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10 DWI Arrests at Weekend Checkpoint

The Charlotte Observer reports that 10 DWI arrests were made at a DWI checkpoint held late Friday night and early Saturday morning. The checkpoint was located in the 9200 block of South Boulevard and took place from 11 p.m. Friday night until 3 a.m. Saturday morning. In addition to  the 10 dwi arrests made, police also gave citations and made arrests for 6 driving with a revoked license, 2 open container and 6 drug arrests.

Usually our first step in challenging traffic stops, is to look for reasonable suspicion because under the Fourth Amendment, a traffic stop must be supported by reasonable suspicion that “criminal activity is afoot” or that the driver has committed a traffic violation. However, under North Carolina statute G.S. 20-16.3A, law enforcement officers may “conduct checking stations to determine compliance with the provisions of” the Motor Vehicles Chapter of the statutes. For evidence collected at the checking stations to be admissible, the checking stations must comply with the provisions of the statute:

(a)    A law-enforcement agency may conduct checking stations to determine compliance with the provisions of this Chapter. If the agency is conducting a checking station for the purposes of determining compliance with this Chapter, it must:

(1)    Repealed by Session Laws 2006-253, s. 4, effective December 1, 2006, and applicable to offenses committed on or after that date.

(2)    Designate in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to produce drivers license, registration, or insurance information.

(2a)  Operate under a written policy that provides guidelines for the pattern, which need not be in writing. The policy may be either the agency's own policy, or if the agency does not have a written policy, it may be the policy of another law enforcement agency, and may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to produce drivers license, registration, or insurance information. If officers of a law enforcement agency are operating under another agency's policy, it must be stated in writing.

(3)    Advise the public that an authorized checking station is being operated by having, at a minimum, one law enforcement vehicle with its blue light in operation during the conducting of the checking station.

(a1)  A pattern designated by a law enforcement agency pursuant to subsection (a) of this section shall not be based on a particular vehicle type, except that the pattern may designate any type of commercial motor vehicle as defined in G.S. 20-4.01(3d). The provisions of this subsection shall apply to this Chapter only and are not to be construed to restrict any other type of checkpoint or roadblock which is lawful and meets the requirements of subsection (c) of this section.

(b)    An officer who determines there is a reasonable suspicion that an occupant has violated a provision of this Chapter, or any other provision of law, may detain the driver to further investigate in accordance with law. The operator of any vehicle stopped at a checking station established under this subsection may be requested to submit to an alcohol screening test under G.S. 20-16.3 if during the course of the stop the officer determines the driver had previously consumed alcohol or has an open container of alcoholic beverage in the vehicle. The officer so requesting shall consider the results of any alcohol screening test or the driver's refusal in determining if there is reasonable suspicion to investigate further.

(c)    Law enforcement agencies may conduct any type of checking station or roadblock as long as it is established and operated in accordance with the provisions of the United States Constitution and the Constitution of North Carolina.

(d)   The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity. This subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.

In addition to the statutory requirements, there are also constitutional requirements for checkpoints. For a checkpoint to withstand a constitutional challenge, the checkpoint must (1) have a legitimate primary programmatic purpose and (2) be reasonable. The North Carolina Court of Appeals recently examined a constitutional challenge to a checkpoint in the case State v. Townsend (2014). In Townsend, the defendant argued that the checkpoint was unconstitutional because there was no evidence showing that it was set up for any purpose other than general crime detection, which is an improper purpose. The court noted that the date of the checkpoint had been planned for almost a year based on when the Alcohol Breath Testing vehicle was available and that the location of the checkpoint was chosen based on the number of impaired driving fatalities in the area. Therefore, the main purpose of the checkpoint was to check for impaired driving and the checkpoint had a legitimate primary purpose.

The court then looked at whether the checkpoint was reasonable. “To determine whether a seizure at a checkpoint is reasonable requires a balancing of the public's interest and an individual's privacy interest.” The United States Supreme Court set out a three-prong test set out in Brown v. Texas (1979) to make this determination.

Under Brown, the trial court must consider [1] the gravity of the public concerns served by the seizure[;] [2] the degree to which the seizure advances the public interest[;] and [3] the severity of the interference with individual liberty.

The court of appeals explained that the first Brown factor

analyzes the importance of the purpose of the checkpoint. This factor is addressed by first identifying the primary programmatic purpose . . . and then assessing the importance of the particular stop to the public.

The court concluded that the first factor was met because the checkpoint was intended to screen all drivers for impaired driving and the officer observed signs of impairment from the defendant, including the defendant’s odor of alcohol and red, bloodshot eyes.

In analyzing the second Brown factor the court examined “‘the degree to which the seizure advance[s] the public interest,’ and ... whether ‘[t]he police appropriately tailored their checkpoint stops to fit their primary purpose.’” In prior cases, the court of appeals has

identified a number of non-exclusive factors that courts should consider when determining whether a checkpoint is appropriately tailored, including: whether police spontaneously decided to set up the checkpoint on a whim; whether police offered any reason why a particular road or stretch of road was chosen for the checkpoint; whether the checkpoint had a predetermined starting or ending time; and whether police offered any reason why that particular time span was selected.

The court concluded that “the checkpoint was sufficiently tailored to fit its primary purpose” because of the planning of the date, the traffic fatalities in the area of the checkpoint, the nearby shopping center, the written plan, and the intention to check all the cars that went through the checkpoint. Therefore, the second Brown prong was satisfied.

Finally, the court noted that under the last prong the discretion of officers must be subject to restrictions “to ensure that the intrusion on individual liberty is no greater than is necessary to achieve the checkpoint's objectives.” Courts have identified “non-exclusive factors” to be examined when considering this issue, including:

the checkpoint's potential interference with legitimate traffic[]; whether police took steps to put drivers on notice of an approaching checkpoint[]; whether the location of the checkpoint was selected by a supervising official, rather than by officers in the field[]; whether police stopped every vehicle that passed through the checkpoint, or stopped vehicles pursuant to a set pattern[]; whether drivers could see visible signs of the officers' authority[]; whether police operated the checkpoint pursuant to any oral or written guidelines[]; whether the officers were subject to any form of supervision[]; and whether the officers received permission from their supervising officer to conduct the checkpoint[.]

The court warned that these factors are not a checklist or “lynchpins.” Instead, they should be considered in the totality of the circumstances. The court concluded that the written plan, the stopping of every vehicle, the signs set up to notify drivers of the checkpoint, and the delay of non-impaired drivers by only 15 seconds, when considered in the totality of the circumstances, satisfied the third factor.

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