WINNING THE DUI CASEDUI Case Law and Legal Update

Indiana State Police Post #52, Indianapolis, Indiana

August 17, 2007

Deborah Reasoner, Traffic Safety Resource Prosecutor

THE LEGALITY AND CONSTITUTIONALITY OF SOBRIETY CHECKPOINTS

Deborah Reasoner

Traffic Safety Resource Prosecutor

Indiana Prosecuting Attorneys Council

Are Sobriety Checkpoints Constitutional?

The 4th Amendment

• The seminal U.S. Supreme Court case on sobriety checkpoints…

• Michigan Dept. of State Police v. Sitz, 496 U.S. 444; 110 S.Ct. 2481; 110 L.Ed.2d 412 (1990)

Supreme Court Analysis of Sobriety Checkpoints under

the 4th Amendment

• Holding: MSP sobriety checkpoint program is consistent with 4th Amendment.

• Reasoning: Intrusion into individual privacy is to be measured by the duration and intensity of the investigation & the potential of creating fear/surprise engendered by a law abiding motorist

Reasoning:

• Intrusion into individual privacy is to be measured by the duration and intensity of the investigation & the potential of creating fear/surprise engendered by a law abiding motorist

• Effectiveness to be measured by degree of advancing public interest, not just in percentage of arrests made.

Federal 3-prong test for constitutional sobriety checkpoints based on Sitz:

1. Balancing of state’s interest in preventing crashes caused by drunk drivers;

2. The effectiveness of sobriety checkpoints in achieving that goal; and

3. The level of intrusion on an individual’s privacy caused by the checkpoints

Indiana Constitutional AnalysisArticle 1, Section 11

• The controlling Indiana Supreme Court case on sobriety checkpoints…

• State v. Gerschoffer, 763 N.E.2d 960 (Ind. S.Ct. 2002)

The Court’s Decision:Sobriety checkpoints do not violate Indiana’s

Constitution when implemented pursuant to a properly approved, minimally intrusive, neutral plan with standardized instructions and explicit guidance for officers to protect against inconsistent enforcement and a narrow objective.

• Mishawaka’s checkpoint was unconstitutional due to several factors, including:

• drivers were targeted for more than just impaired driving offenses,

• the timing and location of the checkpoint was not tied to catching impaired drivers,

• signs were not placed prior to the entrance of the checkpoint,

• officers had too much discretion to decide what FSTs to utilize, and

• drivers may have been detained too long.

Sobriety Checkpoint Plan

Supreme Court’s 6-Prong Test:

1. Checkpoints must be implemented according to a neutral plan approved by local officials and publicized in advance to the community.

2. The objective, location and timing of the checkpoint must be closely tied to apprehending impaired drivers.

3. Officer Discretion4. The degree of intrusion to drivers must be kept to a

minimum.5. Safe Conditions6. Effectiveness

CHECKPOINT PROCEDURES

http://images.google.com/imgres?imgurl=http://www.dicketool.com/Products/SignSystems/FoldRoll/IncidentManagement/SobrietyCheckpointSign.gif&imgrefurl=http://www.unitedsafetyauthority.com/531026.html&h=100&w=100&sz=5&hl=en&start=68&tbnid=mujy52KDzp3HEM:&tbnh=82&tbnw=82&prev=/images%3Fq%3Dsobriety%2Bcheckpoints%26start%3D60%26gbv%3D2%26ndsp%3D20%26svnum%3D10%26hl%3Den%26sa%3DN

DEFENSE ATTACK

• Issues– Was the checkpoint conducted in a manner that

violated the 4th Amendment of the U.S. Constitution and/or Article 1, Section 11 of the Indiana Constitution?

State v. Sublett 815 N.E.2d 1031

(Ind. Ct. App 2004)

Sobriety Checkpointsin Indiana

– Sublett was driving a vehicle that was pulled into the checkpoint and only had a Indiana Identification Card

– Officer who came into contact with Sublett checked his information and found that Sublett’s driving privileges were suspended for life and placed Sublett under arrest

– Trial court denied Sublett’s Motion to Suppress and convicted him of Operating a Motor Vehicle After Driving Privileges Were Suspended For Life

Sobriety Checkpointsin Indiana

– Was the checkpoint conducted in a manner that violated Article 1 Section 11 of the Indiana Constitution?• Was there improper notice given of the

checkpoint?• Was it improper to ask Sublett for his driver's

license and vehicle registration?– Unrelated to the objective of the checkpoint—

to detain and deter drunken drivers?– Minimally intrusive?

