Road blocks and DWI police check points raise the specter of random breath tests. We are sometimes asked if they are legal in Texas.
The answer is no, but that doesn’t stop law enforcement setting up DWI police check points to apprehend drunk drivers.
We usually see this over holiday periods when drunk driving levels increase. The July 4 holiday is a case in point and a common time for police to set up roadblocks.
A drunk driving police check point
According to the Fatality Analysis Reporting System, from 2008 to 2012, more than 630 Americans lost their lives over the 4th of July weekend. More than a third of these deaths were from drunk driving.
Although DWI police checkpoints are set up from time to time, their constitutionality is questionable in Texas.
There are 12 states that outlaw DUI sobriety checkpoints and roadblocks. A further 38 states permit them, according to the Governors Highway Safety Association. While Texas has not expressly outlawed checkpoints by statute as some other courts have, the Texas Court of Criminal Appeals has ruled that DWI sobriety checkpoints violate Fourth Amendment rights in Texas.
Court Case Undermines DWI Police Check Points
In the 1994 case of Holt v. State of Texas the court stated.
“Because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional under the Fourth Amendment of the U.S. Constitution unless and until a politically accountable governing body sees fit to enact constitutional guidelines regarding such roadblocks.”
DWI police checkpoints can only be set up if the Texas legislature has established guidelines.
If you are stopped and asked to take a breath test at a no refusal sobriety checkpoint, you have rights. The fact a checkpoint has been set up does not negate the need for an officer to establish probable cause to ask you to take a sobriety test.
Although DWI police checkpoints are not legal in Texas, if you attempt to avoid one it could constitute the reasonable suspicion police need to legally detain you and ask you to take a test. This is particularly the case if you commit a traffic violation.
If you have been charged with a DWI there are many scenarios in which a police officer may be acting in an unconstitutional way that can lead a charge to be challenged.
If you have been charged with a family assault, the prosecution will take it very seriously. It’s important to hire a seasoned criminal defense attorney in Austin as soon as possible. Call us at (512) 399-2311.