The Charlotte Observer reports that nine people were arrested for impaired driving at a checkpoint on Albemarle Road last night. The checkpoint was set up by the Charlotte Mecklenburg Police Department and its DWI Taskforce and took place from 11 p.m. last night until 3:00 a.m. this morning. In addition to the nine arrests made for DWI, there were also five suspended license citations, seven no license citations, four open container citations, and 20 other traffic citations. There was a mobile breath test vehicle onsite to conduct breathalyzer tests after the arrests were made.
Typically, police cannot stop drivers at random and a traffic stop must be supported by reasonable suspicion that “criminal activity is afoot” or that the driver has committed a traffic violation. However, North Carolina statute G.S. 20-16.3A permits law enforcement officers to “conduct checking stations to determine compliance with the provisions of” the Motor Vehicles Chapter of the statutes. Evidence collected at the checking stations is only admissible if the checking stations comply with the provisions of the statute which 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(1) Repealed by Session Laws 2006-253, s. 4, effective December 1, 2006, and applicable to offenses committed on or after that date.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.
In a case earlier this year, State v. White, the North Carolina Court of Appeals held that if a checkpoint is conducted without a written policy (which is required by subsection (a)(2a) of G.S. 20-16.3A), the statute has been substantially violated and the evidence collected at such a checkpoint may be suppressed. Important to the court in making this determination was the fact that subsection (d) of the statute states that the violation of that subsection was not “grounds for a motion to suppress.”
Although a law enforcement officer does not need reasonable suspicion to stop a motorist at a checking station, subsection (b) provides that the officer needs “reasonable suspicion that an occupant has violated a provision of [the Motor Vehicles Chapter], or any other provision of law” to detain the driver. Subsection (b) also provides that if an officer at a checking station determines that “the driver had previously consumed alcohol or has an open container of alcoholic beverage in the vehicle” the officer may request that the driver submit to an alcohol screening test. Under North Carolina law, a driver gives his implied consent to submit to alcohol screening tests by operating a vehicle on a public road. When an officer requests the driver to submit to an alcohol screening test, the driver may refuse, but a refusal of such a test results in an automatic one-year driver’s license revocation under G.S. 20-16.2.
What happens if a driver approaching the checking station on Albemarle Road had turned around to avoid it because he knew that he had had a couple of drinks before getting behind the wheel that night? The North Carolina Supreme Court has held that attempting to avoid a checking station provides reasonable suspicion to make a traffic stop. The Court held in 2013 in State v. Griffin that turning around in the middle of the road to avoid a checking station provided reasonable suspicion to make a traffic stop, and in an earlier case in 2000, State v. Foreman, the Court held that a driver who made a legal turn away from the checking station at the first instance that the driver would become aware of the checking station also provided reasonable suspicion to make a traffic stop.
If you have been arrested for DWI at a checkpoint stop, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.