Sobriety Checkpoints & Sobriety Roadblocks in Missouri DUI/DWI or Other Drunk Driving Cases
April 20, 2021
Missouri police departments commonly employ sobriety checkpoints at set locations, where all drivers passing through are stopped and questioned regarding their alleged intoxication, without any observed traffic violations being committed, or prior probable cause to arrest for DUI / DWI. Sobriety checkpoints / roadblocks have been inexplicably upheld as Constitutional despite the fact that they are a nuisance to everyone who passes through.
There is no doubt that a sobriety roadblock constitutes a “seizure” under the Fourth Amendment. The reasonableness of whether or not the specific sobriety checkpoint passes Constitutional muster depends on “a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.” Brown v. Texas, 443 U.S. 47, 50 (1979) (citing Pennsylvania v. Mimms, 434 U.S. 106 (1977).
In other words, drivers who have had nothing to drink are not supposed to be able to be unreasonably “seized” for the purposes of the Fourth Amendment at a sobriety checkpoint, while the cops are fishing for the alleged drunks.
That is all good in theory, but believe me, the courts will go to great lengths to say that a group of people's “seizure” was not unduly burdensome, and that a checkpoint is Constitutional, even if everyone, sober and drunk alike, are stopped for an unreasonable amount of time.
If you are one of those drivers who made the “mistake” of attempting to drive home after a Monday night Football Chiefs game a couple of years ago, and were stuck on I-435 while the Kansas City Police Department attempted to give sobriety check interviews to the entire city of Kansas City where no one got home until 3 am on a work night, you will know what I am talking about. I live in the Northland in Kansas City , and I personally have had to sit for 20-30 minutes at the sobriety checkpoint / roadblock on the Broadway bridge at least four times in 2005; 15-20 times in my lifetime. It is annoying to put it mildly.
When the cars start backing up, they are supposed to then let everyone go through and begin again when the congestion lets up, but who says the police have to follow any rules that inconvenience the public?
At sobriety checkpoints, one officer often does an initial “screen,” and then directs those he believes might be impaired to another officer at a different point in the sobriety roadblock for further investigation. If probable cause is then established for DUI / DWI, then subject is then arrested.
The police cannot just pick a spot and start pulling people over. There are set procedures that must be followed for the sobriety checkpoint to upheld as Constitutional. In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the U.S. Supreme Court held that sobriety checkpoints were Constitutional, so long as proper procedures are followed.
These include: Policy-making administrative officers of the law enforcement agency determined the location of the checkpoint; The time and location of the roadblock was adequately publicized to the public at large; The location was marked with adequate advance warning signs; A number of uniformed officers were present to demonstrate the official nature of the roadblock; The selection of the motor vehicles to be stopped was not arbitrary; and, The roadblock was conducted to assure the safety of and to minimize the inconvenience to the motorists involved.
The State of Missouri has also held that sobriety checkpoints / roadblocks that are operated under guidelines that minimize intrusiveness and limit officers' discretion, are Constitutional. State v. Welch, 755 S.W.2d 624 (Mo. App. W.D. 1988).
Sitz and Welch can be read together to stand for the proposition that sobriety checkpoints / roadblocks in Missouri must be operated under a detailed operational plan covering the following: Strict compliance with a written plan, adequate supervision, consistency, and professional execution; Accurate identification of impaired motorists; Minimization of motorist surprise, apprehension, and inconvenience; Safety of motorists and participating law enforcement officers; and, Achievement of maximum deterrent effect through aggressive publicity.
However, as discussed elsewhere in this site, there is truly a DUI Exception to The Constitution.
There are two separate actions when someone is arrested for DUI / DWI in Missouri . The criminal portion of your case involves the State of Missouri attempting to fine you, and/or put you in jail for the crime of driving while intoxicated. Separate from that is a civil action, where the Missouri Director of Revenue is attempting to suspend / revoke your driving privilege where you have blown above an applicable legal limit, or where you have refused to take a chemical test.
Even where it is shown that a sobriety checkpoint / roadblock is Constitutionally invalid, and you go to trial and win your criminal case, you can still have your license suspended in the criminal portion of your Missouri DUI / DWI case despite the fact the sobriety checkpoint / roadblock is illegal! Gordon v. Director of Revenue, 896 S.W.2d 737 (Mo. App. E.D. 1995). You cannot even bring up the fact that the initial stop was illegal when challenging you driver license being suspended! Welcome to our brave new world………
If you are stopped at a Missouri sobriety checkpoint / roadblock, remember, you have a Constitutional right to remain silent. Exercise it—whether you have had anything to drink or not.
Even where you are stopped for a valid reason, such as speeding, you do not have to answer any questions. I wouldn't. Everyone unfortunate enough to be caught in a sobriety checkpoint / roadblock at night allegedly has slurred speech.
Don't give the police any ammunition against you.
They have the right to: make you produce you license and registration (have them handy in a side compartment so you can immediately produce them without fumbling around); make you get out of the car and pat you down briefly for officer safety to make sure you are not carrying a weapon; make you sit in their car while they run your information and see if you have warrants outstanding, and that is really about it.
