The utilization of San Diego DUI or sobriety checkpoints has proliferated in the last few years due in large part to huge amounts of State grant money flowing into local city coffers from San Diego DUI fines and penalty assessments from convictions in Court. While the use of these types of law enforcement tools is generally regarded as comporting with Constitutional proscriptions, their use is not always legal. In the seminal case within the context of sobriety roadblocks, Ingersoll vs. Palmer, the United States Supreme Court handed down guidelines that must be complied with in any particular law enforcement initiated checkpoint. Among the factors are:
- The degree of discretion left to the individual officer in the field
- The specific location chosen for the roadblock
- The time and duration of the roadblock
- The standards set by superior officers
- Was advance notice given to the general public
- Was advance warning given to approaching motorists
- Adherence to recognized safety conditions
- The length of time each motorist is stopped and detained.
When challenging a San Diego DUI checkpoint each of the above factors is considered by the criminal Court Judge hearing the motion. In San Diego County the police use sobriety stops very heavily. It is not uncommon on any given weekend to see local police setting up a drunk driver roadblock in such places as Pacific Beach (PB), the Gaslamp area of Downtown, Poway, post-Chargers game, etc.
As a local attorney who has defended thousands of DUI cases, Mark Deniz can help evaluate whether your individual rights were violated. One very common problem with DUI checkpoints in San Diego DUIs is the stopping and detaining of drivers who simply turn off and avoid going thru a police initiated roadblock. Simply making a turn to avoid the checkpoint is not in itself illegal nor does it form the basis to stop and detain a motorist. If you or someone you know was stopped by the police under this type of scenario, contact Mark Deniz immediately.
He can file the necessary legal motions to throw out the evidence collected following an illegal arrest. To allow the police to stop those persons that lawfully turn away onto a public street prior to entering a San Diego DUI checkpoint is clearly unduly invasive of the individual rights afforded to us by the U.S. and California Constitution. Another common problem associated with San Diego checkpoints is breath testing. The problem is that the tests are administered on a device that is carried in a trailer or mobile breath testing vehicle. In my experience these devices are routinely jolted, bounced, battered and generally abused given the their mobile environment. In many cases the device or machine was never approved to “go mobile” and challenges can sometimes be made on the reliability of the results on these grounds. Furthermore, deficiencies are often seen in the procedures utilized when administering the breath test, for example, Title 17 of the California Code of Regulations mandates that the individual being tested be continuously observed by the officer for a minimum of 15 minutes prior to the test, this is often overlooked in the DUI checkpoint context given the pandemonium that surrounds a sobriety checkpoint arrest.
One thing is true, the intrusion imposed upon the general public by the use of San Diego DUI checkpoints is very great and should be allowed, if at all, in very limited circumstances. If you or someone you love has had the unfortunate circumstance of being caught up in this type of possible illegal conduct by the police we urge you to call San Diego DUI attorney Mark Deniz for a free initial case evaluation at (858) 751-4DUI (4384). Mr. Deniz will meet with you one on one and discuss all legal options available. The Law Offices of Mark Deniz serves all San Diego County. Remember that the time to defend a San Diego DUI case is NOW, if you wait and procrastinate your rights may be lost and you may end up with a San Diego DUI on your record for the next decade.
Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation.
Here is the Palmer case as discussed earlier. You can click here for the full opinion.
Ingersoll v. Palmer (1987) 43 Cal.3d 1321 , 743 P.2d 1299; 241 Cal.Rptr. 42
[S.F. No. 25001. Supreme Court of California. October 29, 1987.]
WILLIAM INGERSOLL et al., Petitioners, v. ALFRED PALMER, as Chief of Police, etc., et al., Respondents
(Opinion by Kaufman, J., with Lucas, C. J., Arguelles and Eagleson, JJ., concurring. Separate dissenting opinion by Broussard, J., with Mosk and Panelli, JJ., concurring.) [43 Cal.3d 1322]
Margaret C. Crosby, Alan L. Schlosser, Edward Chen, Amatai Schwartz, Donna J. Hitchens, Paul L. Hoffman, Mark D. Rosenbaum and Joan W. Howarth for Petitioners.
John K. Van de Kamp, Attorney General, Linda Ludlow, Thomas A. Brady, Martin S. Kaye, Dane R. Gillette and Ronald E. Niver, Deputy Attorneys General, James K. Hahn and Gary R. Netzer, City Attorneys, Frederick N. Merkin, Senior Assistant City Attorney, Lewis N. Unger, Assistant City Attorney, Donna Weisz and Pamela Victorine, Deputy City Attorneys, for Respondents.
Ira Reiner, District Attorney (Los Angeles), Harry B. Sondheim, Maurice H. Oppenheim and Richard Sullivan, Deputy District Attorneys, and Christopher N. Heard as Amici Curiae on behalf of Respondents.
This case presents the question whether sobriety checkpoints are permissible under the federal and state Constitutions. We conclude that within certain limitations a sobriety checkpoint may be operated in a manner consistent with the federal and state Constitutions.
