[splat]

When i lived in Texas , I got stopped at 5 different check points , they were not drunk stops per saym . the official reason was proff of insurance , or just to check if you had a Drivers license. But I bet if they smell booze they pull you in a sec. I never had any problems.

 

[jdcamb]

Actually after never going through a DWI roadblock (luckily). I have recently gone through 2. One right in my neighborhood. I was sober both times. I have no problem with them actually. I drink at home so....

 

[SK6]

OK, I have to piecemeal this, however this is a relevant Supreme Court case that set national precedent. (i did not take the time to cite this properly, but the information is still all there as far as which reporter it's in)

MICHIGAN DEPARTMENT OF STATE POLICE and COL. R. T. DAVIS, Director of the Michigan Department of State Police, Petitioners, -v-RICK SITZ, JOSEPH F. YOUNG, SR., DOMINIC J. JACOBETTI, DICK ALLEN, KEITH MUXLOW and JACK WELBORN, Respondents.

No. 88-1897

SUPREME COURT OF THE UNITED STATES

1988 U.S. Briefs 1897; 1989 U.S. S. Ct. Briefs LEXIS 130

October Term, 1989

November 15, 1989

ISSUE PRESENTED WHETHER OR NOT THE MICHIGAN SOBRIETY CHECKPOINT PROGRAM IS A CONSTITUTIONAL SEARCH AND SEIZURE.

 

[SK6]

SUMMARY OF ARGUMENTS

The Michigan checkpoint program was generally similar to that in Charlottesville, Virginia, which showed clearly a significant impact in reducing alcohol related crashes and increasing productivity in apprehending drunk drivers. Further, Charlottesville demonstrated that a sustained checkpoint program increases the public awareness of the drunk driving problem and, of more specific relevance to deterrence, the perceived risk of arrest among drinking drivers.

The studies demonstrated 80%-90% of the public favors checkpoints, and the experience with them adds to their approval rating, and comfort level. Further [*4] indication of acceptance was that out of approximately 24,000 vehicles passing through the checkpoints in Charlottesville, only 9 drivers failed to stop.

The checkpoints were not only effective, but efficient in that 6.5 man hours were invested per DUI arrests at the checkpoints, as compared to 7.9 hours expended under the traditional, random patrol.

To the issue of long-term versus short-term deterrence, there is no question but that the Charlottesville checkpoints reduced alcohol related crashes 8% to 15% during the year the checkpoints were in operation compared to the prior three years.

While the impact of the Charlottesville program lasted for the year it was in place, the evidence for long-term effects is limited in this country, because few programs have been in place for an extended period. However, the Australian experience between 1977 and 1984 showed a fall in alcohol-related casualties from 39% to 25% of all automobile crashes. This indicates that a sustained checkpoint program will produce long-term results.

The Michigan Courts have imposed a catch-22 situation by ruling that, based on an incomplete record at the Trial Court level, checkpoints were not effective [*5] in the long-term. If this Supreme Court upholds the Michigan decisions, there will be no opportunities to collect new evidence on checkpoints anywhere in the United States. Simply, without evidence, there will be no checkpoints. Without checkpoints, there will be no new evidence, and on and on.

Finally, the Charlottesville and Michigan experiences show that the subjective level of intrusion is minimal, since the public strongly supports the checkpoint programs, the operations involved adequate warning to the public, uniformed officers operating in well lighted safe conditions and limited officer discretion.

 

[SK6]

II.

ARGUMENT

Although the Michigan State Chapters of MADD will rely on the MAG's legal arguments, a brief discussion of law is appropriate to set the stage for the remainder of this Brief. First, The Michigan State Chapters of MADD agree that the correct constitutional test is found in Brown v Texas, 443 U.S. 47 (1979). At 443 U.S. 47, 50-51, the Court stated:

"The reasonableness of seizures that are less intrusive than a traditional arrest . . . depends on a balance between the public interest and the individual's right to personal [*6] security free from arbitrary interference by law officers . . . Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizures advance the public interest and the severity of interference with individual liberty."

The Michigan Trial Court and Court of Appeals in the instant case therefore used the three-pronged Brown, supra, test:

1. State interest

2. Effectiveness

3. Intrusiveness

With respect to "state interest," the Trial Court in the instant case held, at page 26 of its Opinion, that the carnage and devastation caused by drunk driving were known, and that "there is a grave and legitimate State interest in curbing drunk driving." The parties to this litigation agreed, and "state interest" is therefore not an issue before this Supreme Court.