You do not have to answer any questions at all other than your name when producing your license and registration.
You do not have to perform standardized field sobriety tests (You don't have to stand on one leg, walk a line while counting, agree to have your eyes tested, count for them, say the alphabet, or do other gymnastics on the side of the road)
You do not have to do anything or say anything to incriminate yourself. Be polite, but firm, in as few words as possible.
If it appears you are going to be arrested, do not say anything other than request to speak with an attorney, and nothing else.
You also do not have to take a portable breath test (PBT) in the field. Do not do it!
However, it is important that you understand the difference between a portable breath test and the real breath test that you have to take or you will lose your license if you are deemed to have been properly placed under arrest for DUI / DWI.
The difference between a portable breath test in the field and the actual evidentiary breath test which will be requested of you after a Missouri DWI arrest, is that the portable breath test is prearrest, and can be refused without getting your driver's license suspended. If you are asked to take the real chemical breath test after you have been arrested for DWI (the Intoxilyzer 5000 or the BAC Datamaster) you will lose your driver's license for at least one year if you refuse. Be educated, and be sure you understand the difference so you don't inadvertantly do something you don't mean to do.
The safest bet if you are asked to take any type of breath test, a portable breath test or an actual breath test, is to ask to speak with your attorney before agreeing or refusing. Each case is different. You may put the after-hours cell phone number of our office into your cell phone so it is readily available if you are in this situation.
You should also be aware of a common misconception among the public—that you cannot be arrested for DUI / DWI if you give a chemical test with a result below 0.08% BAC (blood alcohol content).
Many people wrongly assume that if they have a reasonable amount of alcohol to drink, and then drive home and are stopped under suspicion of DUI / DWI, they can just “blow,” because they know they are not “drunk,” and if the breath test is below 0.08%, they will not be arrested. Maybe, maybe not.
You see, as discussed elsewhere in this website, you can be arrested for alcohol-related traffic offenses on several grounds. The 0.08% BAC threshold is the “per se” statute in Missouri, and is just one way you can be found to have been intoxicated while you were driving.
The “per se” law basically stands for the proposition that if you give a chemical test above 0.08%, you are presumed to be intoxicated. This law was passed to make it easier to convict you of drunk driving, as these convictions were often difficult to obtain prior to the advent of chemical testing.
What many people are not aware of is the fact that you can be convicted of DUI / DWI without a chemical test being given (like where you refuse to take the chemical test), but also in cases where you give a chemical test and the result is BELOW 0.08% BAC, but the “officer observations” indicate you are drunk anyway.
In some cases, you will be arrested and the state will try to convict you for BLOWING ABOVE 0.05%, based on the chemical test result, combined with officer observations of your alleged intoxication. This is under the old Missouri DWI statute that has been in effect since the advent of the car, and prior to the invention of chemical tests.
The Kansas City, Missouri Police Department, in particular, has decided in it's infinite wisdom to arrest everyone at sobriety checkpoints who blow above 0.05%!
Isn't it a coincidence how in all Kansas City sobriety checkpoint cases where someone blows above a 0.05% after 10pm, (despite the scientific literature on the subject indicating that people are not impaired at 0.05%-0.08%) that the police report always lists the exact same officer observations of intoxication: bloodshot eyes; slurred speech; flushed red face; odor of alcohol; unsure reactions; staggered gate; unsteady balance; etc. etc.
Ridiculous? Of course, but then no one can say that the police are not making DUI / DWI arrests despite the fact that many of these cases are without merit and often can be beaten. It is political, and they are now arresting everyone above 0.05% because they were getting beaten up in the press for not making enough DUI / DWI arrests. So instead of making more valid arrests, they are arresting everyone they can to get their numbers up.
ALL of the DUI / DWI arrests our office sees from sobriety checkpoints / roadblocks with a breath test result above 0.05% BAC have a police report describing officer observations of EVERYONE above 0.05% BAC the same way: totally drunk, staggering, failing standardized field sobriety tests, etc.
It is also interesting that in almost every one of these cases we then obtain a videotape showing the opposite of what was described in the police report for the person at or slightly above 0.05% BAC : good balance, polite behavior, passing with flying colors the field sobriety tests if they had been scored correctly, etc.
Citizens of Missouri are being arrested in droves for being under the legal limit of 0.08%, with no bad driving observed, and where they have often passed the field sobriety tests, because the officer smelled alcohol on their breath when they went through a sobriety checkpoint / roadblock.
If you have been arrested at a sobriety checkpoint / roadblock in the State of Missouri, please do not hesitate to contact our office for a free consultation. We have a proven track record with these cases, and have been particularly successful at having these cases dismissed where the subject has blown below 0.08%, and were arrested anyway, despite a videotape indicating sobriety.
Don't be wrongly punished for having a couple of drinks and driving home. Remember: it is not illegal to drink responsibly and drive a car! Driving home with the smell of alcohol on your breath should not be treated as a crime where there are no observed traffic violations, and you are under the legal limit, even in Missouri.