What actually happens at a DUI checkpoint and why- Part II

By George Miller

In Part I, the Oxnard Police Department (OPD) 11/14-12 DUI (Driving Under the Influence) checkpoint event was described. OPD ran two checkpoints that night on Saviers Road and Victoria Blvd, making four arrests and issuing some citations, while spreading the message not to drive “Under the Influence.”

Part II goes into some of the underlying legal, social, operational and financial reasons for why DUI checkpoints are done as they are.

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DUI subjects and passengers are processed by Oxnard Police Officers at Saviers Road & Bard Road checkpoint, 11/14.14 (Photo: Citizensjournal.us)

General

Alcohol and drug-impaired drivers have caused far more deaths and injuries than casualties in most U.S. wars. The carnage is unbelievable. Over 30% of all traffic-deaths are said to be DUI related and U.S. traffic deaths have been as high as 44,000 annually, with injuries off the charts. But they are down-trending in numbers now and even more so on a per capita or miles-driven basis. DUI arrests are down by half in Oxnard in only four years, from 950 to a little over 500.

How big is the problem?

  • In 2012, 10,322 people were killed nationwide in alcohol-impaired driving crashes, accounting for nearly one-third (31%) of all traffic-related deaths in the United States.1
  • Of the 1,168 traffic deaths in the United States among children ages 0 to 14 years in 2012, 239 (20%) involved an alcohol-impaired driver.1
  • Of the 239 child passengers ages 14 and younger who died in alcohol-impaired driving crashes in 2012, over half (124) were riding in the vehicle with the alcohol-impaired driver.1
  • In 2010, over 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics.3 That’s one percent of the 112 million self-reported episodes of alcohol-impaired driving among U.S. adults each year.4
  • Drugs other than alcohol (e.g., marijuana and cocaine) are involved in about 18% of motor vehicle driver deaths. These other drugs are often used in combination with alcohol.5

source: http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html

DUIDeaths

Source:  http://blog.syracuse.com/opinion/2013/05/will_arresting_people_who_aren.html

Not only is this a major human tragedy, but it’s also very costly to society as well- billions and billions of dollars every year.

This has created much pressure to address the underlying problems and symptoms. A partial listing of approaches used:

Driver education, publicity, indoctrination in schools and varous organizations, TV and print ads, research, stronger enforcement/penalties- DMV, license suspensions, revocations, corrective training, addiction treatment, reinforced police “saturation” patrols, DUI checkpoints, probation, prison terms, fines.

The idea of stopping people at random or via roadblocks came into fashion years ago. This was encouraged/rewarded/reinforced via federal grants, administered by the states, to conduct DUI checkpoints, as they have come to be known.

As we said in Part I, generally speaking, the Oxnard 11/14/14 DUI event was done almost exactly as the legislature, courts and much of the general public wanted it done. Notwithstanding constitutional questions, legislatures have laid out fairly clear guidelines, regulations were put in effect to further clarify some points, provide implementation guidance and procedures were developed at several governmental levels. Courts and legislatures have either confirmed or modified these from time to time.

 

Overall legality of checkpoints

Government  is proceeding under  the assumption are that DUI stops are legal, based upon legislation upheld by state, U.S. District and U.S. Supreme Courts, with certain restrictions imposed. They are relying on some key case law, such as 1987 California Supreme Court decision Ingersoll vs. Palmer ; Key relevant U.S. Supreme Court rulings. However the U.S. Constitution, 4th Amendment, states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Much controversy exists, so we’ll summarize the pro and con arguments …

Supreme.court.1Pro

Checkpoint proponents see it as an efficient, convenient, relatively painless way of screening out offenders. The rationale is that the good to society outweighs a relatively small inconvenience to motorists, who after all have a privilege granted by the state to drive on the roads, not any absolute right. The right to life is protected by these enforcement measures, Since the highways are controlled by the state, which protects the citizens, it is also empowered to put safeguards in place, which are authorized via statutory law by legislatures elected by the voters. Legislatures, courts and the executive branch have put controls in place to protect civil rights.

Major landmark CA and U.S. Supreme Court rulings make it clear that the laws have undergone extensive legal vetting and were upheld, although with some mandated modifications.

