Detentions at Law Enforcement Roadblocks.

      Detentons of suspected drunk drivers presents special challenges for DUI defense counsel when it invovles a roadblock.  Determining if attacking a roadblock detention is fruitful has two criteria: whether the roadblock is all that iss to be challenged, and whether the roadblock was created and operated constitutionally.  Determining if there was a traffic or equipment violation preceding the roadblock is vital to leave the prosecutor with only the roadblock to justify the detention. It is best to make a suppression motion in the administrative hearing because the criminal case prosecutor is not present to advise the arresting officer how to testify.  

      Drunk Driving roadblock checkpoints have been held to be constitutional by the U.S. Supreme Court if it is properly devised in Michigan v. Sitz, (1990) 496 U.S. 444.  In Sitz that State of Michigan had a committee devised roadblock program that covered the site selection, the operation of the checkpoint, and publicity concerning the roadblock. The Court found this program to be “minimally intrusive” when balanced with the state’s interest in reducing drunk driving, and thus are constitutional under U.S. Const. Amend. IV.  Id. at 457-458.  In a subsequent roadblock case, the Court clarified the constitutional scope of roadblocks City of Indianapolis v. Edmond (2000) 531 U.S. 32.   In Edmond, the Court stated, “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion…” Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment Id. at 41-42.  DUI defense practitioners should use the Edmond decision to attack dubious roadblock detentions with the distinction between the governments enhancing safety and ferreting out crime.  The Court further addressed roadblocks in the non-DUI circumstances of questioning random drivers about a hit and run accident  in Illinois v. Lidster (2004) 540 U.S. 419.   The court found a distinction with Edward that the roadblcok was not to apprehend the people being stopped, but only to obtain information about the perpetrator of the hit and run, and thus the distinction of detaining individuals versus obtaining information about another crime, and thus was constitutional.  Id. at 423.  

      California followed Sitz in Ingersoll v. Palmer (1987) 43 Cal.3d 1321, and relied on the fact that the roadblock in question was established and operated pursuant to specific procedural safeguards. with criteria to aid in determining if a roadblock was constitutional: Decision Making at the Supervisory Level; Limits on Discretion of Field Officers; Maintenance of Safety Conditions; Reasonable Location; Time and Duration; Indicia of Official Nature of Roadblock; Length and Nature of Detention; and Advance Publicity. Id. at 1341-1347.

      Based on Sitz and Ingersoll, the DUI defense practitioner should not demand al discovery of all protocols and guidelines for the roadblock because the government bears the burden of proving a warrantless detention, and state laws should be researched because they may provide more constitutional protection than the federal constitution as outlined in Sitz.. Any suppression motion should focus on asking the police officers if the primary purpose of the drunk driving checkpoint was to catch and prosecute drunk drivers.

The Community Caretaker Exception to the “Reasonable and Articulate Suspicion” Requirement.

      The community caretaker doctrine is an exception to the general requirement that a warrantless detention must be based upon articulable and reasonable suspicion that a crime has transpired or is about to transpire; where the courts have authorized the police to act in certain instances to help distressed citizens.   Several states have adopted rules limiting the scope of law enforcement to use this exception as a pretext to doing an end-run around the reasonable and articulate suspicion requirement.  

      The doctrine was supported in the State of Montana case State v. Lovegren (Montana 2002) 310 Mont. 358. In Lovegren a knock on the window by a police officer did not cause the defendant to awaken from his slumber, prompting the officer to open the car door, whereupon he discovered the defendant in an intoxicated state. The Montana Supreme Court found the police officer’s intrusion lawful under the community caretaker doctrine. Id. at 366.

      The doctrine has been limited by several courts. In California, the Supreme Court established a high threshold to be met before an officer can make a detention based on the community caretaking exception in People v. Ray,(1999)  21 Cal.4th 464. The Rey Court mandated that a substantial risk to life or the possibility of major property damage exist before the police can act under this exception, stating, “We agree with defendant that the People did not meet their burden of establishing circumstances warranting the officers’ actions under the emergency aid component of community caretaking. This justification requires specific, articulable facts indicating the need for “swift action to prevent imminent danger to life or serious damage to property,” Id. at 472-473.   In the Texas case Andrews v. The State of Texas, (Texas App.—Waco 2002) 79 S.W.3d 649, the court adopted the following guidelines in reviewing community caretaker detentions:  a) The nature and level of the distress exhibited by the individual; b) The location of the individual; c) Whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and d) To what extent the individual—if not assisted—presented a danger to himself or others.  Id. at 652. 

Winning a Suppression of Evidence Motion.

      If the DUI defense practitioner decides that filing a motion to suppress evidence is beneficial to the defense of their client, there are several vital steps that should be followed to ensure its success and preservation of the issue on appeal.  

      The motion should be filed late in the court’s calendar because some judges do not want rule for the defense in front of a room full of lawyers or to be seen as being soft on crime.  The cross-examination should focus on the inadequacy or conflicts in the officer’s testimony. The first issue for a suppression motion is to preserve all of the facts that show the unreasonableness of the detention, and to get all of the facts of what happened beyond what the police report says. Especially important is to get eh arresting officer’s position from the administrative hearing on the suspension of the client’s license before you go to the criminal proceeding. If this is not availing, use the preliminary hearing to lock in the officer’s statements for later possible impeachment. However, with California’s enactment of Proposition 115 limiting the use of the preliminary hearing for discovery, the attorney may have no such opportunity.  

      The attorney should focus on showing the court other alternatives the officer had that the officer did not undertake because the prosecutor will be focusing on the defendant’s power of observation, attack his credibility as being self-serving. and making it a decision between the “drunk and non-drunk witnesses. It is important to counter the certain argument from the prosecutor that the DUI defendant is motivated to lie. The DUI defense attorney should consider the following criteria: First, acknowledge to the jury that it is certainly possible that what the prosecutor has advanced is true, then go on to point out the implications to our system if the prosecutor’s arguments were allowed to take hold without otherwise scrutinizing the defendant’s actual testimony. The jury should be told according to the prosecutor, no one can ever take the stand to tell his or her side of the story because they have a motive to lie. You should ask the jury to base their decision on their instincts, insights and experiences, and you still have the right in this country to testify.  

  The next consideration for the DUI defense practitioner is to be able to discredit the officer on speed per second and per mile. This puts the officer against scientific fact; a better arena to argue the credibility of the officer needs to be challenged in order to win.  (With 3,600 seconds in an hour and 5,280 feet per mile,  3,600 seconds = 1.4666 feet per second (or, about 1.5 feet per second). Challenging the officer’s knowledge of the correct methodology of this   calculation can turn into an attack on their credibility.

      The DUI defense practitioner should also know the DUI statutes the 4th Amendment, its state equivalent (if it provides more protection to defendants) and the case law progeny with fluency, and know what statues the officer alleges your client violated for challenges to strict compliance with the statutory requirements. If it involved a roadblock or an anonymous tip for those special challenges.  Lastly, there is little upside to putting the DUI defendant on the witness stand., so avoid it unless absolutely necessary.