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Fiandach & Fiandach (Rochester NY)


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February 14, 2008

Without question, the overwhelming majority of arrests for alcohol influenced operat­ing offenses take place following a traffic stop founded upon an articuable basis that a non-alcohol violation of the vehicle and traffic law has occurred.  Somewhat paradoxical­ly however, the single most common reason for effect­ing a stop, the road­block or field sobriety checkpoint, results in a number of arrests which is insignifi­cant by comparison.  Although figures vary somewhat from year to year, it can be expected that in 1994 the New York State Police will stop approximately 30,000 motorists at sobriety checkpoints while arresting a mere 300 or 1% for a '1192 offense.

Since it does not appear that statistics are kept as to the number of roadblock arrests that result in convictions, it would be our best guess that, due largely to the widely held belief that such stops are constitu­tionally permissible under all circum­stances, a disproportionate num­ber end in convictions based upon a plea of guilty.

By and large, the road block with which we are concerned, the field sobri­ety checkpoint, traces its modern origins to United States v. Martinez‑Fuerte, (1976) 428 US 543, 49 LEd2d 1116 , 96 SCt 3074.  Martinez‑Fuerte involved a permanent checkpoint estab­lished for the purpose of appre­hending illegal aliens.  Of importance to our dis­cussion, in Martinez‑Fuerte, the high court de­parted from the probable cause re­quirement previ­ously found essen­tial for the search of a moving vehi­cle by boarder pa­trol agents (Almeida‑Sanchez v. United States,  (1973) 413 US 266, 37 LEd2d 596, 93 S.Ct. 2535), and the need for rea­son­able suspicion as a basis for stop­ping a moving vehicle believed to con­tain ille­gal immigrants (United States v. Brignoni‑Ponce, (1975) 422 US 873, 878, 45 LEd2d 607, 95 SCt 2574), in­stead choosing to utilize a bal­ancing test whereby the governmental interest in stopping the incursion of ille­gal aliens was weighed against the brief and generally diminimous in­tru­sion of the roadblock.

In People v Scott, (1984) 63 NY2d 518, 483 NYS2d 649, the New York Court of Appeals held that "a roadblock estab­lished pursuant to a written directive of the County Sheriff for the purpose of detecting and deterring driving while intoxicated or while impaired, and as to which operating personnel are prohibit­ed from administering sobriety tests un­less they observe listed criteria, indica­tive of intoxication, which give substan­tial cause to believe that the operator is intoxicated, is constitutionally permissi­ble . . ." (Id at 522).

In Scott, the Genesee County Sher­iff is­sued a writ­ten memo­ran­dum cit­ing the need for DWI accident reduc­tion and autho­rizing the imposition of a se­ries of sobri­ety check­points.  The plan called for opera­tion for 20 to 30 min­utes at two to four lo­ca­tions dur­ing a four‑hour pe­riod.  Op­erat­ed once each month be­tween mid­night and 3:00 A.M. at such loca­tions as deemed nec­essary by "senior per­son­nel," four sites were used on the night of Scott's arrest.

Stopped at the third such loca­tion, he was di­rect­ed to­ an in­ter­view area, and arrested for Driv­ing While Intoxi­cated after failing certain field sobriety tests.  Follow­ing de­nial by the trial court of his motion to sup­press, he pled guilty to Driv­ing While Im­paired.

Upholding the stop, the Court of Appeals turned to Martinez‑Fuerte and rec­ognized deterrence is a "le­git­i­mate gov­ern­men­tal purpose," appropriately served by checkpoints.  When balanced against what it perceived to be the min­imal interruption, the Court found that the "fear of apprehension" created by a roadblock "is a con­sti­tu­tion­al­ly prop­er means of keep­ing drunk driv­ers off the high­ways."

Lost by many is that Scott's ap­proval of the checkpoint was not an endorsement of every checkpoint thereafter employed in every in­stance.

In affirming, the Court pointedly ob­served that "the permissibility of a par­ticular practice is a function of its 'rea­son­able­ness,' which is de­ter­mined by bal­ancing its intrusion on the Fourth Amendment interests of the indi­vidual involved against its pro­mo­tion of legiti­mate gov­ernmental inter­ests" (Scott at 525, internal citations omitted).  Cor­rectly determining the constitutional permissi­bility of a particular check­point, howev­er, requires that the ef­fect of a road­block be balanced against "the de­gree of intru­sion of the pro­cedure on the in­di­vidual subject­ed to it, mea­sured in terms of both its subjec­tive ef­fect and the de­gree of dis­cretion vest­ed in the officials charged with car­rying it out" (Id. at 525).

