Update 5/4/2011: House Bill 439 seems to be finished as far as the Regular 82d Session is concerned. The bill is still pending in committee, which means, it still has to be approved there, then on to the house floor for debate and vote, and then, only if it passes, to the Senate, and on to a conference committee from there. With less than 3 weeks remaining, it is apparent no roadblock bill will be passed. It is also possible that Governor Perry could call a special session to and include the roadblock bill on its agenda, but with Redistricting still remaining to be fought, I would be very surprised.
The Texas Court of Criminal Appeals, the highest state criminal court, issued a recent opinion on this issue in Lujan v. State. House Bill 439 (HB 439) was filed on December 10, 2010, and if passed, would legislate “sobriety checkpoints” in the State of Texas. These two recent legal developments could potentially create more government intrusion in our lives, and result in many more innocent people going to jail or even being wrongly convicted of a crime they didn’t commit.
It’s Thursday night, you and your spouse have decided to have a date night and go to a nice restaurant for an expensive meal. Over steak, you and your spouse split a bottle of wine. A bottle of wine contains 4 glasses, or 4 drinks. Because you split it, you each drank 2 glasses of wine. After coffee and dessert, the two of decide to go home and call it a night. As you drive down the freeway to get to your neighborhood, suddenly you see all the vehicles in front of you braking and merging into two lanes. You follow suit and then you see a lighted sign that says “SOBRIETY CHECKPOINT AHEAD, ALL VEHICLES MUST STOP”. While maybe you become a little apprehensive due to the 2 glasses of wine, you dismiss the fear with the certainty that you’re ok to drive and no way 2 glasses of wine will land you a drunk driving arrest. After all, you haven’t broken any traffic laws or done anything else that may raise a suspicion. Your belief that DWI law is fair, logical, and reasonable, is your biggest mistake. As your turn approaches, an officer sticks his flashlight in your face, his head in your window, and asks “had anything to drink tonight?” You answer truthfully, and he instructs you to pull over behind some other cop cars off to the side.
The next thing you know you’re being asked a bunch of questions about previous head injuries, any possible physical limitations, and times of first and last drinks. Then, the officer starts instructing you how to perform some “simple” tests to make sure you’re ok to drive. First, he looks at your eyes for what seems like an eternity. Next, he instructs you how stand with your feet one in front of the other, hands down at your side, and how to take 9 heel to toe steps and take a peculiar turn and return down the line in the same fashion. What he does not tell you, and what you’ll never know unless you ask your lawyer later, is that the officer is looking for 8 specific clues and if he sees 2 of them, he thinks your drunk. The next test you will be asked to perform is for you to stand on one leg while you lift the other 6 inches and point it straight ahead and hold it there while you count 1001, 1002, 1003, all the way to 1030. You also must keep your hands down at your sides. The officer is looking for four clues, put your foot down, use your arms for balance, sway, or hop. If you show 2 of these in 30 seconds, the officer will think your drunk. These field sobriety tests are designed for failure. You don’t get to practice them, you don’t get to re-do them if you mess them up the first time. One try, on the roadside, at night, with traffic driving around you,, and if you don’t do them perfectly, you’re going to jail. Nobody should ever try to do these tests if they have had anything to drink. Once you acquiesce to these requests, you’re going to need a DWI lawyer.
House Bill 439 is an attempt to make the above nightmare a reality for many unsuspected motorists. We have all heard the horror stories of those who have been tied down and had there blood drawn forcibly by police officers, but roadblocks in Texas could lead to an even bigger outcry from the public and an even greater invasion into a law abiding citizen’s privacy. The proposed legislation attempts to put into statute what cases such as Lujan define as constitutional roadblocks. The bill first dictates when checkpoints are not permitted. As filed, no roadblocks would be permitted in counties with a population less than 250,000 people and they may not be conducted on any single ingress to or egress from a designated area. This means that the location of a roadblock has to be in a location where a driver can take an alternate route to circumvent the checkpoint. Roadblocks cannot be on an overpass, bridge, or cause way. This is where roadblocks cannot be, and presumably everywhere else is acceptable so long as law enforcement complies with the notice provisions set out in the bill.
Law enforcement would be required to publish on a publicly accessible website the procedures used in selecting each site and the procedures to be used in the selection of each motor vehicle to be stopped. So long as it is a reasonable procedure, nothing in the statute prevents law enforcement from stopping every vehicle coming through the roadblock. HB 439 states specifically that the “procedures for selection must be reasonably predictable and non-arbitrary”. This is referring to the selection of the geographic location of the roadblock. The bill attempts to clarify this ambiguous language by requiring the location to include the number of alcohol related traffic incidents that occurred in the preceding year and the number of alcohol related arrests in the preceding year. The legislation does not specify how many traffic incidents or intoxicated arrests are required to determine what is reasonably predictable and non-arbitrary. However, the bill does provide some safeguards regarding encounters between law enforcement and drivers.
The police must ensure that all encounters are video/audio recorded. This allows a court of review to see the entire roadblock encounter to determine the reasonableness of the investigation and allows defense attorneys to see an objective recording of the events as opposed to simply reading an offense report or taking their clients’ word of what happened and gives evidence that can be used in court to attack the investigation. Police must ensure that the intrusion on the operator is minimized and that any inquiry is reasonably related to determining whether the operator is intoxicated. This language is important in the survival of this legislation. Many roadblock bills in the past have failed because they were a ruse to check drivers’ licenses and insurance and unfairly discriminated. This language attempts to cure that defect. Undoubtedly, this will be the focal point of the legislature’s debate on this bill as the legislative session continues.
Finally, HB 439 requires that before the administration of the checkpoint, the law enforcement agency in charge must publicize the date/time of the checkpoint, but does not require the agency to disclose the location of the roadblock. The roadblock is limited to four hours of operation and may not operate at the same location (or within a one mile radius) for more than once in a twelve-month period.
House bill 439 seeks to structure and enact alcohol roadblocks in Texas. This has been sought in many previous legislative sessions and ultimately failed each time. However, the language of this bill is significantly different than previous versions. The Texas Legislature has a lot to accomplish between now and the end of May when it adjourns, and many experts believe Governor Perry will be calling special sessions this summer. We will wait and see the priority of HB 439 and note any amendments made and it’s ultimate fate as it arises. Write your State Representative and let him or her know how you feel about the potential invasion to your privacy this bill proposes, and voice your concern about the substantial impact this may have on your community.