The Charlotte Observer reported that 16 DWI arrests were made on late Friday night and early Saturday morning at a checkpoint on Park Road. The checkpoint was set up on Park Road, near Archdale Drive, and was conducted from 11 p.m. until 3 a.m. There were 3 under-21 drivers charged with DWI and 13 over-21 drivers charged with DWI. There were also two search warrants conducted for breath test refusals.
In order for the evidence collected at that checkpoint to be admissible in any trials resulting from those arrests, the checkpoint had to comply with certain requirements. North Carolina statute sets out the requirements for checking stations in G.S. 20-16.3A. It states that
(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(1) Repealed by Session Laws 2006-253, s. 4, effective December 1, 2006, and applicable to offenses committed on or after that date.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.
The Court of Appeals recently held in State v. White (2014) that if a checkpoint is conducted without a written policy, required by subsection (a)(2a) of the statute, this is a substantial violation of the statute, and evidence collected at such a checkpoint may be suppressed. In making this determination, the court noted that it was important that subsection (d) of the statute stated that a violation of that subsection was not grounds for a motion to suppress.
Subsection (b) of the statute permits a law enforcement officer to request that “the operator of any vehicle stopped at the checking station” submit to an alcohol screening test if the officer determines that either 1) “the driver had previously consumed alcohol” or 2) the driver “has an open container of alcoholic beverage in the vehicle.” If the driver refuses to submit to the alcohol screening test, the statute permits the officer to use the refusal to “investigate further.” Two of the drivers at Friday night’s checkpoint refused to submit to breath tests and warrants were issued to draw blood to determine their blood alcohol content. It is possible that blood may be drawn without a warrant against a driver’s objection under exigent circumstances, but the US Supreme Court held in Missouri v. McNeely (2013) that the dissipation of alcohol alone does not create exigent circumstances. So the police on Friday night certainly played it safe by obtaining warrants.
What would happen if a driver was driving along Park Road on Friday night, noticed the checkpoint and turned to avoid it? North Carolina courts have made clear that attempting to avoid a checkpoint provides reasonable suspicion to make a traffic stop. In State v. Griffin (2013), the North Carolina Supreme Court held that where a driver approached a checkpoint, and then turned around in the middle of the road, not at an intersection, an officer suspected him of trying to avoid a checkpoint, and this provided reasonable suspicion to make a traffic stop. The North Carolina Supreme Court has also held that a legal turn away from a checkpoint which occurs at the first instance at which a driver would become aware of the checkpoint provides reasonable suspicion to make a traffic stop. (State v. Foreman 2000)
If you have been arrested for DWI, visit www.rflaw.net to get legal help.