Sobriety Checkpointsin Indiana

• Federal Issue/Courts Ruling

– Per the Sitz case there was no federal constitutional violation

– Asking a motorist to produce his driver’s license and vehicle registration is not unreasonably intrusive at a sobriety checkpoint where the stated purpose is to prevent drunken driving

Sobriety Checkpointsin Indiana

• State Issue/Courts Ruling– Court used the Gershoffer case in its analysis– Gershoffer’s 6 prongs are to be considered as

factors to be weighed and considered and not as elements

Sobriety Checkpointsin Indiana

– While Sublett did not raise other factors as issues the court also observed that officers also had no discretion regarding which vehicles to stop and what to do once those vehicles were stopped

– As such, the Court held that “given this lack of discretion and the scripted, consistent manner in which the police officers conducted themselves, we are unable to say that the practice of requesting the driver’s license and vehicle registration of stopped motorists was so intrusive and unrelated to the objective of the checkpoint as to render the checkpoint constitutionally unreasonable”

Sobriety Checkpointsin Indiana

• Additional Factor Analysis by the Court– The objective, location, timing of the checkpoint, the

level of intrusion and the effectiveness of the checkpoint were weighted in favor of the State and as such the checkpoint was not unreasonable for purposes of Article 1 Section 11 of the Indiana Constitution

• Does the checkpoint fail to meet more than one of the 6 prongs of Gerschoffer?

• Analyze prior statistical information from this location– Number of OWI arrests during the same time

period in prior year(s)– Number of officers normally on duty – Number of officers involved current checkpoint– Number of OWI arrests from current checkpoint

DEFENSE ATTACK

Magic of Statistics

• Compare number of OWI arrests to man hours involved by law enforcement

• Use State’s Checkpoint Supervisor as Expert to elicit testimony on number vehicles a patrol officer can observe in routine shift

Was checkpoint Effective?

• Attack checkpoint on data police gathered

• Checkpoint fails to met Gerschoffer prong on 2 issues

1. Location & Timing not tied to apprehending impaired drivers

2. Not Effective ( Could catch more impaired drivers by roving patrols)

• Design and Placement of visual warnings failed to provide driver with a reasonable opportunity to escape checkpoint

• Defense Attorney will video location, may use speed & distance to show warning too close to escape

• May call expert to testify improper warnings, location unsafe or too much visual clutter

• Your response ---video before and after checkpoint, show speed limit, distance, and method to escape

Chase Cars

• Was arrest based on chase car?• Traffic stop was pretextual• Did driver have only one avenue of escape?

(driver wanted to go east, only choice was west)

• Officer must document probable cause for traffic stop

What Escape Route?

Final Thoughts

• Tips for Officers:– Stick closely to a well-developed plan according to

these 6 prongs of the Gerschoffer test.– Always have ample statistics to support your site

location and timing.– Keep a goal of two (2) minutes or less for the time that

each vehicle spends in a checkpoint if no citations are written or further investigation is required.

– Document everything!– And finally, KNOW HOW YOU MET THESE 6

PRONGS BEFORE TESTIFYING IN COURT!!!!

Final Thoughts

• Tips for Prosecutors:– Before trial, gather the evidence you will need to prove the

6 prongs of the Gerschoffer test.• Agency’s Checkpoint plan/procedures• Statistical information to support site location and timing• Checkpoint location diagram, video or photographs

showing placement of signage and opportunities to avoid the checkpoint

• Copies of all news releases and published media articles/reports

• All checkpoint statistical information

Final Thoughts

• Tips for Prosecutors:

– Talk to officer witnesses about the 6-prong test and make sure their testimony supports a constitutional checkpoint.

– Ask officers how they kept track of time that each vehicle spent in the checkpoint if no citations are written or further investigation is required. Remember, five (5) minutes is too long!

– Ensure that you and each officer know how the 6-prong Gerschoffer test was met before any testimony at deposition, hearing or trial is given.

SEATBELT STOPS AND SEAT BELT ENFORCEMENT ZONES

SEATBELTS

I.C. 9-19-10-2, effective July 1, 2007

All occupants must “buckle up” at all times when the vehicle is in forward motion.

