Every weekend California DUI criminal defense attorneys try to warn drivers of checkpoints throughout the state. California DUI lawyers remind the police they must follow each of the requirements in this drunk driving checkpoint case.
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.) {Page 43 Cal.3d
1322}
COUNSEL
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.
OPINION
KAUFMAN, J.
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.
Facts
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.
In 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, {Page 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. {Page 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
Discussion
[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 {Page 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. {Page 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. [3] "[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) [1970] 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 {Page 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 predeparture
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 {Page 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 {Page 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.
In Camara, a city ordinance gave authorized city employees, upon presentation of credentials,
the right to enter buildings or structures to perform necessary duties. The United States Supreme
Court recognized that in performing a function such as building inspections, the governmental
entity will rarely have knowledge of conditions in a particular building, but must necessarily rely
on general conditions in an area. The court held that a warrant for building inspections based on
area conditions, rather than upon probable cause to believe violations exist in a particular
dwelling, was reasonable. The Supreme Court stated, "In determining whether a particular
inspection is reasonable -- and thus in determining whether there is probable cause to issue a
warrant for that inspection -- the need for the inspection must be weighed in terms of [the]
reasonable goals of code enforcement .... [¶] ... [¶] ... [T]here 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, supra, 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 {Page 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 {Page 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, {Page 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. {Page 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 DUI accidents, 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 {Page 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 {Page 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 {Page 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 CHP project 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."
{Page 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 {Page 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
intrusiveness. The standards articulated in these cases provide functional guidelines for
minimizing the intrusiveness of the sobriety checkpoint stop.
A. Decisionmaking at the Supervisory Level
The decision to establish a sobriety checkpoint, the selection of the site and the procedures for
the checkpoint operation should be made and established by supervisory law enforcement
personnel, and not by an officer in {Page 43 Cal.3d 1342} the field. This requirement is important
to reduce the potential for arbitrary and capricious enforcement. (See United States v. Martinez-
Fuerte, supra, 428 U.S. at p. 559 [49 L.Ed.2d at p. 1129].)
Several out-of-state decisions are in accord on this point. Sobriety checkpoints have been upheld
in a variety of situations in which the chief commanding officer of a law enforcement agency has
drawn up a comprehensive procedures document (in some cases reviewed by other officials) or
where the regulations were promulgated by supervisory personnel. (People v. Scott, supra, 473
N.E.2d 1 [program set up by county sheriff]; State v. Super. Ct. in & for County of Pima, supra,
691 P.2d 1073 [commander of traffic enforcement division issued detailed command directive];
Little v. State, supra, 479 A.2d 903 [regulations reviewed by Superintendent of State Police, the
Governor and the Attorney General]; State v. Coccomo (1980) 177 N.J.Super. 575 [427 A.2d
131] [township police chief adopted regulations approved by state Attorney General]; State v.
Golden (1984) 171 Ga.App. 27 [318 S.E.2d 693] [roadblock set up by supervising DUI task force
project coordinator]; State v. Deskins (1983) 234 Kan. 529 [673 P.2d 1174] [roadblock a joint
effort of several law enforcement agencies, and all personnel briefed by supervisory officers].)
In each of the sobriety checkpoint projects here, the decision to implement the checkpoints, the
site selection and the establishment of operational procedures were made or done by command
level personnel, and detailed program regulations were promulgated.
B. Limits on Discretion of Field Officers
A related concern is that motorists should not be subject to the unbridled discretion of the officer
in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every
third, fifth or tenth driver should be employed. To permit an officer to determine to stop any
particular driver or car when there is no legitimate basis for the determination would be to
sanction the kind of unconstrained and standardless discretion which the United States Supreme
Court sought to circumscribe in its decisions in Prouse, supra, 440 U.S. 648, Almeida-Sanchez,
supra, 413 U.S. 266, and Camara, supra, 387 U.S. 523. In all the checkpoint programs at issue
here, neutral mathematical selection criteria were used.
C. Maintenance of Safety Conditions
Primary consideration must be given to maintaining safety for motorists and officers. Proper
lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are
necessary to minimize the risk of {Page 43 Cal.3d 1343} danger to motorists and police. (Cf.
Jones v. State (Fla.Dist.Ct.App. 1984) 459 So.2d 1068, 1079.) The checkpoint should be
operated only when traffic volume allows the operation to be conducted safely. Screening
procedures may at times be altered consistent with traffic volume, such that, for example, every
car might be stopped when traffic is light, but if traffic began to back up, a different neutral
formula might be applied, such as every fifth or tenth car, or operations might be temporarily
suspended until traffic volume permitted resumption of safe checkpoint operation.
The Burlingame and CHP checkpoints were operated with a very high degree of safety
assurance. The sites of the checkpoint operations were carefully selected with safety
considerations in mind, including ample offroad or shoulder area for screening or field sobriety
test procedures. The lane closures and road signs complied with all Caltrans safety guidelines.