Lest there be any dispute as to the importance of standards in the de­ter­mining whether or not the correct bal­ance has been struck, take hard note of the quali­fied manner in which the Scott court approved of the Genesee County opera­tion: "in light of the specif­ic proce­dures devised and promulgated to law enforce­ment personnel by the head of their de­partment, the Sheriff, and the way in which the particular roadblock was be­ing operated when de­fendant was stopped, the courts below could proper­ly conclude that it did not intrude to an impermissible degree upon the privacy of motorists approaching the check­point, that it was being main­tained in accordance with a uniform procedure which afforded little discre­tion to oper­ating personnel, and that adequate pre­cautions as to safety, light­ing and fair warning of the existence of the check­point were in operation . . ." (Scott at 526).

In 1990, the United States Su­preme Court was confronted with the identical issue presented in Scott.  In Michigan v. Sitz, 496 US 444, 110 LEd2d 412, 110 SCt 2481, the respon­dents sought injunctive relief bar­ring the Michigan State Police from maintaining sobriety checkpoints.  Af­ter an extensive trial deal­ing with, among other things, the effec­tive­ness of checkpoints, the Michigan Court grant­ed the relief re­quested.  Affirmed in a deci­sion which saw the Michigan High Court find the "subjec­tive intrusion" of checkpoints to be sub­stan­tial, on appeal, the United States Supreme Court dis­agreed and re­versed.  While for the most part the holding of Sitz, particularly when read in the light of Scott, is unre­markable, three things stand out.  First, that application of Martinez‑Fuerte will not be upset by the rather meager num­bers of DWI ar­rests that occur at check­points.  Finding that the Michigan Court misread Brown v. Texas (443 US 47, 61 LEd2d 357, 99 SCt 2637) to stand for the proposi­tion that effectiveness need be shown, the Su­preme Court em­phasized that al­though the Sitz road­block resulted in arrests in only 1% of the vehicles stopped, in Martinez‑Fuerte a finding of .12% failed to derail the procedure.  Secondly, although there apparently exists no Fed­eral Constitutional prohibi­tion from stopping motorists at a road­block, Sitz will be of little help to a par­ty seeking to justify further testing.  As noted by the majority: "detention of particular mo­torists for more extensive field sobri­ety testing may require satis­faction of an individualized suspicion standard."  Third, although not the subject of ex­ten­sive comment by the Court, the Sitz check­point was conducted in accordance with "guidelines setting forth procedures gov­erning checkpoint operations, site selec­tion, and publicity."  Under the exten­sive guide­lines promulgated by rep­resen­tatives of the Michigan State Police, local police forces, state prosecu­tors, and the University of Michigan Trans­porta­tion Research Insti­tute, "all vehi­cles pass­ing through a check­point would be stopped and their driv­ers brief­ly ex­am­ined for signs of in­toxi­cation. In cas­es where a check­point offi­cer detect­ed signs of in­toxica­tion, the motorist would be direct­ed to a location out of the traf­fic flow where an officer would check the motorist's driver's li­cense and car regis­tration and, if war­ranted, con­duct fur­ther sobriety tests. Should the field tests and the officer's observations sug­gest that the driver was intoxicated, an arrest would be made."

Recent New York decisions inter­pret­ing checkpoints fall on either side of the Martin-Fuerte balance.  Either they turned on the adequacy of standards as a means of minimizing "the de­gree of intru­sion" or they concerned an in­ter­est challenged as fall­ing outside those held to comprise a le­gitimate state inter­est.

Falling into the first is Peo­ple v Chaffee (1992, 4th Dept) 183 AD2d 208, 590 NYS2d 625.  A U-turn case, in Chaffee the Court em­pha­sized that indi­vid­ualized suspi­cion is not constitutionally required to stop an au­to­mobile when the stop is "carried out pur­suant to a plan embody­ing ex­plicit, neu­tral limi­ta­tions on the conduct of the individual officers" (Chaffee at 210).  Although the Fourth Department affirmed the conviction, it recognized that a constitu­tional im­pera­tive for a valid check­point is writ­ten direction: "a road block established pur­suant to a written direc­tive of a po­lice agency for the purpose of detecting and deterring driving while intoxicated or impaired is constitutionally permissi­ble (Chaffee at 210)."

