Presentation at the DUI Super Symposium in Atlanta, GA on August 28, 2013 by Parker McFarland, a DUI defense attorney with the law office of McFarland & McFarland, P.C. Contact our office for a free DUI case evaluation. McFarland & McFarland, P.C. 309 Pirkle Ferry Road, Suite B-400 Cumming, Georgia 30040 (770) 889-2522 www.mcfarlandmcfarland.com

1. Effectively Handling DUI
Roadblock Cases
August 28, 2013
R. Parker McFarland, Jr.

2. Starting on First Base
• Motion Granted = Case dismissed
• Motion Denied = No evidence of bad driving
• Driving
• Under
• Influence

3. Significance of No Bad Driving
• NHTSA DWI Detection and Standardized Field
Sobriety Testing Manual identifies only THREE
phases of DUI Detection:
– Vehicle in Motion
– Personal Contact
– Pre-Arrest Screening
– Argue evidence in only 2 of 3 phases =
REASONABLE DOUBT

4. How Did We Get Here?
• U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976)
• (suspicionless stops allowed for purpose of
deterring illegal immigration at border)
• To require that such stops always be based on
reasonable suspicion would be impractical
because the flow of traffic tends to be too
heavy
• Unique sovereign interests implicated in
border control

5. Deleware v. Prouse, 440 U.S. 648 (1979)
• Random stop of driver to check for license and
registration violates the 4th Amendment
• “This holding does not preclude…States from
developing methods for spot checks that
involve less intrusion OR that do not involve
unconstrained exercise of discretion,” such as
stopping all oncoming traffic.
• Visible roadblocks cause less anxiety than stop

6. Brown v. Texas, 443 U.S. 47 (1979)
• Defendant “looked suspicious” in high drug area
• Reasonable suspicion of criminal activity is generally
required for a seizure
• Criteria for weighing Constitutionality of suspicionless
seizures is :
– Gravity of public concerns served by seizure
– Degree to which seizure advances public interest
– Severity of interference with individual liberty
Central concern of balancing test “has been to assure that an
individual’s reasonable expectation of privacy is not subject
to arbitrary invasions solely at the unfettered discretion of
officers in the field”

7. State v. Golden, 171 Ga. App. 27 (1984)
• Roadblock held to be valid where:
– Decision to implement roadblock made by
supervisory personnel (not field officers);
– Pre-arranged procedures dictated that all vehicles
would be stopped;
– Delay to passing motorists was minimal (1-2 min.);
– Screening officer’s training and experience were
sufficient due to 2 ½ years of police service and
completion of DUI Enforcement school

8. Skinner v. Railway Labor Executives’ Assoc., 489
U.S. 602, 619 (1989)
• Suspicionless seizures are allowed only when
“special needs beyond the normal need for
law enforcement” are at issue.
– i.e. safety of public railway
• Allowed suspicionless breath and urine drug
tests to employees who violated safety rules

9. Michigan v. Sitz, 496 U.S. 444 (1990)
• Suspicionless roadblock purposes extended to
include sobriety checkpoints based on State’s
“substantial government interest” in
eradicating drunk driving
• 1.6 % of motorists arrested for DUI (2 of 126)
• 19 uniformed officers stopped all vehicles
• Checkpoints selected pursuant to guidelines

10. LaFontaine v. State, 269 Ga. 251 (1998)
• A roadblock is satisfactory where:
– The decision to implement the roadblock was
made by supervisory personnel (not field officers)
– ALL vehicles are stopped as opposed to randomly
– The delay to motorists is minimal
– Roadblock is well identified as a police checkpoint
– Screening officers training and experience
qualifies him to make an initial determination as
to which motorists should be given field tests

11. City of Indianapolis v. Edmond, 531 U.S. 32 (2000)
• USSC refused to extend holding in Sitz to drug
checkpoints; suspicionless checkpoints NOT
authorized for purpose of drug detection
• “We have never approved a checkpoint
program whose primary purpose was to
detect evidence of ordinary wrongdoing.”
• Checkpoints established for purpose of
general crime control violate 4th Amendment

12. Baker v. State, 252 Ga. App. 695 (2001)
• Edmond requires “an inquiry into purpose at
the programmatic level”
• Edmond has elevated proof of the supervisor’s
“primary purpose” to a Constitutional
prerequisite of a lawful checkpoint
• Neither collective knowledge of the field
officers nor the actions of field officers on the
scene are competent evidence of purpose at
the “programmatic level”

