THOMAS W. KELTY, Chief Counsel,
Illinois Municipal League

"PULL IT OVER TO THE CURB"

Over the last few years. Courts and Legislatures around the United States have adopted measures to get drunk drivers off of the road. Numerous articles, publications, judicial opinions and pronouncements of legislatures and elected officials decry the threat to the general citizenry that exists from the drunken driver. The State of Illinois has toughened its driving under the influence laws, provided stiff penalties for refusal to take a breathalyzer test and has increased its enforcement activities at the State and local level in an effort to get all drunk drivers off of the road. The United States Supreme Court has, in a June 14, 1990 opinion, approved the use of another weapon in the arsenal of enforcement techniques to get the drunk driver off of the road.

MICHIGAN DEPARTMENT OF STATE POLICE VS. SITZ
____ U.S. ____, ____, ____,
L.Ed. 2d, ____ (____), (1990)

In 1986, the Michigan Department of State Police established a roadside "sobriety checkpoint pilot program." This program was designed to set up a roadway checkpoint through which all drivers along a particular roadway would pass. As each driver proceeded through the checkpoint, a brief stop of the driver by a State Police Officer would occur in which the officer would attempt to determine through visual inspection if the operator of the vehicle was under the influence of alcohol or drugs. In addition, visual observations were made for any other violations or contraband that was in plain view of the officer at the time of the stop. Generally, the stops required the privacy of the individual to be intruded by the officer for approximately 25 seconds. In the event the officer had suspicion to believe that the driver was under the influence of alcohol or some other violation had occurred, then the driver was directed to a "safe area" where further investigation of a possible violation occurred. In that area, the driver's license and vehicle registration was checked and the sobriety of the operator was tested through standard field sobriety testing methods. Each checkpoint to be conducted by the Michigan State Police was to be pursuant to published guidelines which governed checkpoint operations, site selection and publicity.

The first implementation of this program occurred in 1986 in Saginaw County, Michigan. That checkpoint operation lasted one hour and fifteen minutes and yielded two arrests for driving under the influence. However, on the day before the checkpoint operation, Rick Sitz, the Respondent in this action, filed suit in Wayne County, Michigan Circuit Court seeking an injunction to block the operation of the sobriety checkpoint asserting that his right to be free from unreasonable search and seizure was violated by operation of the program.

The trial court concurred with the allegations of Sitz and found that a violation of Sitz's Fourth Amendment rights would occur by operation of the checkpoint. The State of Michigan agreed, pending the outcome of this litigation, that no further sobriety checkpoints would be operated. The Michigan Court of Appeals affirmed the holding of the trial court on the same grounds and the Michigan Supreme Court declined to hear the action.

In initially deciding the complaint, the Circuit Court performed a balancing test derived from the United States Supreme Court opinion in Brown vs. Texas (443 U.S. 47). As described by the Michigan Court of Appeals that test requires "balancing the State's interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual's pri-

August 1990 / Illinois Municipal Review / Page 13

vacy caused by the checkpoints." The trial court, in addressing each of the three factors found that the State has a "grave and legitimate" interest in curbing drunken driving; sobriety checkpoint programs are generally "ineffective"; and, that the checkpoints "subjective intrusion" on individual liberties is substantial. According to the trial court, since the checkpoints are ineffective, the State's strong interest in stopping drunken driving is not furthered and therefore cannot justify the subjective intrusion on individual liberties.

The United States Supreme Court accepted the case for review and reversed the judgment of the Michigan Court of Appeals and, in so doing, rejected its analysis of the balancing that occurs between the State's interest and the individual's rights.

Justice William Rehnquist authored the opinion for the Court in which the Court reviews the narrow issue of the general use of sobriety checkpoints. The Court's opinion makes clear that the case in controversy is not about unconscionable treatment by the Michigan State Police of any particular individual. Therefore, the Court's opinion can be read as a broad holding which does not require detailed factual analysis for application by other governmental jurisdictions.

