SOBRIETY CHECKPOINTS

The onset of the holidays brings about a large number of get-togethers, parties and celebrations including a great number of parties in which alcohol is served. And, generally, the holiday revelry results in an increase in arrests for driving under the influence of alcohol. Several states, including Illinois, have in past years operated "sobriety checkpoints" to check all drivers on a particular roadway for violations of the state's DUI law.

Undoubtedly, some police departments of member municipalities of the League are considering operating such checkpoints throughout this holiday season. Although, the goal of removing intoxicated drivers from the road and thereby increasing the highway safety of all drivers is commendable, such checkpoints present questions of constitutional law that should not be overlooked or minimized in the police department's zeal to remove intoxicated drivers from the roadways. In fact, the United States Supreme Court is considering a case which deals with sobriety checkpoints and the United States constitutional considerations that may be involved.

The U.S. Supreme Court has accepted for review the case of Michigan Department of State Police v. Sitz, 88-1897 (Sitz) to consider the potential for violations of the Fourth Amendment provisions against unreasonable search and seizure that are presented by the operations of such checkpoints.

In Sitz, the Michigan State Police instituted a program of highway sobriety checkpoints in furtherance of recommendations made by the Michigan Drunk Driving Task Force for combating alcohol related traffic accidents. A committee of that task force developed "sobriety checkpoint guidelines" which provided for:

(1) the identification of appropriate checkpoints by computer, based upon statistics concerning alcohol related accidents; (2) review by the state police of the identified sites to determine whether they comply with safety and convenience criteria; (3) advance announcement of the checkpoint operation, although not of the exact time and place; and, (4) the placement of four sequential reflectorized signs, two hundred fifty to five hundred feet apart, before the checkpoint is reached. Although it was not set forth in the guidelines, the sites selected also afforded the driver the opportunity to make a U-turn prior to reaching the sobriety checkpoint.

During operation of the checkpoint, each car entering the restricted area was stopped. The uniformed police officer approached the car, identified himself and explained the purpose of the checkpoint. If the driver showed no objective evidence of intoxication, the motorist was given informational brochures and permitted to proceed. If any signs of intoxication were observed, the driver was directed to a predetermined "safe area" for further investigation, and may have been asked to take a breathalyzer test.

On May 16, 1986, Sitz and five other individuals filed an action requesting a preliminary injunction prohibiting operation of the checkpoints on the grounds that they violated both the United States and Michigan Constitutions. The Wayne County Circuit Court concluded that the checkpoint procedure was unconstitutional. In a reported opinion, the Michigan Court of Appeals affirmed (170 Mich.App. 433, 429 N.W. 2d 180) and the Michigan Supreme Court refused to hear the case.

Although the state courts acknowledged the impor-

December 1989 / Illinois Municipal Review / Page 7

tant public interest in curbing drunk driving, that the checkpoints had some effectiveness in apprehending drunk drivers, and that objectively their intrusion on individual liberties was minimal, they concluded that there was no long-term deterrence to drunk driving as a result of the checkpoints; other law enforcement methods would be more effective to accomplish the same purpose; and subjectively the checkpoints could generate surprise or fright in some motorists. The Michigan Courts so held notwithstanding the existence of certain precedents of the United States Supreme Court which would indicate that such intrusions on freedom of movement by motorists was constitutional.

Two cases of the United States Supreme Court lend support to a sobriety checkpoint system, although no case of the court has squarely addressed the constitutionality of sobriety checkpoints. In United States v. Martinez-Fuerte, 428 U. S. 543 (1976) the court upheld a fixed borderline checkpoint where vehicles were stopped for questioning, even when there was no reason to believe the particular vehicle contained illegal aliens. The court found the intrusion to be minimal and that the governmental interests in incarcerating illegal aliens outweighed the privacy interest. A second case which is more analagous to sobriety checkpoints is Delaware v, Prouse, 440 U.S. 648 (1979). In Prouse, the court held that police could not conduct random stops of automobiles in the absence of any suspicious activity, but indicated "questioning of all oncoming traffic at roadblock-type stops is one possible alternative" that would be constitutional. Therefore, it is possible that extension of the comment made in Prouse will cause the Court to hold that sobriety checkpoints which stop all motorists are constitutional under the Fourth Amendment.

Absent a ruling that strikes down the operation of sobriety checkpoints or substantially alters the test to be applied to determine the constitutionality of a sobriety checkpoint, the law in Illinois appears to be well settled. The Illinois Supreme Court has addressed the operation of sobriety checkpoints in the case of People v. Bartley, 109 III. 2d 273,486 N.E. 2d 880,93 III. Dec. 347 (1985). In that case, the Illinois Supreme Court considered the constitutional validity of such checkpoint.

