Ah, the holidays! It’s a time of happiness, celebration, relaxation, and fun. But it’s also a time when police are keeping an extra eye out on the roadways. They know that celebration gives way to partying and drinking. So, they’ll set up a DUI checkpoint to catch intoxicated drivers. The following is for educational purposes and not legal advice. If you’ve been arrested at a checkpoint, it’s important that you call an experienced lawyer like Tulsa criminal defense attorney Stephen Cale. Call 918-277-4800 to set up your free initial consultation and get your free Defense Strategy Plan.

Generally speaking, police may set up a roadblock without having any kind of suspicion of an individual’s criminal activity if the purpose of the roadblock is related to motor safety. For example, police may establish a checkpoint for a brief check for driver’s licenses or drivers sobriety, so long as that the roadblock is adequately tailored to that purpose. On the other hand, police cannot set up roadblocks for general interest in crime control. For instance, police cannot set up a roadblock to just to see if someone is engaging in illegal activity.

According to the Governor’s Highway Safety Administration, 37 states and the District of Columbia permit DUI checkpoints (sometimes called “sobriety checkpoints”). Thirteen states do not allow this kind of checkpoint. Oklahoma, however, is one of those states that does permit a DUI checkpoint.

What many people don’t know, is that a charge can be thrown out if the police haven’t followed the rules regarding checkpoints. In 2007, the Oklahoma Court of Criminal Appeals took a hard look at checkpoints. The appellate court recognized that there are instances in which law enforcement may conduct a valid checkpoint. However, the court also noted that “careless exercise of that power comes with great potential for abuse and even greater potential for the appearance of abuse from the perspective of the detained motorist.”

After reviewing several U.S. supreme court cases, the Oklahoma Court of Criminal Appeals set forth standards that law enforcement my abide by when operating checkpoints. First, law enforcement agencies conducting a checkpoint must have written standards for the conduct of those checkpoints. Secondly, police must have policies in place to ensure compliance with those standards. If a defendant challenges the constitutionality of a checkpoint by filing a motion to suppress evidence, the prosecutor must introduce evidence that the law enforcement agency guidelines governing the operation of the checkpoint at issue.

Also, in order to be constitutional, the operation of the checkpoint must follow these standards. First, the operation must be rationally connected to the stated public purpose. For example, the operation must be connected to catching intoxicated drivers, and not just to see if someone might be committing some general crime. Second, operation guidelines must limit officer discretion and assure that all motorists are treated equally. Lastly, the operation must be planned and carried out in such a way that minimizes an invasion of a motorist’s privacy.

Specific factors that a judge must consider to determine if those standards have been met include:1) the stated purpose of the operation; 2) the approval of superior officers; 3) the degree of compliance with the established law enforcement agency standards; 4) the time, location, and duration of the checkpoint; 5) the steps taken to inform motorists of the reason for the stop; and 6) the duration of the individual stop.

There have been instances in which an appeals court found a checkpoint to be invalid. Once such case, State v. McNeal, occurred in Tulsa. In that case, a man stopped at a DUI checkpoint after he exited at hundred 121st St. off of Highway 75. Police discovered marijuana in his car after he consented to a search. [By the way, never, ever consent to the search of your car] He was ticketed for unlawful possession of marijuana and released. Soon after he filed a motion to quash alleging the stop, search, seizure and arrest violated his fourth amendment rights. The trial court granted his motion in the evidence was suppressed. However the state appealed.

Testimony at the hearing on the defendant’s motion to quash revealed information about the logistics of the checkpoint. Officers play signs on the highway alerting drivers that there was a drug checkpoint ahead. The sign was placed about a third of a mile ahead of the exit ramp for 121st St. on Highway 75. A sign stated the checkpoint was a third of a mile ahead and that drug dogs would be used. However, the sign did not say that the checkpoint was on Highway 75. In fact, a checkpoint was not on Highway 75 but was on the exit ramp at hundred 21st St. Moreover, the checkpoint was at a point that it cannot be seen until after drivers actually exited the highway. Officers stopped all vehicles that took the exit, completed a drivers license check and then asked the driver why he or she took the exit.

The checkpoint was conducted between 9 AM and 3 PM. Testimony at the hearing also revealed the following important facts: 1) there was a written plan for the checkpoint; 2) the plan procedures were followed; 3)every vehicle was treated the same; 4) officers at the checkpoint were easily identifiable as law enforcement; 5) the signs off the exit ramp clearly indicated that there was a checkpoint on the ramp once a vehicle exited; 6) traffic was stopped at the bottom of the exit or drivers were required to stop at a stop sign; 7) motorists delay or detention was slight, that is, only long enough to verify proper drivers license, registration, and to ask why the driver took the exit; 8) no stop other than word drugs were suspected took longer than two minutes; 9) suspect vehicles were diverted to ensure proper flow of traffic; 10) the checkpoint was at a remote location in such a way that only local traffic would have recent for exiting at that location; 11) drug dogs were present to sniff the vehicles in instances where officers believe there was reasonable suspicion; and 12) those who did not wish to talk to police are allowed to proceed without talking to them. Law enforcement estimated that between 50 and 1,000 vehicles came to the checkpoint that day. Of those only 13 were stopped. Three had no valid drivers license. 10 were detained for drug interception, and drugs were recovered from five of the 10 vehicles. There was no distinction of the amount or type of drugs recovered from the vehicles on this day at this location.

The issue for the Oklahoma Court of Criminal Appeals was whether a drug interdiction checkpoint, set up solely to randomly search vehicles for the presence of drugs in an effort to deter trafficking in illegal narcotics, violates the individual’s right to be free from unreasonable searches and seizures. The appeals court found that the State failed to present sufficient evidence to establish how its operation of this particular drug checkpoint advanced the public interest in halting drug trafficking. Consequently, the charge remained dismissed.

Not all cases are the same. If you’ve been charged with a crime, call an attorney forcused on criminal defense. Call the Cale Law Office at 918-277-4800.