During operations, designated officers were responsible for maintaining the safety of the traffic
lanes and cone patterns. There were no safety problems with respect to traffic backups.
D. Reasonable Location
The location of checkpoints should be determined by policy-making officials rather than by
officers in the field. The sites chosen should be those which will be most effective in achieving the
governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or
arrests. (See State v. Coccomo, supra, 427 A.2d 131, 134.) Safety factors must also be
considered in choosing an appropriate location.
One state court has found a sobriety checkpoint unconstitutional largely because it was not at a
permanent location. (State v. Olgaard (S.D. 1976) 248 N.W.2d 392.) A decision of the Ninth
Circuit also held that a border patrol stop at a temporary checkpoint was unlawful. (United States
v. Maxwell (9th Cir. 1977) 565 F.2d 596.) We believe, however, that the temporary nature of
sobriety checkpoints does not affect their constitutionality. The Olgaard court's concern with lack
of permanency was solely based on its worry about surprise and lack of publicity in connection
with the checkpoint. Although it is not precisely clear from the record in Olgaard, it is inferrable
from the circumstances that the Olgaard checkpoint was set up on a surprise basis. The
checkpoint was operated by only four officers utilizing nothing but the red flashing lights on
several patrol cars. They stopped all traffic in both directions. No lights or signs were used that
would have given advance notice of the checkpoint. There was no advance publicity about the
checkpoint. The checkpoint plainly also lacked sufficient indicia of legitimacy in terms of staffing
strength. In addition, there was no showing who made the decision to set up the checkpoint, or
how the {Page 43 Cal.3d 1344} location was selected. Thus the Olgaard court appears to have
acted with propriety in holding the checkpoint unlawful.
Similarly, the "temporary" border patrol checkpoint at issue in Maxwell, supra, 565 F.2d. 596, was
deficient with respect to notice and indicia of legitimacy. The checkpoint was marked only by a
"stop ahead" sign with battery operated blinking yellow lights, half a dozen traffic cones, one
ordinary stop sign, and a border patrol car with a flashing red light. Whereas motorists know or
may learn of a permanent immigration checkpoint, the checkpoint in Maxwell was in operation on
an intermittent basis without advance notice. There were no structures or electrical equipment
connections. So far as the motorist was concerned, he was called to a halt on a lonely road by a
blinking red light which could belong to anybody. In addition, the location of the checkpoint may
have been inappropriate for an immigration checkpoint. The immigration checkpoint in Martinez-
Fuerte, supra, 428 U.S. 543, was justified in part by its being placed on a major highway to
prevent easy access by illegal aliens into the interior. Just as a sobriety checkpoint would be
improper at a location without any significant traffic or incidence of drunk driving, the location of
the Maxwell checkpoint on a route without any significant traffic, by illegal aliens or otherwise,
may have been improper. (United States v. Maxwell supra, 565 F.2d. 596, 597-598.)
As was pointed out in People v. Scott, supra, 473 N.E.2d 1, at page 5, "The fact that the [United
States] Supreme Court has approved permanent roadblocks but disapproved roving patrol stops
is not determinative. What is critical is the intrusiveness of the checkpoint in relation to the
governmental purpose involved. The subjective effect upon a vehicle driver approaching a
roadblock is unrelated to whether it is permanent or was established but a few minutes before the
driver approached it; in either instance his or her observation of it will be measured in minutes if
not seconds. The likelihood of there being the kind of fright or annoyance that invalidates a
random stop made by a roving patrol is obviated in the case of a temporary checkpoint by the
visible signs of authority which the checkpoint entails -- signs announcing the purpose, lighting,
and identifiable police vehicles and the observable fact that there is a uniform system for stopping
cars [citations]." (Accord, Little v. State, supra, 479 A.2d 903, 914.)
With respect to the Burlingame checkpoint, the lighting, signing, substantial uniformed police
presence, official vehicles, etc., provided advance notice to the motorist sufficient to ward off
surprise and fright. In fact, sufficient advance notice was provided so a motorist could choose to
avoid the checkpoint altogether. The objective and subjective intrusion into {Page 43 Cal.3d
1345} Fourth Amendment rights was no greater than that resulting from a permanent checkpoint.
The checkpoints at issue here were reasonable as to location.
E. Time and Duration
The time of day that a checkpoint is established and how long it lasts also bear on its
intrusiveness as well as its effectiveness. For example, a nighttime stop may be more hazardous
and possibly more frightening to motorists, but it will also probably prove more effective. While
mentioned as a factor in State v. Deskins, supra, 673 P.2d 1174, time and duration have received
little attention in the decisions addressing sobriety checkpoints, although most of the checkpoints
approved have been operated in the late evening and early morning hours. (People v. Scott,
supra, 473 N.E.2d 1; Little v. State, supra, 479 A.2d 903; State v. Coccomo, supra, 427 A.2d 131;
State v. Golden, supra, 318 S.E.2d 693; State v. Deskins, supra, 673 P.2d 1174.) We agree with
the assessment of the Court of Appeal that no hard and fast rules as to timing or duration can be
laid down, but law enforcement officials will be expected to exercise good judgment in setting
times and durations, with an eye to effectiveness of the operation, and with the safety of motorists
a coordinate consideration.
