Are DUI checkpoints constitutional? An update on recent checkpoint caselaw.

We frequently represent clients who have been arrested and charged with DUI after being stopped at a DUI checkpoint and allegedly failing field sobriety tests. The first question we typically receive is whether or not these police DUI checkpoints are constitutional. The answer depends on the procedures that the police followed in deciding where to place the checkpoint and how they operated the checkpoint.   

ARE DUI CHECKPOINTS LEGAL?

In general, the Pennsylvania and United States Constitutions do not prohibit the use of DUI checkpoints or even seatbelt and other motor vehicle checkpoints. However, because checkpoints constitute a search and seizure for purposes of the Fourth Amendment, the appellate courts have established strict guidelines which the police must follow in order to legally conduct a checkpoint. A recent case from the Superior Court, Commonwealth v. Menichino, slightly loosens the requirements on the type of data police have to gather prior to conducting a checkpoint. However, it establishes that there are still strict rules which the police must follow. If the Commonwealth cannot show that the police followed those rules, then the results of the checkpoint such as field sobriety tests, the observations of the officer, and the results of chemical testing could be suppressed and excluded from evidence at trial.

LIMITS ON DUI CHECKPOINTS IN PENNSYLVANIA

In Pennsylvania, the general rules that the police must follow when setting up and conducting a DUI checkpoint are called the Tarbert-Blouse guidelines. The guidelines require the police to substantially comply with the following five criteria:

(1) vehicle stops must be brief and must not entail a physical search;

(2) there must be sufficient warning of the existence of the checkpoint;

(3) the decision to conduct a checkpoint, as well as the decisions as to time and place for the checkpoint, must be subject to prior administrative approval;

(4) the choice of time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and

(5) the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.

If the police do not “substantially comply” with the Tarbert-Blouse guidelines, then the results of the stop, such as blood or breath testing results, could be subject to a successful motion to suppress, and the court could dismiss the case.

Many of requirements are relatively simple for the police to follow and typically do not lead to litigation. Most Pennsylvania police departments generally seem to understand that that the stops must be brief and they cannot search the car, that there must be warning of the existence of the checkpoint, and that the checkpoint and number of cars which will be stopped must be planned in advance. That is not to say that they always follow those rules, but those issues are less likely to arise in a DUI checkpoint case. The fourth requirement, however, is often the subject of litigation and motions to suppress because the police, particularly in Philadelphia, simply do not obtain the necessary data to justify the location of the DUI checkpoint. Of course, if the police do not follow the other four requirements, then that could be the basis for a motion to suppress, as well.

In at least two appellate cases, the Pennsylvania Superior Court has ruled in favor of the defendant and excluded the results of the DUI checkpoint because the police departments in question failed to properly justify the locations of the checkpoints.

MOTIONS TO SUPPRESS IN DUI CHECKPOINT CASES

First, in Commonwealth v. Blee, 695 A.2d 806 (Pa. Super. Ct. 1997), the Superior Court upheld the granting of the motion to suppress because the police testified at the hearing that they simply established the checkpoint on one of the busier roads in their jurisdiction. At the motion to suppress hearing, the police officer who planned the checkpoint was unable to provide any specific data of any kind with respect to the number of DUI arrests or alcohol-related accidents at the actual location of the checkpoint. Therefore, the Superior Court held that when the Commonwealth fails to introduce evidence concerning the number of DUI-related arrests and/or accidents for a checkpoint’s location, then a checkpoint will be deemed unconstitutional.  

Second, in Commonwealth v. Garibay, 106 A.3d 136 (Pa. Super. Ct. 2014), the Pittsburgh police conducted a seatbelt checkpoint on a relatively busy road in Pittsburgh. They advertised the checkpoint on billboards and in radio advertisements, and they also erected signs seventy-five yards prior to the checkpoint which alerted motorists to the checkpoint. The defendant in that case attempted to go through the checkpoint, and after police observed obvious problems with his car, they eventually arrested him and charged him with DUI.

Mr. Garibay moved to suppress the results of the chemical testing at trial, arguing at the seatbelt checkpoint was unconstitutional. The Garibay court held that the standards for a DUI checkpoint and seatbelt checkpoint are the same. For both types of checkpoints, the Commonwealth must present sufficient evidence and data to show that the checkpoint complies with the Tarbert-Blouse guidelines, and the guidelines require more than general testimony that the police picked a busy road.