US ConstitutionCon

DUI checkpoints seem like quite a stretch when compared to the Fourth Amendment, shown earlier in this article.  The U.S. practice of “settled law” via court rulings, somehow established via the Marbury v Madison ruling, but never by Congress, has brought us to this point, not only for driving your vehicle, but your home, possessions and even your person, via constant whittling away of the original bedrock of the Constitution. The CA Supreme Court decision Ingersoll v Palmer- 1987 held that the interest in reducing alcohol-impaired driving was sufficient to justify the brief intrusion of a properly conducted sobriety checkpoint (source). Basically, the courts said “we know it violates the Constitution, but we’re going to give it a pass for the greater good and try to make it minimally intrusive.”

Another embedded assumption is that “Driving is a privilege, not a right.” This was mentioned more than once at the 11/14/14 DUI checkpoints, is specifically emphasized in the CA drivers manual and tests, is enshrined in CA doctrine and gives rise to dependent corollaries such as:

The state insists The People have no inherent right to use the roadways which they own and paid for, but must petition for permission to use them via applying for, maintaining current and keeping a driver’s license and vehicle registration (liability insurance or a posted bond is also required). This may be revoked at any time if they don’t follow all the laws scrupulously (some of which suspend constitutional rights), which may be changed at any time without notice by laws or regulations.  Why is this? It is because the representatives you elected (or allowed to be elected while you declined to participate in the political process) passed bills and appointed bureaucrats and judges who did that and you didn’t stop them, so acceptance is assumed. Natural rights of The People come from the Creator- they are not granted by governments.

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” – Benjamin Franklin

 

Other

Given all of that, almost anyone would still acknowledge the desirability of protecting people from alcohol/drug/behavior related driving hazards. The question is would the other DUI deterrents used suffice, if increased?

What to do when you are stopped: OPD recommends having your license and registration ready and presenting it when asked. You are requested to open your window fully to enable the officer to communicate freely and detect any obvious signs of intoxication. When asked what would happen if this wasn’t done, an officer told me that the vehicle would be surrounded, driver urged to comply and that the window might be broken if the motorist remained non-compliant after protracted discussions. He said it doesn’t happen much. This contrasts greatly with some popular Internet youtube videos that state it isn’t a requirement and purport to show officers backing down repeatedly on this. OPD says it is a legal requirement here.

For an attorney’s recommendations, consult your own, or at least read THIS.

Another thing we hear frequently is advice to decline testing at DUI stops/investigations. We were told by OPD that is grounds for driver’s license suspension in CA, along with arrest and booking on presumed intoxication, leading to forcible blood testing- more on this.

Whether or not you agree with the checkpoints, the ones I observed were run very well by the Oxnard Police Department, in compliance with statutes and regulations, in a highly professional manner, even enthusiastically. They are doing almost exactly as directed, in an exemplary fashion, so don’t blame them.

 

Operational and Financial

The National Highway Traffic Safety Institute, which awards the grants and promotes the DUI checkpoint doctrine, continues to allocate the lion’s share of municipal funding to checkpoints. The current annual funding to Oxnard is $360,000 annually, intended for 12 checkpoint events and 60 saturation patrols (a patrol is one vehicle/driver shift). We don’t know if that amount covers the fully absorbed costs of those events.  A quick estimate tells me no.

The Ventura County DA’s office has just been awarded $360,065 of funds sourced from the National Highway Safety Institute, earmarked for prosecuting DUI’s, to pay for two full time attorneys dedicated to this.

Behavior which is rewarded (for Oxnard- $360,000 DUI enforcement, $360,000+ for prosecution, overtime and plaudits to participants/compliers) tends to prevail. There is also a question as to whether compliance is a condition of receiving massive ($billions) in highway funding to states, drawn from currency we send to Washington DC and get back, in part, with strings/conditions attached.

Over time, DUI checkpoints are yielding fewer citations and arrests. In addition, overall DUI’s are dropping. This was attributed to a number of factors, including:

– Public awareness campaigns by government and private organizations, resulting in a change of the culture in some segments of society

– Cumulative effect of DUI checkpoints and public’s knowledge of them.

– Cumulative effect of “saturation” and other patrols detecting DUI’s and apprehending them.

