Car Impoundment & Checkpoint Toolkit: Section 1

Ingersoll v. Palmer, 43 Cal.3d 1321 (1987) Case Summary Facts Petitioners (people bringing the suit) are California taxpayers who seek to stop the operation of DUI checkpoints in California. In 1984, the Attorney General of California issued an opinion that roadblocks could constitutionally be used to detect and apprehend drunk drivers if certain safeguards were maintained. In Burlingame, CA, a checkpoint location was selected by taking into account frequency of DUI arrests and accidents, and safety factors such as traffic patterns and street layout. The checkpoint was announced in advance and a standard procedure was used to screen every fifth car. Petitioners challenged this checkpoint. Are DUI checkpoints allowed under the federal and state (CA) Constitutions? Petitioners argue the validity of a DUI checkpoint must be determined by the standard set forth in In re Tony C, 21 Cal.3d 888 (1978), requiring an individualized suspicion of wrongdoing. Here, the court held that if the primary purpose of the stop was to detect crime or gather evidence of crime, individualized suspicion of wrongdoing would be required. o But since the primary purposes here was to promote public safety and deter intoxicated persons from driving, individualized suspicion is not required. o Screening every 5th car was an example of a neutral formula. The court compared a DUI checkpoint to an airport screening search – both serve a primary and overriding regulatory purpose of promoting public safety. Thus, the DUI checkpoints do not violate the Fourth Amendment (does not violate a person’s right to be free from unreasonable seizures). The sobriety checkpoints do not violate the Fourth Amendment. The regulatory purpose, state interest, and reasonable implementation of the checkpoints outweigh any burden on individual liberties.

Issue Analysis

Holding/ Decision

What this case established:

8 Factors to Determine if a Checkpoint is “Reasonable”
1. Decisionmaking at the Supervisory Level 2. Limits on Discretion of Officers in the Field 3. Maintaining Safe Conditions 4. Reasonable Location 5. Time and Duration 6. Signs of Official Nature of Roadblock 7. Length and Nature of Detention 8. Advance Publicity

743 P.2d 1299 Page 1 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) WILLIAM INGERSOLL et al., Petitioners, v. KAUFMAN, J. ALFRED PALMER, as Chief of Police, etc., et al., This case presents the question whether sobriety Respondents checkpoints are permissible under the federal and state Constitutions. We conclude that within certain limitations a sobriety checkpoint may be operated in S.F. No. 25001. a manner consistent with the federal and state Constitutions. Supreme Court of California Oct 29, 1987. Facts Petitioners are California taxpayers who seek to SUMMARY prohibit the operation of sobriety checkpoints in CaliIn an action by a California taxpayer seeking to fornia. Respondents are chiefs of police of various prohibit the operation of sobriety checkpoints in CaliCalifornia cities and the Commissioner of the California, the Court of Appeal denied the petition for a fornia Highway Patrol. Petitioners alleged that the writ of mandate, concluding sobriety checkpoints respondent law enforcement officers in the various conducted in accordance with certain guidelines were jurisdictions around the state had begun or planned to permissible under the United States and California begin using sobriety checkpoints. Constitutions. The Court of Appeal, First Dist., Div. Three, No. A029680. In November 1984, in response to a request by the Commissioner of the California Highway Patrol, The Supreme Court affirmed the judgment of the the Attorney General issued an opinion that roadCourt of Appeal, holding that within certain limitablocks could constitutionally be used to detect and tions a sobriety checkpoint may be operated in a apprehend drunk drivers if certain safeguards were manner consistent with the federal and the state Conmaintained to minimize the intrusion on motorists. stitutions. The court rejected the contention that the (67 Ops.Cal.Atty.Gen. 471 (1984).) validity of a sobriety checkpoint must be determined by the standards requiring an individualized suspiThat same month, the Burlingame Police Decion of wrongdoing, holding the proper standard was partment (the Department) set up the first sobriety that applicable to investigative detentions and inspeccheckpoint program to operate in California, *1326 tions conducted as part of a regulatory scheme in following the guidelines set forth in the Attorney furtherance of an administrative purpose. The court General's opinion. FN1 The Burlingame checkpoint held the sobriety checkpoints were not operated for was expected to serve as a model for others. We the primary purpose of discovering or preserving therefore examine the Burlingame checkpoint as illuevidence of crime or arresting lawbreakers, but pristrative of checkpoint operation procedures. marily for the regulatory purpose of keeping intoxicated drivers off the highways to the end of enhancing public safety. Weighing the gravity of the goFN1 The California Highway Patrol shortly vernmental interest or public concern served, and the thereafter set up checkpoints at four test lodegree to which the sobriety checkpoint program cations throughout the state. Other law enadvanced that concern, against the intrusiveness of forcement agencies also announced or imthe interference with individual liberty, the court held plemented sobriety checkpoint programs the intrusion on U.S. Const., 4th Amend., interests within a short time. involved in the checkpoints was sufficiently circumscribed so that it was easily outweighed and justified The Department promulgated a detailed manual by the magnitude of the drunk driving menace and to govern the checkpoint operations. The manual the potential for deterrence. The court rejected the covered legal considerations, including the Attorney contention that sobriety roadblocks were impermissiGeneral's guidelines; a cost analysis; factors affecting ble in the absence of specific authorizing legislation. location selection; required personnel and equipment; (Opinion by Kaufman, J., with Lucas, C. J., Arguelles training and briefing of checkpoint personnel; press and Eagleson, JJ., concurring. Separate dissenting relations and publicity; as well as procedures for a opinion by Broussard, J., with Mosk and Panelli, JJ., follow-up evaluation. concurring.) The location for the Burlingame checkpoint was selected by taking into account frequency of drunk

