• DUI Checkpoints
• Checking Driver’s Licenses at DUI Checkpoints
• Excessive Force in Making an Arrest

DUI checkpoints, so long as properly conducted, are constitutional.  Requiring the driver of a car stopped at a DUI checkpoint to display his driver’s license is also constitutional. Using a minimal amount of physical force to arrest a driver with probable cause to believe he is driving without a valid driver’s license, at least when he has been verbally uncooperative up to that point, is lawful.

Plaintiff David Demarest, while visiting California from his home state of Vermont, drove up to a DUI (Driving while Under the Influence) checkpoint set up by officers of the Vallejo Police Department.  The checkpoint was located near the intersection of Sonoma Blvd. and Solano Ave., a location chosen because of a significant number of DUI-related collisions occurring in the area.  Having set up the checkpoint pursuant to an advance “DUI Checkpoint Operation Plan,” it was appropriately marked by signs reading: “DUI AND DRIVERS LICENSE CHECKPOINT AHEAD” and “HAVE YOUR DRIVERS LICENSE READY.” In addition to these signs, other safeguards were employed; i.e., “the area was coned off,” “traffic [was] slowed and directed to a single lane,” “there was portable lighting in the area,” and “police vehicles were at the checkpoint with [their] emergency lights on.”

A press release announcing the checkpoint was issued two days in advance and was reported on the website of a local newspaper. Under the prearranged checkpoint plan, a “neutral formula” was used under which “all vehicles will be stopped unless the backup exceeds 5 minutes,” in which case “all vehicles will be waived through until the backup is cleared.” At the checkpoint, which was operated from approximately 6:00 PM until midnight on the evening of September 26, 2020, officers were to “screen drivers for DUI, verify they have a (driver’s) license, and provide educational material in the form of a handout.”

Although it was contemplated that driver’s licenses were to be checked, it was undisputed that the checkpoint’s “purpose . . . was to remove intoxicated drivers from the road and to deter intoxicated driving.” “Removing unlicensed drivers from the road and deterring unlicensed driving was not a purpose of the [c]heckpoint.”  At about 7:15 p.m., Demarest approached the checkpoint and was signaled to proceed up to Officer Jodi Brown, which he did.  Officer Brown asked to see his driver’s license.  Ignoring this request, Demarest asked if he could continue on his way.  Officer Brown responded by asking for his license a second time.  Apparently feeling he knew the law better than Officer Brown (being from Vermont and all), Demarest asked her whether she had any cause or reasonable suspicion to stop him.  Officer Brown declined to take the bait or debate the issue and simply told him that if he did not provide his license as requested he would be arrested.  When Demarest continued to ignore Officer Brown’s request for his license, the officer opened the door to his car, grabbed his left wrist, and pulled him from the vehicle.  She then handcuffed him, telling him to stop resisting and that he was under arrest. 

Once his driver’s license was located, it was determined that his license was valid and there were no outstanding warrants.  The officers declined to give Demarest a breath test when he requested one, telling him “[t]hat’s not what this is about.”  Demarest asked to speak to a supervisor.  Officer Herman Robinson (apparently in charge of the DUI checkpoint) came to speak with him. Demarest complained to him that he had done nothing wrong and had only exercised his rights under the Fourth Amendment.  Officer Robinson simply responded with words to the effect that: “You win more bees with honey than vinegar.”  Demarest was booked into jail. 

Charged in state court with resisting arrest (P.C. § 148(a)) and possession of a concealed dirk or dagger (P.C. § § 21310; for a knife found during booking on a rope he wore around his neck and which was missed when initially patted down for weapons), he later agreed to participate in a diversion program upon successful completion of which all charges were dismissed.  Bound and determined to get the last word, Demarest sued Officer Brown and the City of Vallejo in federal court pursuant to 42 U.S.C. § 1983, claiming false arrest and the use of excessive force, arguing that Officer Brown had exacerbated his pre-existing back pain by 10 to 15 percent.  The federal district court granted the civil defendants’ motion for summary judgment, dismissing the case.  Demarest appealed.

The Ninth Circuit Court of Appeal affirmed.  At issue on appeal was (1) the legality of Demarest’s arrest and (2) the alleged use of excessive force in arresting him. 