– Tips from the public.

– More severe legal and DMV penalties for DUI, as well as penalty/enforcement against illegal restaurant, bar and store liquor sales

– We would add in aging of the population, although it wasn’t mentioned by OPD officers spoken with.

OPD Sgt. Woolley stated that most DUI offenders are 21-34 years of age.  He also said that Oxnard DUI’s dropped from about 950 in 2010 to about 500+ in 2013, an enormous reduction.

Most DUI’s are detected by traffic stops and accident investigations, per Sgt. Woolley. Everyone I talked to on the subject confirmed that. He asserted that the DUI checkpoints are high visibility and are a major DUI deterrent.  He said that they aren’t looking for DUIs and unlicensed drivers, but they find them at DUI stops. This somewhat contrasts with the 11/14/14 event press release, which gives the impression that the checkpoints are for catching DUI’s and unlicensed drivers.  That being said, OPD is far more interested in deterring people from getting into such dangerous situations than busting them when they do.

When asked how much drinking it takes to be legally drunk, Sgt. Woolley said it’s unknown, because peoples’ size, sex, body chemistry, drink potency and other variables make it too hard to estimate accurately. A DUI attorney previously interviewed for another article told us the best advice is not to drink and drive. The same with drugs and certain prescription medications with warning labels. Officers can identify symptoms of drug use, but can’t confirm it with chemical tests on site, so suspects must be administered blood tests at a police or medical facility. Even so, there are no known or statutory chemical thresholds for drug impairment and many different drug chemistries to deal with. Some info here about DUI-drugs (DUID).

Officer training: In addition to regular training activities, additional instruction is provided. Some examples of training are: Standardized Field Sobriety Testing (SFST), The Advanced Roadside Impaired Driving Enforcement (ARIDE) program, developed by the National Highway Traffic Safety Administration (NHTSA) and Drug Recognition Expert (DRE) . A number of OPD officers have also completed a 24 hour Drug Abuse Recognition (DAR)

Per OPD Commander Andrew Salinas: “Officers don’t need a special certification, but we do train everyone working ‘the line’ how to conduct business and how to handle drivers in our checkpoints. All officers working the line are briefed on procedures, related laws, and overall plan of operation. With that, the sworn officer is a certified person in dealing with impaired drivers and for this reason you won’t see volunteers, civilians, or others working the line to detect impaired driving.”

Assistant Chief Benites said: “we prefer that in addition to motor officers (who generally have shown more proficiency with DUI arrests),  officers have a demonstrated interest in working on DUI investigations (of note: there is a bit more process/paperwork for these cases than most typical arrests).  We prefer that they have a certification for the alcohol screening device, as well as training in standardized field sobriety tests (SFST’s), drug abuse recognition (DAR), and advanced roadside impairment detection.” More.

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Oxnard Police finish setting up 11-14-14 checkpoint at Saviers and Bard Roads. (Photo: Citizensjournal.us)

 

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It is against CA law to make arrests for illegal immigration during or related to traffic stops. When asked if the new CA law permitting driver’s licenses for illegal immigrants would reduce arrests, Sgt. Woolley said that the answer is unknown.

OPD Assistant Chief Benites  pointed out that you may want to consider the law enforcement agency’s obligation to mitigate the intrusion.  Not just by trying to keep the motorist’s amount of time at the checkpoint at a minimum, but also to provide the public with reasonable advance notice of upcoming checkpoints (through news releases and social media);  as well as by posting signage (we post illuminated message boards) at a location that provides the motorist with a reasonable opportunity to elect to not travel through the checkpoint.  Their having an ability to choose mitigates the concept of it being a pure detention. 

 

Here’s some additional info supplied by OPD Asst. Chief Jason Benites (most links added by Citizensjournal.us):

oxnardpdHere are some answers to your questions. I’ve attached the Department’s organizational chart to help illustrate the chain of command that involves our checkpoints.  Our Patrol Support Division in the Field Services Bureau is headed by Commander Andrew Salinas.  Sergeant Brian Woolley is our Traffic Sergeant, and two Senior Police Officers (Jamie Brown is one of them) are the ones who are most directly involved in the coordination and deployment of checkpoints.  We don’t usually have a commander at checkpoint scenes – if an issue arises the sergeant can contact our on duty watch commander’s desk.

