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Checkpoints, the "DUI Exception" to the Constitution

Picture Friday night after a long week at work. You are heading home from dinner when you notice the flashing blue lights ahead. As you slow down it registers that you are approaching a police roadblock. What you might not realize is that your Fourth Amendment rights are about to be suspended.

A common theme in our justice system is the struggle to find a balance between public safety and individual liberty. When the police stop you in your vehicle, no matter how briefly, you and your occupants have been seized within the context of the Fourth Amendment. However, the courts have determined that roadblocks are constitutional so long as certain requirements are met. Police roadblocks, or checkpoints, have been nicknamed the “DUI Exception” to the Constitution.

In 1979, the decision in Brown v. Texas, which has been followed by the South Carolina Supreme Court, established a three-pronged balancing test to determine the constitutionality of checkpoints:

1) the gravity of the public interest served by the seizure;

2) the degree to which the seizure serves the public interest;


3) the severity of the interference with individual liberty.

Thinking about it another way, drivers who are impaired or unlicensed can harm others, so it is in the public interest to get those drivers off the road. The degree to which the public interest is served, or the effectiveness of the checkpoint, can be evaluated based on various data such as the number of resulting violations or arrests, tracking alcohol related crashes, and public surveys on deterrence.

Lastly, the bedrock of criminal defense work, individual liberty, is preserved by limiting the interference posed by checkpoints in the following ways. Checkpoints must be conducted in a predetermined location, publicized and highly visible. Not only does this act as a deterrent, but it allows motorists the opportunity to anticipate the checkpoint. Additionally, the court decision in Delaware v. Prouse, deemed random stops unconstitutional, meaning officers must stop every car that passes through a checkpoint or stop cars in an identifiable pattern, such as stopping every tenth car.

Checkpoints may be established for the purpose of public safety such as checking for a driver’s license, vehicle registration, proof of liability insurance, obvious equipment violations and looking for impaired drivers. In a 2008 case, State v. Groome, the South Carolina Supreme Court held that the primary purpose of the checkpoint cannot be to detect evidence of ordinary criminal wrongdoing.

So, what to do if you find yourself pulling up to a checkpoint?

1. Do not turn around or make an obvious maneuver to avoid

the checkpoint.

2. Do roll down your window.

3. Be polite and respectful.

4.Have your license, registration, and insurance information

ready. Checkpoints are meant to be brief and for the

majority of motorists this should only take one to

two minutes.

Now that you have identified yourself and provide the required documents, if you chose you can exercise your right to remain silent. However, be aware that any behavior the officer deems as suspicious could result in you being asked to exit the vehicle and perform field sobriety tests. You have the right to refuse the tests, but you most likely will be arrested for DUI. Keep in mind that respectfully refusing the field sobriety tests means those tests cannot be used as evidence against you down the line. Every situation is unique, but it never hurts to be polite, and it never helps to have an attitude.

Should you find yourself arrested as a result of a checkpoint, it is important to speak with a seasoned criminal defense attorney right away.


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