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). 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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