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743 P.2d 1299 Page 2 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) driving arrests and accidents, and safety factors such impairment were observed, the driver was directed to as traffic patterns and street layout. A suitable locacontinue into the northbound traffic lanes. If signs of tion was selected on El Camino Real for a checkpoint impairment were observed, the driver was directed to intercepting northbound traffic. FN2 Warning signs a secondary testing area, where another officer would (including a sign announcing a sobriety checkpoint) administer a field sobriety test. A sign announcing were posted. A cone taper diverted traffic to a single the checkpoint was posted sufficiently in advance of northbound lane. The signs and cone taper were set the checkpoint location to permit motorists to turn up according to Caltrans regulations for signing and aside, and under the operational guidelines no motorlane closure. ist was to be stopped merely for choosing to avoid the checkpoint. FN2 At the location selected, El Camino Real was a divided road, providing safety FN3 Approximately 29 percent of those and minimizing distraction to southbound stopped returned the postage paid survey traffic. There was a separate frontage road cards. Of those responding, about 91 percent area which provided a safe place for directsaid they were not significantly delayed and ing motorists out of and back into the north80 percent approved of drunk driving bound traffic lanes. There was also a safe checkpoints. area in which to conduct field sobriety tests. The sobriety checkpoint was given advance pubThe checkpoint operation was supervised by a licity, including its date and general location. During commander under whom two sergeants served. One the checkpoint operation, from 9:30 p.m. to 2:30 a.m. sergeant supervised a team of traffic control and on November 16-17, 1984, 233 motorists were screening officers, and the second sergeant superscreened. Only 10 were asked to perform field sobrievised the field sobriety test teams. Two traffic control ty tests, and all 10 passed. The checkpoint resulted in officers, with support staff, set up the checkpoint and no arrests. The average detention periods for those selected every fifth car for screening. There were one cars stopped was 28 seconds. The average time for to four screening officers who contacted the motorthose who took the field sobriety tests was 6.13 miists. Nonsworn reserve personnel were available for nutes. recording information and timing each contact. One to four officers, each with a nonsworn reserve assisPetitioners filed an original petition for writ of tant, were on duty to administer the field sobriety mandate in this court within three days after Burlintests. There was also a booking officer, an officer to game established its first sobriety checkpoint. We operate an intoxilizer, one for photographing and one transferred the matter to the Court of Appeal. The alternate. There were also nonsworn personnel availFirst District, Division Three, denied petitioners' reable for interpreting, transportation and booking asquest for a stay and issued an alternative writ. The sistance. All the officers chosen for checkpoint duty Court of Appeal issued an opinion in which the mahad a good record of “driving under the influence” jority held sobriety checkpoints conducted in accor(DUI) detection and arrest, all had recent refresher dance with certain guidelines are permissible under training on recognizing the symptoms of drug and the United States and California Constitutions. We alcohol use, and all had special training in checkpoint granted the taxpayers' petition for review. FN4 procedures, including conducting a simulated checkpoint. All officers on duty at the checkpoint were in FN4 Petitioners did not renew their request full uniform. *1327 for a stay when they brought the matter before this court on the petition for review. On the night of the checkpoint operation, every fifth car was stopped and directed to a screening officer. The screening officer gave the driver a brief prescribed oral explanation of the checkpoint, and handed him or her an information flyer and a postage paid opinion survey card. FN3 During the contact, the screening officer observed the driver for bloodshot eyes, alcohol on the breath, and any other signs of impairment. The officer also shined a flashlight into the vehicle, looking for any open containers or other evidence of alcohol consumption. If no symptoms of Discussion (1) Petitioners contend the validity of a sobriety checkpoint stop must be determined by the standard set forth in In re Tony C. (1978) 21 Cal.3d 888 [ 148 Cal.Rptr. 366, 582 P.2d 957], requiring an individualized suspicion of wrongdoing. If the primary purpose of the stop here were to detect crime *1328 or gather evidence of crime, we would agree with the contention that an individualized suspicion of wrongdoing is required. But, as we shall explain, the prima-

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743 P.2d 1299 Page 3 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) ry purpose of the stop here was not to discover evifns. and original italics omitted.) We perceive no real dence of crime or to make arrests of drunk drivers but inconsistency in the two analyses. They both emto promote public safety by deterring intoxicated perployed a balancing test for reasonableness. *1329 sons from driving on the public streets and highways. We therefore conclude the propriety of the sobriety 1. Reasonableness Standard Under the Fourth checkpoint stops involved here is to be determined Amendment and the California Constitution not by the standard pertinent to traditional criminal (2) The touchstone for all issues under the Fourth investigative stops, but rather by the standard appliAmendment and article I, section 13 of the California cable to investigative detentions and inspections conConstitution is reasonableness. (See Terry v. Ohio, ducted as part of a regulatory scheme in furtherance supra, 392 U.S. 1, 19 [20 L.Ed.2d 889, 904]; People of an administrative purpose. (See People v. Hyde v. Hyde, supra, 12 Cal.3d 158, 166, conc. opn. at pp. (1974) 12 Cal.3d 158, 165-166, 173 [ 115 Cal.Rptr. 172-173.) 358, 524 P.2d 830].) In upholding airport screening searches, a majority of this court in Hyde applied the administrative search rationale. ( 12 Cal.3d at p. 165 et seq.) The concurring minority, reaching the same result, preferred a more generic balancing test of reasonableness. ( 12 Cal.3d at p. 172 et seq.) But, verbal formulations aside, both the majority and the concurring minority in Hyde relied upon essentially the same principles and factors. The majority noted: “Like all searches subject to the Fourth Amendment, an administrative screening must be measured against the constitutional mandate of reasonableness. In the case of administrative searches, however, 'there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.' ( Camara v. Municipal Court (1967) supra, 387 U.S. 523, 536-537 [18 L.Ed.2d 930, 940, 87 S.Ct. 1727].) It is ironic, therefore, that by adopting the administrative search doctrine to evaluate the validity of airport screening procedures we must undertake a similar process of balancing to that which would have followed from a reliance upon Terry [v. Ohio (1968) 392 U.S. 1 (20 L.Ed.2d 889, 88 S.Ct. 1868)].” ( People v. Hyde, supra, 12 Cal.3d 158, 166, italics added.) The concurring minority reasoned: “It is now settled ... that there is no fixed standard of reasonableness that applies to all types of governmental action which is subject to the mandates of the Fourth Amendment. Where, as here, we deal with a type of official conduct that (1) has objectives qualitatively different from those of the conventional search and seizure in the criminal context and (2) cannot feasibly be subjected to regulation through the traditional probable cause standard of justification, we may assess the reasonableness of the particular type of search and seizure by examining and balancing the governmental interest justifying the search and the invasion which the search entails. [Citations.]” (Id., conc. opn. at p. 173. Italics added, The federal test for determining whether a detention or seizure is justified balances the public interest served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. ( Brown v. Texas (1979) 443 U.S. 47, 50-51 [61 L.Ed.2d 357, 361-362, 99 S.Ct. 2637].) In addition, federal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” ( Brown v. Texas, supra, 443 U.S. at p. 51 [61 L.Ed.2d at p. 362], citing Delaware v. Prouse (1979) 440 U.S. 648, 663 [59 L.Ed.2d 660, 673-674] and United States v. Martinez-Fuerte (1976) 428 U.S. 543, 558-562 [49 L.Ed.2d 1116, 1128-1131].) California constitutional principles are based on the same considerations, i.e., balancing the governmental interests served against the intrusiveness of the detention. (See People v. Hyde, supra, 12 Cal.3d 158, 166, also conc. opn. at pp. 172-173.) With respect to a seizure for conventional investigation of criminal activity, standards similar to federal standards have been articulated. (3) “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience ( People v. Superior Court (Kiefer) [1970] 3 Cal.3d [807,] at p. 827 [ 91 Cal.Rptr. 729, 478 P.2d 449]), to suspect the same criminal activity and the same involvement by the person in question.” ( In re Tony C., supra, 21 Cal.3d 888, 893, fn. omitted.)