However, with respect to effectiveness, the Michigan Trial Court stated at page 42 of its Opinion:

"In summary of the foregoing, the Court finds that sobriety checkpoints are not an effective means to apprehend drunk drivers, that such checkpoints do not have any long-term deterrent effect, and that there exists [*7] alternative means available to the Defendants in their effort to curb drunk driving."

Finally, with regard to intrusiveness, the Trial Court concluded at page 51 of its Opinion, that:

"The Court thereby finds that sobriety checkpoints of the type which are contemplated by defendants' plan do have a significant subjective intrusive impact on a person's liberty interests."

This Amicus Curiae Brief addresses these latter two Michigan Trial Court holdings regarding effectiveness and intrusiveness.

 

[SK6]

A. THE CHARLOTTESVILLE, VIRGINIA CHECKPOINT OPERATIONS

In 1983-84, NHTSA sponsored a sobriety checkpoint program in Charlottesville, Virginia through a grant from the Virginia Office of Highway Safety. [Evaluation of Charlottesville Checkpoint Operations, R. Voas, et al; DOT HW 806 989 -- Final Report (May, 1985)] The checkpoint operation lasted from December 20, 1983 to December 31, 1984. This study demonstrated that a checkpoint program, when carefully planned, is an effective, minimally intrusive method of apprehending drunk drivers exceeding the effectiveness of traditional, random police patrols. Clearly, the checkpoint operation increased the public's perception that if [*8] you drink and drive, you would more than likely be caught.

During the year-long operation, 94 checkpoints were conducted involving almost 24,000 drivers being stopped the interviewed. A procedural manual was developed and used to insure that checkpoints would be in accord with Federal and State Court decisions. (Evaluation of Charlottesville Checkpoint Operations, supra, p 3) Checkpoint sites were selected on the basis of the occurrence of alcohol-related crashes. (Id, p 3)

The procedures manual strictly defined individual officer discretion as required by the courts. (Id, p 3) During the initial contact, the officer stated the purpose of the stop, requested the driver to produce his/her license, and observed the driver for signs and symptoms he/she had been drinking. (Id, p 4) The interview varied from 20 to 60 seconds depending upon the traffic flow, questions asked by the driver, and the time it took the driver to produce the driver's license. (Id, p 4) After the interview, the driver was waived on, unless a valid license was not produced or the officer suspected the driver had been drinking. (Id, p 4) If he/she failed to produce a valid license or was suspected to have [*9] been drinking, the driver was invited to move his vehicle to a safe, off-road location nearby where the second phase of the investigation was conducted. (Id, p 4)

At the off-road location, the driver's license status was checked by radio, and the officer conducted sobriety tests. (Id, p 4) If the driver was found to be impaired, he/she was cited for impaired or drunken driving (i.e., DUI). The Charlottesville procedures were substantially similar to those developed by the Michigan State Police. Michigan's procedures are set forth in detail in the MAG's Brief.

 

[SK6]

B. EFFECTIVENESS OF CHARLOTTESVILLE CHECKPOINTS

One measure of checkpoint effectiveness is the arrest productivity compared with that of alternative, traditional, random patrols. For the time period stated above, the Charlottesville checkpoints were in operation 4 hours per night, 94 total nights and 1,880 actual officer hours. They produced 290 DUI arrests, averaging one arrest per every 6.5 officers hours.

By comparison, the traditional DUI patrol which was studied in Charlottesville from January 1, 1983 through October 31, 1983, was in operation 4 hours per night, for 79 nights, involving a total of 632 officer [*10] hours. It produced 80 DUI arrests or approximately 1 arrest per 7.9 officer hours.

The productivity rate of 1 arrest per 6.5 officer hours demonstrated that checkpoints were more productive at identifying drunk drivers than the traditional DUI patrol. Further, if arrests can be assumed the benchmark of effectiveness, and, therefore, success, then checkpoints were more effective and productive than traditional patrols.