F. Indicia of Official Nature of Roadblock
Those aspects of a sobriety roadblock which evidence its official nature are critical in minimizing
its intrusiveness. The roadblock should be established with high visibility, including warning signs,
flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only
are such factors important for safety reasons, advance warning will reassure motorists that the
stop is duly authorized.
Clearly visible warning lights and other signs of authority have been present in most of the
checkpoints upheld by the courts of other states. (See People v. Scott, supra, 473 N.E.2d 1, 3;
Little v. State, supra, 479 A.2d 903, 905-906; State v. Golden, supra, 318 S.E.2d 693, 694.) In
contrast, most of the checkpoints found unlawful have not provided adequate warning to
motorists. (See State v. McLaughlin (Ind.Ct.App. 1984) 471 N.E.2d 1125, overruled in State v.
Garcia (Ind. 1986) 500 N.E.2d 158, 162 [holding checkpoints lawful]; Com. v. McGeoghegan
(1983) 389 Mass. 137 [449 N.E.2d 349, 353]; State v. Olgaard, supra, 248 N.W.2d 392, 394;
State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, 993; State v. Hilleshiem (Iowa
1980) 291 N.W.2d 314 [vandalism roadblock]; cf. State v. Smith (Okla.Crim.App. 1984) 674 P.2d
562, 564.) {Page 43 Cal.3d 1346}
The checkpoints at issue here clearly complied with requirements for proper lighting, signing, and
official presence, both in the comprehensive regulations developed for the checkpoint operation
and in actual practice.
G. Length and Nature of Detention
Minimizing the average time each motorist is detained is critical both to reducing the
intrusiveness of the stop on the individual driver and to maintaining safety by avoiding traffic tieups.
As occurred in the Burlingame and CHP checkpoints, each motorist stopped should be
detained only long enough for the officer to question the driver briefly and to look for signs of
intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the
driver does not display signs of impairment, he or she should be permitted to drive on without
further delay. If the officer does observe symptoms of impairment, the driver may be directed to a
separate area for a roadside sobriety test. At that point, further investigation would of course be
based on probable cause, and general principles of detention and arrest would apply.
H. Advance Publicity
Advance publicity is important to the maintenance of a constitutionally permissible sobriety
checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect
of the roadblock.
The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, at
page 1001 explained the value of advance publicity: "Such publicity would warn those using the
highways that they might expect to find roadblocks designed to check for sobriety; the warning
may well decrease the chance of apprehending 'ordinary' criminals, but should certainly have a
considerable deterring effect by either dissuading people from taking 'one more for the road,'
persuading them to drink at home, or inducing them to take taxicabs. Any one of these goals, if
achieved, would have the salutary effect of interfering with the lethal combination of alcohol and
gasoline. Advance notice would limit intrusion upon personal dignity and security because those
being stopped would anticipate and understand what was happening." (663 P.2d 992, 1001,
conc. opn. Feldman, J.; see also State v. Deskins, supra, 673 P.2d 1174, 1182.)
Publicity also serves to establish the legitimacy of sobriety checkpoints in the minds of motorists.
Although the court in Jones v. State, supra, 459 So.2d 1068, found that advance publicity was not
constitutionally mandated for all sobriety roadblocks, nevertheless the court offered the
observation, consistent with finding reasonableness under the Fourth Amendment, that {Page 43
Cal.3d 1347} "'[A]dvance publication of the date of an intended roadblock, even without
announcing its precise location, would have the virtue of reducing surprise, fear, and
inconvenience.' [Citation.]" (Id., at p. 1080.)
In the instant case, substantial advance publicity accompanied each sobriety checkpoint
instituted.
I. Conclusions as to Intrusiveness
We conclude that, while the intrusiveness of a sobriety checkpoint stop is not trivial, the
enumerated safeguards operate to minimize the intrusiveness to the extent possible. The fright or
annoyance to motorists condemned in connection with roving stops is absent when the
checkpoint is operated according to the guidelines followed here.
On balance, the intrusion on Fourth Amendment interests is sufficiently circumscribed so that it is
easily outweighed and justified by the magnitude of the drunk driving menace and the potential
for deterrence.
5. Statutory Authorization
Petitioners contend that sobriety roadblocks are impermissible in the absence of specific
authorizing legislation. Petitioners make three points. [8a] The first and broadest argument is that
the police may not enforce traffic laws in any manner not specifically authorized by statute. [9a]
The second is that the Vehicle Code provides for uniform statewide rules governing vehicle use
and police regulation of that use, so that to allow municipalities to set up roadblocks on an ad hoc
basis would allow a balkanization of vehicle use regulation that various sections of the Vehicle
Code show the Legislature did not intend. [10a] The third point is that the Vehicle Code
specifically permits police officers to use roadblocks in limited circumstances. Pointing out that
two recent bills to amend the Vehicle Code to permit drunk driving roadblocks have died in
committee, petitioners advance the proposition that since the Legislature has only permitted
roadblocks in limited circumstances, roadblocks in any other circumstances are impermissible.
