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. 

Common Defenses to Forgery Charges in Pennsylvania

We have just updated our guide on forgery charges in Pennsylvania. The forgery statute is complicated, and there are a number of potential defenses to these charges. Click here to read more about forgery charges. 

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.  

Oops. The police lost the video. What now?

What Happens When The Police Lose the Evidence? 

Criminal Defense Lawyer Zak Goldstein

Many burglars are not caught at the scene of the crime. Although sometimes the police may interrupt a burglary in progress and catch the burglar inside the property, it is probably more common for the property owner to arrive home or to work and see the obvious signs that the place has been burglarized – items are missing, windows are smashed, and the place is a mess. That person will call the police, and if the police conduct an investigation, they may make an arrest and charge someone with burglary based on some combination of eyewitness testimony from a bystander or neighbor, video surveillance, forensic evidence like DNA or fingerprints, and possession of the proceeds of the crime.

When the police bring burglary charges later based on some of the above evidence, there are several ways that they could end up arresting the wrong person and charging him or her with this serious felony. For example, the eyewitness testimony could turn out to be faulty; although they may seem certain, the witness may not have had such a great view. Or they may be trying to get back at someone who has wronged them. The fingerprint evidence could be misleading; the fingerprints could have been there for some other reason, or the subjective fingerprint analysis of the lab may be incorrect.

Assuming the video is clear enough to really make out a person’s face, then video surveillance seems like a pretty safe bet. If the video shows the defendant committing the burglary clear as day, then it is likely going to be a tough case for us. That's why most people would probably agree that if the police or the owner of the store have a video of the burglary, they should have to preserve the video so that the defendant can see it when deciding whether to plead guilty or take the case to trial and so that the judge or jury can see that it was actually the defendant who committed the burglary.

Unfortunately, the Superior Court disagrees about what happens when evidence is lost. In Commonwealth v. Williams, No. 526 WDA 2016 (Pa. Super. Ct. 2016), the appellate Court ruled that the trial court erred in precluding a police officer from testifying as to what he saw on a surveillance video that was later accidentally destroyed by the store-owner. In Williams, the prosecution charged the defendant with burglarizing a pizza shop. Although no one was present at the time, store video cameras allegedly caught the defendant committing the burglary. When the store owner showed the video to one of the responding police officers, the officer apparently recognized the defendant on the video and obtained a warrant for his arrest. The officer also instructed the store owner to take steps to make a copy of the video for the police.

By the time the preliminary hearing arrived, the video was lost. The store owner testified that he had accidently destroyed all of the video while attempting to make a copy of it. Nonetheless, the officer was permitted to testify that he saw the defendant on the video at the preliminary hearing, and the defendant was held for court. As the case approached trial, the defense filed a motion to suppress the contents of the video and to preclude the officer from describing the missing video at trial. The trial court conducted a hearing. Despite concluding that the destruction of the video was indeed an accident, the trial court issued an order precluding the officer from testifying that it was the defendant on the video of the burglary. The Commonwealth, without any evidence other than the video it had lost, opted to take an appeal to the Superior Court.

Two Standards for the Destruction of Evidence (Spoliation of Evidence in a Criminal Case)

The Superior Court reversed. The Superior Court recognized that under existing case law, there are two different frameworks for analyzing whether a witness may testify about a description of lost, destroyed or missing evidence at trial. When there is some reason to believe that the evidence is exculpatory, meaning it would show the defendant’s innocence, then the Commonwealth simply may not reference the missing evidence. The defendant does not have to show that the prosecution or police acted in bad faith in failing to secure the evidence.

Alternatively, when the evidence is not materially exculpatory but is instead “potentially useful,” the defendant must show that the police actually acted in bad faith in failing to secure or destroying the video. This is an extremely difficult, if not impossible, standard to meet. The police officers will almost always be able to produce some reasonable, harmless reason for why the evidence was accidentally destroyed. The defense will have very little ability to counteract that. Further, the destroyed evidence is often going to end up in this second category of “potentially useful.” It is difficult for the defendant to prove or even allege that the video would have been materially exculpatory because the defense has never seen it!  

Because the Williams defendant alleged only that the video may have been “potentially useful,” the Superior Court reversed the trial court’s order suppressing the officer’s testimony and remanded the case for further proceedings (presumably in which the officer may testify that he saw the defendant, clear as day, commit a burglary). This leaves the defendant with very little ability to challenge the officer’s testimony. After all, how can the defendant accuse the officer of lying or making a mistake when the defense has not seen the video. Unfortunately, while this decision may seem shocking, this case mostly represents a continuation of what the law has traditionally been in Pennsylvania in regards to destruction of evidence.   

Protecting the Record for Appeal 

Barring a quick and successful appeal, there are two key takeaways from this case: the first is that if you are facing criminal charges, you need a criminal lawyer who knows the law well enough to litigate these motions as more than just an appeal to the sense of fairness of the trial judge. I suspect that even the Superior Court judges who decided this opinion would agree that this is not really fair as we think about it in a non-legal sense. But it is the law that certain standards must be met in order to justify an order suppressing evidence. Therefore, you need a criminal lawyer who will work to establish a record that will either show that the video would have in fact been materially exculpatory or that the police showed bad faith in failing to preserve it. I have not seen the record in this case, and the lawyers here certainly may have tried to do that and simply been unable to do so for reasons beyond their control. Nonetheless, it is critical that you hire a lawyer who knows and will research the law, the appropriate standards and burdens of proof, and who is truly invested in your case.

If You Are Under Investigation or Have Been Charged, Do Not Delay 

Second, Williams illustrates the importance of hiring a criminal defense lawyer immediately when you are facing criminal charges. Even if you are innocent and the police have arrested the wrong person, you cannot just sit back and assume that the store will have video surveillance footage that will exonerate you. Many times, the cameras in the store are not real or do not actually work. In other instances, the store owner or police will destroy the footage through negligence, recklessness, or in rare instances, even intentionally. In Philadelphia court, it is common for cases to be dismissed where the Commonwealth or its witnesses lose evidence even by accident. But the Superior Court does not always uphold these rulings on appeal. That is why you need a criminal lawyer who can start finding exculpatory evidence for you instead of one who will just argue that the Commonwealth’s evidence is not enough.   

Goldstein Mehta LLC: Philadelphia Criminal Defense Lawyers for Burglary Charges and Other Serious Felonies 

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges, you need one of our Philadelphia criminal defense lawyers to take your case seriously and conduct a serious investigation. If there is the possibility of finding video from other cameras on the block or that look out from neighboring stores, we have investigators who can get out there immediately and start looking. If there is the possibility of finding witnesses who the police did not have the time to speak with or interest in interviewing, we can get out there and find them. You need a criminal defense lawyer who has the resources to get someone out there to start investigating your case to find the evidence that will show that you didn’t do it. If you are facing criminal charges in Pennsylvania or New Jersey, the Philadelphia criminal defense lawyers of Goldstein Mehta LLC can help. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session.