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Defending Virginia DWI Checkpoint and Roadblock Cases by Bradley R. Haywood Introduction Most everyone knows that the police cant just stop and question you on a whim (not in theory, at least). Have you ever wondered, then, why they can stop you at a DWI checkpoint? After all, the Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, including stopping vehicles without reasonable suspicion or probable cause to believe a crime is being committed. And obviously, prior to stopping a vehicle at a checkpoint, the police have no reason to believe the occupants did anything wrong. Rather, they stop all vehicles that approach, or nearly all of them, without any individualized suspicion that anyone is breaking the law. What the U.S. Supreme Court Says As announced by the United States Supreme Court, the constitutionality of a general crime sweep depends on three factors: the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. As applied to checkpoints, if the public has a significant interest in reducing the targeted offense (e.g. drunk driving), the checkpoint or roadblock advances that interest, and the liberty of those stopped is minimal (and not subject to abuse of police discretion), then the checkpoint may indeed be constitutional. Ultimately it is a balancing test, guided by concerns of reasonableness. The constitutional principles at play were first announced in Delaware v. Prouse, 440 U.S. 648 (1979) where the United States Supreme Court held that an individual officer, acting without on-site supervision, may not stop vehicles solely for the purpose of conducting license and registration checks. In order for stops of this nature to be permissible, the officer must be operating under a properly designed plan that assured motorists would be stopped at random, to minimize abuses of law enforcement discretion. See also United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (random stops of vehicles near Mexican border to detect entry of illegal aliens ruled invalid); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (permanent checkpoint stops to stem flow of illegal alien traffic from Mexico approved). Following Prouse, the Court in Brown v. Texas, 443 U.S. 47 (1979) addressed whether an officer may stop an individual solely for the purpose of ascertaining his identity. In finding the stop unlawful, the Court first noted that [t]he reasonableness of seizures that are less intrusive than a traditional arrest . . . depends on a balance between the public interest and the individuals right to personal security free from arbitrary interference by law officers. Id. at 50. Furthermore, it proposed a balancing test for evaluating reasonableness: [c]onsideration 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 seizure advances the public interest, and the severity of the interference with individual liberty. Id. at 50-51. Along those lines, the Court held that for a seizure to be constitutional, it must be based on specific, objective facts indicating that societys legitimate interests require it, or it must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Only in those instances is an individuals reasonable expectation of privacy [] not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. Id. at 51. See also Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985). DWI Checkpoint Law in Virginia Given the wide-ranging nature of their intrusion on individual liberty, it should come as no surprise that the law on checkpoints is far from settled, and although Virginia courts have upheld some checkpoints, it has found that others offend the Fourth Amendment, declaring them unconstitutional. See Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985). In their analysis, Virginia appellate courts have cited a variety of factors courts might consider in assessing the publics interest in the checkpoint as implemented and whether the plan adopted embodies specific, neutral limitations on the conduct of individual officers. Id. at 350 (quoting Brown at 51). Those factors include: the law on the subject, the safety of the officers, the safety of motorists, the appropriateness of the location considering the purpose of the checkpoint, whether officers received checkpoint training, the existence of written manuals/protocols, specific written procedures for how to bring vehicles to a stop and interview motorists, and how to evaluate motorists for indicia of intoxication. In addition, courts have looked at the checkpoint in practice, notably the manner in which traffic was stopped and motorists evaluated, and whether it was truly arbitrary. Lastly, courts have looked to whether the purposes of the checkpoint were achievedwhether it was in fact an effective way to identify and arrest offenders. See Lowe at 351-52. Under the Fourth Amendment, the Commonwealth has the burden of proving the legitimacy of a warrantless search and seizure. Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). A brief glance at precedent suggests this inquiry is not pro forma with respect to checkpoint. Where the Commonwealth fails to prove that the procedure for establishing [the] roadblock[] was safe and objective in its operation, employed neutral criteria, and [did] not involve standardless, unbridled discretion by the police officer in the field, the checkpoint will be found to violate the Fourth Amendment, and the fruits of any resulting seizure will be suppressed. See Simmons, 238 Va. at 203, 380 S.E.2d at 658 (citation omitted) (finding no reasons for selecting location, no advance approval or authorization from supervisor, and that merely stopping every car is insufficient to resolve concerns about abuse of discretion); see also Thomas v. Commonwealth, 22 Va. App. 735, 739, 473 S.E.2d 87, 89 (1996) (reversed on other grounds). Defending Your Checkpoint Case If you have been arrested pursuant to a checkpoint in Alexandria, Arlington, Fairfax, Prince William or elsewhere in Northern Virginia, you may have valid defenses grounded in your Fourth Amendment rights. Generally speaking, there is little proof that Virginia checkpoints achieve their intended goals and justify such a wide-ranging encroachment on individual liberty. For example, in October of 2014 in the Alexandria area of Fairfax County, Fairfax County Police conducted a sobriety checkpoint which lasted most of the evening. See Police Nab 3 Drunk Drivers in Sobriety Checkpoint, http://patch.com/virginia/greateralexandria /police-nab-3-drunk-drivers-sobriety-checkpoint. During the checkpoint, police stopped nearly 700 vehicles yet made only three arrests for drunk driving. A cursory glance at checkpoints from the City of Alexandria suggest the results are similarly meager. At one checkpoint in July of 2011, the city employed 11 different law enforcement personnel, stopping motorists over the course of 8 hours. See Alexandria Police Sobriety Checkpoint Results, https://www.alexandriava.gov /police/info/news_policedisplay.aspx?id=49722. In those 88 man hours, police made only two arrests for driving while intoxicated. Id. In fact, these low rates of arrest during local checkpoints are consistent with those observed throughout the Commonwealth. Statistics gathered as a part of a grant-funded Checkpoint Strike Force campaign in 2009 established that out of 623 saturation patrols and checkpoints conducted during that year, police made only 1669 drunk driving arrestsa rate of less than three arrests per enforcement activity. Virginia Dept of Motor Vehicles, Virginia Highway Safety Plan at 18 (2009), http://www.dmv.virginia.gov/safety/highway_ safety_report.pdf. Moreover, in every checkpoint, the police must develop a detailed and thorough checkpoint plan. That plan must set forth the protocol to be followed in minute detail, it must completely eliminate any individual officer discretion (i.e. the officer should have no subjective input into the decision about whether or not to stop a vehicle) and the officers must be trained in every aspect of the checkpoint and the law authorizing it. In addition, publicity is an important factor in the constitutionality of any checkpoint, seeing as one purpose of every checkpoint is to deter drunk driving. This means that the police must get the word out to the local press and the public regarding its intent to stop vehicles at a checkpoint or roadblock. If the plan, the training or the execution involved in the checkpoint in your case fell short in any one of these areas, asserting your rights through a motion to suppress may result in dismissal of the charges against you. Conclusion As the foregoing demonstrates, checkpoint cases can be complex, and experience is a must in defending them. If you were arrested for driving while intoxicated, driving on a suspended license or any other offense as a result of a traffic checkpoint or roadblock in Alexandria, Arlington, Fairfax, Prince William, Loudoun or elsewhere in Northern Virginia, our firm can help you. Call us at (703) 691-8410 or email at info@sfhdefense.com to schedule a consultation.