Sobriety Checkpoints in Wisconsin

What is a 'sobriety checkpoint'?

A sobriety checkpoint is a police barricade set-up to snag drunk drivers.

Are sobriety checkpoints legal?

Under Wisconsin law, unless a sobriety checkpoint is completely voluntary, it is illegal per se. Even if voluntary, they raise red flags for violating a person’s rights under both Wisconsin law and the Constitution; consequently, more arrests based upon checkpoints will result in invalid arrests than not.

Are arrests at sobriety checkpoints legal?

An arrest subsequent to a stop at a sobriety checkpoint could very well result in a costly lawsuit and constitutional challenge. The alleged defendant would probably win the case due to the illegal stop. Consequently, sobriety checkpoints result in an enormous waste of taxpayer’s dollars that don’t actually result in valid arrests.

What if the arrested person is drunk?

Even if the person is intoxicated, evidence obtained after an illegal arrest cannot (or should not) be used to prosecute the person for the alleged act. I say “should not” because there are many District Attorneys who will proceed to trial in an attempt to get a conviction based on illegal evidence, and some DA’s will obtain that conviction. Those convictions obtained on evidence gathered at a sobriety checkpoint will almost always be overturned upon appeal as a result of an experienced appeals attorney arguing that the arrest was illegal.

What would happen if a person was convicted because of a sobriety checkpoint?

Because of the manner in which sobriety checkpoints are conducted, the Wisconsin Court of Appeals would likely reverse convictions based on checkpoints to protect people’s Constitutional rights. The axiom, “It is better that one guilty person go free than one innocent person be convicted” and defense attorneys stand to protect people’s rights.

Does the District Attorney's support of sobriety checkpoints matter?

A District Attorney’s support of sobriety checkpoints does not make them legal. DA’s do not make law; they prosecute people who’ve been arrested for allegedly breaking the law (i.e. committing a crime or wrong against the public). That also does not mean that they only seek to prosecute people who have been legally arrested; many people who have been arrested and prosecuted by numerous District Attorneys have their cases dismissed prior to trial, at trial or upon appeal to the Wisconsin Court of Appeals due to the fact that the arrest was illegal.

A Hypothetical Arrest On Evidence From A Sobriety Checkpoint

For example, if the Neenah Police Department were to establish a sobriety checkpoint, and subsequently arrest a person as a result of that checkpoint, the matter would be referred to the Winnebago District Attorney’s office. Regardless of how much the Winnebago DA might support the sobriety checkpoint, the matter should end there if the stop was illegal. If the Winnebago District Attorney proceeds to prosecute the alleged drunken driver, the matter would be set for trial and the wise alleged defendant would hire a very experienced DUI defense attorney who would then argue to the DA that the case will be lost at trial due to the illegal stop.

If the Winnebago DA proceeds, the DUI defense attorney would file a motion with the Winnebago County Circuit Court to dismiss the case based upon the illegal stop. The court would likely dismiss the case at that point, but all of the costs associated with the arrest (the costs of establishing the checkpoint, the costs of arresting the person, the costs of obtaining blood results, the costs of filing the case, the costs of the district attorney’s time, the costs of hiring the defense attorney, etc.) would be for naught.

If the Winnebago Circuit Court proceeded with the case, and found the alleged defendant guilty of operating while under the influence of an intoxicant (OWI), two outcomes would likely occur. The accused would proceed with an appeal to the Wisconsin Court of Appeals, and then file a lawsuit against Winnebago County and City of Neenah.

The result of our hypothetical sobriety checkpoint in Winnebago County that resulted in an illegal arrest of a person for an OWI would be a very costly attempted prosecution; taxpayers would pay those costs.

Helpful Information:
Wisconsin Drunk Driving Laws
Wisconsin Criminal Appeals
Illegal Search & Seizure
Illegal Per Se
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