Can police create roadblocks and arbitrarily stop motorists and inquire if they have been drinking?  Absolutely not.  If police engage in DUI checkpoints, they must carefully observe eight points articulated by the California Supreme Court in Ingersoll v. Palmer.    A big factor is how much intrusion the checkpoint makes into a person’s freedom.  The Court set forth eight criteria as standards.

First, the decision to establish a checkpoint must be made at a supervisory level.  This means, law enforcement supervisors must decide in advance the location and the procedures used in the operation of the checkpoint.  This requirement is to prevent the arbitrary application of individual officer’s standards to different motorists.

Second, the officers in the field, at the checkpoint, must have limits on their discretion.  A motorist cannot be subjected to the uncontrolled discretion of the individual officer who can arbitrarily select whom to stop and how to question the person(s) whom he/she stops.  Instead, the field officers must use a formula developed by their supervisors, such as stopping every driver, every third, fifth or tenth driver.

Third, primary consideration must be given to the safety of the motorists and officers.   Adequate lighting, warning signs and officers are necessary to reduce any risks to motorists and police.  The checkpoint must be operated only when the volume of traffic permits it to be conducted safely.  The screening procedures that are followed may affect traffic volume.   If every car was to be stopped and traffic volume was not light, such a procedure would have to be suspended until traffic volume decreased.

Fourth, the checkpoint must be located by decisions made by supervisors and not by police in the field.  The locations chosen should have the most DUI related arrests and/or accidents.

Fifth, the time of day and the length of duration of the checkpoint are critical.   Although no “bright line” rules exist, law enforcement officials must exercise good judgment in determining when and how long the checkpoints will be in operation.

Sixth, appropriate warning signs must be present, not only for the safety of motorists, but also to alert motorists that the checkpoint is duly authorized.

Seven, minimizing the length of average detention that each motorist is stopped is critical in measuring the degree of intrusion and maintaining safety.

Eighth, advance publicity is important to reduce the intrusion and increase the deterrence of the
checkpoint.

There is no steadfast rule as to how many of the criteria that a checkpoint must lack before failing the Ingersoll test.  Please consult with an experienced DUI lawyer to review the facts of your case if your DUI occurred at a checkpoint.

“Discovery” means all the evidence that tends to incriminate an accused or tends to exculpate an accused that is held by the prosecution.   When a person is formally accused of a crime, both the US and California constitutions guarantee the person to receive “discovery.”

“Discovery” is critical to the defense of a DUI, because an accused must know what the government is claiming that the driver in a DUI case did wrong.  Many persons, including some prosecutors, overlook an equally important aspect: knowing what the driver did RIGHT in a DUI case.  This means, not only does an accused have a constitutional right of receiving all information in the possession of the district attorney that shows what the driver supposedly did wrong, the government has a constitutional obligation to provide EXCULPATORY information, information that tends to show that the driver did NOT commit a DUI>

The discovery process begins at the “arraignment”, the first appearance in court, when the person receives notice of the charges in a written document called the “complaint.”   At that time, the person becomes an accused and is thus entitled to discovery.

In a typical DUI case, the preliminary discovery provided at arraignment are the police report(s) and copies of the chemical test results.  But what happens if the person wants more discovery but does not receive it at the arraignment?

The person must first request discovery informally.  An informal discovery request is done typically in writing, so there is a record of when the request was made (and served) on the district attorney, as well as a record of what was actually requested.

This informal request should be construed as a continuing demand, so that any statements, reports, or evidence that are obtained by the prosecution and/or the prosecution’s investigators or agents after compliance with the initial request should also be made available immediately to the defendant

The informal discovery request should always include a demand for the production of the names and addresses of persons the prosecution intends to call as witnesses at trial, including expert witnesses, together with all statements of those witnesses and any reports concerning their statements.  That way, the defense can investigate these witnesses and research their backgrounds as to be best prepared to challenge and refute their statements.

The request should also require the prosecution to produce copies of, or permit the defense to inspect and to copy, any and all statements (oral or written) together with any kind of reports, purporting to relate statements made by, or conversations with, the defendant, which are in the prosecution’s possession or in the possession of any and all law enforcement agencies.  In essence, the defense gets to know everything that the prosecution has in the way of evidence that the DUI driver said.

The informal request should also include copies of, or permission of the defense to inspect and to copy, all reports in the prosecution’s possession and in the possession of any and all law enforcement agencies purporting to relate statements by, or conversations with, any and all witnesses the prosecution intends to call at the preliminary hearing, trial, and/or any hearing in this matter, and such things from any and all material or percipient witnesses known to the prosecution (whether or not the prosecution intends to call them), and any audio or videotape recordings of conversations with, or statements by, any such witnesses.  The defense has the absolute right to receive complete statements, and not just summaries, of what the officers claim that witnesses said.  As can be imagined, a summary can omit or soften critical points that the defense can exploit to attack the credibility of such witnesses.

Defense can also request the production of any and all rough notes of conversations or interviews with/by any prosecutor, peace officer, or other persons working on their behalf regarding any evidence in this case, whether material to guilt or to sentencing or pre-trial motions.  The notes may have nuggets of information that the reports, after being read and edited by police, do not contain.

Also included in the discovery request is information pertaining to any real, scientific, comparison, or expert evidence collected, seized, or discovered in this matter, whether or not intended to be introduced against the defendant.  In DUI cases, it is critical to obtain complete discovery of the blood tests/procedures used, and the breath machines, their accuracy/calibration logs and maintenance records.   In addition, the discovery request should require copies of any “prior” convictions on which the prosecution intends to rely as an element or enhancement or impeachment herein, as well as copies of, or permission to the defense to inspect and to copy, any and all Department of Motor Vehicle records, and/or blood alcohol results, and/or results of analyses of suspected controlled substances pertaining to the defendant.

The defense needs to receive any information that the prosecutor may use about the DUI driver’s past record, if any. The discovery request ought to include production of any and all CLETS, CII, FBI, DMV, or other law enforcement records of felony, misdemeanor, or infraction arrests or convictions of the defendant and of any such witnesses, plus any other evidence of prior moral turpitude conduct by such persons.

The prosecution must respond in a timely fashion.  If they do not, the defense may then file a motion to compel the production of the items that the defense requested.

The proper defense of a DUI depends on the quality of the information that the defense obtains.   The discovery process is critical to a person having the best legal defense.

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