Petitioners are California taxpayers who seek to prohibit the operation of sobriety checkpoints in California. Respondents are chiefs of police of various California cities and the Commissioner of the California Highway Patrol. Petitioners alleged that the respondent law enforcement officers in the various jurisdictions around the state had begun or planned to begin using sobriety checkpoints.
November 1984, in response to a request by the Commissioner of the California Highway Patrol, the Attorney General issued an opinion that roadblocks could constitutionally be used to detect and apprehend drunk drivers if certain safeguards were maintained to minimize the intrusion on motorists. (67 Ops.Cal.Atty.Gen. 471 (1984).)
That same month, the Burlingame Police Department (the Department) set up the first sobriety checkpoint program to operate in California, [43 Cal.3d 1326] following the guidelines set forth in the Attorney General’s opinion. fn. 1 The Burlingame checkpoint was expected to serve as a model for others. We therefore examine the Burlingame checkpoint as illustrative of checkpoint operation procedures.
The Department promulgated a detailed manual to govern the checkpoint operations. The manual covered legal considerations, including the Attorney General’s guidelines; a cost analysis; factors affecting location selection; required personnel and equipment; training and briefing of checkpoint personnel; press relations and publicity; as well as procedures for a follow-up evaluation.
The location for the Burlingame checkpoint was selected by taking into account frequency of drunk driving arrests and accidents, and safety factors such as traffic patterns and street layout. A suitable location was selected on El Camino Real for a checkpoint intercepting northbound traffic. fn. 2 Warning signs (including a sign announcing a sobriety checkpoint) were posted. A cone taper diverted traffic to a single northbound lane. The signs and cone taper were set up according to Caltrans regulations for signing and lane closure.
The checkpoint operation was supervised by a commander under whom two sergeants served. One sergeant supervised a team of traffic control and screening officers, and the second sergeant supervised the field sobriety test teams. Two traffic control officers, with support staff, set up the checkpoint and selected every fifth car for screening. There were one to four screening officers who contacted the motorists. Nonsworn reserve personnel were available for recording information and timing each contact. One to four officers, each with a nonsworn reserve assistant, were on duty to administer the field sobriety tests. There was also a booking officer, an officer to operate an intoxilizer, one for photographing and one alternate. There were also nonsworn personnel available for interpreting, transportation and booking assistance. All the officers chosen for checkpoint duty had a good record of “driving under the influence” (DUI) detection and arrest, all had recent refresher training on recognizing the symptoms of drug and alcohol use, and all had special training in checkpoint procedures, including conducting a simulated checkpoint. All officers on duty at the checkpoint were in full uniform. [43 Cal.3d 1327]
On the night of the checkpoint operation, every fifth car was stopped and directed to a screening officer. The screening officer gave the driver a brief prescribed oral explanation of the checkpoint, and handed him or her an information flyer and a postage paid opinion survey card. fn. 3 During the contact, the screening officer observed the driver for bloodshot eyes, alcohol on the breath, and any other signs of impairment. The officer also shined a flashlight into the vehicle, looking for any open containers or other evidence of alcohol consumption. If no symptoms of impairment were observed, the driver was directed to continue into the northbound traffic lanes. If signs of impairment were observed, the driver was directed to a secondary testing area, where another officer would administer a field sobriety test. A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.
The sobriety checkpoint was given advance publicity, including its date and general location. During the checkpoint operation, from 9:30 p.m. to 2:30 a.m. on November 16-17, 1984, 233 motorists were screened. Only 10 were asked to perform field sobriety tests, and all 10 passed. The checkpoint resulted in no arrests. The average detention periods for those cars stopped was 28 seconds. The average time for those who took the field sobriety tests was 6.13 minutes.
Petitioners filed an original petition for writ of mandate in this court within three days after Burlingame established its first sobriety checkpoint. We transferred the matter to the Court of Appeal. The First District, Division Three, denied petitioners’ request for a stay and issued an alternative writ. The Court of Appeal issued an opinion in which the majority held sobriety checkpoints conducted in accordance with certain guidelines are permissible under the United States and California Constitutions. We granted the taxpayers’ petition for review. fn. 4
1 Petitioners contend the validity of a sobriety checkpoint stop must be determined by the standard set forth in In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957], requiring an individualized suspicion of wrongdoing. If the primary purpose of the stop here were to detect crime [43 Cal.3d 1328] or gather evidence of crime, we would agree with the contention that an individualized suspicion of wrongdoing is required. But, as we shall explain, the primary purpose of the stop here was not to discover evidence of crime or to make arrests of drunk drivers but to promote public safety by deterring intoxicated persons from driving on the public streets and highways. We therefore conclude the propriety of the sobriety checkpoint stops involved here is to be determined not by the standard pertinent to traditional criminal investigative stops, but rather by the standard applicable to investigative detentions and inspections conducted as part of a regulatory scheme in furtherance of an administrative purpose. (See People v. Hyde (1974) 12 Cal.3d 158, 165-166, 173 [115 Cal.Rptr. 358, 524 P.2d 830].)