Here’s a quick summary of personnel roles:

Sergeant – Supervises the entire checkpoint operation from start to finish.

Senior Police Officer – Responsible for the setup and logistics during the checkpoint.

Police Officers – Briefly contact drivers entering the checkpoint to conduct a sobriety assessment and ensure driver’s license validity.

Mobile Command Post Driver – Sole responsibility is to ensure that the Oxnard Police Mobile Command Post is functional while the checkpoint is in operation.

Dispatchers – Responsible for all radio communications relating to traffic stop entry, computer checks and obtaining DMV information at the request of officers working at the checkpoint.

Traffic Service Assistants (TSAs) and Community Service Officers (CSOs) – Assist with checkpoint setup, perform duties at the direction of officers, gather statistical data during/after checkpoint and complete documentation (such as the CHP 180 inventory form) when vehicles are towed.

Police Explorers – Assists with checkpoint setup and performs duties at the direction of officers and TSAs.

It’s important to note that DUI/Driver’s license checkpoints are self-contained operations with their own chain of command and radio communication capabilities using our Mobile Command Post (MCP).  Roger Brooks is a Senior Code Compliance Inspector, but has a collateral duty as a trained MCP Operator.  We have a small cadre of personnel (both civilian and sworn) who are properly trained and licensed to not only drive it, but set up the communications equipment and onboard computers, such as our Computer Assisted Dispatch (CAD).

All sworn officers contacting members of the public at DUI checkpoints in an investigative or enforcement capacity are required to activate their digital recorders per Department policy.

The focus of a DUI/Driver’s License Checkpoint does not include establishing the validity of vehicle insurance.  Vehicle registration is only checked after a driver is removed from a vehicle and a decision to release the vehicle from the checkpoint is being made.  In other words, vehicles are only released to their registered owners.  If the registered owner is unlicensed, he/she must have a validly licensed driver present prior to the vehicle being released.

Regarding some of the legalities associated with checkpoints,  we are required to follow the 1987 California Supreme Court decision Ingersoll vs. Palmer that establishes DUI checkpoint guidelines.

A number of considerations made for checkpoints include:

  1. Decision making by supervisors: This is important to ensure that checkpoints aren’t set up in “arbitrary and capricious” locations.
  2. Limits on discretion of field officers: Supervisor establishes a neutral formula or random selection when stopping vehicles entering the checkpoint (i.e. every second vehicle).  Supervisor also decides when to start and when to free flow vehicles.
  3. Maintenance of safety conditions: Requires the use of safety equipment including lighting, placement of reflective traffic cones per established guidelines in the Manual on Uniform Traffic Control Devices (MUTCD) , reflective traffic safety vests, signs, etc.
  4. Reasonable location: The location should be based on relevant factors and on factual information relating to alcohol-related collisions and/or impaired driving arrests.
  5. Time and duration: There are no hard and fast rules, but the timing should be set to optimize the effectiveness and focus of the checkpoint.  In other words, checkpoints should be set up when impaired drivers are likely driving.
  6. Indicia of official nature of roadblock:  Presence of marked police vehicles, lights and signage (e.g. “Sobriety Checkpoint Ahead”) must be visible for the sake of notification to the drivers.  In other words, drivers are afforded a reasonable opportunity to see the signs and decide if they wish to proceed through the checkpoint, or take an alternate route. Drivers also can’t be stopped for avoiding the checkpoint unless they violate a law to do so.
  7. Length and nature of detention: The time of the stop should be minimized as to infringe on a person’s rights as little as possible.  If there are no signs of intoxication, the driver should be released in a timely manner.
  8. Advance publicityIngersoll was in favor of advance publicity. It referred to the deterrent effect and stated that the notice minimizes intrusiveness to a person’s rights.  In 1993, the court in People v. Banks stated that publicity was not a requirement, but it certainly helps.  The Oxnard Police Department always provides advanced publicity by means of a news release several days in advance.  These news releases are also posted on social media, and can be found (and are also archived) on our website.

Lastly, California Vehicle Code section 2814.2 states (subsection (a) is now printed on the bottom of our checkpoint rosters):

(a) A driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop.

