When it comes to DWI, Texas law is clear; it is illegal to operate a motor vehicle in a public place while intoxicated. As such, a typical DWI arrest begins with a police officer pulling over a vehicle for a minor traffic violation. Once the vehicle is pulled over, the officer will ask for the driver’s license and vehicle registration. During this initial contact, the officer may also ask “Have you had anything to drink?” Based on the response or the behavior of the driver, or whether the officer sees or smells evidence of alcohol or drugs, more questions are asked. Field sobriety tests are then performed and if failed, the driver is arrested on suspicion of driving while intoxicated.
However, unlike its DWI laws, the use of DWI checkpoints in Texas is less clear. Thirty-eight states currently allow the use of checkpoints and 12 states do not. Texas technically sits in the latter category. However, unlike other states that do not allow DWI checkpoints, Texas’ ban on checkpoints is not based on legislation. Instead, the ban is based on court rulings that have found DWI checkpoints to be unconstitutional.
Because of the failure of the Texas state legislature to speak on the issue of checkpoints, their use remains somewhat of a grey area.
In order to understand why the issue of DWI checkpoints continue to be controversial in Texas, we have to first take a look at the concept of implied consent.
In Texas, if you’re arrested for DWI, you are deemed to have consented to supply a breath or blood sample that can be tested to determine your blood alcohol concentration. While you can refuse to provide a sample, it will result in a longer driver’s license suspension period and can be used as evidence against you in your DWI trial. It should also be noted that if an officer reasonably believes that you caused an accident while driving drunk that resulted in death or serious injury, they can compel a blood draw after obtaining a warrant.
The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures. Therefore, the question of whether a DWI checkpoint is legal depends on whether the search at the checkpoint is reasonable under the Fourth Amendment.
Some states have specific laws that ban checkpoints for this very reason. Texas does not have any such laws. Therefore, in the absence of legislation, the issue is left to be decided by the courts.
Texas courts have held that DWI checkpoints do, in fact, violate the Fourth Amendment. As previously discussed, in an average DWI stop, a police officer initiates the stop based on a traffic violation or observation that indicates potential intoxication. At a DWI checkpoint, the stop is based not on observation, but on location and circumstance. A driver is subjected to a search and potential seizure simply because they were driving down a street. This is what makes the search unreasonable.
The refusal to engage in a blood alcohol test will often enable a DWI suspect to avoid penalties due to the time involved in obtaining a warrant. In the time it takes to get a proper warrant for testing, the suspect could sober up at a rate of .01% an hour – enough time to likely get them under the .08% threshold.
Today, though, many jurisdictions can immediately communicate with on-call judges to have an electronic warrant issued directly to an officer’s smartphone or computer, virtually eliminating the time delay. This is called a no-refusal policy because to refuse a court-ordered blood alcohol test will lead to much more serious contempt charges.
There are currently 30 states that have the legal right to conduct these types of no-refusal actions. Some states use them very actively, while others only use them during high-profile times such as holiday weekends.
Currently, no-refusal policies are often challenged. The American Civil Liberties Union (ACLU) is a very vocal critic of unreasonable search and seizure and it is their opinion that these actions violate drivers’ rights. They also raise the question of medical privacy, suggesting that other data gathered from the blood draw may be used.
So far, there have been court challenges, but none have had any success. Until courts specifically create laws surrounding checkpoints, states will be able to use or not use them as they see fit.
If you’ve been arrested for DWI at a checkpoint, or otherwise, I encourage you to contact me for free, 100% confidential consultation. I can offer you a professional assessment of your case and tell you the best ways to proceed. Contact me by phone at (214) 389-1189 or by using my contact form.