People v Holley, 157 Misc2d 402, 596 NYS2d 1016, similarly stressed the need for standards, this time in refer­ence to the content of the initial con­tact between the officer and the motorist.  In Holley, the officer could not recall what he said, or what the motorist said in re­sponse.  Observing that the officer's tes­ti­mony "failed to establish that there were any procedures in effect to limit the dis­cretion of the individual officers operat­ing the roadblock", the Holley court stressed the importance of docu­menting and using a script to control the initial contact inasmuch as "no evi­dence was pre­sent­ed as to what Of­ficer Fleury said to mo­tor­ists when they pulled up to the road­block."

In People v Restrepo, (NYLJ, July 9, 1993, p. 25, col. 2), proof at the hearing showed that no standards what­soever existed to control the means through which the roadblock was to be carried out.  At a hearing held upon the defendant's motion to suppress, the ar­rest­ing officer was unable to justify his ini­tial action of stopping the defendant's vehicle, aside from ven­turing an opinion that the De­fendant was "not going as slow as every­one else."  Since the Peo­ple were un­able to show that articulable standards exist­ed, the Court held that the check­point con­sti­tuted an impermis­sible in­trusion.  Although officially unre­ported, Judge Schulman's decision is uncompromising in setting forth the need for standards:  "the instant record is devoid of nonarbitrary, nondiscrimi­nato­ry uniform procedures, or cause suf­fi­cient to warrant the intrusion. There was no procedure to stop all vehicles, nor every second or third vehicle.  There were no written procedures.  At best, whatever pro­cedures were followed were vague and arbitrary.  Furthermore, there was lack of a record of the procedures, and there­fore no way to determine if they were established, or if they were followed properly."

Likewise, People v Rocket, 156 Misc2d 641, 594 NYS2d 568, a "turn off" case, similarly concerns stan­dards.  In Rocket, the Court found the lack of standards per­taining to vehicles choos­ing to avoid roadblocks and the legiti­mate interests of those residing on the road toward which the Defendant turned, out­weighed the interest of the State in ap­prehending an intoxicated motorist. 

Most recent, and somewhat dis­turbing, is People v Collura, (April 6, 1994, NYC Crim) - Misc2d -, - NYS2d - 1994 WL 145741.

In Collura, the officer testified that he did not ask any ques­tions of the motorist, rath­er, he im­me­di­ate­ly asked him to pull the car over be­cause he smelled al­cohol on his breath.  Based on his subsequent obser­vations, including the defendant's admission that he had been drinking and a .14% alcosensor reading, the operator was subsequently ar­rest­ed.

Moving to suppress upon the ground that there was no showing that the check­point was established and op­erated pur­suant to any written plan or guide­line, the Court refused to find the absence of such a writing to be disposi­tive.  "This court does not interpret this language in the manner now suggested by defense counsel.  Rather, the Scott decision indicates that the People must establish that the checkpoint was oper­ated in a uniform, non‑arbitrary man­ner."

Most disturbing in Collura was the means through which the purported compliance was found.  Apparently the proof at the hearing was that "all drivers who approached the checkpoint were ques­tioned."  The problem here is that if this showing was made through the tes­timony of the officers carrying out the operation, such testimony can quickly become unduly self-serving.  Equally disturbing is the means through which the Collura court shifted to the defense a burden more properly borne by the proponent of the proof.  Upon a mo­tion to suppress, the Peo­ple have "the bur­den of going for­ward to show the legali­ty of the po­lice con­duct in the first in­stance" (People v. Ber­rios, (1971) 28 NY2d 361, 367, 321 NYS2d 884).  At a Scott hearing this would seem to place upon the People the burden of showing that the checkpoint was carried out in a non-discriminatory fashion.  Such bur­den aside, the Collura court commented that "no testimony was elic­it­ed to sug­gest that the indi­vidu­al offi­cers had any au­thority to let some driv­ers pass through without stop­ping them."  Of final note, the Collura court was undis­turbed by the lack of testimony as to  site selec­tion.  In light of the emphasis placed upon this aspect of roadblock adminis­tration by both Scott and Sitz this deci­sion may be said to be question­able at best.

