The State of Texas has clear laws prohibiting the operation of a motor vehicle while under the influence of drugs or alcohol. However, the details surrounding the legality of DWI checkpoints are not so simple.
Even though Texas courts maintain that DWI checkpoints are unconstitutional, local law enforcement agencies have ways of getting around some of these limitations. This confusion makes knowing your individual rights that much more imperative and finding the right lawyer, even more important.
- 1 What is a DWI Checkpoint in Texas?
- 2 So are DWI Checkpoints Legal in Texas?
- 3 DWI Checkpoints and 4th Amendment Rights During Search and Seizure
- 4 “No Refusal” Checkpoints and “No Refusal” Weekends
- 5 What Should You Do if You are Stopped at a DWI Checkpoint?
- 6 Refusal of the BAC Test after Recieving a Warrant May Be Considered a Crime
- 7 The Best Strategy If You Were Arrested Based on a DWI Checkpoint Stop
What is a DWI Checkpoint in Texas?
A DWI checkpoint is a law enforcement practice in which officers establish a roadblock to stop and check drivers as they pass through. The objective is to catch a greater number of individuals driving under the influence . Theoretically, this leads to a reduction in impaired driving and alcohol-related traffic fatalities.
This concept is similar to a “speed trap,” where officers park at specific points along prominent driving routes to catch drivers exceeding the speed limit. Similarly, officers set up DWI checkpoints in neighborhoods with a high concentration of establishments serving alcohol and where few alternate routes exist for the driver.
During a checkpoint stop, officers will ask a series of questions and require the individual to present their driver’s license, proof of insurance and registration. Police use this opportunity to identify signs of intoxication, like the smell of alcohol, blood-shot eyes, slurred speech or the inability to answer simple questions. If they suspect intoxication, officers will ask the driver to submit to either a breathalyzer or blood sample test to determine Blood Alcohol Content (BAC).
So are DWI Checkpoints Legal in Texas?
In 1991, the Texas Court of Criminal Appeals ruled that DWI checkpoints are illegal because of how law enforcement conducts these stops. The Texas Judicial System also found DWI checkpoints to be in violation of an individual’s Fourth Amendment rights.
This is where the issue gets tricky. While Texas courts maintain that DWI checkpoints are unconstitutional, the Texas State Legislature has yet to draft official laws to back this up. This means that, technically speaking, officers may establish DWI checkpoints in Texas. However, judges will frequently reject evidence gathered during such an interaction.
In Texas, as in other states, police have authority to create roadblocks for other reasons, like checking for valid driver’s licenses. These stops allow officers to pinpoint intoxicated drivers.
Throughout most of the year, Texas drivers aren’t likely to find an actual DWI checkpoint, given the judicial prohibition against them. Still, drivers may encounter other kinds of roadblocks, like “No Refusal” checkpoints that take place during “No Refusal” weekends, something we will address shortly.
DWI Checkpoints and 4th Amendment Rights During Search and Seizure
The Fourth Amendment of the US Constitution protects individuals from unreasonable searches and seizures. Attorneys often use this point to argue against evidence obtained during a DWI checkpoint or against any search that lacks probable cause.
Even if evidence against a defendant seems concrete, the fact that it was gathered during an unreasonable search or seizure may provide the defendant’s attorney with the details they need to make a convincing case. This, of course, changes if the individual broke additional laws or their actions resulted in property damage or personal injury to others.
Historical Arguments in DWI Checkpoint Law
Throughout the history of the United States, both federal and local legislators and judiciaries have sought to gain a better understanding of where the Fourth Amendment crosses paths with the public’s need for greater safety.
Locally, the most important moment in this debate arrived in 1991 with the State of Texas v. Charles Lee Wagner. Wagner was arrested and charged with DWI using evidence acquired at a roadblock. However, the trial court chose to exclude this evidence, finding that it was unlawfully obtained. They stated that the roadblock violated not only Wagner’s Fourth Amendment rights, but his rights under Article 1, Section 9 of the Texas Constitution.
“No Refusal” Checkpoints and “No Refusal” Weekends
No refusal weekends give police authority, under a signed warrant from a judge, to take a blood sample, even by force, from a suspected drunk driver when the officer has clear probable cause to do so. These days fall on prominent drinking holidays, such as Christmas, New Year, Halloween, St. Patrick’s Day, Independence Day and Memorial Day, and usually last the entire weekend.
During these holidays, police receive access to additional resources, increased personnel and expedited judicial processes, like on-call judges and fast electronic search warrants. In some cases, they may even have nurses or other medical staff present to conduct on-site blood tests.
