DUI Lawyer Fairfax VA
A road block is a special exception to the law that our Founding Fathers wrote 240 years ago. In other countries, like totalitarian regimes, a Police Officer can demand you stop and “show me your papers!” at any time. Even if you are doing nothing apparently wrong. A DUI road block is one of the only authorized ways the Police can stop someone even if they are doing nothing apparently wrong. That is why consulting an experience DUI Lawyer Fairfax VA is essential to protecting your Constitutional Rights.
In regular cases, the Police cannot seize vehicles without reasonable suspicion of a violation. Delaware v. Prouse, 440 U.S. 648 (1979). But Courts make an exception in DUI road block cases because the road block is in the state’s interest of preventing accidents caused by drunk drivers, is an effective way of achieving that goal, and the level of intrusion on an individual’s privacy is brief. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 449 (1990).
There are no checkpoints for general crime deterrence. City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (a checkpoint to check for drugs was no different that general crime control and is not permitted); Trent v. Commonwealth, 35 Va. App. 248 (2001) But just because a road block is allowed for DUI, does not mean that it can be done without rules. There are a LOT of rules and they must be followed. On top of that, because the motorist is seized without a warrant, the state bears the burden of proving the seizure was reasonable. Simmons v. Com. 238 VA 200 at 204 (1989) citing Coolidge v. New Hampshire 403 US 334, 454-55 (1971); Vale v. Louisiana, 399 U.S. 30, 34 (1970).
The main defenses DUI Lawyers Fairfax VA use in a road block case are violations of the law in creating a road block plan and in whether that plan was followed.
- The road block should be conducted pursuant to a plan “embodying explicit, neutral limitations on the conduct of individual Officers.” In other words, the plan must be followed, and the Officers must not be able to deviate from it on their own. Most state courts which have considered the issue have invalidated road blocks where the Officers at the scene do not follow specific written guidelines. This is because seizures at road blocks are without any indication that the driver is doing anything wrong (e.g. the Police have no idea that a driver is drunk – he looks like he is driving just like anyone else). Thus, a plan is necessary because it provides a uniform procedure with neutral criteria minimizing the risk that an individual’s expectation of privacy will be subject to the discretion and whim of the Officer in the field.
- 4th Amendment requires that a seizure must be based on specific objective facts indicating that the individual driver is unlicensed, his vehicle unregulated, or driver has violated some traffic law. Road blocks must be based on a plan embodying explicit, neutral limitation on the conduct of individual Officers. Lowe v. Com, 230 Va 346 (1985) citing Brown v. Texas, 443 US 47 (1979). Most road blocks seem to justify pulling the vehicle off of the road if the driver admits to drinking alcohol. (That in and of itself is not illegal. So there may be a defense a DUI Lawyer Fairfax VA may use if the Police Officer does not also say that “I smelled alcohol or his speech was slurred…”)
- And sometimes, believe it or not, there is no plan! State troopers, although they had stopped all vehicles coming through, had established a check point without any prior direction from their supervisors or superiors and without an existing plan. Case dismissed. The Police must have a plan! Simmons v. Com. 238 VA 200 (1989)
Here are some common things an experienced DUI attorney sees in road block cases.
A) Not following plan.
- The Prosecution must present evidence of how a site was selected under rules of the plan. If site to be selected is only identified as a “problem area,” courts demand facts as to why it is a problem. A case was dismissed where the only evidence of prior alcohol related incidents were two years old and the results of the two recent road blocks in the area were not offered into evidence. Com. v. Donnelly 614 N.E.2d 1018 (Mass App. 1993)
- Where Officer in charge of road block decided to change its location because of traffic congestion, the court found this violated the standard that required site to be selected by “divisional-level commanders”. State v. Fedak, 825 p. @ 1068 (HAW. App. 1992).
- Any procedure which permits arbitrary selection or which would allow Officer discretion as to whom to pull is invalid. (i.e. Selection of Motorist not random).
B) Road block procedure should minimize intrusion. Procedures used should minimize intrusion caused by a road block. See balancing test of Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637 (1979) A DUI Lawyer Fairfax VA may argue that the intrusion outweighs the government’s interest in promoting traffic safety. Lowe established public policy in Virginia to stop Drunk Driving justifies intrusion. But the purpose does not justify the intrusion where Police use the road block for a different purpose altogether. For instance, were a road block designed merely to check for auto safety and registration as opposed to checking for DWI, would represent a slight public interest. Covert v. State, 612 N.E. 2d. 592 (Ind. App. 1993).
C) Road block plans cannot give too much discretion to the Police Officer in the field. Plans have been invalidated where Police Officer had discretion in time allowed for road block (no less than 30 minutes, no more than 2 hours) to be administered and where an Officer could pick any one of 54 locations . Hall v. Com¸ 12 Va App. 972 (1991). As stated above, the Police must follow rules set forth in the road block plan. Price v. Com, 24 Va App. 496, 483 S.E. 2d 496 (1997). Moving Road block for sobriety checkpoint because of “light traffic” and “lack of arrests” are not reasons specified in plan and are therefore “unconstrained exercise of discretion. Brown v. Com, 20 Va App 21 (1995).
D) Some problem’s experienced DUI Lawyers Fairfax VA find in court cases.
- A sole deviation from a plan may not be enough to render a checkpoint unreasonable and constitutionally impermissible. Sheppard v. Com, 25 Va. App. 527, 489 S.E.2d 714 (1997).
- The validity of a checkpoint depends upon the amount of discretion remaining with the field Officers operating the road block. Allowing the Officer to evaluate weather conditions and choose the time of the road block was not a violation of the 4th Amendment. Note, in this case, the Officer only had authority to choose time and not locations and he still had to obtain approval from supervisor before began stopping.
E) Hot topics and common issues in road block cases.
- Avoiding Road blocks. It is a free country! Why can’t someone who comes to a road block just go around it? Motorist’s conduct of avoiding a road block may or may not give sufficient to give an Officer reasonable and articulable suspicion to stop vehicle where there is no violation of law. It depends on “totality of circumstances.” In Com v. Murphy, 9 Va. App 139 (1989), the Defendant made a lawful right turn 350 feet from road block. That was ruled not to give sufficient reasonable articulable suspicion to go stop him. On the other hand, in Com v. Eaves, 13 Va App. 162 , the Defendant made a lawful u-turn just as he came up to a road block. The Court held that Officer had reasonable articulable suspicion that he was probably operating in violation of motor vehicle laws. To address this, many DUI Lawyers Fairfax VA have seen some guidelines which provide that an alternate route be available.
- Once a person is stopped at the road block, what are the rules on detaining the Defendant. The Police may not detain a vehicle at a road block beyond the brief period necessary to perform the activities authorized in the plan, unless have at least an articulable and reasonable suspicion that he is intoxicated. Gilpin v. Com, Va. App. (1998). So, if he is detained for a lack of car inspection and the Police give him a ticket for the inspection, unless there is a reasonable articulable suspicion that he is intoxicated, he must be set free.
As you can see, there are many issues in road block DUI cases. If a person is speeding, gets pulled over admits to drinking alcohol and fails his Field Sobriety Tests, there are not many defenses. But if a person is driving normally, gets stopped at a road block and then is asked out of the car… well, as described above, there are many many things the government must prove to justify this intrusion into privacy. And this is precisely why you should retain a DUI Lawyer Fairfax VA to represent you.