Sobriety checkpoints: Some states consider them unconstitutional

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Sobriety checkpoint.
Sobriety checkpoint.

Every time police publicize they are establishing a sobriety checkpoint, like the one planned for Aug. 8 and 9 in Manchester, the public has mixed reactions which range from: “Why are they advertising in advance if they want to catch the drunk drivers?” to “That’s a violation of my Fourth Amendment rights.”

Police advertise sobriety checkpoints because they must follow clear protocols to avoid violation of citizens’ constitutional rights.

The Fourth Amendment to the Constitution deals with government intrusion and covers search and seizure issues.

The fact is, New Hampshire is one of 38 states where sobriety checkpoints are legal, but here they must be approved by a court judge, as per a 1997 statute, RSA 265:1-a, which reads:

Notwithstanding any provision of law to the contrary, no law enforcement officer or agency shall establish or conduct sobriety checkpoints for the purposes of enforcing the criminal laws of this state, unless such law enforcement officer or agency petitions the superior court and the court issues an order authorizing the sobriety checkpoint after determining that the sobriety checkpoint is warranted and the proposed method of stopping vehicles satisfies constitutional guarantees.

It’s a topic NH attorney Dan Hynes, aka The NH DUI Guy, is well versed on. In fact, he has posted a blog about NH’s DUI laws, which you can read in its entirety here.

In a nutshell, Hynes explains that checkpoints were being used in New Hampshire with mixed results, in terms of the number of impaired drivers that were arrested, using specific “standard operating procedures” established by Concord Police in the 1980s. Then, in 1985 the case of New Hampshire v. Koppel, brought by defendants who had been arrested during a sobriety stop in Concord, changed that.

The defendants questioned whether such a police measure violated their state and federal rights.

In that case, the NH Supreme Court ultimately ruled that checkpoints create a slippery slope of sorts and could be considered a violation of a person’s Fourth Amendment rights – with one exception: sobriety checkpoints could be set up by police if they had the pre-approval of a judge.

That is why police in New Hampshire routinely issue press releases stating that they have petitioned the court for approval of a checkpoint to take place on a particular date. They believe that informing the public in advance can also be a deterrent, much like when a state trooper is parked in the median along I-93 – brake lights abound.

For the record, there are 12 states where DUI checkpoints are not conducted – Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin and Wyoming – primarily because those states have determined such checks are unconstitutional.

About this Author


Carol Robidoux

PublisherManchester Ink Link

Longtime NH journalist and publisher of Loves R&B, German beer, and the Queen City!