The case that remains controlling law in New Jersey regarding the legality of DUI checkpoints is the 1990 United State Supreme Court case of Michigan Department of State Police v. Sitz, 496 U.S. 444. There, a divided U.S. Supreme Court held that the State of Michigan’s sobriety checkpoint program was consistent with the Fourth Amendment and therefore legal. However, the legality of DUI checkpoints still remains an open question in NJ some 25 years after the Sitz decision.
Recall that as mentioned in my blog regarding boaters’ rights, New Jersey citizens enjoy greater search and seizure protections under Article I, paragraph seven of our state constitution than the rights provided by the Fourth Amendment of our federal constitution. This fact is lost on many attorneys, especially those that do not do a great deal of criminal defense work.
The reason the question remains open is that a checkpoint challenge has not reached our appellate courts. The principal reason for this is likely that checkpoints tend to produce relatively minor offenses like DUIs and marijuana possession. Both types of cases are non-felonies that are handled in municipal courts and usually do not result in a significant period of incarceration. Since it would take a significant amount of time and money to challenge the legality of a checkpoint in municipal court, then appeal it at the superior court level, and then appeal that to the appellate division before case law is made, people who are not facing a felony conviction or significant incarceration are almost never willing to spend that kind of time and money to fight the charge.
The few that are willing to spend that kind of time and money run into another obstacle that stands in the way of a definitive decision on the legality of checkpoints in New Jersey. The Attorney General’s Office and the prosecutors that they oversee throughout the state seem to be committed to giving defendants favorable deals once they get close to making case law through the lengthy appeal process. My personal experience in fighting for discovery regarding why a certain DUI checkpoint location was chosen led to the dismissal of a DUI charge. The dismissal foreclosed any opportunity to appeal and thereby foreclosed the possibility of having our appellate division address the overall legality of DUI checkpoints. I suspect that my case was far from the first time a case was dismissed as a means to avoid a decision outlawing or limiting checkpoints in New Jersey. After all, so long as the checkpoints can continue, the money generated from fines and surcharges keeps coming. The cost to the State in dismissing a very rare case here and there pales in comparison to the money generated from the vast majority of defendants who are prosecuted based on evidence obtained through a suspicionless stop at a DUI checkpoint. Note that even the “dismissed” cases usually involve dismissal of the DUI charge, with fines still being imposed (and money still being generated by the State) by way of a plea to a lesser offense like reckless driving.
Returning to the Sitz opinion, the U.S. Supreme Court held that the checkpoint at issue was legal due to a variety of “safeguards” that were in place under the Michigan program. For one, the checkpoints were selected pursuant to guidelines based on evidence that the locations chosen would be effective in rooting out enough drunk drivers to justify the intrusion on the rights of sober, law abiding drivers who had to be inconvenienced and questioned despite doing nothing wrong. In my case I suspected that the New Jersey authorities had no such empirical evidence justifying their chosen checkpoint location. The State never had to produce their evidence or admit to a lack of evidence because my client’s charge was ultimately dismissed in municipal court.
In an interesting twist in the Sitz case, the the Michigan Court of Appeals affirmed the lower court’s holding that the program violated the Fourth Amendment and, for that reason, did not consider whether the program violated the Michigan Constitution. Had the Michigan Court of Appeals based their decision strictly on the Michigan State Constitution, the United States Supreme Court would not have had a basis to consider the case. This is because each state’s supreme court is the ultimate authority on their state’s constitution, whereas the United State Supreme Court is the ultimate authority on the federal constitution. I refer to this as an “interesting twist” because the Michigan Court of Appeals was presumably aware of their ability to insulate their decision from federal review by resting in on state constitutional grounds. Still, the Court chose not to do so. Since The Michigan Court of Appeals unnecessarily held themselves out to being reversed by the higher court, it seems as though there was an agenda in place to allow for the United States Supreme Court to rule on the issue at the federal level. The federal level is where the checkpoint program would have its best chance of being upheld since the federal constitution provides us with less protections and rights than the state constitutions. Given the controversial nature of suspicionless checkpoint stops in a country that is supposed to guarantee that people remain free from unreasonable searches and seizures, its no wonder that the government was looking to do everything possible to stack the odds in their favor.
