The Prosecutor, November-December 2010, Volume 40, No. 6

Another weapon against impaired driving

Law enforcement and prosecutors in Montgomery County have combined flexible checkpoints and strong officer presence to deter and arrest drunk drivers. Here’s how it worked over Labor Day Weekend.

While enhanced enforcement during heavy drinking holidays, such as Labor Day, has some deterrent effect on the number of arrests for driving while intoxicated (DWI), one tool is missing from the Texas enforcement arsenal. That tool, available in the significant majority of other states, is high-visibility sobriety checkpoints. Montgomery County prosecutors and law enforcement joined forces this summer to investigate the effectiveness of checkpoints, and initial results indicate that they can be an effective means to prevent intoxication crimes. This article details the method used in Montgomery County to work within the law and highlight the preliminary results of high-visibility sobriety checkpoints.

    Montgomery County has some of the worst DWI numbers in the state. The number of DWIs per 1,000 residents is double that of Harris County, which has been cited as a DWI capital by some.1# The number of alcohol-involved vehicle fatalities is more than two times higher than the deaths caused by all other weapons,2# and the number of DWI fatalities is usually three times higher than in counties with a similar population.3# District Attorney Brett Ligon is attacking the problem on as many fronts as possible by supporting law enforcement with asset forfeiture purchases of modern tools, such as Portable Breath Testing devices, Hawk-Eye HGN (horizontal gaze nystagmus) cameras, a Breath Alcohol Testing mobile unit (or BAT-mobile), increased training, and a host of other new incentives including a very active no-refusal program. Picking up on the admonition of the first Texas District and County Attorneys Association (TDCAA) DWI Summit (“we can, we must, we will do better”), we felt that more could be done.

    It was time to consider a new approach, and sobriety checkpoints seemed like one of the next steps in the process. The National Highway Traffic Safety Administration (NHTSA) classifies several different types of checkpoints. Random sobriety checkpoints, for example, have been deemed unconstitutional by the Texas Court of Criminal Appeals.#4 In fact, the state legislature has attempted to authorize random sobriety checkpoints for the last several sessions and failed. Therefore, we opted for a checkpoint more in line with those found to be proper in at least one Texas case;5# NHTSA classifies them as “flexible checkpoints,”6# and they are announced to the public but do not involve random stops.7 Their stated purposes are raising awareness of the dangers of impaired driving, calling attention to law enforcement, and creating an apprehension of arrest and prosecution, thereby, we hope, altering criminal behavior.

    With the help of Andrew James and Tyler Dunman, the assistant Montgomery County DAs who coordinate our no-refusal weekends, we enlisted the participation of two progressive area agencies. Rowdy Hayden and his deputies at Montgomery County Constable Precinct Four have some of the most aggressive anti-DWI programs in the county, and they were more than willing to assist. Additionally, Houston Police Department DWI Liaison Officer Paul Lassalle is well-known in the area for his expertise in DWI enforcement, and he was equally intrigued by the idea.

    Our checkpoint was to be staffed with both stationary law enforcement vehicles on the roadway (for high visibility) as well as nearby officers looking for potential impaired drivers. This technique combines the highly visible presence of a checkpoint with the effective enforcement tool of saturation patrols—the best of both worlds. Additionally, we also had the option to relocate should circumstances change. This approach has been used effectively by narcotics officers for years, and there was no reason this tool could not be used in DWI enforcement.

Testing and preparation

While planning our sobriety checkpoints, we decided to quietly conduct a couple of test runs during the summer to note any problems that may arise and to gauge their effectiveness. During these test runs, we used the Houston Police Department BAT-mobile and marked patrol cars from the Splendora Police Department as well as Hayden’s agency. The Conroe Police Department also provided a large programmable sign that flashed the words “DWI sobriety checkpoint ahead” as well as “No-refusal DWI weekend.” Traffic safety was a primary consideration as was the checkpoint’s proximity to problem DWI areas.

    The test runs confirmed our suspicions that our checkpoint would find a significant number of DWI suspects. We also learned that traffic patterns move when a checkpoint is in place. For example, on the night of the first test run, the selected roadway was very busy with traffic that appeared to be leaving local bars. However, on the second night, traffic on the same roadway was markedly lighter than the first night although the bars were just as crowded. The bar traffic was taking another route home! We speculated that people in the bar had warned others of the checkpoint the night before, resulting in a traffic transfer on the second night. Through observation, we also learned that many impaired drivers would try their best to avoid the checkpoint: Vehicles stopped in a moving lane of traffic or cut across several lanes to avoid it. Although these people were generally stopped for the traffic violation, it became apparent that setting up our checkpoint on a very busy highway could create a dangerous traffic situation. With these lessons learned, it was time to go full speed ahead for Labor Day, the traditional last day of summer.

    We decided to place the checkpoint in Hayden’s precinct, a two-way road heavily traveled by people leaving local bars but also by people leaving the drinking establishments of Harris County. The Houston Police Department again provided the BAT-mobile and Officer Lassalle to assist because the chosen location was practically in Houston’s Kingwood area. The BAT-mobile was stationed on one side of the roadway as the staging area, and one of Hayden’s patrol cars was parked on the other side. Both vehicles had all emergency lights flashing to warn approaching drivers of law enforcement’s presence. A portable sign warned motorists of the checkpoint. Because random checkpoints have not been authorized by the legislature, we agreed that officers working the area would stop only traffic violators on the roadway and those who broke laws passing through the checkpoint (by trying to avoid it, etc.). No cars would be stopped on a random basis—but we knew that it would still be effective and a high-profile activity in this part of the state.

