By Adam D. Schmaelzle, Esq.


Now that the summer is finally upon us, the local and state police are paying more attention than ever to drunk drivers. In an effort to reduce the amount of injuries and fatalities caused by drunk driving, the police have been conducting OUI checkpoints/roadblocks in various “problem areas” to minimize the risks and make an arrest. With this in mind, it is important to know your rights if you find yourself in an encounter with law enforcement.dui-checkpoint


What is an OUI checkpoint, otherwise known as an OUI roadblock? A roadblock is a constitutionally permissible seizure where the police have a quickdui-checkpoint interaction with every driver at a particular time on a particular road for the purpose of arresting drunk drivers. Generally, you will find a roadblock on a main road between the hours of 12:01 a.m. to 3:00 a.m. As you wait in a line of vehicles, you will probably see a state trooper standing at the driver’s side window of a motorist who is in front of you. This is the “screening officer”. As you approach the screening officer, he or she will ask you to roll your window down. He/she will then most likely explain to you that this is an OUI checkpoint and that he/she is going to ask you a few questions. Those questions usually sound something like, “where are you heading?” Or “where are you coming from?” He/she might even ask if you had anything to drink that night. At this point the screening officer is looking for any indication that you might be intoxicated, such as an odor of alcohol emanating from the breath of the driver, bloodshot eyes or slurred speech. Any of these indicators would give the screening officer “reasonable suspicion” to order the driver to pull their vehicle out of the line and into the testing area or “pit”.


Once you are in the testing area another officer will approach your vehicle and speak with you. That individual will ask another series of questions and will most likely ask for your driver’s license and registration. If he/she believes you might be under the influence you will be ordered out of the vehicle and asked if you would be willing take a field sobriety test. YOU HAVE AN ABSOLUTE RIGHT TO REFUSE TO PERFORM THESE TESTS. If you refuse to perform these tests you cannot be penalized. Your refusal cannot be brought up in court to be used against you Commonwealth v. McGrail, 419 Mass. 774 (1995). More likely than not, if you are asked to conduct a field sobriety test, that officer has already decided he/she is going to place you under arrest for OUI and is looking to gather more information to strengthen the state’s case. If you do choose to perform these tests, there are three types of tests that are considered “standard field sobriety tests”. These are:


  1. The nine-step walk and turn test: where an officer directs a person to walk on a straight line (imaginary or not) heel to toe for nine steps. After nine steps you are required to spin around and walk nine steps back in the same fashion.
  2. The one-leg-stand test: where a person is asked to lift one leg off of the ground about six inches and count to thirty.
  3. The horizontal nystagmus test: where an officer asks a person to follow an object such as a pen or the tip of the officers finger with their eyes. The purpose is for the officer to measure the smooth pursuit of your eyes. A lack of smooth pursuit is another indicator of impairment.


You will also most likely be asked to provide a chemical breath test, where you would blow into a machine that measures your blood-alcohol concentration levels (BAC). Again, you have an absolute right to refuse to provide this test. HOWEVER, when you initially obtained your drivers license, you gave the state of Massachusetts an implied consent to submit to a chemical breath test in exchange for your right to drive. This means that if you refuse to provide a breath test, your license will be suspended automatically for 180 days on a first offense.


If the testing officer is satisfied that you are not under the influence at this point you will be free to go. Otherwise, you will be arrested and transported back to the police barracks for processing and possible further testing.


You might be wondering at this point, how is this constitutional? How can the police just post themselves up in an area and stop every car that passes through? Well, unlike a regular traffic stop, which would require some constitutional degree of probable cause or suspicion, the Supreme Court has upheld the legitimacy of drunk driving roadblocks against constitutional arguments to promote a greater public interest. (See Commonwealth v. Murphy <link below>). This means that the police have the right to stop every single car at that checkpoint AS LONG AS THEY FOLLOW A VERY STRICT SET OF RULES. This is the area where many roadblock OUI cases are given scrutiny.


The minimum guidelines with which the police are required to follow when setting up an OUI checkpoint were established in 1983 in Commonwealth v. McGeoghegan. (See Link). Those guidelines are:


  1. The vehicles that are stopped cannot be stopped arbitrarily
  2. Safety must be assured
  3. The checkpoint must be minimally inconvenient
  4. Law enforcement supervisory personnel must devise a plan and police must act pursuant to that plan; and
  5. The date of the checkpoint must be published (even if the exact location of the checkpoint is not published).
  6. Those guidelines are set out in more detail in The Department of the State Police General Order document number TRF-15.


If it is believed that the police strayed away from those guidelines, a defense attorney should submit and argue to the court a motion to suppress. If the attorney is successful in his/her motion, the evidence obtained as a result of the misconduct may be suppressed and the defendant’s case can be dismissed.


If you have any questions, or feel as though a mistake was made, please feel free to contact Attorney Adam D. Schmaelzle at 774-314-9124.