This brings us to the dissenting opinion of the three Unites States Supreme Court Justices that disagreed with the six justices in the majority. It is the dissent’s reasoning that would likely be adopted by a majority of New Jersey’s Supreme Court, if they had the opportunity to apply the greater protections afforded by our state constitution in analyzing DUI checkpoints.
The dissent in Sitz began by noting that it is not known how many arrests would have been made during the checkpoint if the dozen officers on the scene had been engaged in normal patrol activities. They noted that the findings of the Michigan trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.
The dissent pointed out that the majority overvalued the law enforcement interest in using sobriety checkpoints, undervalued the citizen’s interest in freedom from random, unannounced investigatory seizures, and mistakenly assumed that there is “virtually no difference” between a routine stop at a permanent, fixed checkpoint and a surprise stop at a sobriety checkpoint.
The “surprise” element relates to the related question of whether police in New Jersey are required to announce the planned location of checkpoints so that vigilant citizens can choose to avoid them. In Ocean County, the program is more intrusive than Monmouth’s because Monmouth’s policy is to announce the locations. Subscribers to my checkpoint e-mail list are well aware of this.
The dissent noted that there is a critical difference between a seizure that is preceded by fair notice and one that is effected by surprise. That is one reason why a border search, or indeed any search at a permanent and fixed checkpoint, is much less intrusive than a random stop. A motorist with advance notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy. No such opportunity is available in the case of a random stop or a temporary checkpoint, which both depend for their effectiveness on the element of surprise.
The dissent also made good points that further distinguished even announced checkpoint locations from fixed locations like airports or border crossings: There is also a significant difference between the kind of discretion that the officer exercises after the stop is made. A check for a driver’s license, or for identification papers at an immigration checkpoint, is far more easily standardized than is a search for evidence of intoxication. A Michigan officer who questions a motorist at a sobriety checkpoint has virtually unlimited discretion to detain the driver on the basis of the slightest suspicion. A ruddy complexion, an unbuttoned shirt, bloodshot eyes, or a speech impediment may suffice to prolong the detention. Any driver who had just consumed a glass of beer, or even a sip of wine, would almost certainly have the burden of demonstrating to the officer that his or her driving ability was not impaired. Finally, it is significant that many of the stops at permanent checkpoints occur during daylight hours, whereas the sobriety checkpoints are almost invariably operated at night. A seizure followed by interrogation and even a cursory search at night is surely more offensive than a daytime stop that is almost as routine as going through a tollgate.
The dissent’s concluding remarks brought to mind Mark Twain’s quote about the three kinds of lies: (1) lies; (2) damned lies; and (3) statistics. The statistics cited by the majority demonstrate what Twain meant: These numbers, of course, include any accidents that might have been caused by a sober driver but involved an intoxicated person. They also include accidents in which legally intoxicated pedestrians and bicyclists were killed; such accidents account for 2,180 of the 18,501 total accidents involving legally intoxicated persons. The checkpoints would presumably do nothing to intercept tipsy pedestrians or cyclists. . . .In my opinion, unannounced investigatory seizures are, particularly when they take place at night, the hallmark of regimes far different from ours; the surprise intrusion upon individual liberty is not minimal. On that issue, my difference with the Court may amount to nothing less than a difference in our respective evaluations of the importance of individual liberty, a serious, albeit inevitable, source of constitutional disagreement .