In the Charlottesville and Michigan checkpoint experiences, 1% of the drivers who were stopped at the checkpoints were arrested for DUI. The Michigan Trial Court found this measure of effectiveness was minimal. However, this U.S. Supreme Court has reviewed other checkpoint-type cases in which the rate of so-called effectiveness was lower than the sobriety checkpoints, and which were held constitutional. In National Treasury Employees Union v Von Raab, 57 USLW 4338 (1989), only five employees out of 3,600 (i.e., .139%) tested positive for drugs. In Skinner v Railway Labor Executives Association, 57 USLW 4324 (1989), breath, urine and blood testing for drugs and alcohol resulted in positive findings in slightly more than .1% of the tests. [*11] In footnote 3 of National Treasury Employees Union, supra, in which airport searches were discussed, only 42,000 firearms out of approximately 19.5 billion searches were produced. That was an "effectiveness" rating of .0002%. Finally, in United States v Martinez-Fuerte, 428 US 543 (1976), only 171 vehicles out of 146,000 (i.e., .117%) searched revealed deportable, illegal aliens at checkpoints. Given the grave and legitimate state interest in curbing drunk driving, comparable to and exceeding any public interest in the above cited cases, the Charlottesville and Michigan rates of effectiveness compel a review of the lower Courts' findings.

A much more important measure of checkpoint effectiveness is reduced alcohol related crashes. In Charlottesville, several measures of alcohol related crashes were examined, and reductions in these ranged 8%-15%. The number of HBD (Had Been Drinking) vehicle crashes, for example, fell 15% in 1984 compared to the 1981-1983 period. Analysis indicated that HBD crashes were reduced by an average of 2.56 crashes per month during the checkpoint program period from the period preceding the program's implementation. Statistics [*12] indicated there were less than 5 chances in 100 that this reduction could have occurred by chance. There was also an 8% decline in the number of nighthour accidents, but this was not considered statistically significant. (Id, p 45)

 

[SK6]

C. DETERRENCE OF CHARLOTTESVILLE CHECKPOINT PROGRAM

Although the arrest productivity of checkpoints is as high or higher than other police patrols, the Michigan State Chapters of MADD contend that the effectiveness of checkpoints depends not so much on the number of drunk drivers arrested and convicted for their crimes, but by the public's perceived risk of apprehension.

To determine the effect [*13] of the checkpoint program in Charlottesville on the perception of the probability of arrest, a random telephone poll was conducted of 218 Charlottesville area residents who, because they drank and drove at night, were considered to be candidates for a checkpoint stop. When called, 79.3% of the Charlottesville group reported it was somewhat or much more likely they might be arrested for DUI than it had been one year earlier before checkpoint operations. Almost half of those who reported an increase in arrest risk stated that checkpoints were the reason why arrest was more likely.

This poll also indicated that 1 in 4 of these at risk drivers had been stopped at a checkpoint, and half had seen a checkpoint in operation. This demonstrates the extent to which checkpoints create public awareness, a requirement which experts agree is essential to the success of any enforcement program.

These statistics contradict the Michigan Trial Court's conclusions that checkpoints do not deter drunk drivers.

D. INTRUSION OF CHARLOTTESVILLE CHECKPOINT PROGRAM

The next element of the Brown, supra, case which the Michigan Trial Court addressed was whether or not the Michigan checkpoint [*14] procedure involved unreasonable interference with the motorist's freedom to travel within the state. The Court found that objective interference was minimal, because the checkpoint generally involved a 30 second interview (Trial Court Opinion, p 43). Therefore, the issue became whether or not the checkpoints generated unreasonable subjective intrusion, in terms of its potential to create surprise and fear among the public, and in terms of untempered discretion among the police with regard to the stopping of individual vehicles.

With respect to officer discretion, the Trial Court stated, at page 51 of its Opinion:

"The Court also finds that the discretion of the police in operating such checkpoints and determining their location is severely limited."

Thus, the primary remaining issue was whether or not the checkpoints potentially generated unreasonable subjective surprise and fear among unimpaired drivers. The Trial Court concluded that the Michigan checkpoint had "a significant subjective intrusive impact on a person's liberty interest." (Trial Court Opinion, pp 51-52).

The Michigan State Chapters of MADD feel the Trial Court erred in the latter holding. To begin with, [*15] checkpoint operations required posting of signs advising motorists of checkpoint operations. Secondly, the operations involved were lighted, safe locations manned by uniformed officers. Thirdly, officers immediately informed motorists of the checkpoint's purpose. Fourthly, procedures concerning stopping and questining were in writing, thereby limiting police discretion. As a result of these protections, a vast majority of motorists who passed through approved of them.