    Hayden assigned multiple deputies to the checkpoint. Their sole duties were to stick close to the checkpoint area, investigating drivers who committed traffic violations (officers stationed at the checkpoint would alert their mobile counterparts to said violations), and to patrol the area for other traffic violators. Additionally, Chief Deputy Barry Welsh was stationed at the checkpoint to keep traffic moving but also to radio suspected DWI drivers to area patrol vehicles. Lassalle would again operate the BAT-mobile while we prepared blood warrants for those who refused a breath test. Judges Kathleen Hamilton, Patrice MacDonald, and Lisa Michalk volunteered their time to review the warrants for probable cause.

    Arguably, the most important reason to conduct sobriety checkpoints is to deter DWI, thereby saving lives. Warning the public of the dangers of impaired driving is a key ingredient of our efforts. With this in mind, we again enlisted the assistance of the Texas Department of Transportation (TXDOT) to publish our no-refusal effort by using their flashing highway advisory signs that warned motorists on our highways that this weekend would be a “no refusal holiday.” Additionally, our office held a press conference to publicize the event. Media interest was significant, with almost all local outlets featuring this new technique. As well as attending the press conference, some stations conducted live broadcasts from Montgomery County and most followed our office’s Twitter feed for updates on the number of stops and arrests. (I am the designated office tweeter. I post notices about how many blood search warrants we issue over a no-refusal weekend, as well as more general tweets on the sentences DWI defendants receive and updated statistics on how many traffic fatalities occur in Texas. As of press time, 679 people follow the office’s Twitter feed.) Once the planning stage was complete, it was time to witness the effectiveness of the fully staffed and operational checkpoint station.

Labor Day Weekend

As the first night went on, it soon became apparent that many people had not heeded our warnings to make smart choices about drinking and driving. Numerous drivers committed traffic violations near the checkpoint or in front of Chief Welsh, who radioed a waiting marked patrol car. Lines soon began to form at the BAT-mobile for testing. Officer Lassalle volunteered to perform field sobriety testing for the patrol deputies to ensure their quick return to the streets. He used one of the Hawk-Eye cameras provided by the DA’s office to document the impaired drivers’ nystagmus. (Two examples of the video a Hawk-Eye camera produces are on the DWI Resource page of our website; they are called “Without Nystagmus” and “With Nystagmus.”) Lassalle then offered those who were unable to perform the first round of testing a breath test in the BAT-mobile. Those who failed the breath test were held in the vehicle until transport and booking, while those suspects who refused a breath test were immediately transported to the county jail for a blood draw (if the judge reviewing the warrant found probable cause). Law enforcement was kept busy thanks to the checkpoint and its ability to put officers back on the street with little down time.

    Assistant DAs Dunman and James and the participating law enforcement agencies compiled the preliminary numbers each day of the checkpoint. About 50 drivers were stopped for traffic violations, such as driving without insurance or driving with a suspended license. Many of these people had their cars towed because of their failure to obtain valid insurance. Of those people detained for committing a traffic violation, 12 (nearly one in four) were ultimately arrested for DWI. The average breath test results of those brought to the BAT-mobile was 0.16 grams of alcohol per 210 liters of breath—two times the legal level of impairment. If trends in blood testing from other no-refusal campaigns hold true, the blood alcohol concentration (BAC) results will be even higher. What this means in plain language is that on the night of the checkpoint, almost one in four people committing traffic violations was also impaired. Furthermore, these people were on average twice the limit of per se impairment. These intoxicated drivers represented a great danger to the law-abiding citizens of the county, and fortunately, they were removed from our streets due to an innovative use of the current law.

Advice for other ­checkpoints

If a saturation patrol or “flexible” checkpoint of this type is conducted in your jurisdiction, be prepared to respond immediately to any media inquiries and to assure them that officers are working well within the law by stopping only traffic violators, not random vehicles. There will be detractors no matter what message is published by the media, and getting out the right message is critical for this sort of an operation. For some agencies, excluding use of the word “checkpoint” in press releases and focusing on the words “saturation patrol area” may generate less hostility—but it will also generate less media attention. If the goal is to deter impaired driving, media focus is important. However, if making a lot of arrests is the goal, media focus is not as critical. Either approach is effective for different reasons, but before using the word “checkpoint,” an agency should decide which approach to use considering the nature of politics in that jurisdiction.

    In conclusion, the use of this approach proved to be effective in deterring and apprehending dangerous drivers. There was significant attention to the measures Montgomery County law enforcement took to combat the unusually high number of alcohol-related vehicle fatalities in our county. In addition, a significant number of impaired drivers, as well as other serious traffic violators, were removed from local roads, and there have been no DWI fatal crashes involving innocent victims in Montgomery County during these efforts. Furthermore, and for the first time in the history of Lake Conroe, two summers on the lake have passed with no serious alcohol-related crashes or fatalities. Lives are being saved, and people are getting the message. It’s been more than worth all of the work.

Endnotes


1 “2009 Take the Wheel Campaign” Mothers Against Drunk Driving.
2 Crime Data—FBI Uniform Crime Reports and TXDOT Crash Record Info System.
3 TXDOT Crash Record Information System from 2005 to 2008.
4 Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994).
5 Johnson v. State, 833 S.W.2d 320 (Tex. App.—Fort Worth 1992, pet. ref’d).
6 “Innovative Strategies for High Visibility Enforcement: Flexible Checkpoints” NHTSA presentation by Dr. Dereece Smithers, Lifesavers 2010, Philadelphia PA.
7 Here’s how such checkpoints are different from “sobriety checkpoints”: Once an officer observes a traffic violation and makes a DWI detention, he brings the offender to the checkpoint, which is in a public area, where he conducts field sobriety tests.