13. Baker v. State, 252 Ga. App. 695, 702 (2001)
• Under LaFontaine and Edmond, a roadblock is
valid when:
(1) the record reflects that the “decision to
implement” the checkpoint in question
was made by supervisory officers and
NOT officers in the field; AND
(2) the supervisors had a legitimate
primary purpose;
-“Decision to implement” includes deciding
to have the roadblock, and when and where

14. Baker v. State, 252 Ga. App. 695, 702 (2001)
• AND “The evidence MUST also show that:
• (2) all vehicles were stopped as opposed to
random stops,
• (3) the delay to motorists was minimal;
• (4) the roadblock operation was well-identified as
a police checkpoint; and
• (5) the screening officer’s training and experience
were sufficient to qualify him to make an initial
determination as to which motorists should be
given field tests for intoxication.”

15. Baker v. State, 252 Ga. App. 695 (2001)
• “The new guidance of Edmond indicates that
perfunctory compliance will no longer suffice.”
• “The factors in LaFontaine as modified by
Edmond are not general guidelines but are
minimum constitutional prerequisites.”
• “Totality of the circumstances” test is applied
only AFTER it has been determined that the
minimum constitutional standards have been
satisfied.

16. Insufficient Evidence that the
Supervisor Authorized Roadblock
• In the following cases, the supervisor did NOT
testify and Courts found insufficient evidence
that roadblock was approved by a supervisor:
– Baker v. State, 252 Ga. App. 695 (2001)
– Blackburn v. State, 256 Ga. App. 800 (2002)
– Morris v. State, 265 Ga. App. 186 (2004)
– Cook v. State, 265 Ga. App. 491 (2004)

17. Pre-2013 Hearsay Rule
• Hearsay has no probative value
• Even if there is no objection, hearsay proves
nothing
• Thus, despite defense counsel’s failure to
object, field officer’s testimony as to
supervisor’s approval of and purpose for
roadblock was always hearsay

18. Georgia’s New Evidence Code
• O.C.G.A. § 24-1-103 Rulings on Evidence
(a) Error shall not be predicated upon a ruling
which admits or excludes evidence unless a
substantial right of the party is affected AND:
• (1) In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of
record, stating the specific ground of objection, if the
specific ground was not apparent from the context…
-You MUST object to all hearsay evidence!

19. Georgia’s New Evidence Code
• Roadblock authorization forms could be admitted
under O.C.G.A. § 24-8-803(6): “Records of Regularly
conducted activity”
• O.C.G.A. § 24-9-902(11) provides for such records to be
self-authenticating if accompanied by affidavit
– Reasonable written notice required
– If you receive such notice, immediately file a confrontation
clause objection under authority of Bullcoming v. New
Mexico, 564 U.S. __ (2011); Melendez-Diaz v.
Massachusetts, 557 U.S. __ (6/25/09); Crawford v.
Washington; Miller v. State, 266 Ga. 850 (1996)

20. Illinois v. Lidster, 540 U.S. 419 (2004)
• USSC extends permissible purposes for suspicionless
roadblocks to police searching for witnesses or leads to a
recent crime committed in a specific area
• Hit and run fatal accident one week before
• All drivers stopped for 10-15 seconds, asked if they had
seen anything the previous weekend, and handed a flyer
• Roadblock set up on same highway and at same time of
earlier accident (specific and known crime)
• Such stops are “not automatically, or even presumptively,
constitutional.” Reasonableness, i.e. Constitutionality are
judged on the basis of the individual circumstances.

21. State v. Morgan, 267 Ga. App. 728 (2004)
• Roadblock held on April 18-19, 2002
• Officer testified that roadblock was approved by
his supervisor for both April 18 and 19
• Morgan arrested on April 18 for MJ trafficking
• However, the signed authorization for roadblock
only referenced April 19
• Without supervisory approval for this 4/18
roadblock, it violated 4th Amendment
• DUI/Drug checkpoint also would violate Edmond

22. Importance of Discovery
• Pursuant to Open Records Act, O.C.G.A. § 50-18-70,
request the following from arresting agency:
– Standard operating procedures for checkpoints
– Authorization/Approval of roadblock forms (who approved
for what date, time, and place)
– Number of officers and ways roadblock identified
– Number of vehicles stopped and number of arrests
– Any delay to motorists
– Whether or not all vehicles were stopped
– Whether roadblock was stopped and restarted
– All radio traffic, CAD reports, and videotape for the
duration of the DUI checkpoint

