PA DUI Checkpoint (and Motorist Rights)

DUI Checkpoint (and Motorist Rights) in Pennsylvania

The very existence of a DUI checkpoint has long been a point of controversy in PA. Some folks say that a PA DUI checkpoint is a necessary evil. They say if you aren’t drunk or high, then roadblocks shouldn’t worry you. Follow the law, they say, and you won’t be too troubled by a few questions. It keeps us all safer, they argue.

In the minds of the others, they are an overbearing intrusion into their privacy without cause or suspicion. This is America after all, they say. #Freedom

In the minds of the police conducting the roadblocks, they use these lawful tools to deter drunk driving. The roadblocks protect public safety, they say. Even when they turn up zero arrests, the police declare victory.

Who’s right? 

Doesn’t a checkpoint stop without cause violate a motorist’s and passengers’ rights to be free from unreasonable search and seizure?

Our Pennsylvania courts have told us that under certain conditions, they can happen. Ordinarily, when the police stop a driver, the police have to justify it. They can’t just stop someone on their way for any or no reason. Except for a DUI checkpoint, the police need to show “individualized suspicion of wrongdoing” or “probable cause” that a Crimes Code or Vehicle Code violation happened to lawfully stop a car. Our courts have said that this “normal rules” don’t apply at a DUI checkpoint in Pennsylvania. There is no required requirement for the police to show an “individualized suspicion of wrongdoing” or “probable cause” that a Crimes Code or Vehicle Code violation happened to lawfully stop a car to make contact with a driver during a PA DUI checkpoint. (See the Beaman case for more details.)

So what makes a DUI checkpoint or DUI roadblock legal or illegal in Pennsylvania?

Two appeals court cases tell us the answer to that:  Commonwealth v. Tarbert and Commonwealth v. Blouse. These two cases make a 5-factor DUI Checkpoint balancing test to see if the police cross the line.

Not surprisingly, the court calls these factors the Tarbert/Blouse factors.

In determining if a checkpoint is constitutional, ALL five factors must be met.

1. Vehicle stops must be brief and must not entail a physical search. There is no precise time limit of how long is too long. However, case law suggests that “brief” is “very brief.” The courts hold that thirty seconds is reasonable. (See the Yastrop case for more details) The requirement of no physical search is self-explanatory – the officers cannot root around in the car.
2. There must be sufficient warning of the existence of the checkpoint. Notice must be sufficient to alert drivers to the fact that a checkpoint is up ahead. The signs must be visible – meaning either large, or well-lit.  In most cases, there are several signs, but the courts have only required one. The police do not need to post the signs in a manner that allows a driver to turn away from the checkpoint. While a driver is free to drive away and cannot be pulled over simply for doing so, if no turn off is available, the driver must proceed into the checkpoint and stop if the officers direct them to stop. The police don’t control the press. So notice, likewise, the police don’t have to publish in the local paper where or when roadblocks will work one.
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. This requirement prevents officers from deciding on a whim to conduct a random stop of vehicles under the guise of a checkpoint. By requiring administrative approval, the patrol officers do not get to decide. It is a formula. (See the cases of Worthy, Paes for more information)
4. The police choice of time and place for the checkpoint must be founded on local experience as to where and when intoxicated drivers are likely to be traveling. Historical data must show that the time and place of the checkpoint are where and when DUI arrests are likely to occur. (See the case of Yastrop)
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. This prevents officers from making a decision on who to stop based on anything other than random luck (or bad luck). It must be predetermined if all cars will be stopped, if every 5^th car or every 10^th car. Additionally, if traffic is so backed up that it is counter to public safety, all cars should be let through until the traffic eases. The decision for when to suspend the checkpoint for traffic concerns must also be predetermined. (See the Worthy case for more details)

These 5 points tell us what officers have to do in order to set up an appropriate DUI checkpoint.

What do you, as a driver on the roadways of Pennsylvania, have to do if you encounter a DUI checkpoint?

Because the police are required to provide advanced notice, if you see a warning sign of an oncoming checkpoint, you could turn off and avoid the checkpoint. It’s still America. If you don’t want to be bothered with the drama, so be it. That’s your choice. If you do opt to turn around to avoid entering a sobriety checkpoint, and can lawfully do so (meaning not flipping an illegal U-turn or driving across someone’s lawn) “avoidance” of the checkpoint alone is not enough for the officers to stop the car.

