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As I’ve mentioned in past posts, the U.S. Supreme Court years ago reversed a Michigan State Supreme Court decision and held that DUI roadblocks (aka "checkpoints") are not violations of the Constitution.  See Are DUI Roadblocks Constitutional?  Since then, a growing number of states have relied upon their own constitutions to ban the practice. See, for example, Growing Number of States Outlawing DUI Roadblocks.

Since then, it has been common practice for police to pull over any driver who appears to be avoiding a roadblock.  And the question has arisen:  Does turning around, say, a block ahead of the checkpoint, constitute sufficient reasonable suspicion of intoxication to justify pulling the driver over?  In almost every case, the courts have held that it does not: mere avoidance is not an indication of drunk driving and so cannot be used to justify a stop and detention.

The Supreme Court of South Dakota, however, has decided that although turning around to avoid a roadblock is not enough, it becomes sufficiently "suspicious" if the turn is a wide one — even if a legal one!

South Dakota Supreme Court: Avoiding Nighttime Roadblock is Suspicious

The Newspaper.com, April 25 — Avoiding a roadblock is, in effect, sufficient justification for police to pull over a driver, the Supreme Court of South Dakota ruled last Wednesday. The justices unanimously ruled that avoidance itself technically is not enough, they approved the most minor of "suspicious" circumstances to justify pulling over any motorist who does not want to be stopped and interrogated at a checkpoint.

The decision came in the case of Ryan Rademaker, who had been driving a friend home at 1am on a Sunday. As he saw the blockade on the highway ahead, Rademaker turned off on a gravel road. A highway patrol officer issued orders to a local police officer who understood his mission was to stop Rademaker for avoiding the roadblock. The officer testified that he did not observe Rademaker violating any traffic laws, but the officer noted the driver made a "wide turn." The officer also noted, after he activated his red lights, that Rademaker might have been speeding.

The court looked to the question of whether the officer violated Rademaker’s Fourth Amendment rights and whether there was reasonable suspicion that Rademaker may have been involved in criminal activity. Rademaker cited a series of Eight US Circuit Court of Appeals decisions that concluded avoiding a roadblock is not enough to justify a traffic stop.

"In light of this line of case law, we join the Eighth Circuit in holding that avoidance of a checkpoint alone is insufficient to form a basis for reasonable suspicion," Justice Lori S. Wilbur wrote for the court. "However, the Eighth Circuit was clear that checkpoint avoidance is indeed suspicious and thus our analysis does not end here."

To uphold the conviction, the justices turned to the "totality of circumstances" doctrine to find a number of elements that are not in themselves criminal but lend enough to rationalize the officer’s actions in the court’s eyes.

"In addition to the checkpoint avoidance, the trial court also relied on two other suspicious factors: the time of day, 1 am and the police officer’s observation that Rademaker made an unusually wide, but legal, turn," Wilbur wrote. "Both this court and the Eighth Circuit have used the time of day as a ‘factor’ in determining whether reasonable suspicion exists… Likewise, this court recently held that a wide turn, even if not in violation of any traffic laws, may be sufficient in some circumstances to engender reasonable suspicion."

As a result of the high court’s finding, Rademaker’s conviction for driving under the influence of alcohol (DUI) was upheld. Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin and Wyoming outlaw DUI roadblocks as a violation of their state constitutional protection against warrantless search and seizure.
 

Amazing.  A turn that is legal but "unusually wide" (whatever that means) is enough to pull over a driver on suspicion of drunk driving.  This is an example of what I meant in the banner at the top of this blog by "a fading Constitution".
 

DUI BLOG

I’ve mentioned in past posts that the right to jury trial does not exist in some states for citizens accused of drunk driving.  See, for example, The Disappearing Right to Jury Trial – in DUI Cases, Through a Glass Darkly: No Jury Trial in DUI Cases and New Law: No Right to Jury Trial in DUI Cases. This may come as a shock to many out there, but it’s pretty typical of what I’ve termed "The DUI Exception to the Constitution".  

Let me make it clear:  in some states today, you can be arrested for DUI, charged, prosecuted and sent to jail for up to six months — without any right to have a jury of fellow citizens decide your guilt or innocence.

One of those states, Arizona, is apparently having second thoughts about denying this basic constitutional right….

Arizona Considers Restoring Jury Trials for DUI

Phoenix, AZ.  Feb. 20 —  Since the beginning of the year, certain motorists charged with driving under the influence of alcohol (DUI) lost their right to a trial by jury in the state of Arizona. A bill signed into law by Governor Jan Brewer (R) on April 29, 2011 rewrote the DUI statute so that only hardcore offenders with previous convictions or "extreme" blood alcohol content readings had the benefit of having their case heard by a jury of their peers, even though the first-time accused faced the prospect of spending six months behind bars.

The law removing the jury trials took effect December 31, but the state House Judiciary Committee on Thursday voted 7-0 to retroactively nullify the provision. Many state lawmakers expressed surprise after learning that they had voted for this language, which local prosecutors have been pushing for several years.

"At the arraignment, the court shall inform the defendant that if the state alleges a prior conviction the defendant may request a trial by jury and that the request, if made, shall be granted," Arizona Code Section 28-1381 now states.

The addition of the phrase "if the state alleges a prior conviction" erased the right to a jury trial for those who stand accused of being first-time, minor offenders. Trial lawyers have been looking to challenge the language before an appellate court.

"It has caused a lot of problems because if you have an extreme DUI and a first-time DUI, the judge hears the DUI case, the jury hears the extreme case," state Representative David Burnell Smith (R-Scottsdale) explained at the hearing Thursday. "If you file a motion, you get the extreme dismissed, you’d still not get a jury trial. It’s confusing out there. There’s constitutional issues, back and forth motions."

Smith’s legislation, House Bill 2284, would delete the language about prior convictions and give every defendant the unilateral right to request a jury trial. The measure is retroactive to December 31 to head off any legal challenges.

"It eliminates a real problem with the courts," Smith said.

Imagine that:  citizens accused of DUI may get a jury trial in Arizona.  Now, about those other states….
 

DUI BLOG

I believe in the Constitution.  And I have railed long and hard in books, lectures and this blogsite about the damage being done to that great document in the name of fine-sounding schemes like "homeland security" and the so-called "war on drunk driving".  

Our Constitution is a marvelous document, the cornerstone of a great nation, and one which is admired and emulated around the world.  But it is only a document; it has no magic.  The Constitution gives the people no more than what is already within them.  When the Supreme Court approves warrentless stops and searches of citizens at DUI roadblocks and there is no outcry, the people are getting what they deserve; the document will not save them.

My blog’s banner above says that our Constitution is "fading".  That is, of course, inaccurate. The document is quite clear; it is the will and courage of the people that is fading.

The following is from a speech given by the renowned Judge Learned Hand in New York’s Central Park on May 21, 1944:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women.  When it dies there, no constitution, no law, no court can save it.  No constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.

DUI BLOG