This observation was followed by a refreshing dose of common sense in distinguishing sobriety checkpoints from lawful immigration checkpoints. Immigration checkpoints are more necessary than sobriety checkpoints: There is no reason why smuggling illegal aliens should impair a motorist’s driving ability, but if intoxication did not noticeably affect driving ability it would not be unlawful. Drunk-driving, unlike smuggling, may thus be detected absent any checkpoints. A program that produces thousands of otherwise impossible arrests is not a relevant precedent for a program that produces only a handful of arrests which would be more easily obtained without resort to suspicionless seizures of hundreds of innocent citizens.
Here are some additional highlights from the dissent’s footnotes:
9. “It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials: ‘These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.’
10. The Court refers to expert’s testimony that the arrest rate is “around 1 percent,” ante, at 455, but a fair reading of the entire testimony of that witness, together with the other statistical evidence in the record, points to a significantly lower percentage.
11. Indeed, a single officer in a patrol car parked at the same place as the sobriety checkpoint would no doubt have been able to make some of the arrests based on the officer’s observation of the way the intoxicated driver was operating his vehicle.
13 . . . Respondents informed this Court that at trial “the Defendants did not even attempt to justify sobriety roadblocks on the basis of the number of arrests obtained.” Brief for Respondents 25. In answer, the State said: “Deterrence and public information are the primary goals of the sobriety checkpoint program, but the program is also clearly designed to apprehend any drunk drivers who pass through the checkpoint.” Reply Brief for Petitioner 34. This claim, however, does not directly controvert respondents’ argument or Colonel Hough’s concession: Even if the checkpoint is designed to produce some arrests, it does not follow that it has been adopted in order to produce arrests, or that it can be justified on such grounds.
This focus on deterrence and public information support the fact that Ocean County’s practice of not providing advance notice regarding the location of checkpoints makes their checkpoints that much more difficult to justify. The dissent similarly noted that:
16. Alcohol-related traffic fatalities are also susceptible to reduction by public information campaigns in a way that crimes such as, for example, smuggling or armed assault are not. An intoxicated driver is her own most likely victim: More than 55 percent of those killed in accidents involving legally intoxicated drivers are legally intoxicated drivers themselves. [I]f they are conscious of the possibilities that such an accident might occur and that alcohol or drug use might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior.
19. 2 Record 40. Colonel Hough and Lieutenant Cotten agreed that publicity from the news media was an integral part of the checkpoint program. Colonel Hough, for example, testified as follows:
“Q. And you have observed, haven’t you, Colonel, any time you have a media campaign with regard to a crackdown you’re implementing, it does have a positive effect?
“A. We believe it has an effect, yes.
“Q. And in order for the positive effect of the media campaign to continue would be necessary to continue the announcements that you are putting out there?
“A. Yes.
“Q. It’s true, isn’t it, much of the media publicity attendant to this sobriety checkpoint has come from your public service announcements about the general media attention to this issue and placing it in our newspapers as a public interest story?
“A. Yes. . . .
“Q. Or other television public interest stories?
“A. Yes.
“Q. You don’t anticipate, do you, Colonel, that the level of media interest in this matter will continue over the long haul, do you?
“A. I am certain it will wane in a period of time.
“Q. Have you ever given any thought to whether or not a different type of deterrent program with the same type of attendant media attention would have a similar deterrent effect as to what you can expect at the checkpoint?
“A. We have done it both with a SAVE Program and CARE Program and selective enforcement. Probably it has not received as great of attention as this has.
“Q. Any question, have you ever given any thought to whether or not a different technique with the same attendant media publicity that this has gotten would have the same effect you’re looking for here?
“A. No.” 1 id., at 91-92.
In addition, Point 6 of the Michigan State Police Sobriety Checkpoint Guidelines indicates that each driver stopped should be given a brochure describing the checkpoint’s purposes and operation. “The brochure will explain the purpose of the sobriety checkpoint program, furnish information concerning the effects of alcohol and safe consumption levels, and include a detachable pre-addressed questionnaire.” Trial Exhibit A, Michigan State Police Sobriety Checkpoint Guidelines 8 (Feb.1986). The Maryland program had a similar feature. 2 Record 18.