In upholding airport screening searches, a majority of this court in Hyde applied the administrative search rationale. (12 Cal.3d at p. 165 et seq.) The concurring minority, reaching the same result, preferred a more generic balancing test of reasonableness. (12 Cal.3d at p. 172 et seq.) But, verbal formulations aside, both the majority and the concurring minority in Hyde relied upon essentially the same principles and factors.
The majority noted: “Like all searches subject to the Fourth Amendment, an administrative screening must be measured against the constitutional mandate of reasonableness. In the case of administrative searches, however, ‘there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.’ (Camara v. Municipal Court (1967) supra, 387 U.S. 523, 536-537 [18 L.Ed.2d 930, 940, 87 S.Ct. 1727].) It is ironic, therefore, that by adopting the administrative search doctrine to evaluate the validity of airport screening procedures we must undertake a similar process of balancing to that which would have followed from a reliance upon Terry [v. Ohio (1968) 392 U.S. 1 (20 L.Ed.2d 889, 88 S.Ct. 1868)].” (People v. Hyde, supra, 12 Cal.3d 158, 166, italics added.) The concurring minority reasoned: “It is now settled … that there is no fixed standard of reasonableness that applies to all types of governmental action which is subject to the mandates of the Fourth Amendment. Where, as here, we deal with a type of official conduct that (1) has objectives qualitatively different from those of the conventional search and seizure in the criminal context and (2) cannot feasibly be subjected to regulation through the traditional probable cause standard of justification, we may assess the reasonableness of the particular type of search and seizure by examining and balancing the governmental interest justifying the search and the invasion which the search entails. [Citations.]” (Id., conc. opn. at p. 173. Italics added, fns. and original italics omitted.) We perceive no real inconsistency in the two analyses. They both employed a balancing test for reasonableness. [43 Cal.3d 1329]
1. Reasonableness Standard Under the Fourth Amendment and the California Constitution
2 The touchstone for all issues under the Fourth Amendment and article I, section 13 of the California Constitution is reasonableness. (See Terry v. Ohio, supra, 392 U.S. 1, 19 [20 L.Ed.2d 889, 904]; People v. Hyde, supra, 12 Cal.3d 158, 166, conc. opn. at pp. 172-173.)
The federal test for determining whether a detention or seizure is justified balances the public interest served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. (Brown v. Texas (1979) 443 U.S. 47, 50-51 [61 L.Ed.2d 357, 361-362, 99 S.Ct. 2637].) In addition, federal constitutional principles require a showing of either the officer’s reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” (Brown v. Texas, supra, 443 U.S. at p. 51 [61 L.Ed.2d at p. 362], citing Delaware v. Prouse (1979) 440 U.S. 648, 663 [59 L.Ed.2d 660, 673-674] and United States v. Martinez-Fuerte (1976) 428 U.S. 543, 558-562 [49 L.Ed.2d 1116, 1128-1131].)
California constitutional principles are based on the same considerations, i.e., balancing the governmental interests served against the intrusiveness of the detention. (See People v. Hyde, supra, 12 Cal.3d 158, 166, also conc. opn. at pp. 172-173.) With respect to a seizure for conventional investigation of criminal activity, standards similar to federal standards have been articulated.  “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Kiefer)  3 Cal.3d [807,] at p. 827 [91 Cal.Rptr. 729, 478 P.2d 449]), to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C., supra, 21 Cal.3d 888, 893, fn. omitted.)
But Tony C. itself further pointed out that, for purposes of analysis under the Fourth Amendment and under California constitutional law, “[a] more fruitful approach focuses on the purpose of the intrusion itself. If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are [43 Cal.3d 1330] implicated and he is entitled to the safeguards of the rules set forth above. But similar safeguards are not required if the officer acts for other proper reasons.” (In re Tony C., supra, 21 Cal.3d 888, at p. 895, italics added.) Thus, the court in Tony C., like the United States Supreme Court in Brown, supra, 443 U.S. 47, expressly recognized that individualized suspicion that the contactee is involved in criminal activity is not required in certain types of police-citizen contacts.
We therefore turn to a consideration of the kinds of stops permitted under federal and state law upon less than a reasonable suspicion of personal involvement in criminal wrongdoing.
2. Seizures Not Requiring a Reasonable Suspicion
In People v. Hyde, supra, 12 Cal.3d 158, this court considered the question of airport security screening searches. The majority in an opinion authored by Justice Mosk reasoned that airport searches could not be justified on the basis of Terry v. Ohio, supra, 392 U.S. 1, because Terry carefully limited the permissible search to a patdown necessary to discover weapons, and because, before even the limited patdown search could be conducted, Terry required there to be specific and articulable facts which would lead a reasonable officer to believe the safety of the officer was in danger.
