Friday, June 21, 2013

Some DUIs Can Be Thrown Out Because of Bad Roadblocks

            “Roadblock” DUIs are quite misunderstood by most defendants and a lot of lawyers.  Generally, people think roadblock DUIs are worse than normal DUIs, but that isn’t the case at all.  Right off the bat, we know that if the client is stopped at a roadblock, chances are they weren’t stopped for a traffic infraction.  That means the Commonwealth doesn’t have one of the key pieces of evidence they like to have in a DUI case – “Bad Driving.”  We are already a step ahead because we know a police officer is not going to come into court and say something like “they were all over the road” or “I witnessed the subject weaving in his/her lane and crossing the center line.”  Those pieces of evidence can be damning, so it’s nice to have a case where the Commonwealth doesn’t have bad driving.
            In addition, roadblocks can be challenged as violations of the Defendant’s 4th Amendment right to be free from unreasonable searches and seizures.  That’s what we’re going to concentrate on today.

            In the past, I’ve given you some general points on how to handle yourself at a police roadblock/checkpoint.  For more information on what to say or not to say when you are stopped at a roadblock, see the blog post at

            Today, we’re going to talk about how roadblocks can be challenged in court.  I’ve had the great fortune of helping make a significant degree of law on this subject, so roadblocks are kind of “my thing.”  My interest and abilities in the subject were sparked and molded by a phenomenal central Kentucky lawyer named Elmer George – who has a pretty impressive reputation and a real knack for DUI work.  While working for Elmer, I got to write the brief for the Monin v. Commonwealth case that we’ll be talking about later today.  But before we get to that, we need to talk a little about the 4th Amendment, and why it’s important for Police to do roadblocks correctly.

            The 4th Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”  U.S. Const. amend. IV.  The Kentucky Constitution provides the same protection from unlawful searches and seizures.  Ky. Const. §10.  It’s important to note that the law doesn’t protect you from ALL searches and seizures – just UNREASONABLE ones. 
            So – What is a “search” or “seizure?”  Case law abounds establishing that even brief detentions by law enforcement constitutes an seizure under the Fourth Amendment of the United States Constitution.  Delaware v. Prouse, 440 U.S. 648 (1979),  Terry v. Ohio, 392 U.S. 1 (1968).  “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”  Terry,  at 16. 
            So the 4th Amendment certainly protects against unreasonable stops of a person in their vehicle.  Normally courts will require that the police officer have reasonable, articulable suspicion that criminal activity is going on, before a vehicle stop is allowed.  That’s a good thing because it means police officers can’t just stop any one for any reason.  If that was allowed, we would be subject to the individual biases and prejudices of officers – and unfortunately, that would lead to even more racial profiling, etc.
            Roadblocks (the word “checkpoints” can be used interchangeably) can basically take the place of the need for reasonable, articulable suspicion.  But, in order to make sure we don’t leave the police officers to their own individual biases and prejudices, Kentucky Courts have laid down some rules for how roadblocks have to be performed.  Basically, we’re trying to take the discretion away from the officers in the field (the ones actually performing the roadblock shouldn’t be able to make the decisions about the roadblock).
            The Kentucky Court of Appeals has ruled that discretionary roadblocks violate the Constitutional rights guaranteed by the Fourth Amendment of those detained.  Monin v. Commonwealth, 209 S.W.3d 471 (Ky. App. 2007).   The dispositive question of whether a police checkpoint is discretionary is “whether it was constructed in a way to pass Constitutional muster.”  Commonwealth v. Bothman, 941 S.W.2d 479, 481 (Ky. App. 1996).  
            In order to comply with the Court’s demand that roadblocks not be discretionary, the Kentucky State Police (KSP) has come up with some guidelines for its officers regarding the implementation of roadblocks.  Those rules are called the OM-E-4 guidelines.  So Courts say that the KSP needs to try to follow its own rules in order to limit the discretion of officers performing checkpoints.  While “technical noncompliance” with OM-E-4 regulations does not invariably lead to a violation of Fourth Amendment rights, checkpoints must be established in a way so as to limit the discretion of the officers in the field.  Id. 

            In case you’re wondering, “Why is all this necessary?  I’m sure officers wouldn’t try to abuse the power that comes with performing a roadblock.” let’s talk about Monin.

            The case of Monin v. Commonwealth involved an over-zealous State Trooper who passed a bar in Marion County.  As he passed the bar, he noticed a driver who pulled out of the bar’s parking lot.  The officer wanted to pull over the driver.
            The truth is that “pulling out of the parking lot of a bar” does not constitute reasonable, articulable suspicion that someone has done something illegal.  So, the Trooper did NOT have the right to pull the driver over.  Therefore, as the Trooper approached a pre-approved checkpoint site, he radioed in for permission to start a roadblock.  He got permission, turned on his lights, pulled over the car behind him, took the driver to jail and the roadblock was then over.  It was a one car roadblock.
            The Court of Appeals found that the roadblock in Monin was a violation of the driver’s constitutional rights based on the fact that the “roadblock” wasn’t designed so as to limit the discretion of the Trooper in the field.
            Recently, I argued in front of the Court of Appeals on a similar issue.  In this case, the police officers did nearly everything correctly, except that the start and stop times of the roadblock were not pre-approved by a supervisor.  My argument before the Court of Appeals is that the failure to pre-approve a start and stop time leaves too much discretion to the officers performing the roadblock. 
            Carried to its logical conclusion, an officer in the field could spot a driver he didn’t like, who was not acting suspiciously in any way, radio in for authorization to conduct a traffic checkpoint, and detain the driver.  A valid traffic checkpoint could consist of the stop of exactly one car, in direct contradiction of this Court’s decision in Monin v. Commonwealth, 209 S.W.3d 471 (Ky. App. 2007).  And even worse, a prejudiced officer could wait to start a roadblock until he saw a minority driver, and end the roadblock after the stop of that minority.  It’s exactly this type of discretion that the roadblock law in this great Commonwealth seeks to prevent.
            Anyway – we’ll see what the Court of Appeals says.
            It should take a couple of months or so to get our decision, but I’ll post it when it comes out.  If you have any more questions about roadblock law, or DUI in general, don’t hesitate to ask.  My door is always open.

Greg Simms, Attorney at Law – 502.618.4949

1 comment:

  1. Here in Jackson County the law enforcement have been doing random roadblocks where the officers have the discretion to start and stop one anywhere they wish including on secondary roads. For instance not more than a week ago I was detained at the entrance to my apartment buildings parking lot but was the last of only two people detained. I was cited for driving on a dui suspended license and no registration. Since I was cleared to get my license back but just hadn't had the money to pay for reinstatement and my tags just ran out they let me go with the ticket as they made sure to show me the statues saying it was a jail worthy offense. They said to correct everything and take it to the clerk and they would throw out the ticket. I still feel raped.