We consider the Supreme Court’s granting of a right for local police
to create license checkpoints to amount to an exception to the fourth
amendment. Regardless of our views (and the views of many of our clients),
police checkpoints have been determined legal. As we are now into the
holiday season, we expect to see more checkpoints setup all around South Carolina.
At a checkpoint officers can check to see your driver’s license,
proof of insurance, and registration. They can also attempt to locate
impaired drivers. Checkpoints for general crime control are not permitted.
In order to justify any DUI arrest the defendant has the right to demand
that the police establish that the checkpoint was conducted in strict
compliance with the applicable legal standards.
Whenever we undertake representation of a client arrested at a checkpoint
there are certain additional steps we undertake. One thing we do in every
checkpoint case is to file a specific discovery motion with the court,
so that the police will turn over the documentation and records to prove
that the checkpoint was legally established.
Police officers aren’t allowed to just setup checkpoints anytime
and anywhere they wish. Instead, they must comply with the following requirements:
What is the reason for this checkpoint? There must be some specific purpose for setting up a checkpoint in a particular
location. General crime control is not allowed, and there should be data
showing a need to screen vehicles going through a certain road.
Was the checkpoint announced? Checkpoints aren’t allowed to be scheduled without advance notice
to the public. This is usually done by sending a press release to the
Was the decision to establish the checkpoint made by a high-level officer? Road officers aren’t allowed to come up with checkpoints on their
own. Instead it takes a formal decision making process from higher-ups
at the police station, and written documentation as to how the checkpoint
will be conducted.
When the prosecutor is unable or unwilling to provide evidence that the
police has complied with these requirements we can move for a dismissal
of the DUI on the grounds that the checkpoint was conducted unlawfully.
In addition to screening for compliance with checkpoint procedures, we
also screen for legal & evidentiary defenses to the underlying DUI
charge. DUI charges can be defending on both of these fronts. Did the
police follow the required procedures for conducting the investigation
and making the arrest? What circumstances exist to challenge the officer’s
assertion of impairment?
Just like we submit discovery motions to obtain information about the checkpoint
procedures, we also request materials to allow us to evaluate these other
portions of the case. For most cases, this will include at a minimum:
- The roadside video (beginning with the activation of the officer’s
- Narrative incident report.
- Scoring sheet from any field sobriety tests (usually consisting of three
tests: the HGN “eye” test, the walk and turn, and the one-leg stand.
- The report from any breathalyzer test.
- The video from the breathalyzer room.
When we receive these materials they will be evaluated from beginning to
end by two lawyers in our office. Every case is evaluated by attorney
James Snell. We use a second lawyer to evaluate the case to ensure that
nothing is overlooked.
After our lawyers evaluate the case we schedule an appointment with our
client. During this appointment we will review with them the circumstances
of their case, including the defenses that we see and the possible strategies
that can be employed. This meeting is conducted before any court date,
so that our client will be in the best position to determine how they
would like their case to proceed. The rule in our office is that if our
client’s case is not dismissed, or reduced to their satisfaction,
we promise to be ready, willing, and able to fully contest the case in court.