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743 P.2d 1299 Page 4 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) trial evidence of criminal activity, although the mechanics of the search itself take the form of a search But Tony C. itself further pointed out that, for to detect criminal *1331 activity (carrying weapons purposes of analysis under the Fourth Amendment or explosives aboard an aircraft). Rather, we characand under California constitutional law, “[a] more terized the search as “a central phase of a comprehenfruitful approach focuses on the purpose of the intrusive regulatory program designed to insure that dansion itself. If the individual is stopped or detained gerous weapons will not be carried onto an airplane because the officer suspects he may be personally and to deter potential hijackers from attempting to involved in some criminal activity, his Fourth board. [Citations.]” ( People v. Hyde, supra, 12 Amendment rights are *1330 implicated and he is Cal.3d 158, 166.) In the reasonableness analysis unentitled to the safeguards of the rules set forth above. der the Fourth Amendment, we found the governBut similar safeguards are not required if the officer mental interest substantial, the intrusion minimal, and acts for other proper reasons.” ( In re Tony C., suthe method effective for its purpose (in fact, we pra, 21 Cal.3d 888, at p. 895, italics added.) Thus, the found in that case that there was no other effective court in Tony C., like the United States Supreme means of achieving the purpose). We pointed out it Court in Brown, supra, 443 U.S. 47, expressly recogwas possible for a traveler to avoid the intrusion by nized that individualized suspicion that the contactee either checking his or her hand luggage or foregoing is involved in criminal activity is not required in cerair travel and opting for alternate means of transportain types of police-citizen contacts. tation. Finally, we pointed out that airport searches were singularly unsuited to the warrant procedure We therefore turn to a consideration of the kinds because of the extremely high volume of air passenof stops permitted under federal and state law upon ger traffic, rendering it impractical if not impossible less than a reasonable suspicion of personal involveto issue a warrant for any individual passenger. In ment in criminal wrongdoing. addition, the consequences of not having a warrant were found mitigated by (1) neutral application of the 2. Seizures Not Requiring a Reasonable Suspicion screening process to all air passengers, minimizing In People v. Hyde, supra, 12 Cal.3d 158, this the discretion of the officials in the field, and (2) licourt considered the question of airport security miting the intrusiveness of the search to those actions screening searches. The majority in an opinion austrictly necessary to disclose the presence of weapons thored by Justice Mosk reasoned that airport searches or explosives. could not be justified on the basis of Terry v. Ohio, supra, 392 U.S. 1, because Terry carefully limited the The three concurring justices in Hyde agreed that permissible search to a patdown necessary to discovthe airport screening procedures were constitutionally er weapons, and because, before even the limited permissible but questioned whether the airport search patdown search could be conducted, Terry required could properly be labelled an “administrative search” there to be specific and articulable facts which would like the building inspection in Camara v. Municipal lead a reasonable officer to believe the safety of the Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. officer was in danger. 1727]. In the view of the concurring justices in Hyde, supra, 12 Cal.3d 158, the Fourth Amendment consid“Nevertheless,” we stated, “we do find support erations should simply be evaluated pursuant to a under the Fourth Amendment for the pre-departure balancing test of reasonableness, consisting of an screening of prospective passengers in the series of assessment of the governmental interest justifying the United States Supreme Court decisions relating to search and the intrusiveness entailed in the search. administrative searches. (CITATIONS OMITTED.) The concurring minority had no difficulty in conclud(4a) These cases recognize that 'searches conducted ing the governmental interest was compelling and the as part of a general regulatory scheme in furtherance intrusion resulting from the search was minimal. of an administrative purpose, rather than as part of a Thus, the airport searches were concluded to be reacriminal investigation to secure evidence of crime, sonable. No warrant was required because commay be permissible under the Fourth Amendment pliance with the warrant procedure, as the majority though not supported by a showing of probable cause had also pointed out, would completely frustrate the directed to a particular place or person to be legitimate governmental purpose. searched.' [Citation.]” ( People v. Hyde, supra, 12 Cal.3d 158, 165.) (5) The sobriety checkpoint presents a compelling parallel to the airport screening search. While the We pointed out that the purpose of the airport label “administrative search” is open to some critisearch is not to ferret out contraband or preserve for

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743 P.2d 1299 Page 5 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) cism in application to either the airport search or the vidualized suspicion of violation of OSHA regulasobriety checkpoint stop, both, although they operate tions before the warrant could be issued. mechanically as a search or inspection for the violation of law, actually serve a primary and overriding Some industries are so heavily regulated that regulatory purpose of promoting public safety. Their government inspections are held constitutionally primary purpose is to prevent and deter conduct injupermissible, without notice, warrant, or individuarious to persons and property; they are not convenlized suspicion of wrongdoing. ( Donovan v. Dewey tional criminal searches and seizures. The fact that (1981) 452 U.S. 594 [69 L.Ed.2d 262, 101 S.Ct. sobriety checkpoint stops will lead to the detection of 2534] [mines]; United States v. Biswell (1972) 406 some individuals involved in *1332 criminal conduct U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593] [firearms]; does not alter the fundamental regulatory character of Colonnade Corp. v. United States (1970) 397 U.S. 72 the screening procedure. (See People v. Hyde, supra, [25 L.Ed.2d 60, 90 S.Ct. 774] [liquor].) Business 12 Cal.3d 158, at p. 166; see also New York v. Burger owners in the heavily regulated industries are pre(1987) 482 U.S. ___, ___ [ 96 L.Ed.2d 601, 622-623, sumed to know *1333 that they are subject to the 107 S.Ct. 2636, 2651].) periodic inspections which are specified by and regularly carried out pursuant to enabling legislation. Our analysis in Hyde is supported by decisions of the United States Supreme Court which have simiRegulatory inspections and stops have also been larly approved regulatory searches in appropriate permitted under decisions of the United States Sucircumstances in the absence of any particularized preme Court and the California courts in the absence suspicion of wrongdoing. Camara v. Municipal of an individualized suspicion of wrongdoing in borCourt, supra, 387 U.S. 523 and Marshall v. Barlow's, der patrol checkpoint inspections ( United States v. Inc. (1978) 436 U.S. 307 [56 L.Ed.2d 305, 98 S.Ct. Martinez-Fuerte, supra, 428 U.S. 543), agricultural 1816] are examples. inspection checkpoints ( People v. Dickinson (1980) 104 Cal.App.3d 505 [ 163 Cal.Rptr. 575]), vehicle In Camara, a city ordinance gave authorized city mechanical inspection checkpoints ( People v. De La employees, upon presentation of credentials, the right Torre (1967) 257 Cal.App.2d 162 [ 64 Cal.Rptr. to enter buildings or structures to perform necessary 804]), and license and registration inspection checkduties. The United States Supreme Court recognized points ( People v. Washburn (1968) 265 Cal.App.2d that in performing a function such as building inspec665 [ 71 Cal.Rptr. 577]). tions, the governmental entity will rarely have knowledge of conditions in a particular building, but must The United States Supreme Court in United necessarily rely on general conditions in an area. The States v. Martinez-Fuerte, supra, 428 U.S. 543, held court held that a warrant for building inspections with respect to immigration checkpoints that neither a based on area conditions, rather than upon probable warrant nor particularized suspicion is required. The cause to believe violations exist in a particular dwelcourt upheld the constitutionality of an immigration ling, was reasonable. The Supreme Court stated, “In stop without particularized suspicion at a checkpoint determining whether a particular inspection is reaaway from the international border by balancing the sonable - and thus in determining whether there is governmental interests served against the intrusion on probable cause to issue a warrant for that inspection Fourth Amendment interests. The court concluded the need for the inspection must be weighed in terms the need for routine checkpoint stops was great beof [the] reasonable goals of code enforcement .... [¶] cause the flow of illegal aliens cannot be controlled ... [¶] ... [T]here can be no ready test for determining effectively at the border. ( Martinez-Fuerte, supra, reasonableness other than by balancing the need to 428 U.S. 543, at pp. 556-557 [ 49 L.Ed.2d 1116 at search against the invasion which the search entails.” pp. 1127-1128].) By contrast, the checkpoint stop ( Camara v. Municipal Court, supra, 387 U.S. 523, was a “quite limited intrusion” on Fourth Amend535-537 [18 L.Ed.2d 930, 939-940].) ment interests. Such a stop entailed only a brief detention, requiring no more than a response to a quesIn Marshall v. Barlow's, Inc., supra, 436 U.S. tion or two and possible production of a document. 307, the court examined the regulatory scheme for Neither the vehicle nor the occupant was searched. administrative inspections of business premises under The court also concluded the “subjective intrusion” the Occupational Safety and Health Act of 1970 of a fixed checkpoint stop was minimal, unlike a ran(OSHA) (29 U.S.C.A. § 657(a)). The court held that dom or roving stop, because motorists could see that the OSHA inspections should be subject to a warrant other vehicles were being stopped, could see visible requirement, but significantly did not require an indisigns of the officers' authority, and were much less