The title of “No Refusal” is a somewhat spurious and misleading one, given the fact that one may still refuse to answer questions or give a blood or breath sample. An individual’s state and federal rights remain intact. However, the added law enforcement presence, the well-publicized lead-up to these weekends and the aura of authority surrounding them often compel people to open their mouths when they shouldn’t or waive certain rights. This is exactly what police hope to achieve.
Checkpoints established during these weekends do not subvert an individual’s right to guard against self-incrimination or from unreasonable searches and seizures. But if an individual refuses to take a breathalyzer or blood test while displaying clear signs of intoxication, an officer can obtain a warrant to detain and test them against their will.
What Should You Do if You are Stopped at a DWI Checkpoint?
You can take several steps to protect yourself at a DWI checkpoint. Some of these steps include:
Avoid the Checkpoint Altogether
You can skip the added risk if you’re able to simply avoid going through the checkpoint in the first place, especially if you’ve been drinking. If you spot a DWI checkpoint ahead, change your route and bypass the area altogether.
Find a place to safely and legally turn around. Standard driving laws still apply. Don’t make an illegal u-turn, lane change or other unsafe maneuver. You might still get pulled over for reckless driving.
If you’re unable to avoid the checkpoint, you will need to prepare yourself for the interaction. Breathe deeply and relax. Nervousness, anxiety and erratic behavior only increase your chances of being noticed.
Prepare and Provide
Retrieve your documentation beforehand so that you’re not fumbling for it when the officer approaches. Place your hands where the officer can see them to decrease suspicion. When asked to do so, provide the officer with your license, registration and proof of insurance. This is a good reminder to make sure these documents are always up to date.
Be Smart with Your Interactions
During your stop, police officers will ask you a series of probing questions to help them determine your sobriety. Common questions include:
“Where are you coming from?”
“Where are you going?”
“How much have you had to drink?”
“Do you have any alcohol in your car right now?”
You have the right to remain silent and you may respectfully inform the officer that you do not wish to answer any questions. If you think you’re being unlawfully targeted by law enforcement or feel your rights are being ignored, don’t hesitate to contact a lawyer immediately.
Refusal of the BAC Test after Recieving a Warrant May Be Considered a Crime
The legality of Blood Alcohol Concentration (BAC) testing is a complex issue. Texas drivers are legally within their rights to refuse sobriety testing. However, because Texas is an implied consent state, the officer will confiscate the individual’s driver’s license and issue a notice that their license will be suspended for up to 180 days.
It is only illegal to refuse testing once an officer has obtained a court-issued warrant for arrest based on probable cause. It won’t make a difference whether you refuse, they will take the sample from you on-site or at a nearby police station or medical facility.
Your chances of being forced into giving a sample increase when there is clear evidence that you were operating a motor vehicle while under the influence of drugs or alcohol and when one or more of the following scenarios apply:
- You have had any previous offenses involving DWI or substance abuse
- Your current offense involves injury to others, property damage or clearly dangerous behavior
The Best Strategy If You Were Arrested Based on a DWI Checkpoint Stop
By far, the most important step you can take to protect yourself if you’ve been arrested at a DWI checkpoint is to contact a lawyer. An attorney with extensive experience in DWI cases will work hard to clear your name and keep you out of jail.
Remember to stay calm during a DWI stop. Conduct yourself with dignity and be respectful toward law enforcement officials. Don’t incriminate yourself by offering too much information. Rely on the guidance and advice of your attorney to protect you from additional legal consequences.
State of Texas Transportation Code
Title 7. Vehicles and Traffic
Subtitle J. Miscellaneous Provisions
Chapter 724. Implied Consent
Subchapter A. General Provisions
Caselaw Access Project
Harvard Law School
State v. Wagner, 821 S. W. 2d 288 (1991)
November 14, 1991 Texas Courts of Appeals No. 05-89-00675-CR
821 S.W.2d 288
The State of Texas, Appellant, v. Charles Lee Wagner, Appellee
Texas District and County Attorneys Association (TDCAA)
Warren Diepraam: Assistant District Attorney in Harris County
Anatomy of a DWI “no-refusal” Weekend
Micah Schwartzbach, Attorney
DUI Testing: Breath, Blood, and Warrants
United States Courts
What Does the Fourth Amendment Mean?
Centers for Disease Control and Prevention (CDC)
Michigan Dept. of State Police v. Sitz
U.S. Supreme Court, June 14, 1990
The New York Times
Excerpts From Supreme Court’s Decision Upholding Sobriety Checkpoints
June 16th, 1990
Legal Information Institute (LII)
Cornell Law School
Michigan Department of State Police, et al., Petitioners v. Rick Sitz, et al
Chicago Police Sobriety Checkpoints Target Black, Latino Neighborhoods
May 5th, 2015
Ben has worked on thousands of cases ranging from DWIs to assault, drug possession, and many more. He has gotten hundreds of charges dismissed and pled down several hundred more. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.