By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
The Texas legislature has been conducting hearings lately on DWI and DUI enforcement. While some groups are calling for restraint and understanding in enforcement, other groups are still convinced the only way to lessen DWI’s are through move invasive police tactics — specifically through DWI roadblocks. This Dallas Morning News article details the discussions.
Here’s what the law says about DWI roadblocks in Texas:
1. There is no current statute on the books which allows a police agency to set up a DWI roadblock. A police agency or political subdivision of the state (such as a city or a county) does not have the legal authority to implement one on their own. Only the State of Texas can pass such a law for enforcement here. See State v. Holt, 887 S.W.2d 16 (Tex.Crim.App. — 1994). Texas law does allow police to create checkpoints for driver’s license checks, however, those checkpoints cannot be used as an excuse, ruse, or pretext for a sobriety checkpoint. See King v. State, 816 S.W.2d 447 (Tex.App. — Dallas, 1991).
2. Any DWI or sobriety checkpoint must satisfy a well-established three-pronged balancing test or else it violates the Fourth Amendment to the U.S Constitution and Article I, Section 9 of the Texas Constitution’s prohibition against unreasonable search and seizure. the prongs are: (a) the interest of the state in preventing accidents caused by drunk drivers; (b) the effectiveness of DWI roadblocks in achieving such goal, and (c) the level of intrusion on an individual’s privacy. Brown v. Texas, 443 U.S. 47 (1979), and State v. Van Natta, 805 S.W.2d 40 (Tex.App. — Ft. Worth, 1991).
The Bottom Line
A DWI, DUI, or sobriety checkpoint or roadblock is not per-se unconstitutional in Texas, however it’s been so hard to conduct legally that agencies wanting to do so must “go back to the drawing board.” The biggest short-coming according to cases such as Van Natta is that the State has a very difficult time justifying the intrusion into people’s lives where there is no evidence that DWI road-blocks are effective in attaining the goal of reducing drunk driving. This is not to say that such evidence does or does not exist — but it was not presented to the Courts deciding these cases.
It would be interesting to know from the hearings in Austin whether the people in question asking for the authority to conduct roadblocks have any data which shows checkpoints reduce DWI’s. If the best argument the advocates can muster is “just because it’s time to get tough,” it looks like they’ll get sent back to the drawing board yet again.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific situation, you should directly consult an attorney.