“Truck” exemption eliminated, includes all occupants in pick-up trucks and SUVS registered as “trucks”.

SEATBELTS• Primary enforcement

– Police may stop a vehicle to determine seat belt compliance.

– However, a vehicle, its contents, the driver, or the passenger may not be inspected, searched, or detained solely because of seatbelt violation.

SEATBELTS• No “Checkpoints”

– “Checkpoints” a trade-off for elimination of truck exemption.

– Changes seatbelt enforcement•“Seatbelt enforcement zones”;•changes seatbelt enforcement tactics;•anything that resembles a “checkpoint” or

“funneling” traffic to check for seat belt compliance not allowed;

•Pickup truck beds and Cargo vans and trailers:

Exceptions:

Medical Reasons Child Restraint

Commercial Vehicle

Post Office

Newspaper delivery

Driver Examiner

Farm Truck

Parade vehicle

Recreational vehicle Ambulance

TractorTrailer

Trash Truck

Dump Truck

Tow Truck

Utility Truck

SEATBELTS

• Pearson v. State, ___ N.E. 2d ___, (Ind. App. 2007)

Facts-Police officer observed defendant driving vehicle without a seatbelt and initiated traffic stop-Police officer ordered defendant out of the car out of concern for officer safety based on prior knowledge of incidents where defendant had been violent

SEATBELTS

• Pearson v. State, ___ N.E. 2d ___, (Ind. App. 2007)• Facts, continued:

-during pat-down search of defendant, police officer asked defendant if he had anything on his person of which he should be aware-Defendant responded that he had marijuana in his pants pocket-Police officer retrieved the marijuana and placed defendant in custody

SEATBELTS• Pearson v. State, ___ N.E. 2d ___, (Ind. App. 2007)• Facts, continued

-Police officer completed the search of defendant and also searched defendant’s car-Police Officer had also obtained the defendant’s driver’s license to check its status, and defendant’s license had been suspended-Defendant later charged with possession of meth, D felony, possession of marijuana, A misdemeanor, possession of paraphernalia, A misdemeanor,

SEATBELTS

• Pearson v. State, ___ N.E. 2d ___, (Ind. App. 2007)• Facts, continued

-defendant also charged with driving while suspended, A infraction, failure to use a seatbelt, D infraction, and possession of paraphernalia with a prior, D felony

SEATBELTS

• Pearson v. State, ___ N.E. 2d ___, (Ind. App. 2007)• Motion to Suppress

-Defendant filed a motion to suppress the evidence obtained during the pat-down search claiming the search was illegal because the officer had no reasonable suspicion that the defendant was armed and dangerous

SEATBELTS• Pearson v. State, ___ N.E. 2d ___, (Ind. App.

2007)• Motion to Suppress

-After hearing on the Motion to Suppress, the trial court denied the motion-Defendant later found guilty of possession of meth, possession of marijuana, and failure to use a seatbelt after a bench trial

Pearson v. State

Issue

Whether trial court abused its discretion in admitting evidence seized from defendant during a traffic stop for failure to wear a seatbelt

Pearson v. StateDecision:

So long as circumstances exist over and above the seatbelt violation itself, a limited search for weapons ins not prohibited by I.C. 9-19-10-3. Police may conduct a limited pat-down search for weapons during a seatbelt stop if he has a reasonable belief that the suspect (driver) is armed or has a weapon. Further, police may ask questions of a motorist, so long as the questioning does not extend the length of the detention beyond the purpose of the stop. The investigation subsequent to the traffic stop for seatbelt violation can only be expanded or extended if the officer has independent facts or circumstances leading to reasonable suspicion of other crimes.

Pearson v. StateDecision:

The questioning of the defendant by the officer during the pat-down search was an attempt to “fish” for other crimes, and went beyond an inquiry for officer safety purposes. Given the language of I.C. 9-19-10-3, and the Attorney General’s position with respect to the interpretation of such language, and the case law interpreting it, without circumstances arising after the stop which independently provide the officer with reasonable suspicion of other crimes, such conduct on behalf of police officers is not permitted.

Reversed and Remanded

Pearson v. State• Baldwin v. Reagan, 715 N.E. 332 (Ind. 1999)

Police must have “reasonable suspicion” to conduct stop for seatbelt violation under I.C. 9-19-10-3

-Police may initiate a traffic stop for seatbelt violation only where they have reasonable suspicion that a seatbelt violation has occurred.