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743 P.2d 1299 Page 6 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) likely to be frightened or annoyed by the intrusion. that this practice of stopping automobiles briefly for (Id., at pp. 557-558 [49 L.Ed.2d at p. 1128].) questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use.” ( United States v. Martinez-Fuerte, supra, 428 Moreover, the court found an area warrant was U.S. 543, 560, fn. 14 [ 49 L.Ed.2d 1116, 1130].) not required, and distinguished Camara, supra, 387 U.S. 523, both on the ground the checkpoint seizure of an automobile involves significantly different exThe intimation that neutrally operated checkpoint pectations of privacy from the traditional expectastops are permissible was reiterated in dictum in Detions of privacy in one's residence, as to which a warlaware v. Prouse, supra, 440 U.S. 648. In that case, a rant traditionally has been required, and on the single patrol officer decided to make a roving stop for ground the warrant requirement in Camara served the purpose of a license or registration “spot check,” purposes under the Fourth Amendment which were but he had no information or reasonable suspicion not relevant to a checkpoint operation. either that the driver was unlicensed or that the vehicle was improperly registered. The Supreme Court held that such a random roving stop made without a The need to provide an assurance of legitimacy reasonable suspicion of law violation was contrary to of the search/seizure required a warrant in the buildthe Fourth Amendment. However, the court was careing inspection context, but that need was served alful to state that “This holding does not preclude the ternatively in the checkpoint operation by the visible State of Delaware or other States from developing manifestations *1334 of authorization in the form of methods for spot checks that involve less intrusion or signs announcing the roadblock, official insignia and that do not involve the unconstrained exercise of disvehicles, and fully uniformed personnel. Another cretion. Questioning of all oncoming traffic at roadpurpose of the warrant requirement in Camara was to block-type stops is one possible alternative.” ( Id., at prevent hindsight from coloring the evaluation of the p. 663, fn. omitted [ 59 L.Ed.2d at pp. 673-674].) reasonableness of a search or seizure. In the checkThis dictum was not mere rhetoric, *1335 however. It point operation, however, “The reasonableness of is analytically consistent with the court's holdings in checkpoint stops ... turns on factors such as the locaother cases. Standardless and unconstrained discretion and method of operation of the checkpoint, faction on the part of government officers is what the tors that are not susceptible to the distortion of hindcourt sought to circumscribe in the regulatory inspecsight, and therefore will be open to post-stop review tion and stop cases. ( Almeida-Sanchez v. United notwithstanding the absence of a warrant. Another States (1973) 413 U.S. 266, 270 [37 L.Ed.2d 596, purpose for a warrant requirement is to substitute the 601, 93 S.Ct. 2535]; Camara v. Municipal Court, judgment of the magistrate for that of the searching supra, 387 U.S. 523, 532-533 [18 L.Ed.2d 930, 937or seizing officer. [Citation.] But the need for this is 938].) (4b) Accordingly, such stops and inspections reduced when the decision to 'seize' is not entirely in for regulatory purposes may be permitted if undertathe hands of the officer in the field, and deference is ken pursuant to predetermined specified neutral criteto be given to the administrative decisions of higher ria ( Delaware v. Prouse, supra, 440 U.S. 648, 662 ranking officials.” ( United States v. Martinez-Fuerte, [59 L.Ed.2d 660, 673]) such as the criteria articulated supra, 428 U.S. 543, 565-566 [49 L.Ed.2d 1116, for a checkpoint stop ( United States v. Martinez1133].) Fuerte, supra, 428 U.S. 543, 553-554, 556-564 [49 L.Ed.2d 1116, 1126, 1127-1132]). The United States Supreme Court also strongly suggested that other checkpoint type stops would be viewed similarly. “Stops for questioning, not dissimilar to those involved here, are used widely at state and local levels to enforce laws regarding drivers' licenses, safety requirements, weight limits, and similar matters. The fact that the purpose of such laws is said to be administrative is of limited relevance in weighing their intrusiveness on one's right to travel; and the logic of the defendants' position, if realistically pursued, might prevent enforcement officials from stopping motorists for questioning on these matters in the absence of reasonable suspicion that a law was being violated. As such laws are not before us, we intimate no view respecting them other than to note 3. Regulatory Purpose (6) Petitioners argue the sobriety checkpoint stop we examine here is a criminal investigation roadblock, subject not only to Tony C., supra, 21 Cal.3d 888, but barred by the Fourth Amendment under this court's decision in People v. Gale (1956) 46 Cal.2d 253 [294 P.2d 13]. (See also Wirin v. Horrall (1948) 85 Cal.App.2d 497 [ 193 P.2d 470].) In Gale, sheriff's officers stopped and searched cars at a roadblock explicitly for the purpose of “'[curb]ing the juvenile problem and also check for, well, anything that we might find, anything that looked suspicious.”' ( People v. Gale, supra, 46 Cal.2d 253, 255.) We do

