The Legal Intelligencer
March 5, 2020
Thirty years ago, the U.S. Supreme Court determined that a
suspicionless investigatory intrusion on a motorist was justified based on the
public’s interest in reducing driving under the influence (DUI). The high court
was considering the constitutionality of sobriety check points when it
decided Michigan Department of State Police v. Sitz, 496 U.S. 444
(1990).
In a 6-3 decision, the court held that sobriety check points
did not violate the Fourth Amendment. The court noted that “no one can
seriously dispute the magnitude of the drunken driving problem or the states’
interest in eradicating it.” The court then found that “the measure of the
intrusion on motorists stopped briefly at sobriety checkpoints—is slight.”
In Pennsylvania, a sobriety check point is “a well-marked,
stationary roadblock conducted by the police for several hours at a time.”
In Commonwealth v. Beaman, 880 A.2d 578 (2005) the Pennsylvania Supreme
Court found, “DUI roadblocks constitute a reasonable means of advancing the
vital public interest in reducing drunk driving deaths and injuries, and that
they only involve a modest intrusion on the privacy and liberty of motorists.
Accordingly, the court has found that suspicionless stops at such roadblocks
are constitutionally reasonable.”
The legislature provided statutory authority for sobriety
check points at 75 Pa.C.S.A. 6308 (b). The statute provides, “Whenever a police
officer is engaged in a systematic program of checking vehicles or drivers or
has reasonable suspicion that a violation of this title is occurring or has
occurred, he may stop a vehicle, upon request or signal, for the purpose of
checking the vehicle’s registration, proof of financial responsibility, vehicle
identification number or engine number or the driver’s license, or to secure
such other information as the officer may reasonably believe to be necessary to
enforce the provisions of this title.”
The determination of the constitutionality of a checkpoint
in Pennsylvania involves balancing the extent of intrusion against the
promotion of the legitimate government interest in public safety.
Sobriety check points permit a police officer to evaluate
the operator of a motor vehicle for intoxication without having reasonable
suspicion or probable cause to make a traffic stop. The police can make a
lawful arrest without having any other reason for briefly detaining the
operator but some statistics, a public disclosure and a prominent road block.
What the law does not permit are random suspicionless motor
vehicle stops to enforce safety on Pennsylvania roadways. Conducting a motor
vehicle stop without reasonable suspicion or probable cause is violation under
Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and
Fourteenth Amendments to the U.S. Constitution.
Section 6308 (b) cited above was amended in 2004. The change
involved the replacement of the phrase “articulable and reasonable ground to
suspect” with “reasonable suspicion,” thereby lowering the statutory level of
suspicion necessary for a police officer to execute a lawful traffic stop.
Although the Fourth Amendment has been interpreted as
requiring probable cause to effectuate a lawful arrest, the Supreme Court’s
decision in Terry v. Ohio, 392 U.S. 1 (1968), created a new level of
suspicion somewhere between a hunch and probable cause. In Terry, the
court concluded that police may briefly detain an individual for purposes of
investigation in circumstances where specific and articulable grounds exist to
reasonably suspect that criminal activity is in progress.
Terry’s reasonable suspicion standard, as well as
probable cause, requires a police officer to articulate the reason she
conducted a motor vehicle stop.
Whether it’s a brief investigatory stop or a stop to
effectuate the issuance of a citation for a motor vehicle violation—no one
questions that the law requires an articulable reason for the stop.
With that in mind, it does in fact appear that Pennsylvania
law permits a police officer to pull over a vehicle for any reason, or no
reason at all, investigate the driver for intoxication, conduct sobriety tests
and ask that driver to submit to a blood test or breathalyzer. If that driver
refuses, her license is suspended.
A license suspension is a civil matter—but was it ever
contemplated that a police officer could randomly pull over drivers, conclude
they may be intoxicated and have imposed a “penalty” for failing to cooperate.
In Zwibel
v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599,
(Pa.Cmwlth.2003), the Commonwealth Court established what the Department of
Transportation must prove at a statutory appeal hearing. First, that the
licensee was arrested for driving while under the influence by a police officer
who had reasonable grounds to believe that the licensee was operating
a vehicle while under the influence of alcohol or a controlled substance; two,
the driver was asked to submit to a chemical test; three, he refused; and four,
he was warned that a refusal would result in a license suspension.
In a driver’s license appeal hearing an unlawful arrest in a
criminal proceeding is not admissible. The Pennsylvania Supreme Court held
in Department of Transportation v. Wysocki, 535 A.2d 77 (Pa. 1987),
“although the fact that the initial stop may have been improper would not
necessarily prevent a suspension of license where there was a subsequent
refusal to submit to a breathalyzer test, such a suspension will not be allowed
if the officer’s request was not supported by reasonable grounds for the
officer to have believed that the person was under the influence of alcohol.”
The standard of reasonable grounds under the Implied Consent
Law is not very demanding, and does not rise to the level of probable cause
required for a criminal prosecution. Rather, the test for reasonable grounds is
whether a person in the position of a police officer, viewing the facts and
circumstances as they appeared at the time, could have concluded that a
motorist was operating a vehicle while under the influence of alcohol.
To determine whether the officer had reasonable grounds to
conclude that the licensee was operating a vehicle under the influence, a court
must consider the totality of the circumstances.
In Sisinni v. Department of Transportation Bureau of
Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), the Commonwealth Court
determined there was no set list of behaviors or conditions that a person must
exhibit for an officer to have reasonable grounds for making an arrest.
However, the court provides a series of examples that relate to outward
manifestations of intoxication such as staggering, swaying, falling down,
belligerent, slurred speech, uncooperative behavior and the odor of alcohol.
None of the examples relate to the operation of a vehicle or reasonable grounds
for stopping a motor vehicle.
In Kachurak v. Department of Transportation Bureau of
Driver Licensing, 913 A.2d 982 (Pa. Cmwlth. 2006), the Commonwealth Court
determined, “It is well settled that “’ an officer may acquire reasonable
grounds to believe that a licensee was driving under the influence of alcohol
at any time during the course of interaction between the officer and the
licensee.”’
Wysocki does not hold that reasonable grounds must be
formed prior to the traffic stop as a prerequisite to a valid license
suspension. The case law consistently supports that reasonable grounds are
determined by interacting with the vehicle operator. As a result, there are no
restrictions or limitations on the basis for stopping a vehicle.
The question is, how was the interaction brought about? Did
the police officer have a basis to bring about the interaction? Obviously the
officer cannot engage the individual while both the individual and the
officer’s vehicle are moving. The officer must bring the vehicle to a stop to
engage the driver or occupants.
What is the basis for stopping the vehicle? Should a police
officer be required to articulate reasonable grounds for stopping the vehicle?
It doesn’t have to be probable cause or reasonable suspicion—both criminal
degrees of suspicion—but the reason for the stop should be part of the
equation.
The reason for the stop must be more than arbitrary or
random. Otherwise, as Justice Nicholas P. Papadakos noted in a dissent in Wysocki,
“a police officer can stop anyone, anyplace, anytime of the day or night for no
articulable reason at all, and then form a reasonable” ground that the vehicle
operator was driving while intoxicated.
That is not justice, and the Pennsylvania Supreme Court
needs to address the matter posthaste.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George. His weekly column on crime and punishment is
syndicated by GateHouse Media. He is the author of “The Executioner’s Toll,”
2010. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino). Contact him via email at
matthewmangino@aol.com.
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