• Trigg v. State, 725 N.E. 2d 446 (Ind. Ct. App 200)I.C. 9-19-10-3 should not be read to prohibit police from performing a limited search for weapons for officer safety.

• State v. Morris, 732 N.E. 2d 224, (Ind. Ct. App 2000)(Using A.G.’s “limited” interpretation), traffic stop based solely on failure to wear a seatbelt does not provide reasonable suspicion for the officer to “unilaterally expand an investigation and ‘fish’ for evidence of other possible crimes”.

Sapen v. Statedecided July 20, 2007

• Facts:

-Officer observes SUV disregard a stop sign and stop in the intersection

-Officer follows the SUV into a residence driveway;

-Officer talks to the driver and notices smell of alcohol, red glassy eyes, defendant concentrated on walking and told officer he had not seen the officers red lights;

-Officer determines further investigation is needed and requests driver’s license and registration;

-Driver provides license but needs to go inside to get registration from the SUV;

-Officer allows defendant to go inside to get registration.

-Defendant goes inside and refuses to come back out to do FSTS

Sapen v. State• Facts, continued.

-Officer went inside the garage where defendant was and grabbed defendant’s hand;

-Defendant refused to come outside to do FSTS

-The fight was on;

-Defendant pepper sprayed and “hurt”. Officer “used the handcuff to bring Sapen to the ground”.

-Officer sustained injuries; defendant transported for treatment of injuries from pepper spray inhalation. ---Defendant refused a chemical test;

-Defendant convicted and sentenced for OWI, A misdemeanor, resisting law enforcement, D felony.

Sapen v. State

• Issues:

• Whether the trial court erroneously admitted evidence obtained in violation of the 4th Amendment

• Whether there is sufficient evidence to permit re-trial for RLE and OWI

Sappen v. State• Decision• “It is a basic principle of Fourth Amendment law that searches and

seizures inside a home without a warrant are presumptively unreasonable.” Peyton v. Ney York, 445 U.S. 573 (1980). However, the presumption of unreasonableness that attaches to a warrant less entry can be overcome by a showing of exigent circumstances, which traditionally have included:1) a suspect is fleeing or likely to take flight to avoid arrest; 2) incriminating evidence is in jeopardy of being destroyed or removed unless an immediate arrest is made; and 3) hot pursuit. Snellgrove v. State, 569 N.E. 2d 337 (Ind. 1991). Although the State argued “hot pursuit” and dissipation of evidence of blood alcohol, the Court determined that because defendant was allowed to go inside his home and the officer did not order him to stop, the officer was not in “hot pursuit”, dissipation of alcohol does not constitute “exigent circumstances” to justify a warrant less home entry, Thus the warrant less entry violated the 4th Amendment and the trail court erred in admitting evidence obtained as a result.

Sapen v. State• Decision

• Even excluding the evidence that was obtained in violation of the Fourth Amendment, there is sufficient evidence to permit the fact finder to conclude that defendant committed the OWI charged; therefore, defendant can be retried on the OWI. However, there is insufficient evidence to establish that defendant forcibly resisted the officer by strong, violent or powerful means to evade the officer’s rightful exercise of his duties. Defendant cannot be retried on the resisting law enforcement.

Sapen v. State• Decision• “We have recognized that a greater privilege exists to

resist an unlawful entry into private premises than to resist an unlawful arrest in a public place.” The forcible nature of a defendant’s resistance, obstruction, or interference is an essential element that the State must prove at trial. “A person ‘forcibly resists’ law enforcement by using strong powerful, violent means to evade a law enforcement officer’s rightful exercise of his or her duties.” Shoultz v. State, 735 N.E. 2d 818, 822 (Ind. Ct. App. 2000). State did not present sufficient evidence to establish forcible resistance by strong, violent of powerful means by the defendant to evade the officer’s rightful exercise of his duties. Therefore, no retrial on the RLE.

Update on Karl Jackson

• Rehearing denied

• Petition to Transfer due this week

CONTACT INFORMATION

Deborah ReasonerTraffic Safety Resource Prosecutor

Indiana Prosecuting Attorneys Council

302 W. Washington Street, Room E-205

Indianapolis, IN 46204

(317) 232-1836

dreasoner@pac.in.gov