[8b] Petitioners cite no persuasive authority for the proposition that police officers may not
enforce the Vehicle Code in any manner not specifically provided for by statute. Citing People v.
One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96 [41 Cal.Rptr. 290, 396 P.2d 706], they
claim that the general police power only permits detention on reasonable suspicion when a
motorist is engaged in wrongdoing unless there is statutory authority for other police action. The
cited case is inapposite; it merely applies {Page 43 Cal.3d 1348} familiar principles as to the
circumstances necessary to justify a detention, and establishes that the exclusionary rule applies
in a civil action for forfeiture of a car believed to be involved in drug trafficking.
Petitioners also cite People v. McGaughran (1979) 25 Cal.3d 577, 583-584 [159 Cal.Rptr. 191,
601 P.2d 207] (warrant checks during traffic stops); People v. Superior Court (Simon) (1972) 7
Cal.3d 186, 199-200 [101 Cal.Rptr 837, 496 P.2d 1205] (search incident to arrest for violations
for which accused would not be booked) and People v. Franklin (1968) 261 Cal.App.2d 703, 707
[68 Cal.Rptr. 231] (scope of statutes allowing stops for vehicle safety and registration inspection)
for the proposition that the Vehicle Code is comprehensive and controls methods of enforcement
of its provisions. None of these cases, however, establishes that unless a method of law
enforcement is specifically authorized in the Vehicle Code, it is prohibited. Rather, these cases
interpret the limits on officers' authority which have been expressly established by statute.
For similar reasons, petitioners' position is not aided by their citation to People v. Welsch (1984)
151 Cal.App.3d 1038 [199 Cal.Rptr. 87] (warrantless arrest for hit and run outside officer's
presence not authorized by statute); People v. Horvath (1982) 127 Cal.App.3d 398 [179 Cal.Rptr.
577] (neither Pen. Code nor Pub. Util. Code authorized arrest of pilot who flew while intoxicated
outside officer's presence); or People v. Aldapa (1971) 17 Cal.App.3d 184 [94 Cal.Rptr. 579]
(arrest outside jurisdiction not authorized by former Pen. Code, § 817). In each case, the officer
breached a statutory limitation on his authority; none of these decisions holds that methods of law
enforcement not specifically authorized are prohibited.
It is illogical to suggest that an officer who has a reasonable suspicion an individual is driving
under the influence of intoxicants and thus endangering the public may take corrective action, but
that a law enforcement agency having knowledge that on any given night hundreds of drivers will
be under the influence of intoxicants and thus endangering the public may not. The threat to
public safety in the second instance is immeasurably greater than in the first. We conclude, as
did the Court of Appeal majority, that the requisite authority is implicit in law enforcement's
statutory authority to enforce criminal laws generally or traffic laws specifically. (See, e.g., Veh.
Code, § 2400; Gov. Code, §§ 26600, 26601.)
[9b] With respect to the second point, it is true that the Vehicle Code generally preempts the field
of traffic regulation vis-a-vis local ordinances. {Page 43 Cal.3d 1349} (See Veh. Code, § 21.) fn. 7
We have observed that unless the Legislature so provides, a city has no authority over traffic
control. (See Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 550 [183 Cal.Rptr. 73, 645 P.2d
124] [city has no authority to erect traffic barriers not qualifying as traffic control devices under
Veh. Code].) While this rule of preemption might conceivably prevent municipalities from
establishing permanent drunk driving roadblocks that might in effect regulate traffic, it does not
affect the statutory authority of the CHP and local police to enforce the Vehicle Code and other
laws with checkpoints at more temporary locations. (See, e.g., Veh. Code, § 2400; Gov. Code, §§
26600, 26601.)
[10b] Petitioners' arguments as to their third point, again go far beyond the authority they cite.
Petitioners point out examples in which the Legislature has permitted police to stop or inspect
cars. The Vehicle Code authorizes police officers to require motorists to stop and submit their
vehicles for safety inspections upon reasonable cause to believe that the vehicle is in violation of
the code. (Veh. Code, § 2806.) CHP and law enforcement officers "whose primary responsibility
is to conduct vehicle theft investigations" may make warrantless inspections for vehicle
registration. (Veh. Code, § 2805.) The CHP is authorized to run mechanical inspection stations.
(Veh. Code, § 2814.) And the Legislature has provided for agricultural inspection stations at state
borders. (Food & Agr. Code, § 5341 et seq.) But it does not follow that because the Legislature
has specifically authorized these inspections, no other inspections are permissible under the
general police power. Indeed, it may be more reasonable to assume the Legislature would not
feel obliged to enact specific legislation authorizing conduct it deemed to be constitutional and
appropriate within the scope of existing police power. Legislative silence is an unreliable indicator
of legislative intent in the absence of other indicia. We can rarely determine from the failure of the
Legislature to pass a particular bill what the intent of the Legislature is with respect to existing
law. fn. 8 "As evidences of legislative intent they [unpassed bills] have little value." (Sacramento
Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 58 [69
Cal.Rptr. 480]; see Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735, fn. 7 [180 Cal.Rptr.
