Gregory W. Sproles
Breckinridge, Davis, Sproles & Stollings
Summersville, West Virginia
Attorney for the Appellant
Paul E. Jordan,
Senior Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX, sitting by temporary assignment.
1. Sobriety checkpoint roadblocks are constitutional
when conducted within predetermined operational guidelines which
minimize the intrusion on the individual and mitigate the
discretion vested in police officers at the scene.
2. A person who wishes to challenge official compliance
with and adherence to sobriety checkpoint operational guidelines
shall give written notice of that intent to the commissioner of
motor vehicles prior to the administrative revocation hearing which
is conducted pursuant to W.Va. Code § 17C-5A-2.
Fox, Judge:See footnote 1
The appellant, Lawrence A. Carte, appeals from the 3 May
1994 order of the Circuit Court of Kanawha County, West Virginia,
which upheld the decision by the Commissioner of the West Virginia
Division of Motor Vehicles (DMV) to revoke the appellant's driver's
license for six months.See footnote 2 The appellant challenges his arrest for
driving under the influence of alcohol (DUI) and his license
revocation on grounds the State Police failed to comply with
standard operating procedures when conducting a sobriety
checkpoint. The appellant also argues that the use of sobriety
checkpoints by law enforcement officers in West Virginia is a
violation of Article III, Section 6 of the West Virginia
Constitution, which prohibits unreasonable searches and seizures.See footnote 3
Sobriety checkpoints in West Virginia are operated
pursuant to departmental policy known as "The Standard Operating
Procedures of the West Virginia Department of Public Safety for
Sobriety Checkpoints." These guidelines, effective 1 September
1989, provide, in part:
2.01 Members of the Department of Public
Safety, in combination with other department
alcohol enforcement efforts, may initiate and
establish sobriety checkpoints to deter and
detect alcohol and/or drug impaired drivers;
and to reduce the number of alcohol related
motor vehicle accidents, fatalities, and
2.02 All sobriety checkpoints will be
conducted in such a manner as to minimize any
intrusion or inconvenience upon the motoring
public and to maximize program effectiveness,
enforcement uniformity, and officer/civilian
2.03 Sobriety checkpoints will not be used
as a subterfuge to search for other crimes;
however, members may initiate appropriate
enforcement action for any violation detected
while conducting a sobriety checkpoint.
2.04 Initiation, establishment, and
operational supervision of sobriety
checkpoints shall be the responsibility of
Department District Commanders or other
Company level command officers.
2.05 Prior to initiation of a checkpoint
request, the supervisor to be in charge will
contact the local prosecuting authority for
inclusion in checkpoint planning.
2.06 The supervisor in charge shall select
the location of the sobriety checkpoint based
upon alcohol/drug related accident statistics,
D.U.I. arrest numbers, and/or nighttime single
vehicle traffic accidents occurring within a
2.07 The selected site will be inspected to
assure maximum safety and visibility for
officers and the motoring public, and must
include at a minimum:
(a) Presence of adequate lighting
(supplemental illumination may be provided by
BATmobiles, portable light generators, or
(b) Availability of sufficient space to
ensure the safety of motorists and officers,
and to provide parking for police vehicles and
vehicles of any persons taken into custody;
(c) An alternate route for any driver
that wishes to avoid the checkpoint operation.
2.10 The supervisor in charge shall request
permission to conduct a sobriety checkpoint
operation from the Company Commander. Such
request shall be made in writing and must
include the date, time, and location of the
checkpoint, and personnel and equipment
requirements for operation. The supervisor in
charge shall, upon receiving in writing
Company approval for a checkpoint, advise the
local media of the checkpoint location, date
and times, to provide the public with advance
notice of the checkpoint operation and to
serve as a deterrent to potentially
2.11 Sufficient uniformed personnel and
marked vehicles shall be assigned to sobriety
checkpoints to display the legitimate police
purpose of the stop and to minimize any fear, surprise or apprehension of the motoring
(a) Uniformed personnel shall consist at
a minimum of the supervisor in charge,
BATmobile officer, and six (6) additional
(b) Marked police patrol vehicles will
be assigned to the checkpoint and all
emergency lighting (blue lights, hazard
warning lights, spotlights, and headlights)
will be activated during checkpoint
(c) BATmobile(s) will be used to process
DUI arrestees unless the services of
additional facilities are required.
2.15 Prior to conducting a checkpoint, the
supervisor in charge shall brief all involved
personnel as to site location, checkpoint
operation procedures, individual officer
assignments, and the placement and utilization
of safety equipment.
