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The Legality of DWI Checkpoints: What You Need to Know … and What to Do If You are Stopped

Super Bowl Sunday has become an unofficial American holiday. This year’s Super Bowl between the Pittsburgh Steelers and the Green Bay Packers was viewed by more than 111 million people in the United States making it the most watched television program in history. Super Bowl Sunday also happens to be one of the most dangerous days to be driving in recent years, based largely on the drivers who have consumed alcohol while viewing the game and then take to the roads. According to the National Highway Transportation Administration, 906 people have died in alcohol-related crashes on Super Bowl Sunday between 2003 and 2009. As a result, police departments throughout the country, especially here in New York, have attempted to crack down on drunk driving on Super Bowl Sunday by adding extra DWI patrols and, more importantly, random DWI checkpoints in high traffic areas. This year the Governor’s Traffic Safety Committee ordered extra patrols and checkpoints throughout NYS on Super Bowl Sunday.

The legality of DWI checkpoints is a very tricky area in the criminal law field. A DWI checkpoint is a law enforcement tactic in which the local police department selects a specified area in a community, usually one of high traffic and tight quarters, and stops all vehicles passing through to screen the drivers to determine if they are impaired or intoxicated. Clients often ask how they can be stopped and possibly charged with DWI if they never did anything wrong to be pulled over or stopped in the first place. And that concern is a very legitimate one. However, New York State’s highest court (The Court of Appeals) has ruled that these checkpoints are Constitutional, although very strict guidelines must be implemented and followed for them to be deemed legally sufficient.

The leading New York case on this topic is People v. Scott, which was decided in 1984. In Scott, the Court held that DWI checkpoints must be established pursuant to a written directive/order of the County Sheriff for the purpose of detecting and deterring driving while intoxicated offenses. The Court further stated that the police are prohibited from administrating sobriety tests unless they observe listed criteria indicative of intoxication which gives substantial cause to believe that the operator is intoxicated. In issuing its ruling, the Scott court outlined three criteria that must be followed for the checkpoint to be held Constitutional. First, the checkpoint may not intrude to an impermissible degree upon the privacy of motorists approaching the checkpoint. Second, it must be maintained in accordance with a uniform procedure which affords little discretion to operating personnel. Lastly, it must utilize adequate precautions as to safety, lighting, and fair warning of the existence of a checkpoint.

If you find yourself stopped at a DWI checkpoint there are a number of things to keep in mind. If you attempt to avoid a DWI checkpoint by turning around or taking a side street, you will automatically be stopped and be assured of a more vigorous police investigation. Additionally, you still have rights that you are entitled to during the stop, such as a right to be free from an unreasonable search by the police. Meaning, you do not have to consent to the search of your motor vehicle under any circumstances even if the police believe you to have consumed alcohol. Also, although you must provide your license, registration and insurance card, if you feel that the questioning is becoming accusatory in any way you can exercise your right not to answer those questions without consulting with your attorney first. Lastly, but probably most importantly, although every New York motorist is deemed to have given consent to take a breath test by operating a vehicle within the state, you can nevertheless choose to refuse any breath test being offered to you.

I want to touch on this last point in more detail. Most people who are arrested for DWI cooperate with the police investigation and consent to a breath test to determine the level of alcohol in their blood, if any. However, before such a test is administered the police offer the driver the opportunity to consent to the test or refuse the test. Many people believe that they have a legal right to refuse the breath test, but that is inaccurate. Driving in the state of New York and in the United States for that matter is a privilege and not a right. Therefore, what most people do not realize is that when you apply for and are granted a driver’s license, by accepting that license you give the State your implied consent to a breath test when suspected of driving while intoxicated. So what does that mean? It means that if a person under suspicion of driving while intoxicated is requested to give a breath or blood sample and they refuse, their driving privilege will automatically be suspended for one year regardless of what happens with any possible criminal case. Not to mention the $750 dollar penalty you have to pay the NYS DMV just to get your driving privilege back after you serve that one year suspension. So needless to say, the “choice” to refuse or consent to a breath or blood test should be a decision made with a full knowledge of the consequences of that decision. Any lawyer who advises everyone to refuse a breath test regardless of the circumstances is giving advice that may be very harmful in many cases.

Anyone who encounters a DWI Checkpoint and is subsequently charged with DWI must consult with experienced attorneys who handle these cases for a living. The attorneys at CMG handle hundreds of DWI cases a year and have extensive expertise in this particular area of criminal law. Should you or a loved one need to speak about such an arrest, our attorneys are available 24 hours a day, 7 days a week.

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