Constitutional Standards When Setting Up Roadblocks

Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.

The constitutional standards in New Jersey are fairly high in comparison with other states.

Interviewer: Well, what are they? What’s required for the police to be able to do this?

Leckerman: You can’t just set up random roadblocks in New Jersey. In the past, there have been instances where a New Jersey state trooper, will just gather a couple of fellow troopers who are on duty that night and go to some backwoods road and set up a random roadblock and just stop people at will, without any standards.

The County Must Initially Approve the Roadblocks and the Public Must Have Advance Notice

The courts have deemed roadblocks without standards to be an absolute intrusion into a motorist’s constitutional rights. The public has to receive advance notice prior to the roadblock. The roadblocks should be, not only, vetted by a superior officer in the department, but should vetted by the prosecutor’s office for the County, in order to make sure that the roadblock is passing constitutional muster.

The Sequence of Stopping Motorists Must Be Determined in Advance

The actual sequence of stopping drivers has to be predetermined. For example, the police can stop every motorist or every 5th motorist or every 10th motorist, but they just can’t decide whom to stop, whenever they feel like it. They can’t just set up a checkpoint and then see the look on somebody’s face and think, “Aha. I’m going to stop this driver.”

The roadblock actually has to have some systematic means of stopping drivers. That doesn’t mean that the police can’t actually change the sequence to be every driver, after certain period of time. They can do it.

Motorists Must Have Notice on the Roadway That a Roadblock Has Been Set up

They also have to give advance notice on the road, to the motorist. A roadblock really has to warn somebody that there’s a roadblock coming up, otherwise, the courts are concerned about, “the fear or anxiety generated by the roadblock”.

The Police Should Keep Their Initial Interaction with the Drivers Relatively Brief

The courts do keep in mind that it shouldn’t be just a matter of surprise to a motorist. They also have to keep the initial interaction with the motorist brief. They can’t just pull people over in this checkpoint and start asking them a whole series of questions or force drivers out of the car without suspicion of drunk driving.

Basically, the police officers are allowed to stop somebody and, “pass out drunk driving literature,” for the motorist’s safety. It seems like a total ruse, so they have some time to actually look at the driver’s eyes to see if they are bloodshot or smell his breath for the odor of alcohol.

The Police Will Gauge if a Driver Is Intoxicated During the Initial Interaction

A lot of times, these officers will start off the initial interaction with an introduction to the literature and then, if they see bloodshot eyes or smell alcohol, ask the driver, “Have you had anything to drink?” If the driver acknowledges that he has, then the initial officer is going to send the driver over to a secondary checkpoint.

If a Driver Has Been Drinking, They Will Proceed to a Second Staging Area Within the Roadblock

Most of these roadblocks in New Jersey are set up with two stages. One is the initial greeting stage and then there’s the investigative staging area. Now, it seems a little odd that once they suspect somebody of being a potential drunk driver, these officers will actually let someone continue to drive but, typically, that will happen.

The Police Have to Justify the Chosen Location for the DWI Roadblock

Leckerman: The last factor, which I believe to be the most important, is a justification for that particular location and time of the checkpoint. The officers must have some type of statistical information supporting the fact that there are a higher number of drunk drivers in that particular location. Again, they can’t just set it up randomly. They have to have some type of reasonable justification why they chose that location.

The Police Are Accountable and Must Ensure They Have Followed the Constitutional Standards When Setting Up a Roadblock

Interviewer: Who monitors the police’s decision making? Are they ever held accountable and how do you even challenge and find out information about a particular roadblock?

Leckerman: They’re held accountable, supposedly, by the local prosecutor, who’s supposed to look at the checkpoint standards and determine if they pass constitutional muster. More importantly, it’s DWI defense attorneys who are going to make sure that these roadblocks have followed the constitutional standards.

Your DWI Defense Attorney Will Investigate the Roadblocks to See if the Proper Protocols Were Followed

When I become involved in a case, I’m asking for a lot of information on the roadblocks. Of course, I want to know if they have all this paper documentation to support the constitutionality of the checkpoint.

I want to get a copy of the notification they put in the paper about the roadblock. If they have pictures, of course, I want to get those. They will put in writing which motorists will be stopped, whether it’s every motorist or every 5th motorist or every 10th motorist.

Typically, they will have submitted the plan to a prosecutor for approval. I want to see the approval letter. The person in charge was typically a captain or a lieutenant, or even the chief, and that is the person who has written the memoranda outlining the the plan.

Did the Police Have Adequate Statistical Data to Justify Setting Up a Roadblock?

Also, they will usually give the statistical information regarding the site that they’ve chosen. What I believe to be the most important aspect of attacking a roadblock case is really delving into the statistical information.

To me, it seems that the police are just picking an area and trying to give any type of statistical support. Are they using statisticians who are coming up with this particular area? Can they truly determine that this area has a higher number of drunk driving incidents than other areas in their township? That seems doubtful to me.

Getting somebody to look at the statistics and really determine if there’s a higher incidence of drunk driving in that particular area, I think, becomes a major challenge. Many times, they’ll also justify these roadblocks by pointing to other unrelated offenses, such as drug offenses, that they’ve detected during these stops or motor vehicle infractions.

Interviewer: How about the efficacy of the stop and the results of the whole program? Can you look at those and say, “Well, you stopped 150 people and you arrested 2. The roadblock was worthless, pretty much. You use erroneous information to set up the stop.” Is that information valuable?

Leckerman: It does matter. It is an integral part of the discovery process. So, when I’m trying to obtain all this information about the roadblock, usually the police departments will have the statistical information about prior roadblocks in that area and how successful or unsuccessful they were.

Then, they will also give a print out of how many motor vehicle stops were made in this particular roadblock, how many people were arrested and what they were arrested for.