On 6 June 1992, the West Virginia Division of Public
Safety established a sobriety checkpoint on Route 60, near Belle,
West Virginia. State Police officers stopped all vehicles
travelling in either direction. The appellant was stopped in the
westbound lane by Corporal S. W. Reedy, who asked to see his
driver's license, registration, and proof of insurance. Corporal
Reedy said he initially detected an odor of alcohol and saw beer
containers in the vehicle. After a brief conversation, he asked
the appellant to pull over to the side of the road and exit his
vehicle. Corporal Reedy noted the appellant's slurred speech and
Corporal Reedy directed the appellant to perform several
field sobriety tests. According to Corporal Reedy, the appellant
did not touch heel to toe, stepped off line and lost his balance in
the walk-and-turn test, and swayed on the one-leg-stand test. A
horizontal gaze nystagmus test of the appellant's eyes indicated he
was intoxicated. Corporal Reedy also performed a preliminary
breath test, which the appellant failed. The appellant was then
arrested for DUI at 10:30 p.m. on 6 June 1992, at which time he was
taken to an on-site BATmobile, where a secondary chemical test was
administered.See footnote 4
A statement of the arresting officer was transmitted to
the DMV, as required by W.Va. Code § 17C-5A-1(b).See footnote 5 The DMV initiated license revocation proceedings against the appellant. An
administrative hearing was held on 30 March 1993, and the
commissioner's final order was issued on 4 June 1993.
On appeal from that final order, the appellant now
challenges the constitutionality of sobriety checkpoints and argues
that failure to prove compliance with standard operating procedures
invalidates his arrest and license revocation.
For Fourth Amendment purposes, a "seizure" takes place
when a vehicle is stopped at a sobriety checkpoint. Such a seizure
is subject to constitutional scrutiny to determine its
Increased awareness and heightened concern about the danger of operating a motor vehicle while under the influence of alcohol have thrust the drunk driving menace to the forefront of America's social consciousness. As a result of the increased awareness of traffic fatalities attributable to alcohol consumption, some states have employed roadblocks as devices to detect and to deter drunk driving. Sobriety checkpoints generally entail the slowing and eventual stopping of traffic to check for valid driver's licenses, proper vehicle registration forms, and outward signs of intoxication of the drivers. Stopping an automobile and detaining the occupants at a roadblock constitutes a seizure under the fourth amendment to the United States Constitution. Under the fourth amendment, a search and seizure is presumptively unreasonable, and the government has the burden of proving the legitimacy of the seizure.See footnote 6
The type of nondiscriminatory checkpoint at issue in this
case was approved by this Court under different factual
circumstances in State v. Frisby, 161 W.Va. 734, 245 S.E.2d 622
(1978). In Frisby, where a significant issue was the "tenuous
legality of the police's initial detention of the appellant," we
The weight of authority is that without violating the Fourth Amendment to the Constitution of the United States or W.Va. Constitution, art. 3, § 6, motorists may be stopped for no other reason than examination of licenses and registrations when such examinations are done on a random basis pursuant to a preconceived plan, such as the stopping of every car at a check point, the examination of every car on a given day with a particular letter or number group in the license, or any other nondiscriminatory procedure.
Id. at 625 (emphasis added).
Three leading cases illustrate the evolution of the
United States Supreme Court's decisions on the issue of checkpoint
In United States v. Martinez-Fuerte, 428 U.S. 543, 96
S.Ct. 3074, 49 L.Ed.2d 1116 (1976), officials operated a fixed
immigration roadblock at which all passing vehicles were initially
stopped. Officials observed or questioned the occupants briefly.
Automobiles were detained only upon a finding of probable cause or
the consent of the driver. The Court concluded that the seizure
incident to a fixed roadblock satisfied the reasonableness standard
of the Fourth Amendment as long as the stop remained minimally
intrusive and was operated pursuant to narrow guidelines which
limited the discretionary authority of the officials conducting the
stops. Martinez-Fuerte, 428 U.S. at 566-67.
The constitutionality of random, or roving, automobile
stops was addressed by the United States Supreme Court in Delaware
v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In
Prouse, a patrolman randomly stopped a car to check the driver's
license and car registration. The patrolman had no reason for
stopping the car: he had not observed any traffic violations or
suspicious activity, nor was he acting according to any standards,
guidelines, or procedures. However, the patrolman saw marijuana in
plain view on the floor of the car, and the driver was subsequently
indicted for illegal possession of a controlled substance.