(1) Legality of Demarest’s Arrest:  As a general rule, “searches and seizures conducted outside the judicial process, without prior approval by a judge or a magistrate (i.e., via a warrant), are per se unreasonable under the Fourth amendment—subject only to a few specifically established and well delineated exceptions.”  (Italics in original; Minnesota v. Dickerson (1993) 508 U.S. 336, 371.)  The temporary detention of a person (i.e., a “seizure”) must be supported at the very least by a reasonable suspicion to believe that the detained individual has been, is, or is about to be involved in criminal activity.  But there are exceptions to this rule as well.  A vehicle checkpoint, when properly set up and executed, is an exception to both of the above rules.  When Demarest was required to stop at the DUI checkpoint as occurred here, and show his driver’s license, he had been detained; i.e., “seized.”  As noted by the U.S. Supreme Court, it is recognized that “(a)n automobile that has been stopped by government officials at a checkpoint has been seized for Fourth Amendment purposes, . . .”  (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 40.) The lawfulness of checkpoints was upheld by the U.S. Supreme Court in the seminal case of United States v. Martinez-Fuerte (1976) 428 U.S. 543, where an immigration checkpoint was at issue.  Based upon such precedent, the Ninth Circuit Court of Appeal here noted that contrary to the general rule that “some quantum of individual suspicion is usually a prerequisite to a constitutional search or seizure,” and differentiating vehicle checkpoints from the greater privacy interests one has in his or her home, DUI checkpoints—being “consistent with the Fourth Amendment”—are lawful.  As noted by the Ninth Circuit; “the Supreme Court has recognized one such limited exception for certain carefully circumscribed vehicle checkpoints. See Edmond, 531 U.S. at 47 (reaffirming past decisions recognizing the constitutionality of limited ‘sobriety and border checkpoints’ and suggesting that certain ‘traffic checkpoint[s]’ to check licenses and registration would likewise be constitutional).”  “Carefully circumscribed,” as used above, means that the personal discretion of the law enforcement officers involved must be minimized as much as possible.  This can be accomplished by establishing a “DUI Checkpoint Operation Plan” that the officers are required to follow—as was used by the Vallejo Police Department in this case—dictating what the detaining officers can and cannot do.  The U.S. Supreme Court has thus recognized the constitutionality of a DUI checkpoint, noting that the “intrusion on motorists stopped briefly at sobriety checkpoints . . . is slight.” (See Michigan Department of State Police v. Sitz (1990) 496 U.S. 444, 451.)  Per the Sitz decision: “Because the ‘preliminary questioning and observation’ at the (DUI) checkpoint was brief and limited, the extent of the intrusion was ‘minimal’ and was outweighed by the ‘magnitude of the drunken driving problem [and] the States’ interest in eradicating it,’” (Id. at 450-452.)  However, not all checkpoints pass constitutional muster.  The Supreme Court, for instance, has ruled that a checkpoint set up with the primary purpose of “the discovery and interdiction of illegal narcotics” violates the Fourth Amendment, and is thus illegal.  (See City of Indianapolis v. Edmond (2000) 531 U.S. 32.)  Checkpoints set up for the “primary programmatic purpose of ‘uncover[ing] evidence of ordinary criminal wrongdoing’” are illegal.  (Id., at pp. 41-42.)  Somewhere in between Sitz and Edmond is the case of Illinois v. Lidster (2004) 540 U.S. 419.  In Lidster, the U.S. Supreme Court upheld the lawfulness of a checkpoint set up at the location of a late-night hit-and-run accident where a bicyclist had been killed just one week earlier, with the checkpoint being used at about the same time of night.  The purpose of the checkpoint was to seek out anyone who might have been a witness to the prior accident by handing out flyers about the accident and asking for help in solving the crime.  The Supreme Court, in finding this checkpoint to be lawful, differentiated the circumstances of this case from Edmond, noting that here the police were seeking information from potential witnesses as opposed to looking to arrest drug traffickers.  Demarest’s complaint in this case was that in addition to looking for DUI drivers, the Vallejo police were using the checkpoint to unlawfully check driver’s licenses.  In discussing this issue, the Ninth Circuit used a “two-step analysis” for assessing the validity of a checkpoint under the Fourth Amendment.  First, the Court must determine, in accordance with Edmond and Lidster, whether a checkpoint is “per se invalid” because its “primary purpose” is “to advance the general interest in crime control” with respect to the occupants of the vehicles being stopped.  If “yes,” then the checkpoint in question is illegal.  If the answer to this question is “no,” then the court must determine whether the checkpoint in issue is “reasonable” under the circumstances.   In applying this test to the instant case, the Court had no problem finding that Vallejo’s checkpoint did not involve an impermissible purpose of “uncovering evidence of ordinary criminal wrongdoing” based upon the principles discussed above, and the fact that “[t]he purpose of the [c]heckpoint was to remove intoxicated drivers from the road and to deter intoxicated driving.”  Demarest did not argue otherwise.  So the Court moved on to the second step; i.e., “reasonableness.”  As noted above, Demarest’s complaint was that the Vallejo police were using a lawful DUI checkpoint to unlawfully check for driver’s license violations as well as for DUI drivers.  The Court disagreed.  After first noting that the U.S. Supreme Court has held that checkpoints set up for the purpose of checking drivers’ licenses are lawful (see Ashcroft v. al-Kidd (2011) 563 U.S. 731, 737.), it was further noted that an officer’s subjective intent to check the validity of each detained driver’s license at an otherwise lawful checkpoint is irrelevant.  Secondly, it was noted that a driver’s license check, all by itself, does not entail “the ordinary enterprise of investigating crimes” (Quoting Edmond, at p. 44.), as evidenced by the fact that the officers were not also conducting on-the-spot warrant checks.  Third, the Court held that: “(T)he mere request to produce a facially valid license is a relatively modest additional intrusion on the liberty of a motorist who has already been properly stopped at a checkpoint.”  Fourth, the few seconds it takes to ask for, and inspect, a driver’s license is so de minimis that it does not constitute an unlawful prolongation of the stop.  Fifth, “the City’s checkpoint (in this case) was planned and conducted pursuant to objective guidelines that ‘minimize[d] the discretion of the officers on the scene’ and eliminated the ‘kind of standardless and unconstrained discretion’ that might give rise to constitutional concerns.”  And lastly, the Court noted that “a request to produce licenses at an otherwise valid DUI checkpoint clearly serves an equally weighty interest. Moreover, it is obvious that such license checks are ‘appropriately tailored,’ (citation) to advancing this ‘interest in ensuring that only those qualified to do so are permitted to operate motor vehicles.’”  As summarized by the Court: “On balance, any marginal intrusion on liberty associated with adding license checks to the City’s DUI checkpoint is minimal and is justified by the important interest in road safety served by such inquiries.” Based upon all this, the Court determined that the police department’s systematic addition of driver’s license checks to an otherwise lawful DUI checkpoint was objectively reasonable under the Fourth Amendment.  As such, the Court also held that once Demarest refused to show his license, which provided the officers with the necessary probable cause to believe he did not have a valid license (Veh. Code § 12951(a)) and was thus committing a misdemeanor in Officer Brown’s presence, his arrest and the use of reasonable force in making that arrest was lawful. 