(b) Notwithstanding Section 14602.6 or 14607.6, a peace officer or any other authorized person shall not cause the impoundment of a vehicle at a sobriety checkpoint if the driver’s only offense is a violation of Section 12500.

(c) During the conduct of a sobriety checkpoint, if the law enforcement officer encounters a driver who is in violation of Section 12500, the law enforcement officer shall make a reasonable attempt to identify the registered owner of the vehicle. If the registered owner is present, or the officer is able to identify the registered owner and obtain the registered owner’s authorization to release the motor vehicle to a licensed driver by the end of the checkpoint, the vehicle shall be released to either the registered owner of the vehicle if he or she is a licensed driver or to the licensed driver authorized by the registered owner of the vehicle. If a notice to appear is issued, the name and driver’s license number of the licensed driver to whom the vehicle was released pursuant to this subdivision shall be listed on the officer’s copy of the notice to appear issued to the unlicensed driver. When a vehicle cannot be released, the vehicle shall be removed pursuant to subdivision (p) of Section 22651, whether a notice to appear has been issued or not.

 

Oxnard logoOxnard-specific considerations

Oxnard is a medium sized city, very diverse, relatively low income, lower than average resident age, with a relatively high crime rate and gang activity. It has been among the top cities in the state in rate of DUI offenses, although it has made very significant improvements. The prevalence of minorities and non-English speaking people means that precautions against discrimination and multiple language capabilities are needed and available. One of the implications of  lower income residents is that more drinking is done at home. Therefore a strategy of watching bars and restaurants is not as effective as it might be in wealthier cities.

 

Regional Protest Organizations

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Photo: Collectivo Toder Poder al Pueblo

 

 

 

 

 

 

 

 

 

Todo PoderCollectivo Todo Poder al Pueblo has opposed DUI stops, asserting that they are dangerous, discriminate against minorities and are likely illegal.  Three Toder Poder people, Elliot Gabriel, Leo Martinez and an unidentified woman, were spotted at the 11/14/14 Victoria checkpoint.  Police officers warned them to stay behind a sign. ­ They vanished from sight shortly thereafter. An officer told me that they sometimes come and video record activities. They are also known to warn off motorists and have a social media network and communicate checkpoint locations as well.

 

SonsofLibertyLAThe Sons of Liberty, an outspoken civil liberties organization, takes a more aggressive approach, actively protesting the events and warning off motorists. Their position is that the checkpoints are unconstitutional.  Their operations are mostly in LA and Orange Counties, but they have been in Ventura County as well. One of their leaders is Bruce Boyer, who has written articles and made reader comments in Citizensjournal.us.  We expect that he’ll have something to say about this article, too. (He did- see reader comments on Part I)

Comment from Bruce Boyer, which appeared as a reader comment on Part I of this series(minor editing for readability):

It appears as though you are you drinking their Kool-Aid. Of course no one was belligerent, and everyone was cooperative. Apparently the guy stupid enough to pick a fight with twenty cops was not in Oxnard that night. Anyone who dared open their mouth other than yes sir, no m’am would have expected a big dose of BH&W confrontation, would not go well. Does anyone wish to suggest that giving a cop what they perceive as ‘attitude’ would not result in a ‘YOU LOSE ticket? Being under their boot is not a place one feels free to exercise their freedom of speech.

Nagging Constitutional questions you say? We are protected against unreasonable ( that means without cause/reason) searches. Every one of those checkpoint stops violated the rights of those people. taking people out of the cars, passengers? Have you lost what liberty is? They can set up check points, detain people (only for a few minutes…., OK longer at their discretion, so no, you are not free to go.) Are you not capable of seeing that the motorcycle cops are there to go after people that detour the checkpoint, and pull them over. Yes, pulled over/searched for driving down the street. If this is permissible than we have no liberty, it’s all ‘discretionary’.
Are you aware that MADD is a private organization, that the Government is promoting the agenda of a private organization at our expense? Does that not penetrate to you that it is collusion, corruption? They rub each other’s backs.