The United States Supreme Court said the stop was
unreasonable and in violation of the Fourth Amendment for two
reasons. First, the Court was concerned about the police officer's
"unbridled discretion" in conducting the spot stop. Second, the
Court was not persuaded that any slight benefits to highway safety
justified the intrusion on Fourth Amendment rights: "The marginal
contribution to roadway safety possibly resulting from a system of
spot checks cannot justify subjecting every vehicle on the roads to
a seizure . . . at the unbridled discretion of law enforcement
officers." Prouse, 440 U.S. at 661. The Court concluded:
. . . except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. (Emphasis added.)
Id. at 664.
The Court did not have the occasion to discuss the
constitutionality of one of those alternatives -- the questioning of all oncoming traffic at roadblock-type stops -- until the issue
was raised eleven years later in Michigan Department of State
Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 100 L.Ed.2d 412
(1990). In Sitz, the director of the Michigan State Police
appointed a sobriety checkpoint advisory committee to create
guidelines setting forth procedures governing checkpoint
operations, site selection, and publicity. The United States
Supreme Court declared Michigan's highway sobriety checkpoint
program constitutional, finding it consistent with the Fourth
Amendment. The Court explained:
In Delaware v. Prouse, supra, we disapproved random stops made by Delaware Highway Patrol officers in an effort to apprehend unlicensed drivers and unsafe vehicles. We observed that no empirical evidence indicated that such stops would be an effective means of promoting roadway safety and said that "[i]t seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed." Id., 440 U.S. at 659-660, 99 S.Ct., at 1399. We observed that the random stops involved the "kind of standardless and unconstrained discretion [which] is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." Id., at 661, 99 S.Ct., at 1400. We went on to state that our holding did not "cast doubt on the permissibility of roadside truck weighstations and inspection checkpoints, at which some vehicles may be subject to further detention for safety and regulatory inspection that are others." Id., at 663, n.26, 99 S.Ct., at 1401, n.26.
Unlike Prouse, this case involves neither
a complete absence of empirical data nor a
challenge to random highway stops.
Sitz, 496 U.S. at 454.
The Sitz Court concluded the brief stop at the roadblock
was only a slight intrusion on motorists and was not an
unreasonable Fourth Amendment seizure: ". . . the balance of the
State's interest in preventing drunken driving, the extent to which
this system can reasonably be said to advance that interest, and
the degree of intrusion upon individual motorists who are briefly
stopped, weighs in favor of the state program." Id. at 455.
This Court is in agreement with the United States Supreme
Court's position that a seizure incident to a sobriety checkpoint
is a reasonable law enforcement practice under the Fourth
Amendment. Moreover, we do not find sobriety checkpoints violative
of any provisions of the West Virginia Constitution.See footnote 7 Sobriety
checkpoint roadblocks are constitutional when conducted within
predetermined operational guidelines which minimize the intrusion
on the individual and mitigate the discretion vested in police
officers at the scene. However, in the case now before us, the
evidentiary record is incomplete, and there is no basis for
determining whether the State Police complied with the operational guidelines. Therefore, we now address the more narrow issue
presented in this appeal.
The obvious and most critical inquiry in a license
revocation proceeding is whether the person charged with DUI was
actually legally intoxicated.See footnote 8 West Virginia is one of a majority
of the states which has a complete system of administrative license
revocation. "Administrative license revocation (hereinafter ALR),
also referred to as 'administrative per se' or 'summary
suspension,' establishes an administrative process, independent of
the criminal justice system, whereby the driving privileges of an
intoxicated motorist may be immediately revoked. Under the ALR
scheme, law enforcement officers, as agents of the Department of
Motor Vehicles, are authorized to seize the driver's license of a
motorist who either fails a chemical test or who refuses to submit
to a chemical test. Upon seizure, the motorist receives a
temporary license valid for only a short period of time and is given an opportunity to appeal the revocation to the Department of
Motor Vehicles."See footnote 9
At the 30 March 1993 administrative hearing in this case,
the arresting officer, Corporal Reedy, explained his initial
observations of the appellant and the subsequent actions which
resulted in the appellant being arrested for DUI. However,
Corporal Reedy was unable to fully testify about whether
operational guidelines for setting up the sobriety checkpoint were
followed. The appellee disputes the appellant's claim that the
State Police violated their own standard operating procedures, and
argues a review of Corporal Reedy's testimony simply indicates he
relied upon his superior officers to insure the underlying
procedures were carried out.