The Court agrees that the Brown vs. Texas method of analysis is a proper standard by which the Michigan program should be judged. In addition, all parties including the State of Michigan agree that a seizure occurs when the motorist is stopped by this method. Therefore, the analysis of the Court centers squarely on the balancing of the interest amongst the parties and, hence, whether the seizures affected by the State are reasonable under the Fourth Amendment. According to Justice Rehnquist, "no one can seriously dispute the magnitude of the drunken driving problem or the State's interest in eradicating it." In support of this proposition, the Court cites other cases in which the Supreme Court has commented upon drunk driving and a constitutional law treatise which states that over 25,000 people are killed per year, one million personal injuries are caused and $5 billion in property damage is caused by drunk drivers annually.

The other side of the scale in the balancing test applied by the Court is the intrusion on individual liberty. According to the Court, that intrusion is slight. But, the Court distinguishes between the "subjective" intrusion and the "objective" intrusion that occurs as the result of such a seizure. It is the objective intrusion that the Court finds to be slight and it asserts that the Michigan courts focused on the wrong party in judging the subjective intrusion. In reviewing the subjective intrusion the Michigan courts looked at the "fear and surprise" that would be generated in a person who had been drinking and was driving when approaching a checkpoint. Justice Rehnquist asserts that the correct measurement of subjective intrusion is not the violator but, rather, the intrusion on the "law abiding citizen" who approaches the checkpoint. It is the opinion of the Court that this subjective intrusion is slight and pales by comparison to the heavy state interest in getting drunk drivers off of the road. Finally, the Court comments upon the Michigan Court's consideration of the effectiveness of the program as a part of the balancing test. Justice Rehnquist rejects this addition to the Fourth Amendment analysis by stating that the local officials, not the Supreme Court, should decide the proper method of enforcement to accomplish the asserted State interest. "The choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number

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of police officers." In concluding. Justice Rehnquist writes "the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the State program."

The program adopted by the State of Michigan is comparable to a program previously employed by the Illinois State Police. Sobriety checkpoints operated by the I.S.P. are operated pursuant to a departmental directive. This directive sets forth clear objectives and procedures that are to be employed in the operation of such a checkpoint. The directive requires adherence to its dictates and removes the discretion of the officers on the scene to modify the operational plan. In this method, the department can ensure that the checkpoint is operated in a constitutionally consistent manner. In addition, the directive focuses on the three principal items considered by the Michigan State Police: site selection, checkpoint operations and publicity. This directive seeks only to enforce three provisions of the Illinois Vehicle Code: unsafe equipment violations, no valid operators license and driving under the influence of liquor or drugs. By limiting the violations sought to be detected by the roadside check, the I.S.P. minimizes the intrusion that occurs on the individual motorist passing through the checkpoint. In addition, the directive asserts three considerations and priorities in the operation of roadside safety checks: enhancement of officer and motorist safety; avoidance of undue inconvenience to the public; and, the deterrent affect created by the roadside safety check.

The detailed procedure employed by the State of Michigan in its case and by the I.S.P. in its departmental directive illustrate the need for any community considering the operation of similar checkpoints to either cooperate with the I.S.P. in I.S.P. operation of such checks or to establish detailed procedures enforced by departmental order prior to the operation of such checks. In that manner, a municipality seeking to operate a similar program can ensure that it minimizes the intrusion on individual liberty, thereby remaining consistent with the United States Constitution; does not become a traffic hazard or a hazard to the safety of the officers; and provides the desired deterrent effect in the community to discourage those persons who have been drinking from driving.

The approval of such operations by the United States Supreme Court as a constitutional exercise of power is a step forward for local and state officials who are seeking to further their efforts to get drunk drivers off of the road. But the opinion also illustrates an equally important point; any activity undertaken by local or state police departments must be carefully scrutinized to ensure that the zeal to enforce the law does not result in a trampling upon the individual liberties. •

News items and photographs of interest indicating new developments and progress in your municipality are always of interest to our readers. You are urged to send such information to the ILLINOIS MUNICIPAL REVIEW for publication. Be sure your information is complete. All photographs should be black and white glossy prints. —Editor

August 1990 / Illinois Municipal Review / Page 15