How then does one litigate a road­block?  For prosecutor's, roadblock liti­gation commences long before the ar­rest.  The New York State Police Sobri­ety Checkpoint Plan calls for notifying the District Attorney of the County in which the checkpoint is to occur, a re­quirement which is seldom met.  Insist that you receive notification.  Why?  Because advance notification, even as lit­tle as 24 hours, will afford your office an opportunity to peruse the plan under which the operation is to be had for compliance with Scott.  Don't assume that just because the plan is nine years old that it is sound.  A sad commentary on roadblocks is that because many de­fense attorneys are less than informed on this topic, there exists a widely held belief that they can't be won.  The plan with which you are confronted may never have been reviewed un­der the harsh light of a motion to sup­press.  Review how the site is selected.  If the plan calls for using a site with a low to medium average daily traf­fic count, see to it that it is done.  Perhaps most importantly, review the material to be covered at the pre-checkpoint brief­ing.  See to it that no discretion whatso­ever is left to the officer in the field.

From the defendant's standpoint, the case starts with arraignment.  After demanding an information, request that the court set the matter down for mo­tions.  Be certain you are afforded enough time to obtain discovery materi­al and file your demand early.  A timely demand and a late response should get you by problems of specificity created by CPL '710.60 and People v Mendoza, infra.

What do you demand?  A suggested demand directed to­ward checkpoints run under the auspices of the New York State Police accompanies this is­sue.  It is only a suggestion and you should feel free to depart.

Mo­tion practice has become somewhat complicated.  As dis­cussed in vol. 1, no. 4, People v Mendoza, (1993) 82 NY2d 415, 604 NYS2d 922, 624 NE2d 1017, stresses the need for inclusion of  factual allegations (see also, CPL '710.60[3]).  With a road­block this can be difficult if not down­right impossible.  Your client has no way of describing what was or was not done during those periods of the operation to which he or she was not privy.  Be sure you tell the court that.  One means is suggested in the sample provided.  If, how­ev­er, the infor­ma­tion pro­vides any evidence which tends to indicate non-com­pliance with the proce­dures, set it out, it should al­most guarantee a hear­ing.

Now that you have your hearing, what do you do?  Develop the facts.  Follow the three W's.  What was done?  When was it done; and why?  Closely compare the testimony against the guidelines or plan for conformity and proceed to develop as many devi­ations from the established procedure as possible.  One area ripe for exploring is the pre-checkpoint briefing.  What were the officers told to say and do?  Does there exist any textual authority for the instructions?  While we do not generally recommend that the defendant subpoe­na a police officer to testify at a pre-trial hearing, when planning a road­block hearing be certain that you subpoena both the officer in charge of the opera­tion and the officer who first made con­tact with your client.  Request that the witnesses be sequestered and delve heavily into the content of the briefing.  The importance of lan­guage can­not be over emphasized.  The pro­cess must be entirely uniform from mo­torist to mo­torist.  If the officer is per­mitted to ask one operator whether he or she had been drinking, while ask­ing another where he or she was going, and yet an­other where he or she had been, it would be a short time indeed before the entire process would become both arbitrary and capricious, not to mention prejudicial.  Your aim is to show that the officer with whom your client first had contact used an imper­missible amount of discretion.  While on the subject of discretion, even the word can be turned to your client's ad­vantage.  Phrase as many of your ques­tions as possible using the word "discre­tion."  It is most helpful in setting out your final argument.  Lastly, do not lose sight of exactly what it was which prompted the further inquiry.  Scott and Sitz, require evidence of intoxication before proceeding further, whereas the New York State Police Field Sobriety Checkpoint Plan permits detention upon an indication that the motorist has consumed alcohol.  It may well be that this standard impermissibly transforms essentially lawful behavior (see, People v Cruz, 48 NY2d 419, 426, 423 NYS2d 625) into a showing of probable cause. 

At the close of the hearing, order the tran­script and ask the court for permission to sub­mit a memo­ran­dum of law.  While our gen­er­al pref­er­ence is to put our final argument in a memorandum which references the tran­script, in road­block cases, the gener­al unfamiliarity of the topic and the rather large amount of data compiled at such a hearing seem to com­pel such sub­mis­sions.

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