Saturday, May 17, 2008

Cops need advance publicity for DUI checkpoint in California

California DUI attorney news

May 17, 2008

People v. Morgan (1990) 221 Cal.App.3d Supp. 1 , 270 Cal.Rptr. 597

Defendant and respondent Dennis Morgan (hereinafter defendant) was
arrested on September 4, 1988, at a sobriety checkpoint organized by
the California Highway Patrol (CHP). Defendant was charged with a
violation of California Vehicle Code section 23152, subdivisions (a)
and (b), and with an allegation of a prior conviction of section
23152, subdivision (a). Prior to trial, defendant brought a motion to
suppress all evidence seized by the CHP, including the results of a
chemical test administered on the defendant, under Penal Code section
1538.5. The trial court granted the motion, and the People appeal from
that ruling.

The facts of the case are not in dispute. While driving west on Bryant
Street in San Francisco, defendant turned right onto Sixth Street,
where a CHP officer immediately guided him into the CHP sobriety
checkpoint. There were no signs on Bryant Street (a one-way street) to
advise drivers that there was a checkpoint on Sixth Street. After
detecting alcohol on the defendant's breath, a CHP officer led the
defendant through a variety of field sobriety tests. When defendant
failed the tests, he was arrested on suspicion of driving under the
influence of alcohol, and taken to San Francisco County jail where he
was given an intoxilizer test which revealed that his blood contained
more than 0.10 percent alcohol.

At the hearing on the motion to suppress, the trial judge granted the
motion on two grounds: first, the prosecution had failed to carry its
burden in showing there was adequate advance publicity as required by
the Supreme Court in Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [241
Cal.Rptr. 42, 743 P.2d 1299]; second, due to the lack of signs on
Bryant Street, defendant was not afforded an opportunity to turn away
from the checkpoint. The People limit their appeal to the former

The issue raised by this appeal is similar if not identical to the
issue raised in the case of People v. Mathis ((Nov. 13, 1989) App.
Dept. Super. Ct., City and County of San Francisco, Crim. A No. 4124),
which we decided in an unpublished written opinion. Because this
appeal involves a legal issue of continuing public interest, we have
ordered this opinion published so it may be referred to as precedent
in subsequent proceedings. (Cal. Rules of Court, rule 976.)

In Ingersoll v. Palmer, supra, the California Supreme Court upheld the
detention of motorists at a sobriety checkpoint in Burlingame, despite
the absence of any reasonable individualized suspicion of wrongdoing,
on the theory that such detentions were permissible administrative
inspections primarily intended to enhance public safety by deterring
potential lawbreakers [221 Cal.App.3d Supp. 4] from driving while
intoxicated. Applying the balancing test articulated in People v. Hyde
(1974) 12 Cal.3d 158 , 166-169 [115 Cal.Rptr. 358, 524 P.2d 830], the
Ingersoll court concluded that the intrusiveness on an individual's
liberty interest caused by a checkpoint detention is outweighed by the
substantial governmental and public concern about drunk driving and
the demonstrated or potential deterrent effect of sobriety checkpoints
in keeping drunk drivers off the road. (Ingersoll v. Palmer, supra, 43
Cal.3d at pp. 1338-1339.)

Taking note of a number of decisions of courts of other states and an
opinion of the California Attorney General, the court identified eight
factors to "provide functional guidelines for minimizing the
intrusiveness of the sobriety checkpoint stop." (Ingersoll v. Palmer,
supra, 43 Cal.3d at p. 1341.) However, in its discussion of one of the
eight factors, the Ingersoll court pronounced: "Advance publicity is
important to the maintenance of a constitutionally permissible
sobriety checkpoint. Publicity both reduces the intrusiveness of the
stop and increases the deterrent effect of the roadblock." (Id., at p.
1346.) Applying this factor to the Burlingame checkpoints, the court
found "substantial advance publicity accompanied each sobriety
checkpoint instituted." (Id., at p. 1347.)

