What is a License Checkpoint
License checkpoints are temporary postings of law enforcement personnel at a particular location, on a particular day, inhibiting all traffic that passes in either direction. Likewise, they perform the same service at the same time at an entirely different location. For example, in the jurisdiction of Cobb County, Georgia, every month there will be a DUI Task Force which is sequentially at various locations throughout the county. Each location will have several police vehicles stationed at it, along with other officers who stand in an organized fashion in front of the stopped vehicles and inspect each driver’s license to determine whether or not that person has a valid license to drive within the United States, and is not, for example, an illegal immigrant. The officer visually inspects the driver upon approach, observing his demeanor, his breathing, etc. If everything appears to be in order, the officer allows the motorist to move on and exit the checkpoint. If however, there is any indication whatsoever that the driver may not be sober, the officer will generally ask the driver to pull to the side of the road because he suspects the driver to be drinking alcohol, in violation of Georgia DUI law, per Georgia Code 40-6-391 .
If you are stopped by an officer at a DUI checkpoint, police will almost always ask you a few questions: Do you have a valid Georgia driver’s license? Do you have any alcohol in your vehicle tonight? How many beers have you had tonight? Did you pick the beer by yourself or did a friend buy it for you?
IF you have a driver’s license in Georgia that is valid, and IF you can say "no" to the questions above then you should be able to keep on driving without any problem whatsoever. This is an important note to make here, that if you don’t have a driver’s license in Georgia and you incur other infractions (such as driving under a suspended license, or simply not having a license) then this is grounds for the police officer to arrest you and probably take the car you are driving into their custody. They would then not only give you citations for those infractions, but if you happened to be under the influence of alcohol at the time or any drugs including marijuana they will also charge you with DUI.
On the other hand, if you do have a Georgia driver’s license, and you do have the required insurance, but you happen to have had four or five drinks in the last couple of hours, then you are likely to have been stopped by police at a roadside checkpoint for DUI, behavior which is illegal to engage in, per Georgia Code 40-6-391.
The Law as it Applies to License Checkpoints in Georgia
The legal framework for license checkpoints in Georgia is dictated by both state law and relevant case law. The Georgia Supreme Court has established guidelines for when and how law enforcement can set up license checkpoints, including the requirement of minimal discretion on the part of officers.
Georgia Code § 40-16-22 sets out specific requirements for license and safety check points in the state. The law mandates that the stops be indicated with official signs, with all vehicles required to stop, and that officers use fair discretion in detaining vehicles for further investigation. Police may not stop vehicles randomly, but must exercise "equal treatment," stopping according to a pre-established plan or pattern.
While the statute also requires officers to have probable cause to detain drivers for further questioning or arrest, in practice, this can become another way for officers to Flout existing law. In some cases, traffic is so fast that officers do not apply the laws as written, resulting in many motorists being subjected "excessive" license inspections even though Georgia law only allows random stops.
The Supreme Court of Georgia elaborated on some of these requirements in its 1995 decision in America’s Best Inns, Inc. v. Wang, where the court outlined five requirements for roadside license checkpoint stops.
• Police must publicly announce the time and location of the checkpoint.
• Law enforcement officials should stop only one or two vehicles in succession, priced on officer discretion.
• Officers must stop each car for the same amount of time, typically about 60 seconds.
• Law enforcement should use significant signage to indicate the checkpoint.
• The use of uniforms or marked vehicles increases public awareness of the checkpoint.
Research has shown license checkpoints to be a fairly ineffective means of reducing impaired driving. The National Highway Traffic Safety Administration stopped conducting federal research into the effectiveness of sobriety checkpoints in 1995, largely because the results showed they had little effect on reducing drunk driving and related accidents. This is perhaps an issue of visibility, as license checkpoints are often poorly advertised, which may make them less effective.
