Part III – The Prosecutor’s Internal Memo Explaining Why the DUI Checkpoint “Fails to Meet Constitutional Muster.”
Through a public records request we obtained an internal memo from Assistant State Attorney, Vin Petty, to his supervisors, Bernie McCabe, Bruce Barlett, and Mike Halkitis, dated July 3, 2012, explaining why DUI charges should be dropped.
An identical memo was filed in at least two other DUI cases involving the same checkpoint. The memo highlights the problems with a DUI checkpoint conducted in Pasco County, in New Port Richey, FL, in December of 2011.
Video taken of a suspect’s performance on roadside tests recorded Florida Highway Patrol officers in the background violating the Ops Plan. You can read more about it here -
I cut and paste the memo below because I think it might help another DUI attorney fighting a checkpoint case involving the Florida Highway Patrol in the future. Although it was a long time coming, the prosecutor’s internal memo explains it pretty well:
TO: Bernie McCabe, Bruce Bartlett, Mike Halkitis
FROM: Vin Petty
Numerous issues have come to light due to a Defense Motion to Suppress. In the Defendant’s Challenge to the Checkpoint, it has become apparent that numerous issues occurred at the FHP Checkpoint in December 2011 would would render said Checkpoint Constitutionally Invalid. Key issues include:
1) Failure of the FHP Auxiliary Troopers to properly follow the Ops Plan with regard to the stoppage of vehicles in a neutral manner.
2) Failure of FHP to properly preserve the video of the “drive through” of the Checkpoint, which would have shown the Checkpoint layout, lights and signage.
3) Failure of FHP to distribute the previously approved Ops Plan and distributing an incorrect and older Draft of the Ops Plan to Checkpoint Personnel.
The key reason for this Checkpoint to fail Constitutionally is Point (1), the failure of the FHP Auxiliary Troopers to properly follow the Ops Plan and their failure to stop vehicles in a neutral fashion.
Per both the United States Supreme Court and the Florida Supreme Court, if vehicles are not stopped in a neutral fashion set by explicit guidelines, the Checkpoint is not Constitutionally valid See State v. Jones, 483 So.2d 433 (Fla. 1986); Campbell v. State, 679 So.2d 1168 (Fal. 1996).
Specifically, the Second DCA has held that if the Ops Plan allows for too much discretion or a non-neutral pattern of vehicle stoppage, the Checkpoint is not constitutionally valid. See State v. Guy, 993 So.2d 77 (Fla. 2d DCA 2008). Unfortunately, at the Checkpoint in question, despite the Ops Plan explicitly stating that only every third (3rd) vehicle was to be stopped, video evidence shows that FHP Auxiliary Troopers were not following said plan.
The video shows numerous instances in a short period of time where streams of 2-4 cars were flagged in without other vehicles passing; thus for some periods, all vehicles were stopped. Such a failure to comply is apparent throughout almost the entire video.
Points (2) and (3) are not as crucial, but they do show a continued issue with the FHP at this Checkpoint which could affect credibility of the Checkpoint in any hearing or trial on this matter.
First, although a video or photos of the Checkpoint are not Constitutionally required pursuant to case law, the Florida Supreme Court has suggested some additional factors that should be shown to validate a Checkpoint, including proper signage and lighting. See Jones, 483 So.2d 433.
The common way to show such proper signage and lighting at a Checkpoint is for a LEO to conduct a “video drive through” of the scene, recording the exact layout, signage and lighting at the Checkpoint.
The FHP was instructed by the SAO to conduct such a “video drive through” and a video was recorded; however, FHP failed to do so and allowed the video to be destroyed after thirty (30) days pursuant to FHP policy.
Finally, with regard to Point (3), the failure to provide the proper Ops Plan on the night of the Checkpoint is not fatal as the Ops Plan that was distributed did not include any ability to deviate or use a non-neutral criteria for vehicle stoppage. Unfortunately, it appears based on the video that such criteria was not even followed, thus the Checkpoint fails to meet Constitutional muster.