It appears the appellant is asking this Court to recognize a foundation requirement which would demand that arresting officers be prepared to testify with specificity about sobriety checkpoint operational procedures. We decline to go this far, however, because such a requirement is not only unnecessary, but also unnecessarily burdensome, to these types of informal administrative proceedings. The arresting officer is often not represented by counsel and is usually the sole witness called to testify at these hearings.
The initiation and operation of a sobriety checkpoint
requires cooperation and coordination between several parties.
Each police officer will not necessarily be involved with or privy
to the details of the decision-making process. Consequently, it is
imprudent to suggest that an arresting officer must be aware of
every decision made by those responsible for setting up and
conducting a sobriety checkpoint. In the opinion of this Court, a
more viable and preferable alternative is to require a person who
wishes to challenge official compliance with and adherence to
sobriety checkpoint operational guidelines to give written notice
of that intent to the commissioner of motor vehicles prior to the
administrative revocation hearing which is conducted pursuant to
W.Va. Code § 17C-5A-2.See footnote 10 The State is thereby afforded an
opportunity to have the appropriate law enforcement officers
present testimony or other evidence of compliance with standard operating procedures when noncompliance is alleged by the person
whose license has been revoked.
For the foregoing reasons, we reverse the 4 June 1993
final order of the Circuit Court of Kanawha County and remand this
case to the administrative level for further evidentiary
proceedings to determine whether this sobriety checkpoint comported
with constitutional standards.
Footnote: 1 Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court.
Footnote: 2 The final order states the appellant is eligible for reinstatement in ninety days upon completion of a Safety and Treatment Program, his payment of all program costs, and all fees and costs assessed as a result of the revocation hearing.
Footnote: 3 Article III, Section 6 of the West Virginia Constitution states:
The rights of the citizens to be secure
in their houses, persons, papers and effects,
against unreasonable searches and seizures,
shall not be violated. No warrant shall issue
except upon probable cause, supported by oath
or affirmation, particularly describing the place to be searched, or the person or thing to be seized.
Footnote: 4 The results of this test were not admitted into evidence at the subsequent administrative hearing because there was no showing that Corporal Reedy observed the appellant for a required twenty minute waiting period before he administered the secondary chemical test.
Footnote: 5 West Virginia Code § 17C-5A-1(b) states:
Any law-enforcement officer arresting a
person for an offense described in section two
[§ 17C-5-2], article five of this chapter or
for an offense described in a municipal
ordinance which has the same elements as an
offense described in said section two [§ 17C-
5-2] of article five, shall take the person's
license at the time of arrest and issue a
temporary license, to be prescribed by the
department of motor vehicles, pending a
request for an administrative hearing, and
shall report to the commissioner of the
department of motor vehicles by written
statement within forty-eight hours the name
and address of the person so arrested. Such
report shall include the specific offense with
which the person is charged, and, if applicable, a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing such statement that the statements contained therein are true and that any copy filed is a true copy. Such statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
Footnote: 6 Note, The Constitutionality of Sobriety Checkpoints, 43 Wash. & Lee L.Rev. 1469-70 (1986).
Footnote: 7 The United States Supreme Court remanded the Sitz case to the Court of Appeals of Michigan, which then decided that while sobriety checkpoints are permitted by the Fourth Amendment, "the indiscriminate suspicionless stopping of motor vehicles" nonetheless violates art. 1, § 11 of Michigan's State Constitution. Sitz v. Department of State Police, 193 Mich.App. 690, 485 N.W.2d 135, 139 (1992).
Footnote: 8 West Virginia Code § 17C-5A-2(d) (1991) states:
(d) The principal question at such hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his blood of ten hundredths of one percent or more, by weight, or did refuse to submit to the designated secondary chemical test.
Footnote: 9 Note, Drunk Drivers Beware! Nebraska Adopts Administrative License Revocation, 72 Neb.L.Rev. 296, 297-98 (1993).
Footnote: 10 There is currently no statutory provision which addresses giving prior notice of specific issues to be raised at a revocation hearing. However, we note that an analogous situation is addressed in W.Va. Code § 17C-5A-2(d) (1991), which permits the commissioner to propose a legislative rule in compliance with the provisions of W.Va. Code § 29A-3-1 et seq. which may provide that:
. . . if a person accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in his blood of ten hundredths of one percent or more, by weight, intends to challenge the results of any secondary chemical test of blood, breath or urine, or intends to cross-examine the individual or individuals who administered the test or performed the chemical analysis, he shall, within an appropriate period of time prior to the hearing, notify the commissioner in writing of such intention.