DWI count reinstated on appeal

Court rules police aren’t required to publicize sobriety checkpoints

The state Court of Appeals has ruled — again — that even though since 1987 the court has encouraged police to publicize sobriety checkpoints, they really don’t have to do so. Police have only to try to publicize the checkpoint, and failing to get it in media doesn’t make the checkpoint unconstitutional.

The ruling came in the case of a Michigan man, Lamont Swain, who was stopped in a DWI checkpoint in 2013 near Fort Sumner Lake and arrested for driving while intoxicated.

A District Court judge dismissed the case after Swain’s attorney showed that the New Mexico State Police in charge of the operation didn’t publicize the checkpoint in local media and it was thus unconstitutional.

All they had done was send an email to a defunct address at an obscure radio station, his attorney Michael Garrett said last week.

But Swain’s charges were reinstated in October after the Court of Appeals ruled that even though they didn’t publicize the stop, the police had met enough of their responsibilities laid out in what are known as the Betancourt factors — a group of eight guidelines police should follow to keep a DWI checkpoint from becoming an “unreasonable search and seizure” prohibited by the Fourth Amendment in the U.S. Constitution.

The Betancourt factors were in a 1987 Court of Appeals ruling as a guideline for police to use to keep from violating people’s rights while combating DWI.

The factors state that police should have a supervisor in charge of the checkpoint, apply the stop equally and without officer discretion to target individuals, set up the checkpoint safely and in a reasonable location, stop people at a reasonable time and detain them for a reasonable duration, and alert drivers about the nature of the checkpoint. They should also publicize the stop ahead of time.

But news media outlets aren’t required to publish the checkpoint alerts and often don’t.

“It is anticipated that we would gain voluntary compliance and have a deterring effect should the media decide to either show up and or broadcast the information that is sent to them. What the media does with the press release and or the media release is out of our hands,” Albuquerque police DWI Sgt. Kyle Curtis said in a statement.

So, judges said in the ruling, the publication factor alone doesn’t make or break the constitutionality of a checkpoint.

If several factors are violated together, or one of the more important is violated, such as targeting certain drivers or having no supervision, judges said that might lead to an unconstitutional checkpoint.

“Based on our longstanding case law, a lack of advance publicity, without more, is simply not sufficient to find that a DWI checkpoint constitutes an illegal seizure,” the judges wrote.

Swain has since struck a plea deal to one count of DWI.