DWI sobriety checkpoint coming to a highway near you.

I noticed in the newspaper that the police department is running DWI checkpoints to catch drunk drivers here in Jefferson City at the end of February.

The deal is that the police get to stop your car and check you out to see if you are under the influence. Most of the time, stopping and examining citizens without ANY cause whatever is considered a blatant violation of the fourth amendment protection against search and seizure.

But that protection was permanently swept away by a U.S Supreme Court decision in 1990. The United States Supreme Court held that a state’s use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. There are maybe half a dozen states that still consider such stops as unconsitutional, but Missouri is not one of them.

The police cannot, however, simply stop whomever they want, whenever they want. If they want to use a DWI roadblock, the police are required to create a detailed plan in advance.

They must have their plan in writing and have a supervising officer present throughout the time of the roadblock. They have to design it to catch the most offenders while creating minimum delays for everyone else and to do it in a safe manner.

The police sometimes get clever in setting up such roadblocks. A sign on the highway will say “Sobriety checkpoint ahead – be prepared to stop.” The police then setup the roadblock–not on the highway–but at the next exit.

The idea is that drunk drivers will “select” themselves by taking the exit to avoid the roadblock. Like checking into a roach motel. Too late, the driver realizes, he put his head in the noose.

Of course, once the police have a car stopped and the window is rolled down, the party is over in the time it takes to smell the driver’s breath.

Any driver arrested for a DWI or other charge needs to talk to an attorney as soon as possible. This goes double when the arrest stems from a roadblock situation. DWI prosecutions are always tricky. The legal & scientific requirements are complex. They are made even more complicated by checkpoint requirements.

Cops are human and they make their share of screw-ups. No defendant should plead guilty to a crime without knowing if the state actually has a legal case against them.

Missouri law could make things easier on cop killers

Senate Bill 912, sponsored by Sen. Kevin Engler, would create the crime of murder of a criminal justice official in the first degree (that is, the deliberate killing of police, prosecutors, judges and jailers).

We may ask–since plain-vanilla murder in the 1st degree can already be punished by death–how can things be any harsher? A 1st degree murder trial has two phases:

  • First the the jury decides on guilt or innocence. Then, if guilty,
  • More evidence is presented and the jury decides between death and a life sentence.

Under the current murder law, the prosecutor must put on punishment phase evidence to prove that a killing was especially egregious, showing that it involves any of 17 different aggravating circumstances as listed under section 565.032.2, RSMo.

The murder of a criminal justice official would require an automatic death sentence unless a jury finds mitigating circumstances sufficient to justify a life sentence without parole.

If this is to be seen as a get-tough law, I think it backfires:

If a jury finds a defendant guilty of an ordinary 1st degree murder, the prosecutor–during the punishment phase–will then be allowed to present evidence to prove any of the 17 possible & applicable aggravating circumstances.

The defense then gets to put on all of its mitigating circumstances. Then the jury decides between life and death.

Contrast this with a defendant who is found guilty of 1st degree murder of a criminal justice official:

  • The prosecutor doesn’t prove anything during the punishment phase. The death sentence is literally his to lose.
  • What happens is that during the punishment phase the defense gets to put on all of its mitigating circumstances.
  • The prosecutor can introduce evidence to refute the mitigating evidence, but much of the nasty, inflammatory stuff he could have used against the defendant to prove his aggravating circumstances may be kept out because it would no longer be relevant.
  • Then the jury still has to decide between life and death.

I’m not a prosecutor anymore, but if I were, I would never handcuff myself by charging a defendant under this proposed law.

There is a legitimate concern with protecting criminal justice officials, but we might keep in mind that the killing of those same listed officials is already included in that current lineup of 17 aggravating circumstances. The only ones missing are probation and parole officers.

Perhaps if we simply add the words “probation and parole officer” to the current list it would extend that protection to them without opening this can of worms.