Front Page  news  state

Tuesday, April 22, 2008

Ruling on DWI Stop Tossed

By Scott Sandlin
Copyright © 2008 Albuquerque Journal; Journal Staff Writer
    A driver who makes a legal U-turn to avoid a sobriety checkpoint can't be pulled over by police for that alone, the state Court of Appeals decided in overturning a conviction in a San Juan County case.
    The court reversed a ruling by District Judge William Birdsall— while complimenting his "thoughtful and thorough review of law regarding checkpoints"— and suppressed evidence from the stop of Nicole Anaya in 2005.
    The opinion by Judge Celia Foy Castillo, filed Friday, marked the first time the court has taken up the issue in New Mexico. Courts in other states have considered it and have reached differing results, as Castillo's opinion notes.
    Phil Sisneros, spokesman for Attorney General Gary King, said his office is "leaning" toward asking the New Mexico Supreme Court to review the ruling, but has 20 days in which to decide.
    Anaya was stopped on N.M. 516 outside Farmington in November 2005 by the San Juan County Sheriff's Office, which set up a Saturday night checkpoint scheduled to run until 3 a.m. Sunday. Police lights at the checkpoint were visible to the surrounding area, and a sign in the median announced the checkpoint to oncoming motorists.
    Two officers waited in the median by the Farmington Lake turnoff "watching for vehicles turning around ... trying to avoid the checkpoint," according to testimony by the arresting officer quoted in the opinion. Anaya crested the hill about 2 a.m., saw the lights and executed a legal U-turn.
    The officer immediately pulled her over on a traffic stop and arrested her for DWI.
    Anaya's attorney, in a motion to suppress evidence, argued that the officer lacked reasonable suspicion for a stop. Anaya entered a conditional guilty plea to driving while intoxicated in Magistrate Court but reserved her right to appeal.
    Attorneys for the state argued that the officer didn't need reasonable suspicion because the officer made the stop under a checkpoint plan that directed him to stop all vehicles trying to avoid the checkpoint.
    But Castillo noted that in a 1987 New Mexico case dealing with the constitutionality of roadblocks, the court said the key was the reasonableness of a checkpoint and set out guiding factors. Among guidelines are the role of supervisors, restrictions on officer discretion, safety, reasonableness of the location, and time and duration of the roadblock.
    Castillo, joined by Judges James Wechsler and Michael Vigil, said the officer in Anaya's case had discretion, so he was required to develop reasonable suspicion for the stop— something that cannot be determined by the officer in advance.
    "There is no statute that prohibits a driver from evading a checkpoint," Castillo wrote. "The facts upon which the district court relied are thus legal acts. ... We hold that the arresting officer did not have reasonable suspicion to make the stop."
    Shan Patel, who examined the issue nationwide for an article in the Duke Law Journal in April 2007, noted silence by the U.S. Supreme Court and "significant disagreement among lower courts as to whether evading a checkpoint without breaking any traffic laws creates independent reasonable suspicion of criminal activity."
    Some courts, including those in North Carolina and Mississippi, have found acts of evading a checkpoint automatically suspicious. But most courts do not have a "bright line" or hard-and-fast rule, instead adopting avoidance as just one of many factors that can create reasonable suspicion for a stop.
    Patel argues for such a bright-line rule, saying it would be preferable to vaguer standards.
    The Court of Appeals opinion notes that among New Mexico's neighboring states, there is a difference of opinion regarding whether a driver's apparent attempt to evade a DWI checkpoint provides probable cause.