Next, the Charlottesville checkpoint follow-up telephone polling is instructive also. These telephone polls of public reactions to checkpoints in Charlottesville, and in neighboring Blacksburg, Virginia where no checkpoints were set up, firmly rebut the belief that they created significant fear and demonstrated that the public strongly supported checkpoints.

The question asked of the so-defined at risk driver was: "With regard to the use of sobriety checkpoints, do you -- strongly approve, somewhat approve, somewhat disapprove, strongly disapprove of their use?" 87% of Charlottesville drivers who were most at risk of being stopped at a checkpoint approved this type of operation compared to 78% of similar drivers [*16] in Blacksburg, Virginia where there was no risk of being stopped at a checkpoint. Thus, familiarity and comfort with checkpoints increased their approval rating among those who have the most to fear from them! (Evaluation of Charlottesville Checkpoint Operations, p 32)

The Michigan State Chapters of MADD believe that these polls' results hint at something larger than mere public approval. They indicate the public, especially those most at risk of being apprehended, is morally outraged with drunk driving, and the checkpoints are the focus of such moral deterrence.

At the other extreme, is the very drunk driver. If he is so drunk that he attempts to run a checkpoint, then he will suffer no fear or surprise, or any other appropriate emotion. Obviously, this person must be removed from the roads, and these checkpoints would help effectuate this purpose.

The only one who may suffer fear and surprise is the vehicle driver who has been drinking but still possesses some degree of ratiocination -- he may seek to escape the checkpoint. If that occurs, then strategically placed State Police Troopers will stop and, if over the limit, arrest those whose driving behavior provides reason [*17] to believe they are impaired by alcohol. Under such circumstances, there will be "probable cause" to require an alcohol test before arresting the drunk driver. In any II.

 

[BikeGeek]

The only reason they ask you those questions is so that when you go to court they have that you admitted to the offense if you try to plead not guilty. When a cop pulls you over for speeding and asks you, "do you know how fast you were going?", you don't tell him the truth if you want to have any chance of contesting the charge, because it's the same thing as you admitting guilt. The police aren't out there to help you because you are honest, it's just a ploy to get you to admit guilt.

So you're saying that lying is the right thing to do? Just so you can have your day in court and lie some more to try to get out of a ticket? Under oath it's called perjury and honestly, I'd rather pay the ticket than go to prison. What a waste of tax dollars.

For the record, the only speeding ticket I ever got out of was when I answered "yes sir, about 70 mph." He replied that he clocked me at 68, reminded me that the speed limit was 55, told me to slow down, and sent me on my way.

 

[manimal]

Although I disagree, in 1990 I believe the U.S. Supreme Court upheld drunk driving checkpoints. They said if I remember correctly that the interest in reducing drunk driving over shadowed other rights in this case, They also made (again as I remember) some other provisions like it has to be during hours police have reason to believe there are a substantial number of drunk drivers, like late Friday or Saturday, or after a Philly's game. And the stops have to be effectively random, they can't pick one group to stop, or they have to have probable cause, in which case they could stop you anyway.

well....you said it pretty much verbatim to what i had in mind. well put.

 

[Austin Bike]

We also have them down along the Texas/Mexico boarder, about 50 or so miles in. They have dogs but they aren't sniffin' for booze.

 

[valve bouncer]

When I watch "Cops" they always do this sobriety test. In Australia you just blow in this device and the coppers can tell if you've been drinking or not and if you're over the limit. No hopping up and down on one foot or reciting the alphabet backwards. Seems much simpler and easier. Do they use breathalysers in Amerika?

 

[stevew]

Do they use breathalysers in Amerika?

Yes. My brother has passed those silly field sobriety tests twice in CO piss drunk.

 

[SK6]

When I watch "Cops" they always do this sobriety test. In Australia you just blow in this device and the coppers can tell if you've been drinking or not and if you're over the limit. No hopping up and down on one foot or reciting the alphabet backwards. Seems much simpler and easier. Do they use breathalysers in Amerika?

yes, they do both. It is to ensure that if they in fact make an arrest, that they can actually assert the DUI in court and have it upheld. Rights are rights. Thats what keeps the coppers honest. It's also what ensure a conviction.

And remember...Don't drink and drive ; You might hit a bump and spill your drink!

 

[Echo]

When I watch "Cops" they always do this sobriety test. In Australia you just blow in this device and the coppers can tell if you've been drinking or not and if you're over the limit. No hopping up and down on one foot or reciting the alphabet backwards. Seems much simpler and easier. Do they use breathalysers in Amerika?