496, 640 P.2d 115, 30 A.L.R.4th 1161]; Miles v. Workers' Comp. Appeals Bd. (1977) 67
Cal.App.3d 243, 248, fn. 4 [136 Cal.Rptr. {Page 43 Cal.3d 1350} 508]; see also United States v.
Wise (1962) 370 U.S. 405, 411 [8 L.Ed.2d 590, 594-595, 82 S.Ct. 1354]; Gregory v. City of San
Juan Capistrano (1983) 142 Cal.App.3d 72, 84 [191 Cal.Rptr. 47]; cf. 2A Sutherland, Statutory
Construction (4th ed. 1984) § 49.10, pp. 407-408.)
Disposition
For the reasons stated, the judgment of the Court of Appeal denying the writ of mandate is
affirmed.
Lucas, C. J., Arguelles, J., and Eagleson, J., concurred.
BROUSSARD, J.
I dissent. The majority uphold drunk driving fn. 1 roadblocks on the theory that they are
administrative inspections, not subject to the usual rule that any detention be justified by
reasonable suspicion of individual wrongdoing. In my opinion, when uniformed law enforcement
officers stop motorists to check them for intoxication, shine a light in the car to look for open
containers of alcohol or other evidence of intoxication, with special officers ready to administer
blood-alcohol tests and booking officers and police vans ready to take offenders to jail, it is not an
administrative inspection but an ordinary police detention, which must be justified on the same
grounds as any other detention for the purpose of law enforcement.
Administrative Search Doctrine
The majority concede that if the primary purpose of the roadblock were to detect crime, the
detention of a driver without individualized suspicion that the driver had engaged in criminal
activity would be unconstitutional. In fact, the roadblock has two purposes: detection of drunk
drivers and collection of evidence. The majority maintain, however, that the primary purpose of
these roadblocks is to promote public safety by deterring drunk driving. The majority assert that
this is a regulatory or administrative purpose, and conclude that detention without individualized
suspicion is permissible by analogy to the administrative search doctrine we adopted in People v.
Hyde (1974) 12 Cal.3d 158 [115 Cal.Rptr. 358, 524 P.2d 830].
In Hyde, we permitted predeparture screening of airline passengers, without individualized
suspicion of wrongdoing. Our theory was that the screening was a central part of a general
regulatory scheme in furtherance of an {Page 43 Cal.3d 1351} administrative purpose, not an
effort to seize contraband or evidence of crime. (People v. Hyde, supra, 12 Cal.3d at p. 166.)
Hyde does not bring the drunk driving roadblock into the administrative search doctrine. First of
all, the Vehicle Code provisions prohibiting drunk driving are not a "regulatory scheme." In Hyde,
we used federal cases approving warrantless inspection of the firearms and liquor industry as
examples of pervasively regulated activities in which a warrantless inspection was permissible.
(People v. Hyde, supra, 12 Cal.3d 158, 165, citing United States v. Biswell (1972) 406 U.S. 311
[32 L.Ed.2d 87, 92 S.Ct. 1593]; Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d
60, 90 S.Ct. 774].) The rationale of those cases is that a person engaging in the pervasively
regulated industry is on notice that he has a limited expectation of privacy because the
regulations provide for effective inspection. (United States v. Biswell, supra, 406 U.S. 311, 316
[32 L.Ed.2d 87, 92], see also Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 313 [56 L.Ed.2d
305, 311-312, 98 S.Ct. 1816].) No such "regulatory scheme" puts California drivers on notice that
they are subject to detention without reasonable suspicion to determine whether they are driving
under the influence of alcohol or drugs. Drivers do not "impliedly consent" to being inspected for
alcohol on their breath.
The United States Supreme Court has rejected the Colonnade/Biswell analogy for automobile
inspections on the ground that motorists have a considerable and legitimate expectation of
privacy in the automobile, including an expectation of freedom of movement. (Delaware v. Prouse
(1979) 440 U.S. 648, 662-663 [59 L.Ed.2d 660, 673, 99 S.Ct. 1391].) The Supreme Court also
has rejected the argument that driving is a pervasively regulated activity subjecting motorists to
suspicionless roving immigration stops. (Almeida-Sanchez v. United States (1973) 413 U.S. 266
[37 L.Ed.2d 596, 93 S.Ct. 2535].) The court has explained that a roving stop of a motorist to
check for illegal aliens was unreasonable; the driver was not in the same position as the gun
manufacturer or liquor distributor who had in effect consented to inspection by entering a heavily
regulated industry. (Id. at pp. 271-272 [37 L.Ed.2d at p. 602].)