“Nevertheless,” we stated, “we do find support under the Fourth Amendment for the pre-departure screening of prospective passengers in the series of United States Supreme Court decisions relating to administrative searches. (United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593]; Wyman v. James (1971) 400 U.S. 309 [27 L.Ed.2d 408, 91 S.Ct. 381]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774]; See v. City of Seattle (1967) 387 U.S. 541 [18 L.Ed.2d 943, 87 S.Ct. 1737]; Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]; see also United States v. Davis (9th Cir. 1973) 482 F.2d 893; United States v. Schafer (9th Cir. 1972) 461 F.2d 856; Downing v. Kunzig (6th Cir. 1972) 454 F.2d 1230 [15 A.L.R.Fed. 926].) [4a] These cases recognize that ‘searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.’ [Citation.]” (People v. Hyde, supra, 12 Cal.3d 158, 165.)
We pointed out that the purpose of the airport search is not to ferret out contraband or preserve for trial evidence of criminal activity, although the mechanics of the search itself take the form of a search to detect criminal [43 Cal.3d 1331] activity (carrying weapons or explosives aboard an aircraft). Rather, we characterized the search as “a central phase of a comprehensive regulatory program designed to insure that dangerous weapons will not be carried onto an airplane and to deter potential hijackers from attempting to board. [Citations.]” (People v. Hyde, supra, 12 Cal.3d 158, 166.) In the reasonableness analysis under the Fourth Amendment, we found the governmental interest substantial, the intrusion minimal, and the method effective for its purpose (in fact, we found in that case that there was no other effective means of achieving the purpose). We pointed out it was possible for a traveler to avoid the intrusion by either checking his or her hand luggage or foregoing air travel and opting for alternate means of transportation. Finally, we pointed out that airport searches were singularly unsuited to the warrant procedure because of the extremely high volume of air passenger traffic, rendering it impractical if not impossible to issue a warrant for any individual passenger. In addition, the consequences of not having a warrant were found mitigated by (1) neutral application of the screening process to all air passengers, minimizing the discretion of the officials in the field, and (2) limiting the intrusiveness of the search to those actions strictly necessary to disclose the presence of weapons or explosives.
The three concurring justices in Hyde agreed that the airport screening procedures were constitutionally permissible but questioned whether the airport search could properly be labelled an “administrative search” like the building inspection in Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]. In the view of the concurring justices in Hyde, supra, 12 Cal.3d 158, the Fourth Amendment considerations should simply be evaluated pursuant to a balancing test of reasonableness, consisting of an assessment of the governmental interest justifying the search and the intrusiveness entailed in the search. The concurring minority had no difficulty in concluding the governmental interest was compelling and the intrusion resulting from the search was minimal. Thus, the airport searches were concluded to be reasonable. No warrant was required because compliance with the warrant procedure, as the majority had also pointed out, would completely frustrate the legitimate governmental purpose.
5 The sobriety checkpoint presents a compelling parallel to the airport screening search. While the label “administrative search” is open to some criticism in application to either the airport search or the sobriety checkpoint stop, both, although they operate mechanically as a search or inspection for the violation of law, actually serve a primary and overriding regulatory purpose of promoting public safety. Their primary purpose is to prevent and deter conduct injurious to persons and property; they are not conventional criminal searches and seizures. The fact that sobriety checkpoint stops will lead to the detection of some individuals involved in [43 Cal.3d 1332] criminal conduct does not alter the fundamental regulatory character of the screening procedure. (See People v. Hyde, supra, 12 Cal.3d 158, at p. 166; see also New York v. Burger (1987) 482 U.S. ___, ___ [96 L.Ed.2d 601, 622-623, 107 S.Ct. 2636, 2651].)
Our analysis in Hyde is supported by decisions of the United States Supreme Court which have similarly approved regulatory searches in appropriate circumstances in the absence of any particularized suspicion of wrongdoing. Camara v. Municipal Court, supra, 387 U.S. 523 and Marshall v. Barlow’s, Inc. (1978) 436 U.S. 307 [56 L.Ed.2d 305, 98 S.Ct. 1816] are examples.
387 U.S. 523, 535-537 [18 L.Ed.2d 930, 939-940].)
In Marshall v. Barlow’s, Inc., supra, 436 U.S. 307, the court examined the regulatory scheme for administrative inspections of business premises under the Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C.A. § 657(a)). The court held that the OSHA inspections should be subject to a warrant requirement, but significantly did not require an individualized suspicion of violation of OSHA regulations before the warrant could be issued.
Some industries are so heavily regulated that government inspections are held constitutionally permissible, without notice, warrant, or individualized suspicion of wrongdoing. (Donovan v. Dewey (1981) 452 U.S. 594 [69 L.Ed.2d 262, 101 S.Ct. 2534] [mines]; United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593] [firearms]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774] [liquor].) Business owners in the heavily regulated industries are presumed to know [43 Cal.3d 1333] that they are subject to the periodic inspections which are specified by and regularly carried out pursuant to enabling legislation.