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743 P.2d 1299 Page 7 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) not agree. ing the historical use of roving patrols as the principal law enforcement response to the drunk driving problem. Despite increased patrols, public awareness Dragnet searches, explicitly undertaken for the campaigns, stiffer drunk driving penalties, and inpurpose of uncovering evidence of crime but without creased arrests, the Burlingame Police Department any reason to believe any criminal activity has taken found the major problem was that the public's perplace, are unreasonable. ( People v. Gale, supra, 46 ceived (and actual) risk of apprehension was very Cal.2d 253, 256; Wirin v. Horrall, supra, 85 low. Two major goals of the checkpoint as stated in Cal.App.2d 497, 504.) However, the sobriety checkthe manual were to increase public awareness of the point here was operated not for the primary purpose seriousness of the problem and to increase the perof discovering or preserving evidence of crime or ceived risk of apprehension. arresting lawbreakers, but primarily for the regulatory purpose of keeping intoxicated drivers off the highways to the end of enhancing public safety. AnalytiThe evaluation report on the pilot project carried cally it is much the same as an immigration checkout by the California Highway Patrol (CHP) stated point or a checkpoint to inspect for the safety of that, although a project of stepped up roving patrols equipment or compliance with agricultural regulain 1980 had resulted in approximately twice the tions. The threat to public safety is at least as great number of arrests per work hour, “it must be rememand the intrusion into Fourth Amendment interests is bered that accomplishing more arrests is not the inno greater here than in those other regulatory checktent of sobriety checkpoints. Rather, they are inpoint inspections which have invariably been held tended to deter persons who have been drinking from constitutionally permissible. driving for fear of encountering a checkpoint. If checkpoints are truly accomplishing their purpose, DUI arrests, as well as DUI accidents, should deOur conclusion in this regard is based on factors crease.” (Italics added.) In addition, the report recrelated to the operation of the checkpoint in this case, ommended a six-month long-term study to be carried on the stated goals of law enforcement agencies in out in two CHP test areas. The report recommended implementing sobriety checkpoint programs, on the using two different patterns of roadblock implemenobservable, albeit limited, experience with checktation - employing sobriety checkpoints during major point operations in this and other states, as well as holiday seasons at one test location, and using twice common sense. *1336 monthly checkpoints at the other location. Significantly, the recommendation report stated that “This In the Burlingame program, the sobriety checkdual study method will not only permit long term points received substantial advance publicity, which evaluation of checkpoint deterrence, but may also was clearly designed both to inform the public of the identify the frequency necessary to produce deterserious problem of drunk driving and to deter potenrence.” tial drinking drivers before they decided to drink and drive. An important part of the Burlingame procedure was to educate by giving each stopped driver a leaflet about the checkpoint program, as well as a survey postcard. In addition, the checkpoint was not conducted as a criminal dragnet. Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. FN5 The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint. FN5 Cars avoiding the checkpoint would be stopped, however, if in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment. The stated goals of several law enforcement agencies explicitly point to deterrence as a primary objective of the checkpoint program. The Burlingame manual described the objectives of its program, notA sobriety checkpoint program operated by the Arizona Highway Patrol is assertedly designed “to develop a public perception of the high risk of *1337 apprehension of drinking drivers,” and the program abstract for the Maryland sobriety checkpoint project stated it was intended to function as a general deterrent to drinking drivers by instilling the perception that there was an increased likelihood of detection and arrest. An integral aspect of the Maryland program was publicity, to attain maximum public awareness and voluntary compliance with DUI laws. Not only is deterrence the stated objective of DUI roadblock programs, but actual, though admittedly limited, experience with checkpoint programs indicates deterrence is in fact a significant result of such programs. In written responses to interrogatories posed by the Court of Appeal in the instant case, Burlingame Police Chief Alfred Palmer pointed out that

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743 P.2d 1299 Page 8 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) deterrent value was demonstrated in two test areas of est distinction between the sobriety checkpoint and the Maryland program: incidence of alcohol related an impermissible criminal dragnet. While the sobriety traffic accidents was reduced by 71 percent in Prince checkpoint differs from, e.g., an agricultural inspecGeorges County and fatalities were reduced 75 pertion, because the item to be examined is a person and cent in Montgomery County in 1981. The follow-up not an offending plant, nevertheless, the automobile report relating to the Burlingame checkpoint noted is stopped for reasons directly related to public safethat some level of deterrence was indicated by the ty, and not for purposes of criminal investigation. In facts that traffic volume fell considerably below northis sense it is as we have said analogous to a permal during the last two hours of their checkpoint opmissible equipment inspection checkpoint. The fact eration, that the volume of business in Burlingame that the officer's observations of a driver's demeanor bars was also significantly below normal after 10 have the potential to result in criminal sanctions is p.m., that calls for taxicabs were 12 percent above not determinative. Just as an airport screening search normal, and that, as officers on duty at the checkpoint may result in criminal arrests and prosecutions, but is noticed, several cars with sober drivers but intoxnevertheless not a criminal investigative search, the icated passengers proceeded through the checkpoint sobriety checkpoint inspection primarily serves the (the “designated driver” phenomenon). In New York, proper regulatory purpose of deterring intoxicated the Governor's Alcohol and Highway Safety Task persons from driving and thus endangering the pubForce found “'that the systematic ... traffic checkpoint lic. is the single most effective action in raising the community's perception of the risk of being detected 4. The Balancing Test and apprehended for drunk driving' (Report, at p. (7) As we have explained, both the majority and 103).” ( People v. Scott (1984) 63 N.Y.2d 518 [483 concurring minority in Hyde, supra, 12 Cal.3d 158, N.Y.S.2d 649, 473 N.E.2d 1, 4-5].) and, ultimately, all other pertinent authorities determine the constitutional reasonableness of searches Petitioners argue in their discussion of the baand seizures by a balancing test: weighing the gravity lancing test that roadblocks are not effective for apof the governmental interest or public concern served prehending DUI violators, and point out that the CHP and the degree to which the program advances that experience showed that roving patrols were over concern against the intrusiveness of the interference twice as effective as roadblocks per work hour in with individual liberty. (See, e.g., Brown v. Texas, producing drunk driving arrests, and that the Burlinsupra, 443 U.S. 47, at pp. 50-51 [ 61 L.Ed.2d 357, at game checkpoint in fact resulted in no arrests. The pp. 361-362]; People v. Hyde, supra, 12 Cal.3d 158, absence of arrests, however, is both explained by and at pp. 166-169, conc. opn. at pp. 172-178.) affords substantial support for the conclusion that increasing drunk driving arrests - i.e., conducting Deterring drunk driving and identifying and reinvestigations for the purpose of gathering evidence moving drunk drivers from the roadways undeniably of criminal activity - is not the primary purpose of serves a highly important governmental interest. As sobriety checkpoints. An absence of arrests does not we noted in Burg v. Municipal Court (1983) 35 indicate a sobriety checkpoint is a futile exercise. It Cal.3d 257, at page 262 [ 198 Cal.Rptr. 145, 673 P.2d more likely indicates that the existence of the check732], “The drunk driver cuts a wide swath of death, point program has succeeded in inducing voluntary pain, grief, and untold physical and emotional injury compliance with the law, thus fulfilling the program's across the roads of California and the nation. The primary objective of keeping automobiles operated monstrous proportions of the problem have often by impaired drivers off the roads. Drunk driving is been lamented in graphic terms by this court and the not merely a crime, it is a serious public safety probUnited States Supreme Court. [Citations.] ... [I]n the lem. A vehicle driven by an intoxicated person is as years 1976 to 1980 there were many more injuries to much a road hazard as a *1338 vehicle with defective California residents in alcohol-related traffic accibrakes or a defective steering mechanism. Sobriety dents than were suffered by the entire Union Army checkpoints serve to keep such hazardous instrumenduring the Civil War, and more were killed than in talities off the road in the first instance. If checkthe bloodiest year of the Vietnam *1339 War. [Citapoints perform a significant deterrent function, it foltions.] Given this setting, our observation that lows that drunk driving arrests would decrease in '[d]runken drivers are extremely dangerous people' areas of checkpoint operation. [citation] seems almost to understate the horrific risk posed by those who drink and drive.” Stopping the It is perhaps the characteristic of the automobile carnage wrought on California highways by drunk as a hazardous instrumentality that affords the greatdrivers is a concern the importance of which is diffi-