In Garibay, the officer who designed the checkpoint testified only that he had picked a busy roadway. The officer provided generalized testimony lacking in any “specifics whatsoever regarding accidents, arrests, citations, violations, etc., regarding seatbelt usage or non-usage at the specific checkpoint location, nor did it present any insight into the selection of the checkpoint time and duration.” Therefore, the Superior Court reversed the trial court’s order denying the motion to suppress and excluded the results of the checkpoint.

In both Blee and Garibay, the courts referred to a requirement that the Commonwealth present data relating to the specific checkpoint location. In the most recent case addressing this issue, however, the Superior Court appears to have loosened the requirement.

In Commonwealth v. Menchino, the Superior Court loosened the requirement by holding that the specific checkpoint location should not be read so narrowly as to require the trial court to consider only DUI arrests at the exact unit block of the DUI checkpoint. Instead, where the Commonwealth presents significant data about the number of DUI arrests in the jurisdiction and the roadway at large, the Commonwealth may substantially comply with the Tarbert-Blouse guidelines. The police may consider DUI arrests and alcohol-related accidents in the general area, and the checkpoint is not limited to a specific block when deciding where to place a checkpoint. Therefore, the Superior Court reversed the decision of the trial court granting the motion to suppress.

Although Menchino loosens the standard at least a little bit, the data presented by the police in Menchino was substantial. The officer testified both to the exact number of arrests on a certain road as well as the number of arrests in the larger jurisdiction. Ultimately, the Commonwealth was able to show that 50% of all DUI arrests in that jurisdiction occurred somewhere along the road on which the police established the checkpoint. Therefore, the Superior Court recognized that police have at least some flexibility in deciding where to put the checkpoint in terms of exact placement along the road. For this reason, Menchino likely does not dramatically loosen the requirements on the police in terms of the data needed to plan a DUI checkpoint. 

Given the strict requirements of the Tarbert-Blouse guidelines, our Philadelphia criminal defense lawyers are often able to successfully litigate motions to suppress based on challenges to the placement of the checkpoint and the procedures followed while operating the checkpoint. In many Philadelphia DUI checkpoint cases, the level of data presented simply does not comply with the requirements of the state and federal constitutions. Therefore, it is often possible to challenge Philadelphia DUI checkpoints using the Superior Court’s decisions in Blee and Garibay. Likewise, if police in the suburban counties do not follow the rules, then it may be possible to successfully challenge those checkpoints based on a lack of data, as well.

YOU HAVE RIGHTS - WE CAN HELP YOU PROTECT THEM

Philadelphia DUI Checkpoint Lawyer - Zak T. Goldstein, Esq.

The Pennsylvania courts have found that you do not surrender all of your constitutional rights when you decide to operate a vehicle on a public street. Instead, the Tarbert-Blouse guidelines provide a number of requirements with which the police must substantially comply. When the police do not follow the law and violate your constitutional rights by conducting an illegal stop or an illegal checkpoint, they may not use the results of their illegal actions in a prosecution against you. The bottom line is that our Philadelphia criminal defense lawyers have tried and won countless DUI cases. In many cases, there are pre-trial motions to be litigated and potential defenses at trial. You should not assume that just because you have been arrested, you have to plead guilty. Instead, you should call one of our DUI lawyers for a free 15-minute DUI defense strategy session. Each case is different. Call 267-225-2545 to speak with one of our Philadelphia DUI defense lawyers. 

PA Superior Court Finds DUI Mandatory Minimum for Refusing Blood Draw Unconstitutional

I have written a lot recently about the problems with Pennsylvania's unconstitutional DUI statute following a recent ruling of the United States Supreme Court. In Birchfield v. North Dakota, the US Supreme Court held that states may not impose criminal penalties on motorists who refuse to submit to a warrantless blood draw regardless of whether or not the state has an "implied consent" policy on the books. Now, the fallout from Birchfield continues unabated. The Pennsylvania Superior Court has ruled that Pennsylvania's DUI statute, which punishes motorists for refusing blood testing by imposing an increased mandatory minimum sentence, is unconstitutional.  