Regulatory inspections and stops have also been permitted under decisions of the United States Supreme Court and the California courts in the absence of an individualized suspicion of wrongdoing in border patrol checkpoint inspections (United States v. Martinez-Fuerte, supra, 428 U.S. 543), agricultural inspection checkpoints (People v. Dickinson (1980) 104 Cal.App.3d 505 [163 Cal.Rptr. 575]), vehicle mechanical inspection checkpoints (People v. De La Torre (1967) 257 Cal.App.2d 162 [64 Cal.Rptr. 804]), and license and registration inspection checkpoints (People v. Washburn (1968) 265 Cal.App.2d 665 [71 Cal.Rptr. 577]).
The United States Supreme Court in United States v. Martinez-Fuerte, supra, 428 U.S. 543, held with respect to immigration checkpoints that neither a warrant nor particularized suspicion is required. The court upheld the constitutionality of an immigration stop without particularized suspicion at a checkpoint away from the international border by balancing the governmental interests served against the intrusion on Fourth Amendment interests. The court concluded the need for routine checkpoint stops was great because the flow of illegal aliens cannot be controlled effectively at the border. (Martinez-Fuerte, supra, 428 U.S. 543, at pp. 556-557 [49 L.Ed.2d 1116 at pp. 1127-1128].) By contrast, the checkpoint stop was a “quite limited intrusion” on Fourth Amendment interests. Such a stop entailed only a brief detention, requiring no more than a response to a question or two and possible production of a document. Neither the vehicle nor the occupant was searched. The court also concluded the “subjective intrusion” of a fixed checkpoint stop was minimal, unlike a random or roving stop, because motorists could see that other vehicles were being stopped, could see visible signs of the officers’ authority, and were much less likely to be frightened or annoyed by the intrusion. (Id., at pp. 557-558 [49 L.Ed.2d at p. 1128].)
Moreover, the court found an area warrant was not required, and distinguished Camara, supra, 387 U.S. 523, both on the ground the checkpoint seizure of an automobile involves significantly different expectations of privacy from the traditional expectations of privacy in one’s residence, as to which a warrant traditionally has been required, and on the ground the warrant requirement in Camara served purposes under the Fourth Amendment which were not relevant to a checkpoint operation.
The need to provide an assurance of legitimacy of the search/seizure required a warrant in the building inspection context, but that need was served alternatively in the checkpoint operation by the visible manifestations [43 Cal.3d 1334] of authorization in the form of signs announcing the roadblock, official insignia and vehicles, and fully uniformed personnel. Another purpose of the warrant requirement in Camara was to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure. In the checkpoint operation, however, “The reasonableness of checkpoint stops … turns on factors such as the location and method of operation of the checkpoint, factors that are not susceptible to the distortion of hindsight, and therefore will be open to post-stop review notwithstanding the absence of a warrant. Another purpose for a warrant requirement is to substitute the judgment of the magistrate for that of the searching or seizing officer. [Citation.] But the need for this is reduced when the decision to ‘seize’ is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials.” (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 565-566 [49 L.Ed.2d 1116, 1133].)
The United States Supreme Court also strongly suggested that other checkpoint type stops would be viewed similarly. “Stops for questioning, not dissimilar to those involved here, are used widely at state and local levels to enforce laws regarding drivers’ licenses, safety requirements, weight limits, and similar matters. The fact that the purpose of such laws is said to be administrative is of limited relevance in weighing their intrusiveness on one’s right to travel; and the logic of the defendants’ position, if realistically pursued, might prevent enforcement officials from stopping motorists for questioning on these matters in the absence of reasonable suspicion that a law was being violated. As such laws are not before us, we intimate no view respecting them other than to note that this practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use.” (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 560, fn. 14 [49 L.Ed.2d 1116, 1130].)
The intimation that neutrally operated checkpoint stops are permissible was reiterated in dictum in Delaware v. Prouse, supra, 440 U.S. 648. In that case, a single patrol officer decided to make a roving stop for the purpose of a license or registration “spot check,” but he had no information or reasonable suspicion either that the driver was unlicensed or that the vehicle was improperly registered. The Supreme Court held that such a random roving stop made without a reasonable suspicion of law violation was contrary to the Fourth Amendment. However, the court was careful to state that “This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” (Id., at p. 663, fn. omitted [ 59 L.Ed.2d at pp. 673-674].) This dictum was not mere rhetoric, [43 Cal.3d 1335] however. It is analytically consistent with the court’s holdings in other cases. Standardless and unconstrained discretion on the part of government officers is what the court sought to circumscribe in the regulatory inspection and stop cases. (Almeida-Sanchez v. United States (1973)413 U.S. 266, 270 [37 L.Ed.2d 596, 601, 93 S.Ct. 2535]; Camara v. Municipal Court, supra, 387 U.S. 523, 532-533 [18 L.Ed.2d 930, 937-938].) [4b] Accordingly, such stops and inspections for regulatory purposes may be permitted if undertaken pursuant to predetermined specified neutral criteria (Delaware v. Prouse, supra, 440 U.S. 648, 662 [59 L.Ed.2d 660, 673]) such as the criteria articulated for a checkpoint stop (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 553-554, 556-564 [49 L.Ed.2d 1116, 1126, 1127-1132]).