The MJ DUI. Ok here’s your legal question. What is the measurable amount of marijuana that someone has to have in order to be ‘intoxicated”/ Answer: There is none. It is completely ‘discretionary for an arrest. Conviction, that’s where it will not go as there is no legal standard nor is it measurable as traces of MJ can remain in the blood for 30 days or longer. Therefore, it is non-convictable to smoke pot and drive, just do not have a beer and remain clued in enough not to tell a cop that one smoked pot. As DUI for pot, it’s almost impossible to convict. Do you know/ understand why young people get high more than drink? Great incentive – that is YOUR Govt, maybe, not any I voted for.

Speaking to that, an assertion that most people support these, based on what BS poll? it’s all in how you ask the question. The majority will say they are willing to be slaves, if you pose the question a certain way.

Since you know them now, maybe you can get them to have that ‘Public Debate ” on these- let’s have Freedom of speech, out in the open. Seems as though they take the attitude of they will not be questioned. You are seeing the near riots in Oxnard and the animus towards them because they will not have a public discussion and are not held accountable, but are above the law. FYI Jaywalking tickets for protesting is not out of the norm, I got one, was handcuffed into a patrol car and taken for a ride… LASD does NOT like protestors at DUI checkpoints.

If this does not spur you “law & order” types to respond, what will? Feel free to throw in personal attacks as you lack the facts.

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From Oxnard Police Dept- Asst. Chief Scott Whitney:

One of our primary missions is to improve traffic safety. If you look at Oxnard’s past statistics for traffic safety, the numbers haven’t been good. While that’s improving, we still aren’t where we want to be. The State of California Office of Traffic Safety strongly believes in the value of DUI checkpoints. Research shows that well-publicized checkpoints have a deterrent effect on DUI drivers. State DUI grant funds are also tied to doing checkpoints.

We recognize that enforcement efforts must always be weighed against the intrusion on civil liberties. We will always work within the law. As you likely saw at the checkpoint you visited, the delaying of motorists was minimal. The vast majority of motorists and residents we talk to are willing to put up with the minor inconvenience if it means the roadways are safer for them and their families.

We can’t forget that approximately 10,000 people are killed yearly in DUI collisions. You don’t have to meet very many surviving family members to understand the tragedies associated with impaired drivers. The fact that we still arrest 4 drivers for DUI in one night at a checkpoint demonstrates that we have a significant problem with impaired drivers. It’s our job to work to minimize that problem.

From Oxnard Police Dept- Asst. Chief Jason Benites:

I should also add that checkpoints should be seen one tool to educate the public, as well as deter people from drinking and driving.  We also conduct directed DUI enforcement operations (known as “DUI saturation patrol”) which is geared mainly for arresting DUI drivers.  That type of operation yields many more arrests than checkpoints do.  We are also balancing our efforts between checkpoints and saturation, so that we cover the span, ranging from deterrence to education to enforcement.

OXPD

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Citizensjournal,us thanks Oxnard Police Department’s Assistant Chiefs Jason Benites and Scott Whitney, Commander Andrew Salinas, Sergeant Brian Woolley, Senior Officer Jamie Brown, as well as several other officers, civilian staff and Oxnard Police Explorers; also Sons of Liberty spokesman Bruce Boyer and Collectivo Toder Poder al Pueblo leader Elliot Gabriel, for their contributions to this article.

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Some previous CJ articles on DUI checkpoints:

https://citizensjournal.us/what-really-happens-at-a-dui-checkpoint-and-why-part-i/

https://citizensjournal.us/on-dui-an-attorneys-view/

https://citizensjournal.us/dui-checkpoints-triumph-for-public-safety-or-war-on-the-u-s-constitution/

There are also numerous DUI checkpoint announcements and results.

 

 

Next nearby DUI checkpoint: https://citizensjournal.us/ventura-duidrivers-license-checkpoint-planned-this-weekend/

Other:

Sobriety Checkpoints and Saturation Patrols

An Irvine DUI Checkpoint: http://www.ocregister.com/articles/police-307148-drunk-dui.html

The National College for DUI Defense www.ncdd.com

http://freedomoutpost.com/2014/09/are-sobriety-checkpoints-really-unconstitutional/

 

George Miller is Publisher of Citizensjournal.us and a “retired” operations management consultant, active in civic affairs, living in Oxnard.

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