(2)  Use of Force:  Demarest also alleged in his civil suit that Officer Brown used excessive force in effectuating his arrest; a Fourth Amendment violation.  The use of unnecessary force in arresting a person is in fact a Fourth Amendment issue.  (Graham v. Connor (1989) 490 U.S. 386.)  In judging the reasonableness of the force used, the trier of fact is to consider all relevant circumstances, such as (but not necessarily limited to); “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s (resulting) injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” (Kingsley v. Hendrickson (2015) 576 U.S. 389, 397.)  Applying these standards, the Court found that the force used by Officer Brown was objectively reasonable as a matter of law.  Demarest argued that Officer Brown should have asked him to step out of the car rather than physically pulling him out.  However, the Court found that given Demarest’s lack of cooperation up until that point, the “modest nature” of the force she used to pull him out was not unreasonable.  The Court also rejected Demarest’s complaint that Officer Brown aggravated an existing back injury in that there was no way for the officer to have known about that condition before arresting him.  And lastly, the Court further rejected Demarest’s argument to the effect that Officer Brown could have applied “a lot less force” in handcuffing him, absent any evidence to the effect that the handcuffs were excessively tight or that they caused any injury.

Despite expending a lot of ink (38 pages worth) in writing this decision, the bottom line is really quite simple: DUI checks are lawful, so long conducted properly.  Asking to see a driver’s license in the process is also lawful.  And applying a minimal amount of force to a mouthy, uncooperative arrestee is not unreasonable.  And speaking of “mouthy,” I like the way Officer Brown handled Demarest as he attempted to engage her in a battle of wits and test her legal knowledge.  I’m guessing Demarest was a Vermont lawyer who believed he knew more about search and seizure law than any California cop with whom he might come into contact.  If you’ve ever had to deal with a know-it-all lawyer in the field, you know what I’m talking about. As a California police officer, there is no need to engage in an argument as to the legality of your actions, even when challenged.  There are a lot of people out there on the street who think they know the law better than (in their estimation) some lowly street cop. Such know-it-alls typically don’t know more than you, particularly if you’re a subscriber to the California Legal Update.  Also, this case illustrates the long existing common-sense maxim that “a little knowledge is a dangerous thing.”  Demarest had a valid license.  All he needed to do was show it and we wouldn’t be discussing these issues here at all.  So my advice is don’t bite when some civilian challenges your legal knowledge.  As Officer Brown did, just let him know what the immediate consequences of his lack of cooperation are going to be, and then do your job.