3. Regulatory Purpose
6 Petitioners argue the sobriety checkpoint stop we examine here is a criminal investigation roadblock, subject not only to Tony C., supra, 21 Cal.3d 888, but barred by the Fourth Amendment under this court’s decision in People v. Gale (1956) 46 Cal.2d 253[294 P.2d 13]. (See also Wirin v. Horrall (1948) 85 Cal.App.2d 497 [193 P.2d 470].) In Gale, sheriff’s officers stopped and searched cars at a roadblock explicitly for the purpose of “’[curb]ing the juvenile problem and also check for, well, anything that we might find, anything that looked suspicious.’” (People v. Gale, supra, 46 Cal.2d 253, 255.) We do not agree.
Dragnet searches, explicitly undertaken for the purpose of uncovering evidence of crime but without any reason to believe any criminal activity has taken place, are unreasonable. (People v. Gale, supra, 46 Cal.2d 253, 256; Wirin v. Horrall, supra, 85 Cal.App.2d 497, 504.) However, the sobriety checkpoint here was operated not for the primary purpose of discovering or preserving evidence of crime or arresting lawbreakers, but primarily for the regulatory purpose of keeping intoxicated drivers off the highways to the end of enhancing public safety. Analytically it is much the same as an immigration checkpoint or a checkpoint to inspect for the safety of equipment or compliance with agricultural regulations. The threat to public safety is at least as great and the intrusion into Fourth Amendment interests is no greater here than in those other regulatory checkpoint inspections which have invariably been held constitutionally permissible.
Our conclusion in this regard is based on factors related to the operation of the checkpoint in this case, on the stated goals of law enforcement agencies in implementing sobriety checkpoint programs, on the observable, albeit limited, experience with checkpoint operations in this and other states, as well as common sense. [43 Cal.3d 1336]
In the Burlingame program, the sobriety checkpoints received substantial advance publicity, which was clearly designed both to inform the public of the serious problem of drunk driving and to deter potential drinking drivers before they decided to drink and drive. An important part of the Burlingame procedure was to educate by giving each stopped driver a leaflet about the checkpoint program, as well as a survey postcard. In addition, the checkpoint was not conducted as a criminal dragnet. Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. fn. 5 The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint.
The stated goals of several law enforcement agencies explicitly point to deterrence as a primary objective of the checkpoint program. The Burlingame manual described the objectives of its program, noting the historical use of roving patrols as the principal law enforcement response to the drunk driving problem. Despite increased patrols, public awareness campaigns, stiffer drunk driving penalties, and increased arrests, the Burlingame Police Department found the major problem was that the public’s perceived (and actual) risk of apprehension was very low. Two major goals of the checkpoint as stated in the manual were to increase public awareness of the seriousness of the problem and to increase the perceived risk of apprehension.
The evaluation report on the pilot project carried out by the California Highway Patrol (CHP) stated that, although a project of stepped up roving patrols in 1980 had resulted in approximately twice the number of arrests per work hour, “it must be remembered that accomplishing more arrests is not the intent of sobriety checkpoints. Rather, they are intended to deter persons who have been drinking from driving for fear of encountering a checkpoint. If checkpoints are truly accomplishing their purpose, DUI arrests, as well as DUIaccidents, should decrease.” (Italics added.) In addition, the report recommended a six-month long-term study to be carried out in two CHP test areas. The report recommended using two different patterns of roadblock implementation — employing sobriety checkpoints during major holiday seasons at one test location, and using twice monthly checkpoints at the other location. Significantly, the recommendation report stated that “This dual study method will not only permit long term evaluation of checkpoint deterrence, but may also identify the frequency necessary to produce deterrence.”
A sobriety checkpoint program operated by the Arizona Highway Patrol is assertedly designed “to develop a public perception of the high risk of [43 Cal.3d 1337] apprehension of drinking drivers,” and the program abstract for the Maryland sobriety checkpoint project stated it was intended to function as a general deterrent to drinking drivers by instilling the perception that there was an increased likelihood of detection and arrest. An integral aspect of the Maryland program was publicity, to attain maximum public awareness and voluntary compliance with DUI laws.
Not only is deterrence the stated objective of DUI roadblock programs, but actual, though admittedly limited, experience with checkpoint programs indicates deterrence is in fact a significant result of such programs. In written responses to interrogatories posed by the Court of Appeal in the instant case, Burlingame Police Chief Alfred Palmer pointed out that deterrent value was demonstrated in two test areas of the Maryland program: incidence of alcohol related traffic accidents was reduced by 71 percent in Prince Georges County and fatalities were reduced 75 percent in Montgomery County in 1981. The follow-up report relating to the Burlingame checkpoint noted that some level of deterrence was indicated by the facts that traffic volume fell considerably below normal during the last two hours of their checkpoint operation, that the volume of business in Burlingame bars was also significantly below normal after 10 p.m., that calls for taxicabs were 12 percent above normal, and that, as officers on duty at the checkpoint noticed, several cars with sober drivers but intoxicated passengers proceeded through the checkpoint (the “designated driver” phenomenon). In New York, the Governor’s Alcohol and Highway Safety Task Force found “‘that the systematic … traffic checkpoint is the single most effective action in raising the community’s perception of the risk of being detected and apprehended for drunk driving’ (Report, at p. 103).” (People v. Scott (1984) 63 N.Y.2d 518 [483 N.Y.S.2d 649, 473 N.E.2d 1, 4-5].)