The cops still need to see a traffic violation or some other reasonable suspicion to stop the car. (See Scarvello) But as police are not required to provide citizens an opportunity to turn back, the first signs of the roadblock may be past the point where there are any opportunities to turn around, and at that point, you must enter the checkpoint. (See Pacek)

Once at the Pennsylvania sobriety checkpoint, what do motorists have to do?

Once stopped in a roadblock, you must behave as though you were subject to any old traffic stop. You do not have to speak to the police at all.

The police may ask you more questions such as

• “When did you have your last drink?”
• “How much did you have to drink tonight?”
• “Do you take any prescription drugs?”
• “Did you smoke some weed tonight?”
• “Are you high?”
• “Are you safe to drive?”
• “You look drowsy. Why do you look drowsy?”
• “Where are you coming from?
• “Where are you going?”

You don’t have to answer any of their questions. Might it provoke them to ask you more with increased volume? Sure. But as a citizen, even at a Pennsylvania DUI checkpoint, you don’t have to answer police questioning. 

You must obey some of the officers demands during their “brief detention.” Refusal to comply with even simple requests, including refusing to roll down your window, may lead to at least reasonable suspicion for further investigation. (See Garibay) 

In one extreme case in a non-precedential opinion, the appeals court upheld the conviction of resisting where a citizen’s refusal to roll down his window resulted in several officers surrounding his car and doing whatever they could to try and force him to open the window. (Bowman-Dix) Additionally, police typically ask for license and registration. (See Hlubin, Tarbert) They are within their authority to do so, and refusal to do so may increase suspicion of guilt. (§ 6308(b))

When can the police lawfully order me out of the car for additional roadside testing at a PA DUI checkpoint? 

You might be sent along your way after the checkpoint stop. You might be ordered to physically move on to a “secondary detention” spot. To be lawful, that decision to remove you from your car and further detain you has to be based upon particularized suspicion that the police can point to that you are drunk or high. Is an “odor of alcohol” or “smelling marijuana” enough? It all depends on the “totality of the circumstances” meaning everything that the officer heard, smelled, saw and his/her past experience and training. 

Do I have to do these additional tests at roadside during a PA sobriety checkpoint?

Again, just like at the initial stop when you were in your car, the same general rules apply. You can’t just run away. You can’t pout in your car and refuse to get out. The police may ask you more questions, but again, you don’t have to answer any of them.

They may tell you that you “have to”:

• take the Portable Breath Testing (PBT) at roadside [not the one in the station]
• take a portable drug scan saliva test
• perform a Drug Recognition Expert evaluation (A post-arrest 12-step battery police use allegedly to determine whether or not drugs cause your alleged impairment.)
• perform the Standardized Field Sobriety Testing (SFSTs)
  • the Horizontal Gaze Nystagmus (HGN) or Eye tracking test where they put a pen up and ask you to track the movement of the pen with your eyes only, not moving your head test.
  • The Walk and Turn (WAT) Test or the walk-the-line heel-to-toe while counting out loud and then turn and return test.
  • The One Leg Stand (OLS) Test or stand on one leg out in front of you and count by thousands to 30-one thousand test.

The truth is none of that is true. You don’t “have to” do the additional testing. The police are then forced to arrest you or not. The best course of action, no matter your state of sobriety, is to politely decline to take these roadside tests. By getting you out of the car, they are just one baby step away from putting the handcuffs on you. You likely don’t have handcuffs on because they are trying to gather more evidence against you. They are looking to see if you will sink your own battleship.

Conclusion

The long and short of it is this post is that DUI checkpoints in Pennsylvania are a reality like them or not. If the government crosses the line, we are all over it.

• Sobriety checkpoints are constitutional legal in Pennsylvania, but only if all 5 factors are met.
• If stopped at a checkpoint, you have to roll down your window or face continued detention.
• You have to hand over your license and registration if requested when stopped at a DUI checkpoint.
• If stopped at a checkpoint, you don’t have to talk to the police or answer any of their questions while in your car.
• You have to get out of the car, if the police order you.
• If you are out of the car, you do not have to answer any questions. We strongly advise you that it is best that you don’t at this point.
• If you are out of the car, you do not have to undergo any testing at roadside like a PBT or saliva drug test or a DRE evaluation or the SFSTs. We recommend against it.
• If you are arrested for DUI or DUID, you have to give a sample of your breath or blood or face a possibility of a driver’s license suspension if you are a PA resident or lose your privilege to drive in PA if you are visitor to PA from another state.

Suggested additional reading:

• Free PA DUI Info (Easy to Understand Language)
• DUI Checkpoints or Roadblocks? 
• The Fourth Amendment and DUI Pretext Stops
• 5 Things to do When Arrested for DUI