As written, Pennsylvania law provides an increased mandatory minimum penalty for motorists who are convicted of DUI and who also refused chemical testing. In a case where the defendant refused testing, the prosecution may still prove that the defendant was driving under the influence of alcohol through testimony regarding the observations of the arresting officer. For example, if an officer were to testify that he or she stopped the defendant for swerving and the defendant smelled of alcohol, fell asleep in the vehicle while attempting to retrieve paperwork, and was unable to stand, then a court could potentially convict the defendant of DUI based on the testimony of the officer. This is true even in the absence of blood or breath testing.

In cases where the Commonwealth never requested chemical testing or where the results have been suppressed or excluded, a conviction based solely on the observations of the officer would be punished under 75 Pa.C.S. 3802(a)(1) with a mandatory minimum of probation, no driver's license suspension, and some fines and classes for a first offense. However, in cases where the Commonwealth can also prove that the defendant refused testing after the officer clearly requested it and read certain warnings to the defendant, the penalty would increase dramatically. In a refusal case, the penalty for a first-offense DUI conviction jumps from probation and no driver's license suspension to 72 hours in jail, a one year driver's license suspension, and increased fines and costs as well as other conditions. The difference is even more dramatic for a third offense as a third offense refusal conviction results in a one year mandatory minimum sentence.

Pennsylvania courts have now begun to recognize that Pennsylvania's implied consent scheme of punishing the refusal to submit to a blood draw even in cases where the police have not obtained a warrant is unconstitutional under Birchfield. Therefore, in Commonwealth v. Kohli, the Superior Court upheld the defendant's conviction on appeal but sua sponte reversed his sentence and found that a court may not impose the increased mandatory minimum sentence which would have applied to a blood draw refusal.  

Mr. Kohli was found guilty by a jury of DUI in 2013 and sentenced to 18 - 36 months in prison followed by two years probation. Because Kohli had at least two prior DUIs in the preceding ten years and had refused blood testing, a one year mandatory minimum sentence applied. Kohli appealed his conviction on the grounds that the evidence was insufficient that he was DUI and that the Court erred in imposing a mandatory minimum sentence because the question of whether the mandatory minimum applied should have been submitted to the jury. The Superior Court agreed with the trial court that the jury had sufficient evidence to convict Kohli, but instead of addressing Kohli's sentencing argument, the Superior Court, on its own accord, found the mandatory minimum to be unconstitutional because it penalizes the refusal to submit to a blood draw. 

Kohli is notable for three reasons. First, it illustrates the enormous fallout of the United States Supreme Court's Birchfield decision. It is now at least the second case in which a Pennsylvania appellate court has found major sections of Pennsylvania's DUI statute unconstitutional. In an earlier case, the Superior Court found that the warnings which police officers throughout Pennsylvania were required to read to motorists when requesting a blood or breath test were unconstitutionally coercive in breath test cases. The warnings informed the motorist that the motorist would be subject to criminal penalties for a refusal, and Birchfield held that there can be no criminal penalties for refusing to consent to blood testing. Therefore, the results of the blood test should be suppressed because the police had obtained consent to testing in an unconstitutionally coercive manner. Now, the court has ruled that the statute is simply unconstitutional.

Second, these rulings have made a mess of Pennsylvania DUI law. The courts may now punish the refusal to submit to breath testing with significantly increased mandatory minimums, but they may not do so for blood test refusals. This results in drunk driving potentially being punished much more severely than driving under the influence of drugs or narcotics. Further, it is now unclear what warnings the police are actually required to give a motorist prior to requesting a blood or breath test. Although the warnings are probably okay for a breath test, they are clearly not okay for a blood test. But the warnings were required by previous decisions of Pennsylvania appellate courts, and therefore, it may not be permissible for the police to modify the warnings on their own. 

Third, Kohli establishes that the issue may be raised by defendants whose convictions are still on direct appeal even if no attempt was made to preserve the issue in the lower court. The Kohli court noted that "sentencing issues which implicate a court's statutory authority to impose a sentence implicate the legality of sentence" and "it is well-settled that legality of sentence questions may be raised sue sponte by [the appellate court]" Therefore, if the defendant's case is still on direct appeal, the defendant may challenge the mandatory minimum even if the defendant never raised such a challenge in the trial court or previously during the appeal. 

I will once again close with the best advice I can give. If you are facing criminal charges, you need a criminal defense lawyer. DUI charges are not what they used to be. They are now incredibly serious. If you are facing DUI charges, you need a criminal lawyer who knows the law, the defenses, the court system which will handle your case, and a lawyer who regularly practices criminal defense.