A checkpoint may be legal even if law enforcement has failed to follow some or even all legal requirements that govern roadside stops. If a law enforcement officer stops you and asks to see your license and insurance information and you think the stop was illegal, do not attempt to argue with or resist the officer. Refuse to answer additional questions you are not legally required to answer, and ask if you are free to leave.
Constitutional Issues
In their quest to combat intoxicated driving, law enforcement agencies in Georgia employ a variety of approaches, including the controversial use of license checkpoints. Broadly defined, these checkpoints are locations where law enforcement officers systematically stop vehicles en masse to check for license and/or registration violations. While the Supreme Court of the United States has sanctioned the use of these checkpoints, for reasons founded in the Fourth Amendment to the Constitution, this jurisprudence has remained very much an open question in Georgia since the Georgia Supreme Court in State v. Stinchcomb ruled that they are unconstitutional under the Georgia Constitution.
In Stinchcomb the Georgia Supreme Court relied on the very narrow exception to the warrant requirement that was first created in the case Terry v. Ohio, which allows for brief stops and searches of individuals based on a reasonable suspicion of criminal activity. The violation of the Georgia Constitution, in Stinchcomb, was premised on the fact that the motorists were not suspected of any criminal activity before the stops began and not suspected of having committed any crime at the time they were stopped. Therefore, stated the court, it could not allow checkpoints as authorized by O.C.G.A. § 40-13-62(a) to take place statewide in Georgia. The court stated that such a ruling would create a slippery slope from which it could not emerge unscathed. The slippery slope the court warned against no doubt was the slippery slope towards a police state.
In the aftermath of Stinchcomb, which occurred in 1982, the next significant case addressing checkpoints in Georgia occurred in Reddick v. State. In Reddick the court distinguished Stinchcomb, and upheld the use of checkpoints in DeKalb County, Georgia, on the basis of decreased crime in neighborhoods where checkpoints took place. The court noted that neighborhood crime had decreased by approximately 42% during the time during which checkpoints were in existence. Insightfully, the court pointed out: The potential effect of criminal activity, as opposed to criminal acts, on large metropolitan neighborhoods, is, as we have stated herein, a fear expressed manifestly in the criminal laws and administrative policies of this and other states. License checkpoints, such as those involved in the instant case, can directly address public fears of apprehension and victimization, a legitimate and substantial police goal. Reddick, at 508 S.E.2d 442 (quoting State v. Wells, 261 Or. 63, 63-64, 493 P.2d 1372, 1373 (1972)). In light of this rationale, many Georgia law enforcement agencies have engaged in license checkpoints across the state and under their auspices and supervision, hundreds of thousands of motorists have been allegedly stopped in order to issue citations for failures to wear seatbelts and to obtain licenses or to make arrests for offenses such as driving under the influence of alcohol or other drugs or possession of drugs, as well as for violations of other minor traffic offenses.
Longstanding challenge to the constitutionality of checkpoints The use of checkpoints has come under continual legal attack, as a matter of constitutional interpretation by a number of cases. For example, in the case of Shite, v. State, the Georgia Court of Appeals, in holding that an evidence seizure, after a consent was contested, was lawful under the Fourth Amendment, stated that: We have held that when a driver voluntarily submits to a properly established license checkpoint, even though he does not consent to the search of his vehicle, evidence seized pursuant to a validly conducted sobriety checkpoint is admissible against him since the seizure is supported by probable cause under the Fourth Amendment. Scott, supra at 865-866 (51 OSCR at 392-393); Stinson v. State, 229 Ga. App. 114, 115 (494 SE2d 259) (1997). In a case that made its way to the Georgia Supreme Court, State v. Stiggers, the Supreme Court, in a footnote, stated that: Even if it could be demonstrated that the sobriety checkpoints employed by the police constitute illegal searches violating the Fourth Amendment because the state presented no evidence to support a finding that the sobriety checkpoints serve a public purpose, [Title] 6-2 of the Dublin City Ordinance does not mandate the use of sobriety checkpoints by the police. Therefore, if the sobriety checkpoints employed by the police constitute illegal searches, the evidence seized by the police must be suppressed, even though the sobriety checkpoints were used pursuant to a city ordinance. Thus, even if this court were to determine that the sobriety checkpoints employed in this case constituted illegal searches of private citizens, the trial court erred by applying the "good faith" exception to the exclusionary rule.