A drunk driving roadblock also differs from the usual administrative or regulatory inspection
because there is no "regulatory" agency to enforce the drunk driving prohibitions other than the
police and the criminal courts. fn. 2 The clear purpose of these laws is not to regulate, but to
detect and punish criminal drunk driving. Nothing distinguishes this crime from any other serious
one. {Page 43 Cal.3d 1352}
The majority suggest that as long as the purpose of a drunk driving roadblock is to deter rather
than detect crime, the roadblock is "regulatory." But we certainly did not hold in Hyde, supra, 12
Cal.3d 158, as the majority suggest, that if the purpose of a detention is to deter rather than
detect crime, it may be justified as an administrative search. Criminal law enforcement
encompasses both detection and deterrence. If we allowed detentions without individualized
suspicion to deter crime, we would allow preventive detentions in high crime areas. But we do not
allow such practices. (See People v. Loewen (1983) 35 Cal.3d 117, 124 [196 Cal.Rptr. 846, 672
P.2d 436].) What distinguishes the permissible administrative inspection from other searches is
not that they are only intended to deter, but that they carry out an administrative scheme that is
not part of the penal system. There is no such administrative scheme here. In fact, the majority
would permit roadblocks carried out without uniform regulation, without statewide oversight, in a
Balkanized system varying from jurisdiction to jurisdiction.
The majority also rely on dictum in Delaware v. Prouse, supra, 440 U.S. 648, another case
involving random stops of automobiles. There the high court disapproved a roving patrol stop
conducted without individualized suspicion to check for current license and vehicle registration.
The court said that its holding did not mean that police could not try other methods to enforce
license and registration laws, such as a permanent roadblock to inspect for license and
registration violations. But the Prouse dictum is inapposite. A roadblock inspection for license and
vehicle registration is an administrative inspection, since these aspects of motoring are closely
regulated. Since license and registration violations do not involve criminal sanctions primarily, the
inspections themselves are less intrusive for the average motorist. A request to look at one's
license is far less accusatory than an inspection for red, watery eyes, slurred speech, alcohol on
the breath, open containers in the car, and the other signs of intoxication. It does not follow that,
because a roadblock may be permissible to check for drivers' licenses, it must be permissible to
check for drunk driving.
To call a drunk driving roadblock an administrative inspection ignores its true purpose --
apprehension of drunk drivers. The fact is that the apparatus of the law enforcement system is
moved to the scene of the roadblock -- with breathalyzers ready to take evidence for introduction
at a criminal trial, police officers ready to arrest offenders, and police vans ready to take suspects
away. If we call the Burlingame roadblock an administrative inspection, then a detention to
investigate any crime could be deemed an administrative inspection. The Constitution cannot,
and should not, be stretched so far. {Page 43 Cal.3d 1353}
Application of the Balancing Test
The propriety of an administrative search is judged under a balancing test in which the invasion
of individual liberty is weighed against the necessity for the invasion and its effectiveness in
achieving the state's goal. (See Camara v. Municipal Court (1967) 387 U.S. 523, 536-537 [18
L.Ed.2d 930, 940, 87 S.Ct. 1727]; People v. Hyde, supra, 12 Cal.3d 158, 166.) Even assuming
that the analogy to administrative searches is proper, and that we should abandon individualized
suspicion in favor of a balancing test, I would conclude that roadblocks are neither necessary nor
effective enough to warrant the intrusion on the individual that they cause.
We all agree that the government has a profound interest in deterring and punishing drunk
driving. We have recently lamented the "... horrific risk posed [to public safety] by those who drink
and drive." (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d
732].) Yet the necessity for and effectiveness of drunk driving roadblocks remains to be
demonstrated. And the intrusion is far from minimal.
In the federal cases allowing detentions and other intrusions without individualized reasonable
suspicion that wrongdoing was taking place, there was little alternative available to the state, and
this entered into the balance in determining whether the stop was reasonable. In those cases, the
suspicionless intrusions were literally necessary, since the transgressions to be detected could
not be observed unless the inspectors entered the premises; there were no objective indicators
visible from the outside upon which an official could form a reasonable suspicion. (See United
States v. Biswell, supra, 406 U.S. 311, 316 [32 L.Ed.2d 87, 92]; Colonnade Corp. v. United
States, supra, 397 U.S. 72, 74, 76-77 [25 L.Ed.2d 60, 64]; Camara v. Municipal Court, supra, 387
U.S. 523, 537 [18 L.Ed.2d 930, 940]; cf. United States v. Martinez-Fuerte (1976) 428 U.S. 543,
557 [49 L.Ed.2d 1116, 1128, 96 S.Ct. 3074].) By contrast, drunk drivers are conspicuous. We
have all observed drunks weaving down the road, speeding up and slowing down, straddling
lanes, and ignoring traffic and traffic signs. It is preposterous to claim that police have no way
other than a roadblock to detect or deter drunk drivers.
