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DWI Checkpoint Requirements in North Carolina

The Highway Patrol, the Wildlife Resources Commission and the Alcohol Law Enforcement Division announced yesterday that they will be conducting an effort this summer focused on both the roadways and the water.  Among other things, they will be conducting DWI checkpoints near recreational boating areas.  However, in order for the evidence obtained during checkpoints to be admissible, the checkpoints must comply with certain North Carolina laws.

North Carolina statute contains a specific section dealing with checkpoints.  G.S. 20-16.3A 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(1)    Repealed by Session Laws 2006-253, s. 4, effective December 1, 2006, and applicable to offenses committed on or after that date.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 North Carolina Court of Appeals has recently made clear that in the absence of a written policy, as required by subsection (a)(2a) of this statute, the evidence collected at the checkpoint may be suppressed.

In State v. White (2014), law enforcement officers in Anson County set up a license checkpoint pursuant to the county’s oral policy - they did not have a written policy at that time.  One of the officers, Horne, wrote a plan regarding the checkpoint which provided that 1) it would begin at 7:55 pm on September 11, 2009; 2) two other officers, Jenkins and Erdmancyzk, would assist Horne with the checkpoint; 3) all cars would be checked; 4) the officers would wear traffic vests when out of their cars; and 5) the “chase” policy would be in effect.  No end time was provided in the plan.

The checkpoint began as planned.  At 8:01 pm, a driver was arrested for DWI.  After the arrest, Horne and Jenkins took the arrested driver back to the police station.  Erdmancyzk remained at the checkpoint but did not check any vehicles until Horne and Jenkins returned shortly before 10:00 pm, at which point the checkpoint resumed.  At 10:56 pm, White’s car was stopped and he was arrested.  The checkpoint concluded at 11:20 pm.

At trial, White was convicted of DWI and driving with a revoked license.  On appeal, the superior court granted White’s motion to suppress the evidence obtained at the checkpoint because it concluded that the checkpoint had been abandoned and the stop of White was “spontaneous” and because the checkpoint was not operated pursuant to a written policy.

The Court of Appeals affirmed the superior court’s ruling, noting that the language in subsection (a)(2a) is mandatory - “If the agency is conducting a checking station . . ., it must [o]perate under a written policy[.]”  Because there was no written policy in place at the time of the checkpoint, the court concluded that the “lack of a written policy in full force and effect at the time of defendant’s stop at the checkpoint constituted a substantial violation of section 20-16.3A.”

The court then looked at subsection (d) of G.S. 20-16.3A which states that the violation of that subsection “shall not be grounds for a motion to suppress” and noted that the other subsections of the statute did not contain this language.  The court reasoned that “because the General Assembly specifically included language in subsection (d) that it shall not be a basis for a motion to suppress, meanwhile excluding the same language in subsection (a)(2a), subsection (a)(2a) is a proper basis for a motion to suppress.”

Extending this reasoning to the other subsections (other than (d)) in G.S. 20-16.3A, it would logical to assume that a violation of those would also be a proper basis for a motion to suppress.

If you have been arrested for DWI, contact a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.

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