North Carolina DUI Checkpoint Laws, and DWI Expungement (Part I)
North Carolina DUI Checkpoint Laws, and DWIs
The holidays season is upon us, which generally means family dinners, laughter, and libations. North Carolina's law enforcement buckles down in a serious way during this time of year; and they set up numerous DUI checkpoints. Aside from the fact that drinking and driving represents very real safety risks, driving while intoxicated is a serious offense; in some instances, it can irreparably alter your life. A DWI cannot be expunged. It is best to avoid DWIs altogether. This article will briefly discuss the North Carolina law surrounding DUI checkpoints.
North Carolina General Statutes §20-163A governs the legality of DUI checkpoints. Pursuant to the statute there are a number of requirements that must be satisfied in order for a DUI checkpoint to be legal, those requirements include:
- The police must create a uniform procedure to be applied evenly in all instances, in advance, regarding which vehicles to stop and produce their insurance information, license, and registration. §20-163A (2). As it relates to the policy, it does not need to be in writing unless that policy was created by another agency; While the procedure is allowed to contain a contingency plan for altering that pattern in the event that the traffic patterns interfere with their goals, no individual officer may be given discretion as to which vehicles are stopped. §20-163(2a); this is an incredibly important rule as detailed in the example below.
EXAMPLE: The local police department plans on setting up a DUI checkpoint on Christmas Eve. In compliance with §20-163A(2), they create a policy that police officers will stop every 4th car that comes through the checkpoint, with a contingency that they will check every 8th car that coms through the checkpoint if traffic is deemed “heavy.” Officer Orry is working at this checkpoint when Peter, a male of middle eastern descent passes through the checkpoint. In compliance with the procedure, Orry checked the car immediately in front of Peter, but noticed Peter in the process. Rather than wave Peter through the checkpoint, Orry stops Peter and asks for his license and registration. During the stop, Orry smells alcohol on Peter's breath and arrest Peter for Driving While Under the Influence. This case would likely be thrown out because Orry was not in compliance with §20-163A, and therefore the reasonable suspicion and subsequent arrest are excluded from evidence.
- The pattern of stopping cars, discussed above, is further restricted from basing that pattern on the type of vehicle. Returning to our example above. §20-163A(a1).
EXAMPLE: The local police department plans on setting up a DUI checkpoint on Christmas Eve. In compliance with §20-163A(2), they create a policy that police officers will stop every Sports Utility Vehicle (“SUV”). Officer Orry is working at this checkpoint when Peter passes through the checkpoint in an SUV. In compliance with the procedure, Orry stops Peter's SUV and asks for his license and registration. During the stop, Orry smells alcohol on Peter's breath and arrest Peter for Driving While Under the Influence. This case would likely be thrown out because Orry was not in compliance with §20-163A(a1), and therefore the reasonable suspicion and subsequent arrest are excluded from evidence for lack of the requisite cause to stop the car in the first place.
- Assuming that the police conduct the DUI checkpoint in compliance with §§20-163A(2), (2a), and (a1) discussed above, the police officers are still restricted in their ability to request that the driver submit to an alcohol screening test. First, the officer stopping the vehicle must have reasonable suspicion that the driver has violated a law, and then must detain the driver to investigate further. Specifically, an officer, who has properly stopped a vehicle, can only request that a driver submit to an alcohol screening test if during their investigation, based on their reasonable suspicion, they conclude that the driver had been drinking, or if the officer sees an open container of alcohol. Reasonable suspicion is understood to be a very low standard but can often serve as the basis for attacking a DWI as described in the example below.
EXAMPLE: Orry, a peace officer, has stopped Peter, a man of middle eastern descent, in compliance with §20-163A(2), (2a), and (a1). During the stop, Orry does not believe that Peter has violated any laws and does not smell alcohol. Further, Orry does not perceive Peter to be acting oddly, and does not see any open containers of alcohol. Nonetheless, Orry requests that Peter submit to an alcohol screening test, and Peter's results are over the legal limit. This case would likely be thrown out (ignoring any consent issues) because Orry did not have reasonable suspicion that Peter had violated any law. As such, his subsequent detention and investigation of Peter are in violation of §20-163A(b).
- The police must also inform the public the DUI checkpoint is authorized and currently being operated. §20-163A(3) states that this can be accomplished by having at least one law enforcement vehicle with its blue lights on at all times that DUI checkpoint is being operated.
- Finally, pursuant to §20-163A(d), the DUI checkpoints must be placed randomly, or in a manner that is statistically generated. The law further prohibits law enforcement agencies from setting up DUI checkpoints in the same location repeatedly. Unfortunately, §20-163A(d) specifically states that a violation of this provision cannot serve as the basis for excluding the subsequent information, thus this provision does not help individuals.
At NC Record Expungement we take pride in having a thorough understanding the law; not just the law of expungements, but the laws surrounding the underlying offenses themselves. Ultimately, if you receive a DWI as a result of a DUI checkpoint operated in compliance with §20-163A, you cannot expunge it. If you or a loved one has been arrested for a DWI, it is imperative that you contact an attorney promptly, as it is the best idea to begin planning your defense early in order to ensure the best possible outcome.