From what I've heard, most of those "sobriety tests" are to give some time for your BAC to stabilize before they give you the breathalyzer test. There is one test where they shine a flashlight in your eyes and tell you to follow the light, that is a pretty accurate indicator of if you are drunk or not, supposedly that's the one almost nobody can fake their way through, and that's the one they use to decide if you're getting the breathalyzer.

 

[Silver]

You're probably pretty close. But I have NEVER in my life heard ANYONE propose a valid solution to the problem of drunk assholes getting in cars and driving. If the police can't have checkpoints, how do they catch drunk drivers? Wait for them to wreck and kill someone?

If you're not driving drunk, you don't have anything to worry about at a checkpoint.

Well, you could wait for them to wreck and kill someone. And then when they do, charge them with first degree murder and give them life in prison. No one dies but someone is hurt? Attempted murder. As a society we are way too easy on driving related assaults. The casual drunk you can still pick up for probable cause. Hell, with cellphones being everywhere now, that should help. I've called in drunks a couple of times myself. (Pop quiz: If I'm in a state (NY has this law, I think) where you have to use a hands free cell phone in the car, and I don't but I'm calling in a drunk, do I still deserve a fine?)

As it is now, a repeat offender just keeps driving pissed until he is in jail anyways.

 

[untitledsince89]

yea I agree with the statments, don't drive drunk. It kills lifes and when someone you kno is killed by a DD then its the worst feeling. Cops should focus more DD than other areas becasue it kills more inncocent people. Onther Problem I believe that leads to DD is the drinking age. if it was lowered to 18 then you would have half as many people trying to drive home drunk and try to get away with it since its illegall. its like this, how can you fight for your country but after a day of war not take a drink for your days efforts.

Another statment-In England drinking age of 18, ther are not half as many DD incidents as here in the US. So thats my ideals

 

[Sherpa]

From what I've heard, most of those "sobriety tests" are to give some time for your BAC to stabilize before they give you the breathalyzer test. There is one test where they shine a flashlight in your eyes and tell you to follow the light, that is a pretty accurate indicator of if you are drunk or not, supposedly that's the one almost nobody can fake their way through, and that's the one they use to decide if you're getting the breathalyzer.

I had one of those, they thought I had been smoking the "skunk schwag." Don (CurbHucker) was with me as a matter of fact, and we had just had dinner and didn't smell of anything but Chilis. But, Don was on the rebound and everyone we were with were stoned (Noone had been smoking anything but cigars). Sometimes cops can be real dicks, and sometimes they can be cool but at the end of the day they're just doing their job and we all have to respect that.

 

[Transcend]

My teammates mom got pulled over when we were in Vermont. She is a 60+ year old lady who hadn't had anything but water and was driving just fine. So ya, Vermont has em.

 

[Brian HCM#1]

I REALLY hope you are kidding

LOL, it's true


Actually I used to go see this stand up comedian like almost every week when I was in my early 20's. That's what he said when he was done with his act. Pretty damn funny, especially when you're totally sh*tfaced. All I can say is I was REAL stupid several times, thank goodness I never got in an accident or a DUI in my younger days. Glad I quit while I was ahead.

 

[Zman]

Yes. My brother has passed those silly field sobriety tests twice in CO piss drunk.

i actually had the cop fail the sobriety test he gave me......had 1 drink 3 hours before so he made me get out and have the test. well with the one foot out test, he had to put it down after the count of 3...with his hands out for balance...he had me doing it on the side of a hill and i had my hands in my pockets and was still going at 30. i think he gave up after that.

 

[Changleen]

Another statment-In England drinking age of 18, ther are not half as many DD incidents as here in the US. So thats my ideals

A few years ago in the UK there was a huge campaign to make DD socially unacceptable, and to a large extent, especially with younger people, it worked. The government showed a huge campaign of some pretty hard hitting ads with death and gore combined with emotional blackmail. Good job on their part.

On top of that the legal limit for blood alcohol can be exceeded with just one pint of a strong lager like Stella for most people, so for most it's easier on your mental health to just not drink.

Personally I find having just one beer and turning down another way harder than just not drinking, I don't know about you guys.

I think DD is dumb, although I have to admit to doing it on occasions in my past. The dumbest things I've ever done have been whilst drunk, and touch wood, I've not been stung for them, but looking back I realise how ****ing retarded they were.