AGO 85-13.

Case Date:September 09, 1985
Colorado Attorney General Opinions 1985. AGO 85-13. September 9, 1985Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 85-13 AG Alpha No. HI HS AGAOL Joseph Dolan Executive Director Department of Highways 4201 E. Arkansas Avenue Denver, CO 80222 RE: The legality of the use of sobriety checkpointsDear Mr. Dolan: This opinion letter is in response to your June 7, 1985 letter, in which you inquired about the legality of roadside sobriety checkpoints as a method for the detection of violators and enforcement of the laws relating to drunk driving. QUESTION PRESENTED AND CONCLUSION Your request for an attorney general's opinion presents the following question: May a law enforcement agency lawfully utilize sobriety checkpoints in the detection and apprehension of persons driving under the influence of alcohol? Law enforcement agencies may lawfully utilize sobriety checkpoints in the detection and apprehension of persons driving under the influence of alcohol as long as adequate safeguards are maintained to minimize the intrusion on the individual motorist. ANALYSIS Law enforcement agencies are constantly seeking new measures to combat the problem of "drunk drivers." Several agencies, including the Colorado Division of Highways Safety, believe sobriety checkpoints can be an effective deterrent to drinking and driving. However, implicit in the use of sobriety checkpoints is the fact that peace officers conducting the checkpoints will stop vehicles without probable cause or any reasonable suspicion that motorists are intoxicated. This fact raises questions about the validity of such a procedure under the Fourth Amendment of the United States Constitution, and its equivalent article II, section 7 of the Colorado constitution, which protects the individual against "unreasonable search and seizure." The reasonableness of vehicle stops was evaluated at length by the United States Supreme Court in a series of three cases involving the use of various levels of such stops to prevent the illegal entry of aliens at the Mexican border. After rejecting the use of a roving patrol, United States v. Brigroni-Ponce, 422 U.S. 873 (1975), and checkpoints considerably removed from the Mexican border, United States v. Ortiz, 422 U.S. 891 (1975), the court approved the use of permanent checkpoints at strategic points near an intersection of major highways leading from the border. U. S. v. Martinez-Fuerte, 428 U.S. 543 (1976). After evaluating the procedure used by the officers, the court balanced the individual's interests with the interest of the state in preventing the entrance of illegal aliens into the county. The court concluded that the need for the checkpoint was great and the intrusion on the individual minimal, and held that such stops could be made in the absence of any individualized suspicion. The reasoning of the border cases was adopted in the United States Supreme Court's decision in Delaware v. Prouse, 440 U.S. 648 1979). In that case, evidence found in plain view was suppressed where the officer, without having a reasonable belief that the defendant had violated any law, selectively stopped the defendant's vehicle merely to check the driver's license and registration. The court held that except in situations where there is at least "articulable and reasonable" suspicion that the motorist or a vehicle occupant violated a law, randomly stopping an automobile and detaining the driver in order to check his license and registration was unreasonable under the Fourth Amendment. However, the court went on in dicta to say: 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...

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