Unsteady on Its Feet: Sobriety CheckpointReasonableness

(ProQuest: ... denotes formulae omitted.)Table of ContentsI. Introduction 736II. Rational Viewpoints on Unreasonable Seizures 739A. The Warrant Preference Rule 740B. The Reasonableness Approach 741C. Michigan Department of State Police v. Sitz 742D. The Economics of Fourth Amendment Reasonableness ........ 745III. Sobriety Checkpoint Reasonableness: The Variables 749A. The State ' s Interest in Preventing Drunk Driving 7491. The State as a Rational Maximizer 7492. Narrowing the Interest 756B. The Extent to Which This System Can Reasonably Be Said to Advance That Interest 7601. Empirical Observations 7602. Interpreting the Observations 766C. The Degree of Intrusion upon Motorists 7681. Empirical Observations 7682. Interpreting the Observations 775D. A Different Look at Sobriety Checkpoint Balancing 777IV. A Response to Recent Scholarship 777V. Conclusion 784I. Introduction"Drunk driving will never be eliminated in a society recognizable as our own."1 These are sobering words, especially when recent government data suggests that drunk driving kills up to one American every forty minutes, totaling nearly 13,000 fatalities in 2007.2 The faces of the needless dead remind us that the criminalization of drunk driving is deeply personal.3 Motivated by those most intimately affected by drunk driving,4 and with the ultimate, albeit unrealistic, goal of completely eliminating drunk drivers from our highways, the federal government has supported, and the states have implemented, various enforcement programs aimed at apprehending and, more importantly, deterring motorists from driving under the influence of alcohol.5 But when an enforcement program necessarily trades Fourth Amendment liberties for public safety, the courts are left to answer the difficult question: Is it worth it? Even the most noble enforcement programs must withstand constitutional scrutiny. This Note focuses on one program that is no stranger to the legal and social discourse: the sobriety checkpoint.6Sobriety checkpoints are unique among the various anti-drinking and driving enforcement procedures mainly because police officers may conduct sobriety checkpoint stops, unlike most other vehicle stops, without individualized suspicion.7 Contrast, for example, the traditional roving patrol stop.8 A roving patrol officer has authority to stop a motorist when the officer observes articulable facts and objective indicia of impairment.9 Roving patrol officers observe drivers for signs of alcohol impairment - whether on the faces of oncoming drivers or as exhibited by erratic driving behavior.10 Dr. Jack Stuster, in a report for the Transportation Research Board, analogized sobriety checkpoint stops and roving patrol stops with fishing strategies:[L]obster fishermen, crab trappers, and most gillnetters deploy their gear in locations known to be inhabited by the target species, in much the same way that checkpoints are set up at locations known for DWI [driving while intoxicated] arrests or alcohol-involved crashes. In contrast, some fishermen adopt a hunting strategy by searching for indicators of fish by both visual and technical means, then pursuing their prey, in the same manner that roving patrol officers search for, then stop, motorists who exhibit DWI cues. …