By David Raybin

A citizen’s YouTube video encounter with the police at a sobriety checkpoint has engendered enormous interest.

And a lot of legal questions.

Nancy Amons for Nashville’s Channel 4 News asked me to comment on this. My interview has prompted other print and television media to request a more detailed exposition of the law and how that squares with what we saw on this man’s YouTube video of the DUI checkpoint.

Constitution Prohibits Unreasonable Search and Seizure
The Fourth Amendment to the United States Constitution and article 1, section 7 of the Tennessee Constitution both prohibit unreasonable searches and seizures by law enforcement officers.

The purpose of these provisions is to safeguard the privacy and security of individuals against arbitrary invasions of government officials. Police activity involving the stop of an automobile qualifies as a seizure under both the state and federal constitutions.

Why is this different than a “traffic stop?”
Ordinarily, a driver may only be subjected to a stop and search if the officer has a reasonable suspicion that criminal activity is afoot, and the driver may refuse consent for investigation beyond what the officer can reasonably suspect. What makes the encounter in the YouTube video different is that it occurred at a DUI Checkpoint, not a traffic stop.

Are DUI Checkpoints Legal?
Yes. In State v. Downey, the Tennessee Supreme Court, relying on decisions by the United States Supreme Court, recognized that “a roadblock seizure … is a departure from … fundamental constitutional principles because it permits officers to stop and question persons whose conduct is ordinary, innocent, and free from suspicion.” (Tennessee Supreme Court 945 S.W.2d at 104)

The court determined that the constitutionality of such seizures depends upon a balancing of the public interest and the amount of interference on the individual’s liberty. The most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field over whether and how the roadblock is imposed.

The court concluded that the State has a compelling interest in alleviating drunk driving and that sobriety checkpoints are effective tools for detecting impaired drivers. Thus, DUI checkpoints are legal and comply with the Constitution if conducted in a uniform manner.

Are DUI Roadblocks an Invasion of Privacy?
There is nothing to suggest that the DUI checkpoint we saw in the YouTube video was itself unlawful in any manner. Some folks have commented on the right of the police to stop motorists in such roadblocks in the first place as being an invasion of one’s rights.

The Supreme Court has repeatedly upheld sobriety road blocks and license checks.

So the complaint about even being subjected to a roadblock check is fruitless. It is a consequence of the freedom of driving on the roads but being subject to periodic government inspection to see if we are fit to drive further down the road. Think of it as a weight check for a truck.

As long as our courts have interpreted the state and federal constitutions to permit DUI roadblocks, law enforcement agencies are free to conduct them within the permissible guidelines.

What Can Police Legally Do at Sobriety Checkpoints?
That said, what can the officer lawfully do at such a roadblock? Very little, beyond asking for your license—if done to every driver—and engaging you enough to determine if you are impaired by drugs or alcohol.

It is here that the citizen in the YouTube video ran afoul of the permissible police activities allowed by the courts.

The complaint is that the citizen should not have been required to roll down his window beyond that necessary for the officer and the citizen to “hear each other.”

Wrong.

The point of a DUI roadblock is a sobriety check which cannot be accomplished only by conversation, although slurred speech is indicative of impairment. The officer must be allowed to engage the driver by manner, possible bloodshot eyes, and particularly odor.

Liquor, beer, and pot emit an odor and, if detected on the driver or in the interior of the vehicle, afford the officer reasonable suspicion to inquire further. Asking the driver if he or she “has been drinking” inevitably produces the “only two beers” response, which is useless.

Failure to Comply With Officer’s Request
Once the citizen failed to comply with the lawful request to fully roll down the window, the law permitted the officer to escalate the response including the command to pull further up, get out of the vehicle, and submit to a drug dog inspection. This citizen was rapidly progressing to the point of “rolling probable cause” which potentially could have included being placed in handcuffs while the vehicle was searched.

What about the drug dog?
I could not see enough of that in video to determine if the search of the interior was justified. One officer remarked to the other that that “wasn’t much of an alert.” Perhaps not. A closer question is whether the search of the interior of the vehicle met constitutional muster based on the meager dog alert. On the other hand the search appeared to be cursory, notwithstanding the air fresheners under the seat.

What about the officer’s “gruff” manner?
That is known as a “command voice” which officers are trained to employ to clearly convey instructions to the citizen to minimize confusion and reduce the risk of further force.
The officer certainly began the encounter courteously enough but his verbal engagement increased as the citizen’s behavior dictated an escalation of response.

For purposes of full disclosure, my firm has sued Rutherford County officers when they are out of bounds in their contact with our clients.

I do not see that this officer was excessive in his contact with our YouTube citizen here.

On balance, the video was expertly crafted. I did not find it misleading and it conveyed a sense of drama and reality.

However, the citizen’s YouTube video demonstrated exactly how a driver should not behave in a police roadblock. Once we understand that the constitution permits brief investigatory stops at valid checkpoints it becomes clear that the officer did not violate the driver’s rights by asking him to roll down his window and investigating further when he refused.

This may seem offensive to some, but the courts have determined that we must tolerate the temporary intrusion in our travels as the price we pay for virtually unfettered freedom to drive as we please and to protect us from impaired drivers who can injure or kill us.

Next time, sir, roll down the window.

David Raybin is a partner at Hollins, Raybin & Weissman and he heads up the criminal defense section of the firm.