The Legal Aspects of Driver’s License Checkpoint
Mississippi employs the use of checkpoints in a variety of contexts, including the search for reporting crimes and particular suspects. With respect to traffic law enforcement, the Mississippi Supreme Court has broadly approved the use of sobriety checkpoints as well as checking the drivers’ licenses of traveling motorists. Neese v. State, 785 So.2d 259 (Miss. 2001); Denson v. State, 538 So.2d 1336, 1338 (Miss. 1989). The basis for the holding is that the state’s interest in promoting road safety markedly exceeds citizens’ right to be free from arbitrary police interference. Denson, at 1339 .
Coupled with the above rationale is that driver’s license checkpoints are not supposed to be based on any profiling. Jones v. State, 749 So.2d 168, 172 (Miss. 1999). They are designed to be random, uniform, non-discriminatory, well-publicized, and well-monitored. Denson, at 1340. Thus, when and if a driver’s license checkpoint is conducted, under Mississippi law at least, it should be random. Standard procedure is for a number of vehicles to be stopped and verified that the occupants have a valid driver’s license, insurance and tag in order to be sure of road safety and compliance with the law. It should not be a profiling screening.
Legal Considerations for Checkpoints in Mississippi
Driving Safety and mobile checkpoints have a long history in Mississippi. In 1991, the Mississippi Attorney General stated the legality of license checkpoints at certain locations is permitted as long as minimum requirements are met. Constitutionally, the State must comport with federal law to treat it for a valid purpose.
Constitutional Requirements The Fourth Amendment prohibits "unreasonable searches and seizures", which require some objective criteria to base the stops. The case of Delaware v. Prouse held that random stops were unreasonable and violated the 4th Amendment, without reasonable suspicion or probable cause. An exception to this rule came in a later decision in Michigan Dept. of State Police v. Sitz, where the U.S. Supreme Court allowed for sobriety checkpoints. Under the guidelines of Sitz, license checkpoints may be constitutional if they establish and publicize conditions (1) that will programmatically serve the public interest by reducing the incidence of dangerous driving or some other serious threat to public safety and (2) that insure the police discretion is circumscribed in a way that minimizes arbitrary and capricious decision-making. It is also important to note that not every police checkpoint or roadblock is considered a license checkpoint. For example, the state does have road safety checkpoints where there are accidents or traffic issues.
Citizens’ Rights in Connection with Checkpoint
All states have the power to stop vehicles and question their drivers, but the federal constitution limits the scope and circumstances of such checkpoints. These encounters are, of course, a part of normal traffic enforcement as officers can stop any vehicle for any reason as long as the officers have probable cause that the driver has violated the law. The important difference in the analysis at a checkpoint is that the likelihood of violation of the law is presumed to be high based on the operation of the checkpoint and this presumption underlies the legality of the check only when the scope and advance planning of the checkpoint support that presumption.
As an initial matter, the only general requirements that a Missouri driver must follow at a checkpoint are to stop and to follow all directions given by the checkpoint officers. There is no requirement to produce documentation. To the extent that a driver is asked to produce documents or answer questions, the driver can decline to do so. A driver has the right to record the encounter (audio and video) and to get out of their car after they are stopped. A driver does NOT have the right to do anything whatsoever that would interfere with the integrity of the checkpoint itself, including indicating to other motorists or pedestrians that the area ahead is a sobriety checkpoint. A driver also does not have the right to interfere with officers while they address other drivers or otherwise violate the law.
A driver entering a checkpoint should expect, at a minimum, to be stopped for a brief moment, then waved on. It is common for a driver to be questioned about their destination and/or level of sobriety at many checkpoints-this encounter should be at most a few moments in duration. If a driver is asked to pull over and conduct the three minute "Show-Me" sobriety interview, a driver should know that refusing to do so is itself a presumption that there is something wrong and can lead to license suspension.
The "Show-Me" sobriety interview is a state-created legal fiction which seeks to provide probable cause to request a chemical test by eliciting evidence of impairment. In short, if the driver refuses to take the test, the presumption is that they are guilty, and if the driver submits to the test and fails, the driver is guilty. Most drivers are not aware that they have the right to record and/or have counsel present during the interview. The problem with this concept is that voluntary cooperation with the sobriety interview is treated as an admission against interest and therefore the driver must be made aware of their rights to counsel and to refuse to take any tests; otherwise, the questioning officers will claim that cooperation indicated a voluntary admission. This is simply not true. However, voluntary cooperation with a breathalyzer test is a different story. There is no right to counsel or to record the test administration. Because an intoxilyzer is essentially a black box, there is no way for the driver to verify whether or not the machine is reading accurately. Therefore, the driver can be effectively forced to submit to a breath test and some officers regularly push the limits of the statute in order to get drivers to submit to testing. A driver who submits to a breath test should know that they have the right to request a blood test. Ask for the blood test and do it quickly to avoid the officer delay in taking you to the hospital.
