28 Nov 2012
A good case explaining how to fight an checkpoint arrest came down recently in the San Francisco Appellate Division entitled People v. Alvaredo. Alvaredo was stopped at a DUI Checkpoint. He was arrested for DUI and his Attorney moved to suppress the evidence, including the breath test, because the cops did not follow the procedures established by the California Supreme Court in Ingersoll v. Palmer for DUI checkpoints. The Trial court denied the Motion to Suppress. The Court of Appeal reversed the denial of the Motion to Suppress because three important and one not-so-important factors were missing.
The Ingersoll factors are:
(1) Whether the decision to establish the checkpoint, the selection of the site, and the procedures for operation are established by supervisory law enforcement personnel;
(2) Whether motorists are stopped according to a neutral formula;
(3) Whether adequate safety precautions are taken, such as proper lighting, warning signs, and signals, and whether clearly identifiable official vehicles and personnel are used;
(4) Whether the location of the checkpoint was determined by a policymaking official, and was reasonable;
(5) Whether the time the checkpoint was conducted and its duration reflect “good judgment” on the part of law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop);
(7) Whether the average length and nature of detention is minimized, and;
(8) Whether the checkpoint is preceded by publicity.
In Alvarado, the Court found that the San Francisco Police Department had not followed (1), (4), (7) and of lesser import (8)(Banks)*. Because the Police did not establish the procedures to be used at a command level, did not determine whether the location was beneficial for the purpose of deterrence, did not minimize the length and nature of the detention and failed to publicize the DUI checkpoint in advance, the Court held that the checkpoint was unconstitutional.
The Court admits bewilderment with the prosecution in its holding. Stating that even though the state had access to the same Ingersoll factors, they seemed to put on no evidence to sustain their burden of proof under Wilder.**
Avoid being arrested at a DUI Checkpoint. Because the cops are supposed to give advance notification of where and when a checkpoint will be held, you can avoid checkpoints by checking back here because I post the DUI checkpoints when I learn of them.
Inherent in the checkpoint requirements is also that there must be a release valve where people who do not want to wait in line at the checkpoint can avoid it. The Supreme Court has held that people seeking to avoid a checkpoint cannot be stopped. However, if you violate the Vehicle Code in avoiding the checkpoint, the police can stop you for the violation. So making a U-Turn in the middle of a block, which is illegal, will bring you to the police’s attention.
The way to fight your arrest at a DUI checkpoint is to know the law and know how to use the law to hold the police accountable for following proper procedure. If you’ve been arrested after being stopped at a DUI Checkpoint contact us at (213) 479-5322 to learn how we can fight and win your case for you.
* The Alvarado court properly points out that Banks does not do away with the necessity for advance publication of the checkpoint, it merely states that lack of advance publicity alone will not invalidate the checkpoint.
** Wilder holds that where there is a warrantless search the state bears the burden of proving the justify the search and seizure.