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743 P.2d 1299 Page 9 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) cult to overestimate. 903, 913.) Similar results were observed in connection with the Burlingame checkpoint in the instant case, and at oral argument counsel for petitioners While it may be less self evident, the record here conceded the likely deterrent effect of the sobriety also supports a reasonable inference sobriety checkcheckpoints involved here. points of the sort here described do advance this important public goal. Petitioners contend that sobriety checkpoints are not as effective in detecting drunk We further observe that roving stops may not be drivers as other less intrusive alternatives, such as a more effective alternative means of enforcing drunk roving patrols. However, officers on a roving patrol driving laws. Constitutionally permissible roving can effect a stop only upon observable indications of stops must be based on an articulable suspicion of impairment (i.e., reasonable suspicion). Petitioners law violation. With respect to drunk driving, this repoint to the observation in the CHP report that a CHP quires an officer's observation of some objectively project in 1980 utilizing stepped up patrols resulted manifested behavior indicating impairment. By this in an arrest rate per work hour over twice that resultmethod, the number of drunk drivers detected and ing from use of the roadblocks. But, as we have arrested is estimated between one in two hundred to pointed out, the number of arrests does not necessarione in two thousand. Stepped up holiday patrols, with ly measure the effectiveness of the sobriety checkattendant publicity, have been used in many jurisdicpoint. If the checkpoint is properly serving its functions for many years, without appreciable effect on tion - deterrence - it may result in no arrests at all. An the drunk driving toll to people and property. In addiArizona court considering the question concluded tion, although stiffer penalties for drunk driving in that although a sobriety checkpoint may be no more California appeared to result in a decline in alcoholefficient than a roving patrol in detecting, drunk drivrelated accident incidence in 1981 and 1982, thereafers it is more effective in deterring drunk driving. ( ter alcohol-involved accidents and fatalities began to State v. Super. Ct. in & for County of Pima (1984) increase again, to nearly pre-1981 levels. As noted in 143 Ariz. 45 [691 P.2d 1073, 1076-1077].) This is the Burlingame manual, despite countermeasures consonant with our conclusion that the primary purconsisting of publicity, heightened patrol efforts and pose of sobriety checkpoints is deterrence. more severe penalties, an attitude of impunity continues to exist with respect to drinking and driving. Petitioners argue respondents have not made a sufficient showing of the effectiveness of sobriety The failure of traditional methods of enforcecheckpoints. However, such effectiveness is difficult ment was commented on by Professor LaFave: “[A] to quantify. The experience both in California and in rather strong argument can be made that mere patrol other states with sobriety checkpoints has been very and stoppings based upon the Terry standard [of realimited, and no definitive statistics are yet available. sonable suspicion, supra, 391 U.S. 1] do not produce It would be presumptuous in the extreme for this what the Camara Court [, supra, 387 U.S. 523] recourt to prohibit the use of an otherwise permissible ferred to as 'acceptable results.' For one thing, even if and potentially effective procedure merely because a patrolling officer is ... in the vicinity where a drunk its effectiveness is at the present time largely undriver is operating his vehicle, it does not necessarily tested. Indeed, to do so would prevent the compilafollow that the driver will at that particular time drive tion of any data to show its effectiveness. his car in such a fashion as to create a reasonable suspicion justifying a stop. And the chances of such observation in the first place are rather slight, given Nevertheless, there are indications of the effecthe substantial number of intoxicated drivers on the tiveness of the roadblocks even in the absence of staroads .... It is by no means surprising, therefore, that tistical evidence. For example, the Maryland court in it has been reliably estimated that only one of every Little v. State (1984) 300 Md. 485 [479 A.2d 903, 2,000 drinking drivers is apprehended.” (4 LaFave, 913], noted certain evidence in that record that on the Search and Seizure: A Treatise on the Fourth night of the checkpoint operation many people who Amendment (2d ed. 1987) Vehicle Use Regulation, § had been drinking asked a sober companion to drive 10.8(d), pp. 72-73.) instead, that calls for taxi service by drunk individuals increased, and that certain groups anticipating consumption of alcohol at social events chartered Justice Feldman, in a concurring opinion in State vehicles instead of driving. “The prospect of being ex rel. Ekstrom v. Justice Ct. of State (1983) 136 stopped at a roadblock thus convinced some intoxAriz. 1 [663 P.2d 992], observed that “The governicated individuals to find alternate means of transpormental interest sought to be protected by the roadtation.” *1340 ( Little v. State, supra, 479 A.2d blocks is greater than merely detecting and appre-

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743 P.2d 1299 Page 10 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) hending drunk drivers. Given the carnage on our General's opinion which originally sanctioned the highways, there is a unique societal interest in enforckind of checkpoints operated here have analyzed the ing compliance with the law by deterring driving issue of intrusiveness extensively and have identified while under the influence of alcohol or other drugs. a number of factors important in assessing intrusive[¶] ... [T]he state cannot satisfy this interest by tradiness. The standards articulated in these cases provide tional *1341 methods which satisfy the Terry test. functional guidelines for minimizing the intrusiveThe traditional system has left us far short of achievness of the sobriety checkpoint stop. ing the law's objective. ... It is only fortuitous that an officer happens to be in a position to see a drunk enA. Decisionmaking at the Supervisory Level tering the freeway on the off-ramp [sic] before that The decision to establish a sobriety checkpoint, drunk happens to kill some innocent person. ... [¶] ... the selection of the site and the procedures for the [It is] obvious that traditional law enforcement mecheckpoint operation should be made and established thods, involving the arrest by roving officers of only by supervisory law enforcement personnel, and not those whom they can stop upon a founded suspicion by an officer in *1342 the field. This requirement is of drunk driving, fall short of satisfying society's important to reduce the potential for arbitrary and compelling interest in enforcing compliance with the capricious enforcement. (See United States v. Martilaws prohibiting drunk driving.” ( Id., 663 P.2d 992 nez-Fuerte, supra, 428 U.S. at p. 559 [49 L.Ed.2d at at pp. 998-999, conc. opn. Feldman, J.) p. 1129].) Not only are roving patrol stops inadequate generally, but there are also indications that roving patrols are less effective than sobriety checkpoints in detecting lower but nonetheless dangerous levels of intoxication. The average person arrested for drunk driving by roving patrols tends to have a significantly higher blood-alcohol level than the average sobriety checkpoint drunk driving arrestee. The CHP evaluation report showed that in all four test areas, the blood-alcohol level of checkpoint arrestees was lower (though still above the presumptive drunk driving level) than the blood-alcohol level of roving patrol arrestees in the same area for the same period. Thus, there may in fact be no effective alternate means of detecting those drivers whose judgment has actually been seriously impaired by alcohol and whose bloodalcohol level is illegal, but who do not consistently manifest outwardly observable impaired driving behavior. FN6 FN6 It is also worthy of mention that in some cases stepped up roving patrols may not be a viable alternative for some law enforcement agencies for other reasons. The Riverside Police Department indicated, for example, that it was greatly handicapped in using roving patrols as an alternative because of a lack of patrol vehicles. The third balancing factor is the intrusiveness on individual liberties engendered by the sobriety checkpoints. Upon examination of the record, we conclude that the programs at issue in this case have implemented procedures designed to provide minimal interference with individual liberties. The decisions of courts of other states and the California Attorney Several out-of-state decisions are in accord on this point. Sobriety checkpoints have been upheld in a variety of situations in which the chief commanding officer of a law enforcement agency has drawn up a comprehensive procedures document (in some cases reviewed by other officials) or where the regulations were promulgated by supervisory personnel. ( People v. Scott, supra, 473 N.E.2d 1 [program set up by county sheriff]; State v. Super. Ct. in & for County of Pima, supra, 691 P.2d 1073 [commander of traffic enforcement division issued detailed command directive]; Little v. State, supra, 479 A.2d 903 [regulations reviewed by Superintendent of State Police, the Governor and the Attorney General]; State v. Coccomo (1980) 177 N.J.Super. 575 [427 A.2d 131] [township police chief adopted regulations approved by state Attorney General]; State v. Golden (1984) 171 Ga.App. 27 [318 S.E.2d 693] [roadblock set up by supervising DUI task force project coordinator]; State v. Deskins (1983) 234 Kan. 529 [673 P.2d 1174] [roadblock a joint effort of several law enforcement agencies, and all personnel briefed by supervisory officers].) In each of the sobriety checkpoint projects here, the decision to implement the checkpoints, the site selection and the establishment of operational procedures were made or done by command level personnel, and detailed program regulations were promulgated. B. Limits on Discretion of Field Officers A related concern is that motorists should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or

