Oregon Runs No DUII Checkpoints Because No Statute Authorizes Them

Oregon's stop power is individual by design. ORS 131.615(1) allows a peace officer to stop a person only where the officer "reasonably suspects that a person has committed or is about to commit a crime," and ORS 131.605(6) defines that suspicion as a belief reasonable under the totality of the circumstances existing at the time and place the officer acts. ORS 131.605(7) defines a stop as a temporary restraint of a person's liberty. ORS 131.615(2) requires that the detention and inquiry be conducted in the vicinity of the stop and for no longer than a reasonable time, and ORS 131.615(3) limits the inquiry to the circumstances that aroused the suspicion, circumstances arising during the detention that raise a fresh reasonable suspicion, and safety including weapons. A checkpoint that stops every car, or every fifth car, satisfies none of that because there is no particular person about whom the officer suspects anything.

The traffic side is no looser. ORS 810.410(2) permits a citation for a traffic violation only where the violation was committed in the police officer's presence, or where the officer has probable cause based on a description of the vehicle or other information received from a police officer who observed the violation. ORS 810.410(3)(b) then ties the detention itself to investigation reasonably related to that violation, identification and issuance of the citation.

The absence of a checkpoint statute is demonstrable rather than assumed. A full-text search of every chapter of the Oregon Vehicle Code, ORS chapters 801 to 826, together with ORS chapters 131 to 137, 153, 161 to 167 and 813, returns no provision authorizing a roadblock, a checkpoint or a sobriety stop. The only "checkpoint" in that entire body of law is the courthouse weapons screening referred to in ORS chapter 166. The General Index to the Oregon Revised Statutes carries no entry for roadblocks or checkpoints at all. Where the Legislative Assembly did want a suspicionless vehicle stop, it said so expressly: ORS 810.490(1) provides that any police officer "may stop, measure and weigh any vehicle or combination of vehicles by means of either portable or stationary measures and scales," and ORS 810.490(2) confines what follows to dimensions and weights not authorized by ORS 818.010, 818.020, 818.040, 818.060, 818.080, 818.090, 818.110 and 818.130 or by a permit issued under ORS 818.200.

That statutory silence is what decided the question. In Nelson v. Lane County, 79 Or App 753, 720 P2d 1291 (1986), affirmed at 304 Or 97, 743 P2d 692 (1987), the courts held that a roadblock established to find driving under the influence of intoxicants violations without individualized probable cause is an unreasonable search, and that the plaintiff was unlawfully stopped and detained when neither the state nor the county could demonstrate a statute or ordinance authorizing sobriety road blocks. The contrast is State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980), where stopping motorists at a checkpoint in a rural hunting area on the first day of hunting season for brief questioning and visual inspection of their vehicles was upheld. Oregon's objection is therefore not to every checkpoint but to a suspicionless one that no enactment supports.

What you will meet instead is an ordinary stop, and once you are stopped the DUII machinery is aggressive. ORS 813.135 deems any person operating a vehicle on a highway or premises open to the public to have consented to field sobriety tests where an officer reasonably suspects DUII, and a person who refuses must be asked for physical cooperation with nontestimonial tests and told the consequences. ORS 813.136 makes the refusal or failure to physically submit admissible in any criminal or civil proceeding arising from the allegation. ORS 813.100(1) deems the same driver to have consented to a breath test, or a blood test while receiving medical care after a crash, once arrested for DUII, and requires the rights and consequences advisory in ORS 813.130 before the test. Refusal triggers licence suspension under ORS 813.410 and is itself the offense in ORS 813.095, a specific fine traffic violation with a presumptive fine of $650 that stacks on every other consequence.

DUII itself is a Class A misdemeanor under ORS 813.010(4), rising to a Class C felony under ORS 813.010(5)(a) where the person has three qualifying convictions in the preceding 10 years. ORS 813.010(6)(b) sets a minimum fine of $1,000 on a first conviction while operating a vehicle other than a bicycle, ORS 813.010(6)(c) a minimum of $1,500 on a second, and ORS 813.010(6)(e)(A) a minimum of $2,000 where the driver's blood alcohol was 0.15 percent or more. ORS 813.010(6)(a) sets a $500 minimum where the offense was committed while riding a bicycle, which is an Oregon quirk worth knowing.

Because Oregon authorizes no sobriety checkpoint, there is no citation to contest for driving through one and no refusal penalty attached to one. 410(2), and that is raised by a pretrial motion to suppress in the Oregon circuit court where the DUII charge is filed; Nelson v. Lane County, 304 Or 97, 743 P2d 692 (1987), is the authority that a stop unsupported by an authorizing enactment is unlawful. 136. 100(2), which also requires the officer to take custody of the licence and give written notice of intent to suspend. 010(6).