Are DWI Checkpoints Legal in New Hampshire?

At so-called “sobriety checkpoints” (also known as a drunk driving checkpoint or DWI roadblock), police officers set up a roadblock and stop all drivers, or a fraction of all drivers, for a temporary detention to investigate the driver for driving while impaired by alcohol, drugs or, under NH’s 2013 DWI amendments, any substance whether controlled or available without a prescription. If you or someone you care about has been arrested for DWI in NH arising out of a sobriety checkpoint, then you probably have many questions you’d like answered before you begin working with a DWI defense lawyer.

DWI / DUI Checkpoint Laws – When Are DUI Checkpoints Legal in NH?

Can the police pull me over in a drunk driving roadblock, even if I have been driving perfectly and the police did not see me weave or do anything wrong?

In most instances, the New Hampshire police cannot stop and detain a motorist (or pedestrian) absent reasonable suspicion, based on specific articulable facts, that the motorist has committed or is committing a traffic violation or crime such as driving while intoxicated.

Decisions of the United States Supreme Court and New Hampshire Supreme Court have established a limited exception to this principle, allowing for suspicion-less stops of motorists pursuant to a DWI checkpoint / roadblock. State v. Hunt, 155 N.H. 465 (2007); State v. Koppell, 127 N.H. 286 (1985) (invalidating an unconstitutional checkpoint); Opinion of the Justices, 128 N.H. 14 (1986); Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). So, the answer is that IF the police followed all the requirements for authorizing and administering a checkpoint, the police can pull over a driver even though the police did not witness any traffic violation or erratic operation.

What are the legal or constitutional requirements for a legitimate drunk driving roadblock?

Under the NH court decisions, the police must

  1. provide advance notice of the sobriety checkpoint, usually by press release,
  2. obtain judicial authorization for the checkpoint, and
  3. administer the checkpoint according to the protocols established by the court order authorizing the checkpoint.

If I have been stopped in a DWI checkpoint, do I have to submit to the roadside tests such as standing on one leg, or blowing into a preliminary / portable breath test?

Unless a driver has been arrested, there is no consequence (no license suspension) for refusing pre-arrest field tests and breath tests. However, the vast majority of people submit to field tests such as attempting to stand on one leg for 30 seconds without using arms for balance, the so-called “One Leg Stand.”

Can the police systematically use a DWI checkpoint to look for illegal drugs?

The police cannot use a roadblock for more generalized criminal investigations, such as drug interdiction.Indianapolis v. Edmond, 531 U.S. 32 (2000) (checkpoint for purpose of drug interdiction constitutes ordinary crime control and therefore violates fourth amendment). Yes, that’s right, the government cannot use a roadblock to find illegal drugs or stolen guns – the government can only use checkpoints to attempt to find impaired drivers. That’s why DWI defense lawyers call it the “DWI Exception to the Constitution.”

If I have been stopped in a DWI roadblock, does that mean I will likely be convicted of DWI in NH?

The answer is no – but you need to go out and find a New Hampshire DWI defense lawyer who has the qualifications, experience and skill to defend your case. DWI defense attorneys often find that it can be easier to defend a citizen accused of DWI and ensnared in a checkpoint. At sobriety checkpoints, NH police officers err on the side of caution and stop more cars than necessary if there is even the slightest indication the operator may be driving drunk.

The roadblock’s strength from the position of law enforcement – the ability to stop drivers for no reason at all – is also its Achilles heel. Most of these cases involve no law enforcement observation of erratic vehicle operation, not so much as the tiniest traffic violation. Thus, these cases tend to be weaker, from the standpoint of the prosecution, than the “typical” DWI case. So, even if the search and seizure clauses of the State and Federal Constitutions fail to protect the driver in these cases, another key constitutional right remains – the right not to be convicted unless the government proves its case beyond a reasonable doubt.

Evading DWI Checkpoints: If you see a roadblock up ahead, and you have been drinking, should you turn around?

One interesting issue that sometimes arises is whether the police can stop a driver for evading a drunk driving roadblock, e.g., by taking the exit right before the roadblock or doing a U-turn to avoid the roadblock. The NH Supreme Court has not weighed in on this issue, but several other State courts have held that the police violate the driver’s constitutional rights by stopping her solely on the basis that she attempted to avoid the roadblock. These cases include Hawaii v. Heapy, 151 P. 2d 764 (2007) (holding that a driver’s intentional avoidance of a DWI roadblock, absent other indicia of criminal activity such as erratic operation, is not sufficient to constitute reasonable suspicion to stop the vehicle); State v. Pooler, 746 P. 2d 716 (Oregon 1987); Pennsylvania v. Scavello, 734 A. 2d 386 (1999); State v. Talbot, 792 P. 2d 489 (Utah 1990); Howard v. Voshell, 621 A. 2d 804 (Delaware 1992); Bass v. Commonwealth, 525 S.E. 2d 921 (Virginia 2000).

Were You Stopped at a DWI Checkpoint in NH?

Have you been arrested on a charge of drunk driving in NH? DWI defense lawyers Ted Lothstein and Richard Guerriero have fought on behalf of thousands of clients in New Hampshire’s District Courts and Superior Courts, and have handled over 100 appeals in the New Hampshire Supreme Court. To schedule a free consultation, call 603-513-1919 or complete our free consultation form.