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743 P.2d 1299 Page 11 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) tenth driver should be employed. To permit an officer N.W.2d 392.) A decision of the Ninth Circuit also to determine to stop any particular driver or car when held that a border patrol stop at a temporary checkthere is no legitimate basis for the determination point was unlawful. ( United States v. Maxwell (9th would be to sanction the kind of unconstrained and Cir. 1977) 565 F.2d 596.) We believe, however, that standardless discretion which the United States Suthe temporary nature of sobriety checkpoints does not preme Court sought to circumscribe in its decisions affect their constitutionality. The Olgaard court's in Prouse, supra, 440 U.S. 648, Almeida-Sanchez, concern with lack of permanency was solely based on supra, 413 U.S. 266, and Camara, supra, 387 U.S. its worry about surprise and lack of publicity in con523. In all the checkpoint programs at issue here, nection with the checkpoint. Although it is not preneutral mathematical selection criteria were used. cisely clear from the record in Olgaard, it is inferrable from the circumstances that the Olgaard checkpoint was set up on a surprise basis. The checkpoint C. Maintenance of Safety Conditions was operated by only four officers utilizing nothing Primary consideration must be given to mainbut the red flashing lights on several patrol cars. They taining safety for motorists and officers. Proper lightstopped all traffic in both directions. No lights or ing, warning signs and signals, and clearly identifiasigns were used that would have given advance noble official vehicles and personnel are necessary to tice of the checkpoint. There was no advance publiciminimize the risk of *1343 danger to motorists and ty about the checkpoint. The checkpoint plainly also police. (Cf. Jones v. State (Fla.Dist.Ct.App. 1984) lacked sufficient indicia of legitimacy in terms of 459 So.2d 1068, 1079.) The checkpoint should be staffing strength. In addition, there was no showing operated only when traffic volume allows the operawho made the decision to set up the checkpoint, or tion to be conducted safely. Screening procedures how the *1344 location was selected. Thus the Olmay at times be altered consistent with traffic vogaard court appears to have acted with propriety in lume, such that, for example, every car might be holding the checkpoint unlawful. stopped when traffic is light, but if traffic began to back up, a different neutral formula might be applied, such as every fifth or tenth car, or operations might Similarly, the “temporary” border patrol checkbe temporarily suspended until traffic volume permitpoint at issue in Maxwell, supra, 565 F.2d. 596, was ted resumption of safe checkpoint operation. deficient with respect to notice and indicia of legitimacy. The checkpoint was marked only by a “stop ahead” sign with battery operated blinking yellow The Burlingame and CHP checkpoints were oplights, half a dozen traffic cones, one ordinary stop erated with a very high degree of safety assurance. sign, and a border patrol car with a flashing red light. The sites of the checkpoint operations were carefully Whereas motorists know or may learn of a permanent selected with safety considerations in mind, including immigration checkpoint, the checkpoint in Maxwell ample offroad or shoulder area for screening or field was in operation on an intermittent basis without adsobriety test procedures. The lane closures and road vance notice. There were no structures or electrical signs complied with all Caltrans safety guidelines. equipment connections. So far as the motorist was During operations, designated officers were responconcerned, he was called to a halt on a lonely road by sible for maintaining the safety of the traffic lanes a blinking red light which could belong to anybody. and cone patterns. There were no safety problems In addition, the location of the checkpoint may have with respect to traffic backups. been inappropriate for an immigration checkpoint. The immigration checkpoint in Martinez-Fuerte, suD. Reasonable Location pra, 428 U.S. 543, was justified in part by its being The location of checkpoints should be deterplaced on a major highway to prevent easy access by mined by policy-making officials rather than by ofillegal aliens into the interior. Just as a sobriety ficers in the field. The sites chosen should be those checkpoint would be improper at a location without which will be most effective in achieving the goany significant traffic or incidence of drunk driving, vernmental interest; i.e., on roads having a high incithe location of the Maxwell checkpoint on a route dence of alcohol related accidents and/or arrests. (See without any significant traffic, by illegal aliens or State v. Coccomo, supra, 427 A.2d 131, 134.) Safety otherwise, may have been improper. ( United States factors must also be considered in choosing an apv. Maxwell supra, 565 F.2d. 596, 597-598.) propriate location. One state court has found a sobriety checkpoint unconstitutional largely because it was not at a permanent location. ( State v. Olgaard (S.D. 1976) 248 As was pointed out in People v. Scott, supra, 473 N.E.2d 1, at page 5, “The fact that the [United States] Supreme Court has approved permanent roadblocks