Petitioners argue in their discussion of the balancing test that roadblocks are not effective for apprehending DUI violators, and point out that the CHP experience showed that roving patrols were over twice as effective as roadblocks per work hour in producing drunk driving arrests, and that the Burlingame checkpoint in fact resulted in no arrests. The absence of arrests, however, is both explained by and affords substantial support for the conclusion that increasing drunk driving arrests — i.e., conducting investigations for the purpose of gathering evidence of criminal activity — is not the primary purpose of sobriety checkpoints. An absence of arrests does not indicate a sobriety checkpoint is a futile exercise. It more likely indicates that the existence of the checkpoint program has succeeded in inducing voluntary compliance with the law, thus fulfilling the program’s primary objective of keeping automobiles operated by impaired drivers off the roads. Drunk driving is not merely a crime, it is a serious public safety problem. A vehicle driven by an intoxicated person is as much a road hazard as a [43 Cal.3d 1338] vehicle with defective brakes or a defective steering mechanism. Sobriety checkpoints serve to keep such hazardous instrumentalities off the road in the first instance. If checkpoints perform a significant deterrent function, it follows that drunk driving arrests would decrease in areas of checkpoint operation.
It is perhaps the characteristic of the automobile as a hazardous instrumentality that affords the greatest distinction between the sobriety checkpoint and an impermissible criminal dragnet. While the sobriety checkpoint differs from, e.g., an agricultural inspection, because the item to be examined is a person and not an offending plant, nevertheless, the automobile is stopped for reasons directly related to public safety, and not for purposes of criminal investigation. In this sense it is as we have said analogous to a permissible equipment inspection checkpoint. The fact that the officer’s observations of a driver’s demeanor have the potential to result in criminal sanctions is not determinative. Just as an airport screening search may result in criminal arrests and prosecutions, but is nevertheless not a criminal investigative search, the sobriety checkpoint inspection primarily serves the proper regulatory purpose of deterring intoxicated persons from driving and thus endangering the public.
4. The Balancing Test
7 As we have explained, both the majority and concurring minority in Hyde, supra, 12 Cal.3d 158, and, ultimately, all other pertinent authorities determine the constitutional reasonableness of searches and seizures by a balancing test: weighing the gravity of the governmental interest or public concern served and the degree to which the program advances that concern against the intrusiveness of the interference with individual liberty. (See, e.g., Brown v. Texas, supra, 443 U.S. 47, at pp. 50-51 [61 L.Ed.2d 357, at pp. 361-362]; People v. Hyde, supra, 12 Cal.3d 158, at pp. 166-169, conc. opn. at pp. 172-178.)
Deterring drunk driving and identifying and removing drunk drivers from the roadways undeniably serves a highly important governmental interest. As we noted in Burg v. Municipal Court (1983) 35 Cal.3d 257, at page 262 [198 Cal.Rptr. 145, 673 P.2d 732], “The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. [Citations.] … [I]n the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam [43 Cal.3d 1339] War. [Citations.] Given this setting, our observation that ‘[d]runken drivers are extremely dangerous people’ [citation] seems almost to understate the horrific risk posed by those who drink and drive.” Stopping the carnage wrought on California highways by drunk drivers is a concern the importance of which is difficult to overestimate.
While it may be less self evident, the record here also supports a reasonable inference sobriety checkpoints of the sort here described do advance this important public goal. Petitioners contend that sobriety checkpoints are not as effective in detecting drunk drivers as other less intrusive alternatives, such as roving patrols. However, officers on a roving patrol can effect a stop only upon observable indications of impairment (i.e., reasonable suspicion). Petitioners point to the observation in the CHP report that a CHPproject in 1980 utilizing stepped up patrols resulted in an arrest rate per work hour over twice that resulting from use of the roadblocks. But, as we have pointed out, the number of arrests does not necessarily measure the effectiveness of the sobriety checkpoint. If the checkpoint is properly serving its function — deterrence — it may result in no arrests at all. An Arizona court considering the question concluded that although a sobriety checkpoint may be no more efficient than a roving patrol in detecting, drunk drivers it is more effective in deterring drunk driving. (State v. Super. Ct. in & for County of Pima (1984) 143 Ariz. 45 [691 P.2d 1073, 1076-1077].) This is consonant with our conclusion that the primary purpose of sobriety checkpoints is deterrence.