Court Rulings that Affect the Legality of a Checkpoint
The judiciary in Georgia has provided further clarification on the constitutionality and legality of license checkpoints. For example, Turner v. State addressed when police can establish a roadblock and what the police must do prior to the roadblock. The factors given in Turner that must be followed are: 1) for the checkpoint stop, the two pronged test in Brown v. Texas must be satisfied. That is there must be a stopping point and interim criteria for stopping cars; 2) see below, the guidelines for roadblocks must be followed; and 3) the stop must be brief.
As for the circumstances regarding establishing criteria for the license checkpoints, it seems that the majority of the decisions require prior approval by a police department the size of a police department. See, e.g., Doty v. State. In Doty, the initial deputy who had contact with Mr. Doty upon confirming the suspended license, could not establish a license checkpoint. He turned to the sheriff, with the final decision resting with the sheriff. The sheriff approved the decision. That was not enough in this case.
The most interesting case in my opinion is Willett v. State where the Evans County Sheriff’s Department had a roadside sobriety checkpoint in which Mr. Willett was stopped for a license check. Mr. Willett asserted that the sobriety checkpoint was unlawful because no supervision was given the officers at the roadblock. The lower court disagreed and affirmed the convictions. The appellate court reversed the decision. It noted that the record did not include a written checklist of tasks to be completed at the checkpoint over here manned a least once every twenty-four hours. There was also no evidence of a designated officer who acted as supervisor, and no evidence as to how the officers, particularly the officer who stopped the appellant’s vehicle were instructed to conduct the checkpoint in a lawful, consistent and organized manner. Because the lack of a supervisor at the checkpoint may have created a haven for arbitrary and discriminatory enforcement of the law, the "safety" concerns addressed by the cases as to why sobriety checkpoints are lawful did not occur here.
Essentially, a Georgia court of appeals reversed a conviction because of the lack of supervision required for a license checkpoint. The court noted that the idea behind the checkpoints was to help keep roadways safe. The problem here was that the great benefit the checkpoints was meant to provide was not provided. Consequently, the safety concerns referenced in implementing license checkpoints were not present.
Public Safety Versus Individual Liberties
Beyond the constitutional queries regarding the reasonableness of the search and seizure involved in a license checkpoint, there is a broader debate at work in the Georgia license checkpoint cases. On the one hand, there is the important government goal of public safety. The threat that intoxicated drivers pose to public safety is run of the mill to us lawyers specializing in DUI cases. We routinely see the damage that drunk drivers exert upon the roads, and the ensuing destruction. Nevertheless, the need to maintain the safety of Georgia citizens on the road is ultimately a goal with which most of us would agree. On the other side of the equation are individual rights . Constitutional rights are guaranteed under the first ten amendments to the Constitution, protected by law enforcement, judges and by the people as a guarantee that government, as well as individuals, do not trample on those rights. As in all societies who value constitutional government, individual rights in this country are not absolute. Instead, there is a balancing act, a compromise whereby the government is granted some measure of authority to violate individual rights for the purpose of enhancing public safety. License checkpoints is one arena in which this balancing act is being examined and scrutinized. Part 2, below, looks a little more closely at the actual procedures and requirements that the government must satisfy to implement a licnes checkpoint in Georgia.
What to Expect at a Georgia License Checkpoint
When an officer approaches your vehicle at a Georgia checkpoint, the officer will instruct you to stop. Do so. Do not attempt to continue on down the road. Stop your vehicle where instructed by the officer. Do not "make a break" to avoid the checkpoint.