In Bartley, the defendant was detained at a similar checkpoint and arrested for driving under the influence of alcohol. The circuit court allowed Hartley's motion to suppress his arrest and all evidence obtained as a result of the arrest on the ground that the arrest was not based upon probable cause as required by the Fourth and Fourteenth Amendments to the United States Constitution. Upon appeal by the State, the ruling was affirmed by the appellate court and subsequently reversed by the Illinois Supreme Court.

In the court's opinion. Justice Simon cites both Prouse and Martinez-Fuerte and states that even though there is no doubt that such a checkpoint is a seizure which is protected by the Fourth Amendment,

"we do not agree that the roadblock is per se violative of the Fourth Amendment because the individuals are stopped without probable cause. . . . Instead, our review of Supreme Court holdings and of cases from other jurisdictions convinces us that the question of whether a roadblock violates the Fourth Amendment is essentially one of reasonableness. The degree of intrusion on the individual's privacy must be balanced against the strength of the public need for the intrusion."

In considering the balancing of the individual's privacy against the public need for the stop at the checkpoint, Justice Simon discussed the factors that were to be considered in analyzing the individual's privacy as objective and subjective aspects.

"The objective and subjective aspects of the intrusion described, respectively, the physical and psychological intrusion[s]' caused by a stop. (Citations omitted) The objective intrusion is measured by such factors as the length of the stop, the nature of the questioning and whether a search is conducted. (Citations omitted) The subjective intrusion relates to the 'generating of concern or ... fright' (Citations omitted) or annoyance (Citations omitted) on the part of motorists."

The court's analysis of the objective and subjective factors pertaining to the intrusion find the factors to be minimal.

"There can be little dispute that the objective, physical intrusion was not substantial. According to the record, motorists were detained for only fifteen to twenty seconds, as long as there was no need for additional questioning. These motorists were able to remain in their cars. They were asked to produce driving credentials, a legitimate request. The ob-

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jective obtrusion was thus no greater than that in (Martinez-Fuerte)."

Justice Simon continued by pointing out that the nature of the objective intrusion was not altered by the officers using flashlights to view the inside of the car in order to protect themselves from the presence of weapons or other contraband within the car which could be displayed or used against them in the course of the vehicle stop.

The more difficult question presented to the court was the subjective nature of the intrusion occasioned by the stop. According to Justice Simon "it is manifest that the fundamental evil to be avoided is the 'roving patrol.'" Citing cases from other jurisdictions, it is clear that a number of courts have commented upon the constitutional difficulty that exists with a "roving patrol" making arrests and seizures without any level of probable cause. However, "the potential for arbitrary enforcement is reduced when the decision to establish a roadblock is made and the site of the roadblock is selected by supervisory level personnel." In the court's reasoning, the circumscription of the officers discretion of whom to stop by placing the officers at a fixed location and stopping all vehicles is sufficient to overcome any subjective interest that the stopped party may have in fearing a "roving patrol." In addition, the court commented upon the existence of clear operational guidelines created by the Illinois State Police prior to establishing the roadblock. In a lengthy discussion by the court of the procedures employed by the Illinois State Police in creating and operating the roadblock it is clear that the Illinois Supreme Court feels the creation of clear operational guidelines and procedures for the officers manning the roadblock is essential to removing or overcoming the subjective aspects of the intrusion that may be present.

Although the public interest involved in removing drunk drivers from the highway is clear, the Supreme Court also discusses that public interest. According to Justice Simon

"there can be no question that drivers under the influence of alcohol pose a substantial threat to the welfare of the citizenry of Illinois. The problem is so serious that as in other jurisdictions, we hold that this interest is compelling and will therefore justify some intrusion on the unfettered movement of traffic in order to reduce all alcohol-related accidents and deter driving under the influence. (Citation omitted) According to a government survey, there were forty-three thousand nine hundred forty-five highway fatalities in the United States during 1982, fifty-eight (58%) per cent of these involved drunk drivers. (Citations omitted) Drunk driving is particularly disturbing because it results in the loss of innocent life."

The Court is absolutely correct. Drunk driving is a problem that the Illinois Legislature, the Secretary of State and police forces throughout the State of Illinois and the United States have continued to agressively pursue. Sobriety checkpoints are but one weapon in the arsenal to get the drunk driver off the road. The sitz case may represent the Supreme Court's opportunity to go on record just as the Illinois Supreme Court did in People v. Bartley authorizing the minimal intrusion into personal privacy for the benefit of the general citizenry in avoiding the loss of innocent life from the actions of the drunk driver.

However, these diligent efforts to accomplish this task should not cloud the judgment of police officers in respecting the constitutional rights and liberties that are accorded to citizens, even the drunk driver, by our constitution. Public officials, police officers and municipal attorneys should consider the instructions of the Illinois Supreme Court in the Bartley case when crafting procedures and policies for the creation, location and operation of sobriety checkpoints. In this way, the efforts of the police officers in apprehending and removing drunk drivers from the road will not be dismissed from the courts for want of proper procedures employed in identifying and apprehending drunk drivers. •

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