Sobriety Check Points

The Fourth Amendment to the Constitution of the United States protects individuals from unreasonable searches and seizures, and states that no such searches and seizures may take place except upon probable cause. Article I, Section 14 of the Ohio Constitution contains nearly identical language to the Fourth Amendment. The purpose of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution is to protect us from arbitrary searches upon which the police simply stop us at random without any reasonable suspicion or probable cause.

But today, we have a court system which is bent upon tearing up our Fourth Amendment and Article I, Section 14 rights in the quest to put drunk drivers behind bars. One of the most flagrant violations of the Fourth Amendment and Article I, Section 14 rights which the courts have approved comes in the area of sobriety check points. These are roadblocks which the police erect in certain areas and stop all cars, or every nth (fill in the blank) car at random to check to see if the driver is drunk.

Several Ohio Courts (together with the United States Supreme Court) have ruled that such stops taking place at random, without a warrant, nor probable cause, nor even reasonable suspicion that criminal activity is afoot, are somehow not in violation of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. Let’s take a look at the genius “legal analysis” that these courts have employed:

In the case of Michigan v. Sitz (1990), 496 U.S. 444 a sobriety check point to which all traffic was required to stop, with an average stop of about 25 seconds per car, was found not to violate the Fourth Amendment. Justice Rehnquist, writing for the majority, first correctly stated that such stops are “seizures” as that term is defined by the Fourth Amendment. But it all goes sideways for the learned Justice from there.

The Court held that the important question was not whether or not the stop at a checkpoint was as seizure, but rather whether such seizures are “reasonable under the Fourth Amendment. The Court said that because the seizures were 1) short in duration (averaging 25 seconds); 2) conducted at checkpoints which would not frighten motorists because they are well lit with officers in uniform everywhere; 3) conducted according to written guidelines; and 4) were 1.5% effective in arresting drunk drivers, this made the random checkpoints “reasonable” under the Fourth Amendment.

The problem with the ruling (as pointed out by Justice Stevens in his dissent) is that just because an intrusion into our Fourth Amendment Rights is slight, does not mean that it is permissible. Courts have consistently required (until this case) that there must still be some reasonable suspicion that the drivers stopped have done something wrong.

The Rehnquist majority has held that where the needs of law enforcement conflict with our Fourth Amendment rights, our rights are not “reasonable” and must give way. But here is a news flash for Mr. Rhenquist (though now passed away). The needs of law enforcement and our Fourth Amendment rights are always in conflict. That’s the point of the Fourth Amendment.

The Rehnquist Majority also held that an arrest rate of 1.5% was sufficient to show the effectiveness of and justification for the program. The dissent scoffed at this notion, and rightfully so. Would a 1.5% return on your money make you want to keep investing in a mutual fund? It took 19 police officers 1.5 hours to arrest 2 suspected drunk drivers (no word on whether or not these two were convicted). Had those 19 officers been out on patrol, looking for cars weaving in and out of lanes, how might the numbers have changed?

The Rehnquist Majority also foreclosed certain debates from taking place, as when the learned justice wrote that “No one can seriously dispute the magnitude of the drunken driving problem….” Statistically, Justice Rehnquist quoted the figure of 25,000 drunk driving deaths each year. The Fatality Analysis Reporting System shows crash fatalities in the U.S. to average between 41,000 and 45,000 per year. Are we really to believe that more than half of these fatalities were caused by drunk drivers, who Rehnquist wrote made up only 1 to 1.5% of the drivers on the road at night?

Mark Twain once said that figures don’t lie, but liars figure. Mr. Rehnquist was all too willing to swallow some statistical nonsense at the price of our liberties.

Another issue that was unaddressed was this business about the 25 second average delay. Did that count the amount of time that people approaching the check point had to wait for the cars in front of them to clear it? What was the longest delay and what was the shortest?

In Ohio, the Second District Court of Appeals was having none of this crap. The Court held as follows:

“In essence, the sobriety checkpoint required all travelers on a particular highway at a particular time to furnish identification, as well as a vehicle registration. From time to time, in other countries, travelers have been required to produce their papers for inspection by the police. This has been a popular tool of totalitarian regimes to maintain control over the citizenry. It has yet to flourish on the soil of this country, and we are reluctant to provide it an opportunity to take root, no matter how laudable the purpose for which it is presently espoused. In our view, the sobriety checkpoint in the case before us offends against the right of citizens to be secure from unreasonable searches and seizures, in violation of the Fourth Amendment to the Constitution of the United States.”

The factors which Ohio’s Second District Court of Appeals relied upon in distinguishing the case from the insanity in Sitz were that the checkpoints 1) detained drivers for an average time of two to five minutes, rather than 25 seconds; 2) the officers required production of driver’s licenses and registration papers; 3) certain motorists credentials were computer checked according to the officers’ whim rather than upon a set plan; and 4) the check point searched not just for drunks, but for unlicensed drivers as well.

The case was State of Ohio v. Blackburn, 1994 Ohio App. LEXIS 1171 (March 23, 1994) Clark Co. App. No. 3084.

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