It is well-established law that searches and seizures are unreasonable under the Fourth Amendment, absent individualized suspicion of wrongdoing. There are very few exceptions to this general rule. In order to be constitutional, DUI sobriety checkpoint roadblocks must follow specific guidelines set forth by the U.S. Supreme Court and the California Supreme Court.

The first step in fighting a roadblock case is to engage in pretrial discovery of the nature of the roadblock. Defense counsel should request information designed to assess the constitutionality of the roadblock. Such information includes:

• Which law enforcement officials were responsible for selecting the site and procedures followed at the roadblock
• The identity of all involved law enforcement personnel, both sworn and civilian
• All memoranda, diagrams, and reports utilized in preparing and outlining the procedures involved in the roadblock
• Was a neutral formula employed in stopping motorists
• The identity of each person arrested at the roadblock. This information is necessary to determine whether proper procedures were actually followed, if defense counsel chooses to interview them
• What was the length and nature of the detention of each stopped motorist
• Was the roadblock conducted in a safe manner
• Where were the FST's performed, and who conducted them
• Where were chemical tests given, and who conducted them.
• How was the location of the roadblock determined
• How was the timing of the roadblock determined, and what was the duration of the roadblock
• Was there advance publicity of the roadblock
• Did the roadblock have the indicia of an official site, with warning signs, lights, and uniformed personnel
• Were motorists allowed the opportunity to turn away from the roadblock, without being detained

Once pretrial discovery is completed, defense counsel must analyze all documents to find disparity between what is constitutional allowed and what the police did. If the police did not follow all constitutional safeguards, and probable cause to stop was absent, then defense counsel should move to suppress the evidence garnered as a result of the unconstitutional roadblock in a Penal Code 1538.5 suppression motion.

A PC 1538.5 motion to suppress should include evidence related to the stop, detainment, and arrest, including statements made by the defendant and the results of any chemical tests. Roadblock sobriety testing is considered a search, under the Fourth Amendment and chemical tests, where a breath, blood, or urine sample is taken from the defendant, are firmly established to be a seizure, under the Fourth Amendment. Defense counsel should argue that the where no warrant exists and absent probable cause, the evidence should be suppressed. The prosecutor then bears the burden in proving that the search of the defendant and the seizure of the sample were the product of a lawful arrest.

Probable cause to arrest is needed if no warrant exists. Probable cause to arrest exists when the facts known to the officer would lead a person of ordinary care and prudence to believe that the person is guilty of a crime. The officer must articulate this belief as to why he or she ordered the motorist to stop and why the motorist was ordered to exit vehicle. This same standard would apply to each stage of the encounter, including the performance of the FST's, chemical testing, and the arrest itself. If no probable cause exists, and there was a warrantless search and seizure, there is a strong likelihood that the court will grant the PC 1538.5 motion to suppress, thus excluding the evidence gained as a result of the roadblock.

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