Sobriety and Driver’s License Checkpoint Upheld

by | August 16, 2022

Demarest v. City of Vallejo, 2022 WL 3365834 (9th Cir. 2022)

David Demarest approached a traffic checkpoint set up by the Vallejo Police Department on a road that had seen many collisions involving impaired drivers. As he got closer and the traffic became slower, he saw signs posted, “DUI and Driver License Checkpoint Ahead” and “Have Your Driver License Ready.” The checkpoint was operating under a “neutral formula,” within which “all vehicles will be stopped unless the backup exceeds five minutes.” In that case “all vehicles will be waived through until the backup is cleared.” Officers staffing the checkpoint were directed to screen drivers for impaired driving, verify possession of a driver’s license and provide printed educational material to drivers. The checkpoint had been advertised in a local newspaper and on the police department website.

When Demarest reached an officer at the checkpoint and was signaled to stop, he complied. The officer asked to see Demarest’s driver’s license. Instead of producing his license, Demarest asked if he could continue on his way. The officer asked for his driver’s license again. Demarest responded by asking whether the officer had any cause or reasonable suspicion to stop him. The officer did not respond to his question but told him if he did not produce his license, he would be arrested. Demarest declined to show his license.

The officer opened the driver side door, grabbed Demarest’s left wrist, removed him from the vehicle and placed a handcuff on his left wrist. As she did so, the officer told Demarest he was under arrest. Officers searched his car and located Demarest’s Vermont driver’s license.

An officer took Demarest to jail, where he was booked on the misdemeanor charge of failing to show his license and carrying a concealed knife. He participated in a diversion program and the charges were subsequently dismissed. Demarest then sued, alleging an unconstitutional seizure at the checkpoint, an illegal arrest unsupported by probable cause and excessive force.

The United States Supreme Court has specifically approved the use of limited sobriety checkpoints to combat impaired drivers (Michigan v. Sitz, 496 U.S. 444 (1990)). The Court held that sobriety checkpoints must (1) present only a slight intrusion, (2) operate according to a plan that limits participating officers’ discretion and (3) be aimed at curbing the problem of impaired drivers. Subsequently, in Illinois v. Lidster (540 U.S. 419 (2004)), the Court stated the reasonableness of a checkpoint should be considered in light of “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Some states, including California (where Demarest was stopped and arrested), have adopted statutes to control sobriety checkpoints.

When Demarest refused to produce his driver’s license at a valid checkpoint, the officer had probable cause to believe he was violating a state statute that required a driver to produce a license when requested by an officer investigating a violation of traffic laws.

However, in City of Indianapolis v. Edmond (531 U.S. 32 (2000)), the Supreme Court held that general crime control roadblocks—i.e., fishing expeditions—are not lawful. Even so, a passing comment in Edmond noted a “roadblock with the primary purpose of verifying drivers’ licenses and vehicle registrations would be permissible” because it rests on a purpose of ensuring “highway safety” rather than general crime control. Several state courts have also upheld checkpoints for driver’s licenses, including in State v. Mitchell (592 S.E.2d 543 (N.C. 2004)) and State v. Orr (745 N.E.2d 1036 (Ohio 2001)). Roadblocks to enforce fish and game regulations are also permissible (State v. Tourtillott, 618 P.2d 423 (Or. 1980), cert. denied, 451 U.S. 972 (1981); State v. Thurman, 996 P.2d 309 (Idaho App. 1999); State v. Albaugh, 571 N.W.2d 345 (N.D. 1997)).

In Demarest, the court of appeals applied a “two-step analysis” for assessing the validity of the checkpoint under the Fourth Amendment. The court first held that, because the City’s checkpoint did not have any impermissible primary purpose of advancing the general interest in crime control (which would violate the rule of City of Indianapolis v. Edmond), it was not per se invalid. The checkpoint squared with the permissible purpose directly approved in Michigan v. Sitz. The court of appeals next considered whether the reasonableness factors stated in Illinois v. Lidster supported the addition of driver’s license checks to an otherwise valid sobriety checkpoint. The court concluded the additional step of checking licenses was objectively reasonable under the Fourth Amendment.

When Demarest refused to produce his driver’s license at a valid checkpoint, the officer had probable cause to believe he was violating a state statute that required a driver to produce a license when requested by an officer investigating a violation of traffic laws. The court also held the officer’s action of physically pulling Demarest from his car by grabbing his arm without a prior command to get out of the car was objectively reasonable given Demarest’s lack of cooperation with her commands up to that point and the modest nature of the force used.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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