-access highways, overpasses, bridges or causeways, or single entry or exit points from a designated area.

According to the sponsor, Sen. John Carona (R-Dallas): "The goal is not to apprehend people. The goal is to deter people."

And I'm certain that anyone stopped at one of these checkpoints who the police deem to be intoxicated will be allowed to leave with unimpaired driver or will be allowed to remain at the checkpoint until they sober up.

Of course the goal is to apprehend more citizens the police think are driving while intoxicated. I wrote before about the amount of money at stake in the DWI sweepstakes. But, in order to pass constitutional muster, the sponsors of the legislation cannot give the true purpose of the bill -- the bill only passes the sniff test if there is a public safety purpose behind the checkpoints.

Now, based on the restrictions placed in the version of the bill that passed the State Senate, the proposed checkpoints could not be set up in places such as South Padre Island, Mustang Island, Galveston, College Station, Lubbock, Waco and San Marcos. The checkpoints could be set up in Houston, Dallas, Fort Worth and San Antonio. 

The purpose is to deter conduct, yet no checkpoints can be set up in areas that make their money on Spring Breakers and vacationers or in areas in which a university is the largest institution. Talk about things that make you say "hmmmm."

Let's not kid ourselves, the real purpose of the proposed DWI checkpoints is to increase the number of DWI arrests in and around the state's major cities, to increase the amount of federal grant money local law enforcement agencies receive for DWI enforcement and to line the coffers of the DPS with more surcharge money.

With the creation of these DWI checkpoints, the police will no longer have to worry about pesky little things such as reasonable suspicion or probable cause - and don't be surprised when law enforcement begins parking trailers for blood tests at those sites. 

Update on DPS' call for driver's license checkpoints

On Friday, under pressure from state legislators, the DPS withdrew its request for an Attorney General's opinion on the legality of setting up checkpoints to check for valid driver's licenses, registration and insurance. According to the DPS, the checkpoints were never intended to serve as a check for illegal immigrants.

DPS calls for driver's license checkpoints

Last month I wrote about the DPS' new policy of not renewing or issuing new Texas drivers' licenses to anyone who can't prove they are in the United States legally.

Now, according to the Houston Chronicle, comes word that the DPS has asked Greg Abbott, the Texas Attorney General, for permission to set up drivers' license checkpoints across the state. According to the request, the checkpoints would be set up to check for valid drivers' licenses, registration and insurance.

State Sen. Leticia Van de Putte of San Antonio and 14 other legislators have sent Mr. Abbott a letter asking him to ignore the DPS' request for a legal opinion.

The last time I checked, being in the United States without permission was a federal issue, not a state issue.  There is no provision in the Texas penal code making it a crime to be in this county illegally.  There is also no need for state or local police agencies to enforce federal law.

The DPS has enough to worry about with rogue technical supervisors faking maintenance records on the intoxilyzers used to carry out the state's breath alcohol testing program without worrying about whether a driver is here legally or not not.