Are DUI Checkpoints Legal?

Learn what the Constitution and state law say about the legality of DUI checkpoints, plus get a walkthrough of what to expect at a checkpoint.

Drinking and driving has always been a serious problem on American roads. One person dies in a drunk-driving related car crash every 50 minutes. Big public safety problems call for big solutions.

One of those solutions is the traffic stop, also known as a DUI checkpoint. These are police roadblocks in which passing motorists are stopped. The police check for evidence of intoxication and sometimes administer field sobriety tests.

DUI checkpoints allow police to conduct a search of your person without a warrant or probable cause. You don’t have to have committed a traffic violation or given a police officer any reason to speak with you. Simply driving to the DUI checkpoint gives the officer the right to stop you.

Despite that unusual feature, DUI checkpoints are legal in most states. The U.S. Constitution permits them, but some state laws say otherwise. This article will examine the legality of DUI checkpoints across the United States. It will also discuss other important issues about these checkpoints.

Are DUI Checkpoints Constitutional?

Copy of United States Bill of Rights and the American flag

Police officers are trained to investigate potential violations of traffic laws. At a DUI checkpoint, though, they are limited in what they can do.

Any search or seizure by law enforcement agencies must follow the Fourth Amendment:

U.S. Constitution, Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A search happens when a government official (like a police officer) goes through your house, person, or belongings to find evidence of a crime. A seizure takes place when the official confiscates evidence from you.

A seizure is not limited to physical evidence taken from your person, home, or vehicle. It can also be samples taken from a blood test or breath test at a traffic stop.

Evidence gathered from unreasonable searches cannot be used against you in court. It’s very important for law enforcement officers to have probable cause, or some other acceptable reason, before a search. Violation of Fourth Amendment rights hurts not only the individual, but also the whole justice system.

It is usually a violation of the Fourth Amendment to conduct a search without probable cause to believe that a crime has been committed. Probable cause typically requires a warrant. In some cases, like where there is no time to get a warrant before evidence is destroyed, an officer may have cause to conduct a search.

A DUI checkpoint is one of those occasions where a search may take place without a warrant. The United States Supreme Court recognized in Michigan Dept. of State Police v. Sitz that these checkpoints are not an unconstitutional search and seizure.

The Supreme Court weighed the huge social problem of drunk driving against the slight intrusion on motorists stopped at the checkpoints. Given this balance, the Court felt that the search was consistent with the Fourth Amendment and therefore legal.

Are DUI Checkpoints Legal Under State Law?

Police cars on the road

The U.S. Supreme Court does not have the final word on the legality of DUI checkpoints.

States can make laws that grant more rights to their citizens than what the United States Constitution allows.

The Tenth Amendment grants all powers not given to the federal government to the states and the people.

Thirty-eight states and the District of Columbia permit the use of DUI checkpoints. Some states, like California, have detailed case law like what the Supreme Court laid out in Sitz.

Montana has a more general statute allowing roadblocks to “respond to or mitigate conditions” affecting motor vehicle safety.

In an interesting move, the Texas Court of Criminal Appeals interpreted Sitz and the U.S. Constitution as making DUI checkpoints illegal without express authorization by state law, which Texas does not currently have.

Three other states also lack state laws for DUI checkpoints:

  • Alaska
  • Iowa
  • South Carolina

South Carolina conducts DUI checkpoints even without statutory authority.

Five states have constitutions that make DUI checkpoints illegal:

  • Michigan
  • Minnesota
  • Oregon
  • Rhode Island
  • Washington

Three states have laws against DUI checkpoints:

  • Idaho
  • Wisconsin
  • Wyoming

Regardless of whether your state permits DUI checkpoints, you should understand one thing. It is always illegal to drive under the influence of drugs or alcohol. If you are pulled over because a police officer has probable cause to believe that you are driving under the influence, that is a legal search. In that case, you can be arrested in all 50 states and the District of Columbia.

Do DUI Checkpoints Have To Be Publicized?

TV reporter covering the news

A common question about DUI checkpoints is whether they have to be publicized in advance (for example, on the local news) in order to be legal.

The U.S. Supreme Court in Sitz did not definitively address the point. Some people have suggested that DUI checkpoints that are not publicized constitute legal entrapment.

DUI checkpoints typically do not meet the legal definition of entrapment. The Department of Justice and the U.S. Supreme Court say that entrapment is when police “originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime …

Because DUI checkpoints do not induce you to drive under the influence, they are not entrapment.

However, some states have indicated that advance publicity of DUI checkpoints is still very important to their legality. The California Supreme Court stated as much in the case of Ingersoll v. Palmer, where the advance notice established the legitimacy of the checkpoint and reduced the burden on drivers.

Though you may see stories on the TV news and in newspapers about DUI checkpoints, you should not believe that this notice is constitutionally mandated. It is, however, an important consideration. You should make yourself aware of the local police department policies regarding advance notice in your city and county.

What To Do at a DUI Checkpoint

A female police officer talking to a car driver

It is one thing to understand the purpose and legal theory behind DUI checkpoints. It is quite another to actually find yourself in one.

Even the California Supreme Court in Ingersoll recognized that these police roadblocks can cause “surprise, fear, and inconvenience.”

Here are some tips to lessen some of that anxiety, should you find yourself at a checkpoint:

  • First, the easiest way to avoid arrest for DUI charges is not to drive while you are intoxicated. Make sure that you have a good plan on how to get home after you have been drinking, and do not get behind the wheel if you are intoxicated in any way. Be aware of your state’s laws regarding blood alcohol content (BAC) and motor vehicle operation.
  • Second, when you are at the stop, you need to be conscious of what you say and what you agree to. While police in most states can stop you at a checkpoint, they usually cannot search your person or vehicle for evidence of other crimes.

A warrantless search is a clear violation of the Fourth Amendment. There are two exceptions. It is okay if you give the police probable cause to suspect a different crime has been committed. It is also okay if you voluntarily allow your person or vehicle to be searched.

You may give the officer probable cause if you cannot follow basic instructions or requests, like providing your driver’s license. If you say or do something that indicates criminal activity, that may also give probable cause.

While it seems strange to think you can just allow the police to search your vehicle or person voluntarily, it happens all the time. A police officer may say, “Do you mind if I take a look inside your vehicle?

Police ask questions like this because consent circumvents the Fourth Amendment. You have a Fourth Amendment right to be free from unreasonable searches and seizures. You’re not obligated to waive that right simply because you are asked.

Be Safe and Be Smart

Intoxicated driving is everyone’s problem. It is our collective responsibility to drive safely. We should also want to help the police keep us and our families safe on the roads. However, you must still remember that you have rights and stand up for yourself when necessary.

If you believe you have been wrongly subjected to an unconstitutional search and seizure at a traffic stop, make sure to contact a qualified attorney in your state for a free consultation and case evaluation.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>


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