DWI Checkpoints: Must have a Written Policy

Wake County DWI LawyerOn September 11, 2009, 32-year-old Gary Anthony White was driving south on High Street in Polkton, North Carolina, a town in Anson County, about forty miles southeast of Charlotte.

Named after its founder Leonidas L. Polk, a farmer, North Carolina Commissioner of Agriculture, and distant relative of President James K. Polk, Polkton has just 3,400 residents.

A warm day had given way to a mild, humid, but otherwise clear evening.

It’s unclear from the court record where Mr. White was driving from. There do not appear to be any bars or restaurants north of College St, where Mr. White encountered a fateful checkpoint. Heading south in his blue GMC Sonoma, had he been left unmolested, he would have soon intersected with Highway 74, which runs east to west.

There is no evidence in the record that Mr. White was driving poorly, or erratically.

As he approached College Street, Mr. White encountered a Anson County Sheriff’s Office checkpoint. Mr. White would soon come to understand that checkpoints are more than a minor inconvenience.

Indeed, Americans are increasingly coming to realize that their daily travels can be restricted by checking stations – checkpoints established by police that, while once frowned upon by appellate courts, have been viewed by judges as increasingly acceptable exception to the Fourth Amendment in the ongoing battles against drunk driving and drug offenses.

Ultimately, deputies arrested Mr. White on charges of Driving While Impaired (NCGS 20-138.1) and Driving While License Revoked (NCGS 20-28). Few will shed tears for him, though. Mr. White had been convicted twice of Level 1 DWI, and once of Death by Vehicle. He has a terrible record of driving while impaired.

But sometimes good case law is made in cases in which the defendant is a reprehensible person. See, Arizona v. Miranda.

In October 2011, more than two years after his checkpoint arrest, Mr. White was convicted in Anson County District Court of driving while impaired, and was given a six month active sentence. He appealed the conviction for a trial de novo in Anson County Superior Court where the central issue was the validity of the stop.

A hearing was held on the defendant’s motion to suppress in Superior Court in September 2012. Deputy Horne of the Anson County Sheriff’s Office testified that, while serving as traffic supervisor for the department, he was asked to operate the checking station that caught Mr. White three years prior in Polkton.

Deputy Horne testified that the department did not have a written policy regarding checking stations, but instead had an oral policy. Deputy Horne did draft an Traffic Operational Plan that established the start time of the checkpoint at 7:55 pm on September 11, 2009 and noted that Deputy Jenkins and Detective Erdmanczyk would join Deputy Horne in conducting the checkpoint. The Plan provided no end time.

However, prior to Mr. White’s encounter with the check point, Horne and Jenkins left the checking station for more than an hour to process the arrest of another impaired driver. While the Detective remained behind, he did not conduct any stops during the hour, and waited for the two deputies to return.

High Street Polkton CheckpointThe Superior Court trial judge granted Mr. White’s motion, and suppressed all evidence obtained as a result of the stop of his car, holding that the “lack of a written policy” coupled with the fact that the checkpoint had been abandoned for more than an hour, meant that the checkpoint that Mr. White encountered was in substantial violation of NCGS 20-16.3A.

The Court of Appeals upheld the trial court’s ruling. N.C.G.S. 20-16.3A(2a) provides that, if a checking station is being used for compliance with the provisions of Chapter 20, it must “[o]perate under a written policy that provides guidelines for the pattern, which need not be in writing.”

In other words, while the pattern itself need not be described in writing, a written policy that provides guidelines for the pattern must be in writing.

The Anson County Sheriff Department’s lack of a written policy providing guidelines for a check point stopping pattern meant that the checkpoint itself violated the statutory requirements of N.C.G.S. 20-16.3A.

The unanimous opinion will only be heard by the North Carolina Supreme Court if the State appeals, and certiori is granted.

Meanwhile, checkpoint law is a little bit better in North Carolina.

State v. White

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.