Most likely you will be greeted at the window by an officer in full police uniform. It may also be an officer in plain clothes. However, if the officer is in plain clothes he or she will be driving a marked police vehicle. You will not be stopped by an officer in plain clothes driving an unmarked police vehicle. The officer will be wearing a badge either on the front of their uniform shirt or on the chest of their outer jacket. You may be asked to roll down your passenger side window. If it is dark, the officer may shine a flashlight into your car. Do not be alarmed.
The officer will probably request to see your drivers license and registration for the vehicle. Be prepared to comply and hand over same. Ask the officer to let you know if you can be free to go. Usually, checkpoints are operated in such a manner that continues to permit traffic flow. It is common for some cars to be directed to the side of the road for further inspection or questioning. If you are ordered out of your vehicle, follow all orders of the officer.
If you attend traffic court regularly, you know that there are procedures for anything you might be charged with under the Code of Georgia. This can include traffic violations, parking violations, etc. The most important step in a license checkpoint is to remember that you will not be released from custody until he or she has proof of your identity. If detained, be courteous and respectful to the officer. Remember, being rude or angry will only make things worse.
Seriously consider going to court and defending any violation issued from a Georgia checkpoint. Take a good defense attorney with you.
Ways to Challenge a License Checkpoint Stop
When such checkpoints are challenged there are several options to do so. One is to simply move the cause from magistrate’s court to state court where a traditional jury trial may be held. A second option is to attack the probable cause justification in Magistrate Court. A third option is to challenge the constitutionality of the checkpoint and the actual stop in Superior Court, Federal District Court, and/or the State of Georgia Supreme Court. The ultimate decision in these cases will be whether the officer had a reasonable basis to ask the motorist about his license and insurance. If there was no legal basis for the inquiry, Section 25-14(b) of The Official Code of Georgia Annotated (OCGA) allows any person to pursue an action against a city or county that violates the law by unreasonably stopping motorists at license/insurance checkpoints. There are many factors in these actions to be addressed. However, the law when analyzed grants the police little authority to stop cars without probable cause to believe a law is being violated. In addition, this issue may be waived by a guilty plea even here in magistrate’s court. With so many issues a client may pursue the legal issues without hiring a lawyer. Interestingly enough, the Georgia Legislature just last year amended the code to require that a law enforcement officer stop every car entering an insurance checkpoint. If the officer knows that the driver has no license or insurance, then the officer can proceed with an arrest.
The Future of License Checkpoints in Georgia
In the face of widespread legal challenges to their constitutionality, the future of license checkpoints in Georgia is uncertain. Critics claim that the State of Georgia has yet to articulate any legitimate reasons for retaining checkpoints after a significant ruling by the United States Supreme Court, which held in the case of Edmond v. Indiana that "the design of a vehicle checkpoint program for the primary purpose of discovering evidence of ordinary criminal wrongdoing is unreasonable under the Fourth Amendment." 531U.S. 32 (2000). Edmond was the final decision in a long line of cases, in which the Court gradually transformed the regulatory checkpoint into an unreasonable search and seizure, by viewing searches and seizures which were neither designed to target lawbreakers nor reasonably designed to advance a public safety interest.
In the Georgia case of State v. Goldstein , the Supreme Court of Georgia first moved to allow license checkpoints in that State by ruling in 2011 that the regulatory checkpoint at issue in that case was reasonable. The Court noted that no violation had been found, and various measures had been undertaken to assure the safety of the public against drunk driving. In 2012, however, the Supreme Court of Georgia revisited this issue in the case of State v. Markeland. In that case, however, the Court ruled that the state license checkpoint was unconstitutional, and reiterated their opinion that the State should have advanced a compelling state interest, such as public safety, in order to offset the constitutional violation. Thus it appears that the Supreme Court of Georgia is moving to tighten the constitutional restrictions on the use of license checkpoints in Georgia.