Our criminal defense and DUI lawyers can properly evaluate your case and fight to get you the best possible result. DUI in particular is an area of law where lawyers who do not typically handle criminal cases often think they can handle the case because many first-time offenders are eligible for the ARD program. But the reality is that many people do not get ARD, and occasionally, some people have strong enough defenses that they should not accept ARD. Even ARD, which results in expungement, can have professional licensing consequences. The consequences of a DUI conviction are enormous. They range from significant jail time to the loss of driving privileges as well as problems with employment and professional licenses. If you are facing DUI charges, call 267-225-2545 now for a free 15-minute DUI defense strategy session.  

PA DUI Update - Much of Pennsylvania DUI Law Found Unconstitutional By Superior Court

Changes in Pennsylvania DUI Law

Back in August, I wrote about a potential dramatic change in Driving Under the Influence law brought about by the United States Supreme Court’s decision in Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that it is unconstitutional to criminally penalize a motorist for refusing to submit to a DUI blood test when the police have not obtained a search warrant for the motorist's blood. As many criminal defense lawyers predicted at the time, this holding would lead to challenges to Pennsylvania’s DUI statute.

Constitutional Problems with PA's DUI Statute

In the first Pennsylvania appellate decision since Birchfield, the Pennsylvania Superior Court has ruled that the portion of the statute providing increased penalties for refusal is unconstitutional and that the standard police O’Connell warnings which are given to every motorist prior to a blood draw are unconstitutionally coercive. Therefore, under Commonwealth v. Evans, any blood results obtained after a motorist has been read the O’Connell warnings must be suppressed, and a defendant may not face increased criminal penalties for refusing a blood test.

The first problem with the DUI statute arises from the fact that it provides enhanced criminal penalties for a motorist who refuses the blood draw and is later found guilty of DUI. A second problem stems from the fact that Pennsylvania law requires police officers to provide motorists with O’Connell warnings prior to requesting a blood draw. The O’Connell warnings include a warning that failure to consent to the blood test will result in enhanced criminal penalties should the motorist subsequently be charged with and convicted of Driving Under the Influence. Now that a state may not impose additional penalties for refusal, the O’Connell warnings are not accurate.

In Evans, the defendant was arrested for DUI (sometimes referred to as "DWI") and asked by the arresting officer to submit to a blood test. When the officer asked him to submit to the test, the officer read the standard warnings. Those warnings included the statement that a refusal would lead to increased criminal penalties should the defendant subsequently be convicted of DUI. After hearing the warnings, the defendant agreed to the blood test, and the results ultimately put him in the highest tier for a DUI. This triggered a one year mandatory minimum jail sentence, and the defendant was sentenced to 1-6 years of incarceration in a state prison. 

Following the Birchfield decision, Evans’ attorney moved to suppress the blood results and argued that although Evans consented to the blood draw, the police had obtained his consent through illegal coercion by reading him the now-inaccurate O'Connell warnings. The trial court disagreed and denied the motion to suppress, but the Superior Court has now reversed the decision of the trial court. The Superior Court recognized that subject to certain exceptions, police must obtain a warrant prior to conducting a search, and drawing blood from a DUI suspect counts as a search. One of the exceptions to the warrant requirement is where the defendant voluntarily consents. Therefore, the case turned on whether or not the refusal statute could survive the Birchfield decision and if not, whether the O’Connell warnings are unconstitutionally coercive due to their inaccuracy.

States May Not Impose Criminal Penalties For Refusing A Blood Test Unless Police Have A Warrant

First, the court noted that under Birchfield, Pennsylvania’s implied consent system in which the refusal to submit to testing may result in increased criminal penalties is unconstitutional. Although refusal itself is not a crime because the defendant must be convicted of DUI in order for the increased penalties to apply, the court noted that the statute does clearly impose criminal penalties on the refusal to submit to testing. The statute makes a conviction following the refusal of testing a Tier III offense instead of a Tier I offense. A Tier III offense always carries a mandatory minimum sentence of incarceration and a driver’s license suspension, whereas a first Tier I offense requires only six months of probation and no driver’s license suspension. Therefore, the court found that the statute is unconstitutional due to Birchfield's holding that a state may not criminalize the refusal to submit to testing.