Petitioners argue respondents have not made a sufficient showing of the effectiveness of sobriety checkpoints. However, such effectiveness is difficult to quantify. The experience both in California and in other states with sobriety checkpoints has been very limited, and no definitive statistics are yet available. It would be presumptuous in the extreme for this court to prohibit the use of an otherwise permissible and potentially effective procedure merely because its effectiveness is at the present time largely untested. Indeed, to do so would prevent the compilation of any data to show its effectiveness.
Nevertheless, there are indications of the effectiveness of the roadblocks even in the absence of statistical evidence. For example, the Maryland court in Little v. State (1984) 300 Md. 485 [479 A.2d 903, 913], noted certain evidence in that record that on the night of the checkpoint operation many people who had been drinking asked a sober companion to drive instead, that calls for taxi service by drunk individuals increased, and that certain groups anticipating consumption of alcohol at social events chartered vehicles instead of driving. “The prospect of being stopped at a roadblock thus convinced some intoxicated individuals to find alternate means of transportation.” [43 Cal.3d 1340] (Little v. State, supra, 479 A.2d 903, 913.) Similar results were observed in connection with the Burlingame checkpoint in the instant case, and at oral argument counsel for petitioners conceded the likely deterrent effect of the sobriety checkpoints involved here.
We further observe that roving stops may not be a more effective alternative means of enforcing drunk driving laws. Constitutionally permissible roving stops must be based on an articulable suspicion of law violation. With respect to drunk driving, this requires an officer’s observation of some objectively manifested behavior indicating impairment. By this method, the number of drunk drivers detected and arrested is estimated between one in two hundred to one in two thousand. Stepped up holiday patrols, with attendant publicity, have been used in many jurisdictions for many years, without appreciable effect on the drunk driving toll to people and property. In addition, although stiffer penalties for drunk driving in California appeared to result in a decline in alcohol-related accident incidence in 1981 and 1982, thereafter alcohol-involved accidents and fatalities began to increase again, to nearly pre-1981 levels. As noted in the Burlingame manual, despite countermeasures consisting of publicity, heightened patrol efforts and more severe penalties, an attitude of impunity continues to exist with respect to drinking and driving.
The failure of traditional methods of enforcement was commented on by Professor LaFave: “[A] rather strong argument can be made that mere patrol and stoppings based upon the Terry standard [of reasonable suspicion, supra, 391 U.S. 1] do not produce what the Camara Court [, supra, 387 U.S. 523] referred to as ‘acceptable results.’ For one thing, even if a patrolling officer is … in the vicinity where a drunk driver is operating his vehicle, it does not necessarily follow that the driver will at that particular time drive his car in such a fashion as to create a reasonable suspicion justifying a stop. And the chances of such observation in the first place are rather slight, given the substantial number of intoxicated drivers on the roads …. It is by no means surprising, therefore, that it has been reliably estimated that only one of every 2,000 drinking drivers is apprehended.” (4 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2d ed. 1987) Vehicle Use Regulation, § 10.8(d), pp. 72-73.)
Justice Feldman, in a concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State (1983) 136 Ariz. 1 [663 P.2d 992], observed that “The governmental interest sought to be protected by the roadblocks is greater than merely detecting and apprehending drunk drivers. Given the carnage on our highways, there is a unique societal interest in enforcing compliance with the law by deterring driving while under the influence of alcohol or other drugs. [¶] … [T]he state cannot satisfy this interest by traditional [43 Cal.3d 1341] methods which satisfy the Terry test. The traditional system has left us far short of achieving the law’s objective. … It is only fortuitous that an officer happens to be in a position to see a drunk entering the freeway on the off-ramp [sic] before that drunk happens to kill some innocent person. … [¶] … [It is] obvious that traditional law enforcement methods, involving the arrest by roving officers of only those whom they can stop upon a founded suspicion of drunk driving, fall short of satisfying society’s compelling interest in enforcing compliance with the laws prohibiting drunk driving.” (Id., 663 P.2d 992 at pp. 998-999, conc. opn. Feldman, J.)
Not only are roving patrol stops inadequate generally, but there are also indications that roving patrols are less effective than sobriety checkpoints in detecting lower but nonetheless dangerous levels of intoxication. The average person arrested for drunk driving by roving patrols tends to have a significantly higher blood-alcohol level than the average sobriety checkpoint drunk driving arrestee. The CHP evaluation report showed that in all four test areas, the blood-alcohol level of checkpoint arrestees was lower (though still above the presumptive drunk driving level) than the blood-alcohol level of roving patrol arrestees in the same area for the same period. Thus, there may in fact be no effective alternate means of detecting those drivers whose judgment has actually been seriously impaired by alcohol and whose blood-alcohol level is illegal, but who do not consistently manifest outwardly observable impaired driving behavior. fn. 6
The third balancing factor is the intrusiveness on individual liberties engendered by the sobriety checkpoints. Upon examination of the record, we conclude that the programs at issue in this case have implemented procedures designed to provide minimal interference with individual liberties. The decisions of courts of other states and the California Attorney General’s opinion which originally sanctioned the kind of checkpoints operated here have analyzed the issue of intrusiveness extensively and have identified a number of factors important in assessing