The majority suggest that roadblocks are necessary because existing enforcement techniques
have not eradicated the problem of drunk driving. If this were a proper consideration, the Fourth
Amendment would have little meaning. Existing enforcement techniques have not eradicated the
scourge of crime in our society, yet no one would seriously propose that the Constitution
therefore permits the police to make unprecedented invasions of personal liberty. If we allow
mass detentions through the means of roadblocks merely because the police claim that they may
be more effective and {Page 43 Cal.3d 1354} helpful to law enforcement, we have gone a long
way towards abandoning the protection of the Fourth Amendment.
The majority find that the deterrent effect of drunk driving roadblocks weighs heavily in the
balance. (The majority concede that roadblocks do not produce nearly as many arrests per officer
hour as patrols in which drivers are stopped for cause.) fn. 3 This assertion is based on anecdotal
evidence and flawed logic. Some states justify roadblocks by comparing accident rates in
counties having roadblocks with others having none, but to conclude that it was the roadblock
that caused the difference is the rankest speculation. fn. 4 The California Highway Patrol
concedes that such evidence is inconclusive. In fact, some studies indicate that whatever
deterrent effect a roadblock may have is entirely the result of its novelty and the waywardness of
publicity. For example, as European drivers became accustomed to roadblocks and the publicity
about them died down, their deterrent effect disappeared. (See ABA, Assessment of
Effectiveness, supra, at p. 3.)
The majority admit that the deterrent effect of drunk driving roadblocks is not established and that
"[t]he experience both in California and in other states with sobriety checkpoints has been very
limited, and no definitive statistics are yet available." (Maj. opn., ante, at p. 1339.) Yet, the
majority insist that "[i]t 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." (Ibid.) This distorts the balancing test and makes it possible
for any law enforcement method to pass constitutional muster as long as a plausible argument
can be made that it might turn out to be effective. If this is the balancing test, it is not a test but a
rubber stamp.
We also must weigh the intrusion of the roadblock on the individual. There can be no question of
the reasonableness of the motorist's expectation of privacy. Though the expectation of privacy in
the automobile is not as great as in the home, it is clear from Almeida-Sanchez, supra, 413 U.S.
266, {Page 43 Cal.3d 1355} and Delaware v. Prouse, supra, 440 U.S. 648, that motorists do
retain a reasonable expectation of considerable privacy in the automobile. The invasiveness of a
drunk driving roadblock is far greater than the invasion that the high court has characterized as
minimal in the immigration checkpoint. (See United States v. Martinez-Fuerte, supra, 448 U.S.
543, 559 [49 L.Ed.2d 1116, 1129].) In the immigration checkpoint, the immigration agent's
primary purpose is not to make arrests. But at a drunk driving roadblock, officers stop individuals
with the purpose of determining if they are then committing the crime of drunk driving -- a crime
now involving considerable public stigma, to say nothing of the substantial criminal penalties that
now result from a drunk driving conviction. The United States Supreme Court has repeatedly
distinguished the minimal invasion of the administrative inspection from the necessarily hostile,
threatening, and frightening intrusion of an investigation for crime. (See, e.g., Camara v.
Municipal Court, supra, 387 U.S. 523 at pp. 530, 537 [18 L.Ed.2d 930 at pp. 936, 940].)
Moreover, the detention at a drunk driving roadblock is necessarily experienced as personally
intrusive, since unlike in the license inspection or immigration checkpoint, the officer's object is to
inspect the interior of the vehicle for evidence of crime and to examine the present mental and
physical condition of the driver to determine if he or she should be arrested.
The majority seem to suggest that as long as a neutral plan assures that the roadblock is run
safely and without arbitrariness, the individual's interest in being free from police detention does
not weigh in the balance at all. This antiseptic approach denies the unavoidable invasion of
privacy which occurs when a citizen is confronted by the police and his demeanor inspected for
evidence that he is committing a crime. Furthermore, the protection of the neutral plan is illusory.
What recourse does any driver have if the neutral plan was not being followed when he or she
was stopped? In the Burlingame example, the plan provided that motorists who refused to stop
would be allowed to proceed. Yet one of the participating officers said he would have pursued
any motorist who refused to stop. As there is apparently no remedy for violations of the neutral
plan, the plan is no protection against arbitrariness.
The pervasiveness of the invasion also must be considered. Take one example. The New York
City police used 100 officers to operate a series of drunk driving roadblocks from May 27 to June
26, 1983. The police stopped 184,828 cars. There were 222 arrests for drunk driving. (N.Y.
Times (June 27, 1983) at p. B1, col. 2, described in Grossman, Sobriety Checkpoints:
Roadblocks to Fourth Amendment Protections, supra, 12 Am. J. Crim. L. 123, 157.) fn. 5 During a
one-month period, 184,606 people who {Page 43 Cal.3d 1356} turned out to be innocent were
detained by the police. For every arrest there were 831 innocent drivers whose privacy was
infringed. We certainly would be concerned about the propriety of detaining the same number of
citizens on our streets for "inspection" for drug abuse or other crimes. It is one thing to invade
personal privacy in order to apprehend dangerous criminals, but when the purported object is
deterrence, such mass detentions are a very high price to pay when the effectiveness of such
detentions is questionable at best.