[1a] The People contend that advance publicity is not a requirement of
a permissible sobriety checkpoint, but merely one of several
guidelines offered by the Ingersoll court to help ensure a balance
between the governmental and individual interests involved. Indeed,
Ingersoll does not expressly state that police departments must
strictly apply each of the eight factors. On this appeal, however, we
need not determine whether all eight guidelines, singly or in more
limited combinations, must be observed to constitute "substantial
compliance" with the holding of Ingersoll.

[2] Nevertheless, from the standpoint of the ultimate purpose and
legal theory supporting administrative motorist detentions, we hold
that advance warning and publicity of sobriety checkpoints is
essential if such checkpoints are to serve as an effective deterrent,
because it may be impossible to deter an uninformed public.
Ingersoll's requirement of "substantial advance publicity" means that
checkpoint authorities must do more than simply inform the press about
their plan to operate a checkpoint. To be constitutionally
permissible, the press relations strategy implemented by the
authorities must actually generate "substantial advance publicity."

Although the requirement of advance publicity has been given
inadequate attention in some cases and, apparently, held unimportant
in others (People v. Bartley (1985) 109 Ill.2d 273 [486 N.E.2d 880];
State v. Deskins (1983) 234 Kan. 529 [673 P.2d 1174]; Kinslow v.
Commonwealth (Ky.Ct.App. [221 Cal.App.3d Supp. 5] 1983) 660 S.W.2d
677; State v. Coccomo (1980) 177 N.J. Super. 575 [427 A.2d 131]),
other sister state decisions invalidated checkpoints on state grounds
where no advance publicity was proven (State v. Koppel (1985) 127 N.H.
286 [499 A.2d 977]; State ex rel. Ekstrom v. Justice Ct. of State
(1983) 136 Ariz. 1 [683 P.2d 992] (Feldman, J., conc.) ["the efficacy
of a deterrent roadblock is heightened by advance publicity in the
media and on the highways"].) We also note, however, that several
state courts have upheld sobriety checkpoints when evidence of
substantial advance publicity was established. (State v. Superior
Court (1984) 143 Ariz. 45 [691 P.2d 1073] [press releases, purchase of
radio, television and newspaper advertisements]; Commonwealth v.
Trumble (1985) 396 Mass. 81 [483 N.E.2d 1102] [press releases sent to
400 media outlets; individual police officers personally spoke to
media representatives; several newspapers and broadcast stations
disseminated information prior to roadblock]; Little v. State (1984)
300 Md. 485 [479 A.2d 903] [extensive statewide publicity campaign
announcing pilot checkpoint program; widespread media coverage after
series of press conferences].)

[1b] In this case, the People offered insufficient evidence of advance
publicity at the hearing on the motion to suppress to satisfy the
Ingersoll requirement. A CHP sergeant testified that another officer
followed CHP procedures and sent a notice to the Bay City News
"somewhere between 48 and 24 hours prior to our set up," and then
called Bay City News on the evening of the checkpoint to advise where
the checkpoint would be set up. There was no evidence of advance
information given by the media to an uninformed public. Although
Evidence Code section 664 allows a presumption that official duty has
been regularly performed, this presumption does not apply on an issue
as to lawfulness of an arrest if it is found or otherwise established
that the arrest was made without a warrant. (People v. Carson (1970) 4
Cal.App.3d 782 [84 Cal.Rptr. 699].)

The sergeant also testified that a television crew was on the scene on
the night of the checkpoint. In our view, the fact that a television
news crew was present during the operation of the checkpoint does not
have "any tendency in reason" to prove that the public was given
advance knowledge of the existence of a sobriety checkpoint. (Evid.
Code, § 210.) No reasonable inference can be drawn from the evidence
of on-the-spot coverage by the television media that the public was
given advance knowledge of a sobriety checkpoint.

It is therefore ordered that the order granting the motion to suppress
made and entered in the above-entitled cause is affirmed. The clerk of
the court is hereby ordered to forward a copy of this opinion to the
First [221 Cal.App.3d Supp. 6] District Court of Appeal, Division One,
upon the judgment becoming final as to this court. Kay, P. J., and
Alvarado, J., concurred.