If a driver is involved in an accident and another party, a witness or an officer suspects that they got drunk, that party will probably make a false accusation. The driver should not admit being responsible for the accident or being drunk, but the driver should absolutely request a blood test. The insurance company for the other driver will know that the driver submitted to a breath test or blood test, and they will prepare accordingly when evaluating the claim.
Contentions regarding checkpoints
The controversies surrounding the use of Mississippi driver’s license checkpoints are vast. Some claim that these Stopping Points of all types are a blatant invasion in to a persons’ right to privacy. Critics also claim that the statistics suggest that checkpoints are not effective in catching criminals. Critics also assert that checkpoints are racially and economically selective and that they are not equally applied across Mississippi.
Mississippi Police Officers have discretion in determining who to stop and who to let go. This alone can create a racially and economically selective Stopping Point. In most cases, checkpoints deliberately avoid the areas with public transportation that are frequented primarily by members of economically privileged communities. Bottom line, wealth buys power and privilege.
Another argument against checkpoints is that they are not effective in catching criminals . Critics claim that the diversion of Police Officers to the checkpoint creates a void of available resources to catch real criminals. Although many reports have been published claiming that checkpoints are ineffective, The National Highway Traffic Safety Administration (NHTSA) commissioned a study of sobriety checkpoint programs carried out from 2000 through 2004. It showed that sobriety checkpoints reduced the proportion of nighttime-only alcohol-related crashes by about 9 percent.
Unfortunately, nothing new, including suggestions for how to make checkpoints fairer has come along since the long-running series of rulings by the Mississippi Supreme court in the 1980s that established the parameters of stops and searches. Attempts to revive the issue are sometimes made but they have not re-gained the traction they enjoyed in the mid 1990s when Mississippi had a mayhem problem with the citizens killing citizens.
Recent Developments and Prospective Trends
Two relatively recent developments in the law may impact Mississippi Driver’s License Checkpoints in a positive way. As mentioned earlier, the use of driver’s license checkpoints are technically permitted by Mississippi law (Miss. Code Ann. § 63-1-8) as long as they comport with certain statutory and constitutional requirements. Just last year, the Mississippi Supreme Court ruled that in the event law enforcement officials do not follow the statutory notice requirements set forth in Miss. Code Ann. § 63-1-8, then the defendant is automatically entitled to dismissal of criminal charges based upon evidence obtained if the defendant can show he was stopped at the checkpoint in question.
On Monday, April 28, 2014, Chief Justice Waller of the Mississippi Supreme Court delayed a criminal trial against Anthony Davis on the condition Davis would agree to pay two traffic fines: failure to obtain a driver’s license and failure to obtain a temporary tag. The legal trouble arose in March when Davis was removed from his vehicle and allegedly "shoved into the back of a police cruiser" before being arrested for public profanity and disorderly conduct after "yelling about cops searching his car without his permission" during a driver’s license checkpoint.
Some experts have largely predicted that, given the Mississippi Supreme Court’s ruling in Davis, the use of statewide driver’s license checkpoints will become rare, if not obsolete, in Mississippi. Some believe that even the backdrop of significant concern about illegal immigration and terrorism should not out-weigh the right to be free of unreasonable search and seizure inclining experts to believe that driver’s license checkpoints should not have much of a future in Mississippi.
Tools to obtain legal help
A number of local and statewide legal referral services can help Mississippi residents find an attorney with experience in driver’s license checkpoint issues. Many of these services have online directories of lawyers and other professionals. They also typically have personnel specially trained to make referrals based on the answers to certain questions. These people often can generally tell if a person calling about a driver’s license checkpoint problem has a legitimate legal issue. Local judicial/courthouse websites are another potential source for information about attorneys, judicial forms , and locations for public assistance. Elderly and low-income residents in most areas of Mississippi may be able to get limited legal assistance at little or no cost through the Mississippi Volunteer Lawyer Project (MVLP). MVLP also offers certain other civil legal services to people who sometimes do not otherwise qualify for legal assistance. People outside Mississippi can contact neighborhood or statewide legal assistance organizations for help in finding an attorney with expertise in Mississippi law. Most states in the U.S. have a legal referral service. The ABA offers a, searchable directory of legal aid services nationwide. The ABA also provides links to websites with self-help legal information. The Mississippi Bar Association’s site offers a list of state government websites and courts.