23. POST Training and Discipline Records
• Send Open Records Act Request to Georgia
Peace Officer Standards and Training (P.O.S.T.)
Council for:
– All roadblock officers’ training transcripts (classes)
– Disciplinary proceedings
– Employment history (voluntary resignations)

24. Importance of Internal Guidelines
• Field officers should have limited discretion.
• State v. Manos, 237 Ga. App. 699 (1999)
• Every car was stopped unless roadblock backed
up, then police let all cars through until there
were no more cars in sight
• Since there were no procedures the officers used
to determine whether public safety required that
roadblock be terminated due to traffic back
up, “unfettered discretion” of field officers to
stop and start roadblock at will (randomly)
caused roadblock to violate 4th Amendment

25. Importance of Internal Guidelines
• Thomas v. State, 277 Ga. App. 88 (2005)
• Field officer decided to implement roadblock
which yielded 59 grams of methamphetamine
• State argued officer had authority to implement
roadblock as shift supervisor, but Court said
roadblock had characteristics of roving patrol
since:
– No Evidence of any specific authorization
– Police Dept. had no guidelines or manual for
implementing roadblocks; thus, no implicit authority

26. Practical Considerations when
Litigating a Motion to Suppress
• You are most likely to win a motion when the
State does not prove one of elements
• If the State has not proven one of the
LaFontaine-Baker elements, consider saying
“no questions” and ask to submit a brief
• Try to get the officer to admit they were using
roadblock for an unlawful purpose i.e.
drugs, general crime control

27. Practical Considerations when
Litigating a Motion to Suppress
• Try to establish that field officers had too much
discretion, such as in:
– Deciding to have roadblock, choosing location and
time of roadblock
– Deciding when to shut down, temporarily or
permanently, the roadblock due to traffic
– Making exceptions for emergency vehicles or taxi
cabs to be waived through roadblock
Failure to follow standard operating police procedures is
best way to show field officers exceeded their discretion

28. Unfavorable Roadblock Law
• Hobbs v. State, 260 Ga. App. 115 (2003) (roadblock valid
despite supervisor who implemented roadblock also was
screening officer who stopped/arrested defendant);
• Velasquez v. State, 288 Ga. App. 109 (2007) (roadblock valid
where Lt. approved roadblock but left precise location to
Sgt.)
• Coursey v. State, 295 Ga. App. 476 (2009) (roadblock valid
though set up on highway intersecting city street instead of
city street as indicated on roadblock initiation form)
• Sutton v. State, 297 Ga. App. 865 (2009) (roadblock valid for
legitimate primary purpose though Sutton’s counsel got
officer to agree that roadblock’s purpose was for crime
suppression)

29. Unfavorable Law
• State v. Brown, 315 Ga. App. 154 (2012) (4-3 decision)
• Captain emailed 4 officers to “handle” a citizen complaint
about speeding, littering, racing
• No further instructions given
• Sgt. Made decision to implement roadblock
• Motion granted since roadblock (1) not planned in advance
for specific time and (2) roadblock not sufficiently manned
• Cobb County P. D. guidelines say supervisor should not be
screening officer and require adequate manpower
• Dissent said proper standard was “clearly erroneous” not
“de novo” (Sgt. who approved roadblock acted as field cop)
• Certiorari granted by GA Supreme Court 1/7/13

30. Attempts to Avoid Roadblocks
• Bad stops where driver made lawful U-turn:
• State v. Alexander, 245 Ga. App. 666 (2000);
State v. Hester, 268 Ga. App. 501 (2004)
normal driving that incidentally evades a
roadblock does not justify an investigative
stop, *but+ “abnormal or unusual actions
taken to avoid a roadblock may give an officer
a reasonable suspicion of criminal activity
even when the evasive action is not illegal.”

31. Attempts to Avoid Roadblocks
• Jorgensen v. State, 207 Ga. App. 545 (1993)
(unlawful stop where driver turned normally
into residential area before roadblock):
– “There was no indication in the record of any
sharp driving maneuver, sudden turn or reduction
in speed or other facts which might tend to show
that the appellant's actions were evasive.”