Second, once the court recognized that the statute is now unconstitutional, it became clear that the police officer’s advisory to the defendant was partially inaccurate. The officer told him that he would face increased criminal penalties for a refusal, as officers having been doing throughout Pennsylvania for years, but that increased penalty would actually be unconstitutional under Birchfield. Accordingly, the court held that the warnings were unconstitutionally coercive and that the trial court should have suppressed the results of the blood test.

New Defenses to DUI Charges

The holding is critically important for many defendants who have been arrested for DUI and either refused the blood test or had their blood drawn without a warrant. It is also something to consider when deciding whether to submit to a blood test. Although the failure to submit to a blood test will still result in an automatic driver's license suspension and inferences which may be used against the defendant at trial, it cannot result in increased criminal penalties. 

We Can Help With DUI Charges In Pennsylvania and New Jersey

Philadelphia DUI Lawyers

If you have been arrested for DUI or are even just curious about what to do when the police ask for a blood test, you should consult with an experienced DUI Defense Attorney. There are often defenses available which only an experienced criminal lawyer and DUI attorney will recognize. Although police departments have begun to change the warnings that they will be reading going forward, many defendants have already been read incorrect and unconstitutional warnings. If you have been charged with Driving Under the Influence and the police conducted a blood draw or asked you to submit to a blood draw and you refused, you need an experienced criminal lawyer to evaluate your case, recognize the potential defenses, and make the right legal arguments on your behalf. Call 267-225-2545 today for a free, honest consultation. 

Birchfield v. North Dakota - States May Not Punish DUI Blood Test Refusals

DUI Defense Update - Birchfield v. North Dakota

DUI Defense Attorney Zak Goldstein

The United States Supreme Court recently issued a critical opinion which has already had a dramatic effect on Driving Under the Influence ("DUI/DWI") litigation in Pennsylvania and many other states. In Birchfield v. North Dakota, the Supreme Court held that it is unconstitutional to criminally penalize a motorist for refusing to submit to a DUI blood test when the police have not obtained a search warrant for the motorist's blood. This holding is a major development in Pennsylvania because the DUI statute, 75 Pa.C.S. 3802, provided enhanced criminal penalties for a motorist who refused the blood draw and was later found guilty of DUI. Now, unless the police obtain a warrant, a motorist cannot be punished with additional jail time or other additional criminal penalties for refusing the blood draw. The prosecutor may be able to comment on the refusal at trial, but the motorist cannot receive additional jail time or a higher gradation on a conviction. 

New Defenses in Drug DUI Cases and Blood Test DUI Cases

The holding is also critically important for many defendants who have already been arrested for DUI and either refused the blood test or had their blood drawn without a warrant. Birchfield is particularly important because the Court also recognized that where the arresting officers improperly inform a defendant that the failure to submit to a blood draw will result in criminal penalties, the trial court may be required to exclude the results of the blood test as the product of unconstitutional coercion. 

The Impact on DUI Charges in Philadelphia

This holding is particularly relevant in Philadelphia and much of Pennsylvania. In Philadelphia, DUI blood draws are supervised by the Accident Investigation Division of the Philadelphia Police Department. Prior to each blood draw, the AID Division would read what are known as the O'Connell warnings to the defendant. The O'Connell warnings historically included a statement to the defendant that refusal to submit to a blood test, even where the police had not obtained a warrant, would result in increased criminal penalties should the defendant be convicted of DUI at trial. Likewise, the State Police read a very similar form when they supervised DUI-related blood testing. The warnings may now be constitutionally defective and could require a court to exclude the results of the blood draw obtained pursuant to these coercive warnings.  

Contact a Philadelphia DUI Defense Attorney Today

Philadelphia DUI Lawyers

If you have been arrested for DUI, it is absolutely critical that you consult with experienced defense counsel. As I have explained in previous posts, there are often defenses available which only an experienced criminal lawyer will recognize. Prosecutors are handling these cases differently in different jurisdictions, and many state trial courts have not yet ruled on how Birchfield changes the rules in Pennsylvania. If you have been charged with DUI and the Police conducted a blood draw or asked you to submit to a blood draw, you need an experienced criminal lawyer to evaluate your case, recognize the potential defenses, and make the right legal arguments on your behalf. Call 267-225-2545 today for a free, honest consultation.