Florida DUI Checkpoints: Written Plans and Roadside Limits

Sobriety checkpoints are lawful in Florida, and the authority is the general enforcement power in section 321.05, which the Florida Highway Patrol names as the authority for its own checkpoint policy. Section 321.05(1) empowers troopers to patrol the state highways, to regulate and direct the movement of traffic, and "to require the drivers of vehicles to stop and exhibit their driver licenses, registration cards, or documents required by law to be carried by such vehicles." The same subsection carries a limit that cuts the other way: it authorises warrantless arrest for offences committed in the officer's presence "providing that no search may be made unless it is incident to a lawful arrest." Section 321.05(1) closes by stating that the section is supplemental to chapter 933 rather than in conflict with it.

The written guidelines are Florida Highway Patrol Policy 17.08, Comprehensive Roadside Safety Checkpoints, issued 1 September 1996 and revised 23 November 2015. The policy is what removes trooper discretion, and it does so in specific ways. Section 17.08.06.B.1 requires the operational plan to reach the Troop Commander "no less than 10 days prior" to the checkpoint, with eleven mandatory contents ranging from a manpower allocation to a contingency plan and a signature block for the Troop Commander. Section 17.08.06.A.1 requires the Troop Commander or designee to approve the location and time in writing, and provides that the time "shall not interfere with commuter rush hour traffic." Section 17.08.06.B.3 is blunt: "Assigned members do not have the authority to change the operational plan. Member discretion will not be used in adjusting the plan," except that the safety check supervisor must document the reason for any adjustment.

Which cars get stopped is fixed in advance, not chosen at the roadside. Section 17.08.06.C.2 requires that the selection of vehicles, "i.e: every vehicle, every fifth, tenth or fifteenth vehicle," be prescribed and uniformly applied throughout the operation. Section 17.08.06.C.4 states that "A driver's effort to avoid a checkpoint is not sufficient to justify the stopping of a vehicle," and requires probable cause or reasonable suspicion before an avoidance stop. Section 17.08.06.G.9 requires troopers to wave vehicles through without checking when congestion causes significant delay, and to record every such episode in the After Action Report.

The site rules are equally concrete. Under section 17.08.06.A.2 the location must have adequate safety and visibility, ample room for police and subject vehicles, an available secondary screening area, freedom from driveways and intersecting streets, and adequate advance warning signs with sufficient lighting. Paragraph i prohibits checkpoints on limited access facilities outright, which keeps them off the interstates. The Troop Public Affairs Officer must notify the media in advance and keep a file of the notifications, although the operational plan format states that the exact time and location will not be given.

What a trooper may ask for at the line is narrower than most drivers assume. Section 17.08.06.G.1 provides that unless a driver license check is a designated part of that checkpoint's procedure, "members are not to request to see a driver's license," and that a license appearing valid on its face is prima facie proof of compliance. Section 17.08.06.G.4 forbids running FCIC or NCIC and the department driver license files unless the trooper has reasonable grounds to believe a violation has been or is being committed. If reasonable suspicion does arise, section 17.08.06.G.5 sends the driver to the secondary screening area, where registration and proof of insurance are then required.

If the stop turns into a DUI investigation, section 316.1932(1)(a)1.a. applies. By operating a vehicle in Florida you are deemed to have consented to an approved breath test, but the statute requires the test to be "incidental to a lawful arrest" and administered at the request of an officer with reasonable cause. You must be told that refusing a lawful breath test suspends your driving privilege for one year on a first refusal, or 18 months if your privilege was previously suspended or you were previously fined under section 327.35215, and that the refusal itself is a second degree misdemeanor, or a first degree misdemeanor on a repeat. The refusal is admissible in evidence. A first DUI conviction under section 316.193(2)(a) carries a fine of not less than $500 and not more than $1,000 and imprisonment of not more than six months; a second conviction carries $1,000 to $2,000, up to nine months, and mandatory ignition interlock for at least one year at the driver's own expense under section 316.1938.

Records survive the night. The operational plan and all related documents go into a checkpoint notebook "retained for four years from date of the operation," identified by troop, date and location, and the Data Collection Officer records the number of vehicles passing through, the number stopped, the average length of delay, and the arrests and warnings issued. Any local agency assisting the Florida Highway Patrol at a checkpoint must adhere to the same policy.

Refusing a lawful breath test at a Florida checkpoint is itself an offense. Under Fla. 35215 brings an 18 month suspension and a first degree misdemeanor, up to one year and $1,000. The refusal is admissible against you at trial. 1938 at your own cost. 08, the remedy is a motion to suppress in the county or circuit court hearing the charge, argued against Art. I, § 12 of the Florida Constitution, which since 1982 must be construed in conformity with the Fourth Amendment as interpreted by the United States Supreme Court.

The policy hands the defense the record it needs: the operational plan, the approval signature, and the After Action Report are all kept in a checkpoint notebook for four years.