32. Attempts to Avoid Roadblocks
When lawful acts = articulable suspicion
• Beware of State v. Webb, 193 Ga. App. 2 (1989)
(officer’s good faith belief that U-turn was illegal was
sufficient to justify stop despite court finding that U-
turn technically was lawful);
• Pippins v. State, 204 Ga. App. 318 (1992) (roadblock
upheld where .20 driver approaching roadblock from
side road sat at the intersection for several min. before
returning down the side road away from
roadblock, and reappeared 5 min. later and turned
away from the roadblock again)
• O.C.G.A. § 1-3-6 ALL citizens presumed to know the law
- ignorance of the law excuses NO ONE [except cops]

33. Future Challenges to Roadblocks
• Challenge roadblocks under your State Constitution
• "[A] State is free as a matter of its own law to impose
greater restrictions on police activity than those [the
Supreme] Court holds to be necessary upon federal
constitutional standards." Oregon v. Hass, 420 U.S.
714, 719 (95 S. Ct. 1215, 43 L. Ed. 2d 570) (1975).
• Thus, "the State [has] power to impose higher
standards on searches and seizures than required by
the Federal Constitution if it chooses to do so." Cooper
v. California, 386 U.S. 58, 62 (1967).

34. Georgia Constitution
• Georgia Constitution provides greater protection
than the Federal Constitution
• State v. Miller, 260 Ga. 669 (1990) (First
Amendment)
• Green v. State, 260 Ga. 625 (1990) (self-
incrimination)
• Gary v. State, 262 Ga. 573 (1992) (O.C.G.A. § 17-
5-30 provides more protection for illegally seized
evidence; no good faith exception when
executing a warrant)

35. Sobriety Checkpoints Declared Invalid
by State Constitutions
• Michigan. Sitz v. Dept. of State Police, 485 N.W.
2d 135 (Mich. App. 1992)
• Minnesota
• Oregon
• Washington
• Rhode Island
• Texas
• North Dakota
• New Jersey
• Louisiana

36. Purpose at Programmatic Level
• Baker v. State, 252 Ga. App. 695 (2001) held
Edmond requires “an inquiry into purpose at
the programmatic level”
– Very little caselaw discussion of the nature and
extent of inquiry that needs to be made
– Standard Operating Procedures are necessary to
determine purpose at programmatic level
– Don’t let internal guidelines delegate purpose to
field officers in violation of Edmond

37. Effectiveness of Roadblock
• Commonwealth v. Trivitt, 650 A. 2d 104 (Pa.
Super. 1994) (roadblock invalid under PA
Constitution since no data sufficient to specify
number of DUI related arrests/accidents within
the relevant time period to justify need for
roadblock
• Commonwealth v. Donnelly, 614 N.E. 2d 1018
(Mass. App. 1993) (roadblock invalid where no
evidence showed that site of roadblock was a
problem area)

38. Effectiveness of Roadblock
• State v. Groome, 664 S.E. 2d 460 (2008)
• South Caroline Supreme Court invalidated a roadblock
using a Brown v. Texas analysis:
– Gravity of public interest served by seizure;
– Degree to which seizure serves public interest;
– Severity of interference with individual liberty.
– “While Sitz does criticize ‘searching examination of
effectiveness’ by trial courts, it retains the requirement
that the State produce empirical data to support the
effectiveness of the roadblock. Sitz at 454 (‘unlike
Deleware v. Prouse, 440 U.S. 648 (1979), this case [does
not involve+ a complete absence of empirical data..’)”

39. Effectiveness of Roadblocks
• 3 GA Supreme Court justices who dissented in
LaFontaine recognized that the Brown v. Texas
balancing test that was utilized in Sitz was ”the
relevant test for determining the constitutionality
of roadblocks.” (2nd prong is effectiveness) [Sears,
Benham, Fletcher]
• Justice Benham stated in dissent he would vote to
use GA Constitution to require judicial approval
of roadblocks. Brent v. State, 270 Ga. 160 (1998)
• But see State v. Dymond, 248 Ga. App. 582 (2001)
•

40. Resources
• “The Use of Sobriety Checkpoints for Impaired
Driving Enforcement,” DOT HS-807-656
(National Highway Traffic Safety
Administration, Nov. 1990)
• William C. Head and Frank T. Gomez, THE
GEORGIA DUI TRIAL PRACTICE MANUAL
(2013)
• Lawrence Taylor and Steven Oberman, DRUNK
DRIVING DEFENSE (7th Ed. 2013)

41. R. Parker McFarland, Jr.
McFarland & McFarland, P.C.
309 Pirkle Ferry Road
Suite B-400
Cumming, GA 30040
770-889-2522
parker@mcfarlandmcfarland.com