The invasion of privacy occasioned by these roadblocks also may become pervasive in the sense
that the roadblocks will be everywhere. If we approve drunk driving roadblocks, they may appear
in every community. This could mean 20 or 30 or more roadblocks in any urban area on any
given night. Omnipresent police blockades at each community's border would be not only
inconvenient for motorists, but also would be a contradiction of our values as an open and free
society.
The Fourth Amendment is highly inexpedient to law enforcement, yet to date we have not allowed
mass detentions on the theory that these might prove useful in combatting crime. I see no basis
for distinguishing a drunk driving roadblock from any other mass detention established to prevent
crime or apprehend wrongdoers. While drunk driving is a revolting crime, it is not the only one
which the community abhors. If we abandon constitutional protections to combat every abhorrent
crime which has captured the public's attention, we will find ourselves naked and unprotected in a
hurry.
Conclusion
Since I regard a drunk driving roadblock under which a motorist is stopped with no reasonable
suspicion that he is intoxicated inconsistent with the federal and state Constitutions, I would
reverse the decision of the Court of Appeal and order the issuance of a peremptory writ.
Mosk, J., and Panelli, J., concurred.
FN 1. The California Highway Patrol shortly thereafter set up checkpoints at four test locations
throughout the state. Other law enforcement agencies also announced or implemented sobriety
checkpoint programs within a short time.
FN 2. At the location selected, El Camino Real was a divided road, providing safety and
minimizing distraction to southbound traffic. There was a separate frontage road area which
provided a safe place for directing motorists out of and back into the northbound traffic lanes.
There was also a safe area in which to conduct field sobriety tests.
FN 3. Approximately 29 percent of those stopped returned the postage paid survey cards. Of
those responding, about 91 percent said they were not significantly delayed and 80 percent
approved of drunk driving checkpoints.
FN 4. Petitioners did not renew their request for a stay when they brought the matter before this
court on the petition for review.
FN 5. Cars avoiding the checkpoint would be stopped, however, if in avoiding the checkpoint the
driver did anything unlawful, or exhibited obvious signs of impairment.
FN 6. It is also worthy of mention that in some cases stepped up roving patrols may not be a
viable alternative for some law enforcement agencies for other reasons. The Riverside Police
Department indicated, for example, that it was greatly handicapped in using roving patrols as an
alternative because of a lack of patrol vehicles.
FN 7. Vehicle Code section 21 provides: "Except as otherwise expressly provided, the provisions
of this code are applicable and uniform throughout the State and in all counties and municipalities
therein, and no local authority shall enact or enforce any ordinance on the matters covered by
this code unless expressly authorized herein."
FN 8. Petitioners point out the failure of Senate Bill No. 5 (1985-1986 Reg. Sess.) (see Sen.
Weekly Hist., No. 134 (1985-1986 Reg. Sess.) Sept. 13, 1985) and Assembly Bill No. 14 (1985-
1986 Reg. Sess.) (see Assem. Weekly Hist., No. 128 (1985-1986 Reg. Sess.) Sept. 13, 1985).
They also cite the failure of Assembly Bill No. 104 (1983-1984 Reg. Sess.) and Assembly Bill No.
3604 (1983-1984 Reg. Sess.).
FN 1. For the purpose of this opinion, the term "drunk driving" includes driving under the influence
of alcohol or drugs. (See Veh. Code, § 23152 et seq.)
FN 2. Although the Department of Motor Vehicles administers the license and registration
provisions of the Vehicle Code, it has no agents enforcing the prohibition against drunk driving.
FN 3. The majority do maintain that roadblocks may be effective in detecting the drunk driver with
a low blood-alcohol level whose driving would not give objective signs that he is drunk. While this
may be true, I fail to see the point of dedicating twice as many officer hours to arrest a mildly
intoxicated driver as would be employed to arrest a seriously intoxicated driver. Police resources
being limited, it is obviously more effective to use them to apprehend the more dangerous
offender.
FN 4. This point is made in great detail in Grossman, Sobriety Checkpoints: Ineffective and
Intrusive in American Bar Association, Criminal Justice Section, Drunk Driving Laws and
Enforcement, an Assessment of Effectiveness (1986) 15, 17 (hereafter ABA, Assessment of
Effectiveness), and in Grossman, Sobriety Checkpoints: Roadblocks to Fourth Amendment
Protections (1984) 12 Am. J. Crim. L. 123, 162-165. See also Jacobs & Strossen, Mass
Investigations Without Individualized Suspicion: A Constitutional and Policy Critique of Drunk
Driving Roadblocks (1985) 18 U.C.Davis L.Rev. 595, 640-641.
FN 5. A similar example is the experience of Missouri. In a 12-month period, there were 83
roadblocks; 23,934 cars were stopped. There were 181 arrests for drunk driving and 34 for drugrelated
offenses. (See ABA, Assessment of Effectiveness, supra, at p. 9.)
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