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743 P.2d 1299 Page 12 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) but disapproved roving patrol stops is not determinadence its official nature are critical in minimizing its tive. What is critical is the intrusiveness of the intrusiveness. The roadblock should be established checkpoint in relation to the governmental purpose with high visibility, including warning signs, flashing involved. The subjective effect upon a vehicle driver lights, adequate lighting, police vehicles and the approaching a roadblock is unrelated to whether it is presence of uniformed officers. Not only are such permanent or was established but a few minutes befactors important for safety reasons, advance warning fore the driver approached it; in either instance his or will reassure motorists that the stop is duly authoher observation of it will be measured in minutes if rized. not seconds. The likelihood of there being the kind of fright or annoyance that invalidates a random stop Clearly visible warning lights and other signs of made by a roving patrol is obviated in the case of a authority have been present in most of the checktemporary checkpoint by the visible signs of authoripoints upheld by the courts of other states. (See ty which the checkpoint entails - signs announcing People v. Scott, supra, 473 N.E.2d 1, 3; Little v. the purpose, lighting, and identifiable police vehicles State, supra, 479 A.2d 903, 905-906; State v. Golden, and the observable fact that there is a uniform system supra, 318 S.E.2d 693, 694.) In contrast, most of the for stopping cars [citations].” (Accord, Little v. State, checkpoints found unlawful have not provided adesupra, 479 A.2d 903, 914.) quate warning to motorists. (See State v. McLaughlin (Ind.Ct.App. 1984) 471 N.E.2d 1125, overruled in With respect to the Burlingame checkpoint, the State v. Garcia (Ind. 1986) 500 N.E.2d 158, 162 lighting, signing, substantial uniformed police pres[holding checkpoints lawful]; Com. v. McGeoghegan ence, official vehicles, etc., provided advance notice (1983) 389 Mass. 137 [449 N.E.2d 349, 353]; State v. to the motorist sufficient to ward off surprise and Olgaard, supra, 248 N.W.2d 392, 394; State ex rel. fright. In fact, sufficient advance notice was provided Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, so a motorist could choose to avoid the checkpoint 993; State v. Hilleshiem (Iowa 1980) 291 N.W.2d altogether. The objective and subjective intrusion into 314 [vandalism roadblock]; cf. State v. Smith (Ok*1345 Fourth Amendment rights was no greater than la.Crim.App. 1984) 674 P.2d 562, 564.) *1346 that resulting from a permanent checkpoint. The checkpoints at issue here were reasonable as to locaThe checkpoints at issue here clearly complied tion. with requirements for proper lighting, signing, and official presence, both in the comprehensive regulations developed for the checkpoint operation and in E. Time and Duration The time of day that a checkpoint is established actual practice. and how long it lasts also bear on its intrusiveness as well as its effectiveness. For example, a nighttime G. Length and Nature of Detention stop may be more hazardous and possibly more frighMinimizing the average time each motorist is detening to motorists, but it will also probably prove tained is critical both to reducing the intrusiveness of more effective. While mentioned as a factor in State the stop on the individual driver and to maintaining v. Deskins, supra, 673 P.2d 1174, time and duration safety by avoiding traffic tie-ups. As occurred in the have received little attention in the decisions addressBurlingame and CHP checkpoints, each motorist ing sobriety checkpoints, although most of the stopped should be detained only long enough for the checkpoints approved have been operated in the late officer to question the driver briefly and to look for evening and early morning hours. ( People v. Scott, signs of intoxication, such as alcohol on the breath, supra, 473 N.E.2d 1; Little v. State, supra, 479 A.2d slurred speech, and glassy or bloodshot eyes. If the 903; State v. Coccomo, supra, 427 A.2d 131; State v. driver does not display signs of impairment, he or she Golden, supra, 318 S.E.2d 693; State v. Deskins, sushould be permitted to drive on without further delay. pra, 673 P.2d 1174.) We agree with the assessment If the officer does observe symptoms of impairment, of the Court of Appeal that no hard and fast rules as the driver may be directed to a separate area for a to timing or duration can be laid down, but law enroadside sobriety test. At that point, further investigaforcement officials will be expected to exercise good tion would of course be based on probable cause, and judgment in setting times and durations, with an eye general principles of detention and arrest would apto effectiveness of the operation, and with the safety ply. of motorists a coordinate consideration. F. Indicia of Official Nature of Roadblock Those aspects of a sobriety roadblock which eviH. Advance Publicity Advance publicity is important to the maintenance of a constitutionally permissible sobriety check-

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743 P.2d 1299 Page 13 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) point. Publicity both reduces the intrusiveness of the 5. Statutory Authorization stop and increases the deterrent effect of the roadPetitioners contend that sobriety roadblocks are block. impermissible in the absence of specific authorizing legislation. Petitioners make three points. (8a) The first and broadest argument is that the police may not The concurring opinion in State ex rel. Ekstrom enforce traffic laws in any manner not specifically v. Justice Ct. of State, supra, 663 P.2d 992, at page authorized by statute. (9a) The second is that the Ve1001 explained the value of advance publicity: “Such hicle Code provides for uniform statewide rules gopublicity would warn those using the highways that verning vehicle use and police regulation of that use, they might expect to find roadblocks designed to so that to allow municipalities to set up roadblocks on check for sobriety; the warning may well decrease an ad hoc basis would allow a balkanization of vethe chance of apprehending 'ordinary' criminals, but hicle use regulation that various sections of the Veshould certainly have a considerable deterring effect hicle Code show the Legislature did not intend. (10a) by either dissuading people from taking 'one more for The third point is that the Vehicle Code specifically the road,' persuading them to drink at home, or inducpermits police officers to use roadblocks in limited ing them to take taxicabs. Any one of these goals, if circumstances. Pointing out that two recent bills to achieved, would have the salutary effect of interferamend the Vehicle Code to permit drunk driving ing with the lethal combination of alcohol and gasoroadblocks have died in committee, petitioners adline. Advance notice would limit intrusion upon pervance the proposition that since the Legislature has sonal dignity and security because those being only permitted roadblocks in limited circumstances, stopped would anticipate and understand what was roadblocks in any other circumstances are impermisshappening.” ( 663 P.2d 992, 1001, conc. opn. Feldible. man, J.; see also State v. Deskins, supra, 673 P.2d 1174, 1182.) (8b) Petitioners cite no persuasive authority for the proposition that police officers may not enforce Publicity also serves to establish the legitimacy the Vehicle Code in any manner not specifically proof sobriety checkpoints in the minds of motorists. vided for by statute. Citing People v. One 1960 CaAlthough the court in Jones v. State, supra, 459 dillac Coupe (1964) 62 Cal.2d 92, 95-96 [ 41 So.2d 1068, found that advance publicity was not Cal.Rptr. 290, 396 P.2d 706], they claim that the constitutionally mandated for all sobriety roadblocks, general police power only permits detention on reanevertheless the court offered the observation, consissonable suspicion when a motorist is engaged in tent with finding reasonableness under the Fourth wrongdoing unless there is statutory authority for Amendment, that *1347 “'[A]dvance publication of other police action. The cited case is inapposite; it the date of an intended roadblock, even without anmerely applies *1348 familiar principles as to the nouncing its precise location, would have the virtue circumstances necessary to justify a detention, and of reducing surprise, fear, and inconvenience.' [Citaestablishes that the exclusionary rule applies in a civil tion.]” (Id., at p. 1080.) action for forfeiture of a car believed to be involved in drug trafficking. In the instant case, substantial advance publicity accompanied each sobriety checkpoint instituted. I. Conclusions as to Intrusiveness We conclude that, while the intrusiveness of a sobriety checkpoint stop is not trivial, the enumerated safeguards operate to minimize the intrusiveness to the extent possible. The fright or annoyance to motorists condemned in connection with roving stops is absent when the checkpoint is operated according to the guidelines followed here. On balance, the intrusion on Fourth Amendment interests is sufficiently circumscribed so that it is easily outweighed and justified by the magnitude of the drunk driving menace and the potential for deterrence. Petitioners also cite People v. McGaughran (1979) 25 Cal.3d 577, 583-584 [ 159 Cal.Rptr. 191, 601 P.2d 207] (warrant checks during traffic stops); People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199-200 [ 101 Cal.Rptr 837, 496 P.2d 1205] (search incident to arrest for violations for which accused would not be booked) and People v. Franklin (1968) 261 Cal.App.2d 703, 707 [ 68 Cal.Rptr. 231] (scope of statutes allowing stops for vehicle safety and registration inspection) for the proposition that the Vehicle Code is comprehensive and controls methods of enforcement of its provisions. None of these cases, however, establishes that unless a method of law enforcement is specifically authorized in the Vehicle Code, it is prohibited. Rather, these cases interpret the limits on officers' authority which have

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743 P.2d 1299 43 Cal.3d 1321, 743 P.2d 1299, 241 Cal.Rptr. 42, 56 USLW 2306 (Cite as: 43 Cal.3d 1321) been expressly established by statute. For similar reasons, petitioners' position is not aided by their citation to People v. Welsch (1984) 151 Cal.App.3d 1038 [ 199 Cal.Rptr. 87] (warrantless arrest for hit and run outside officer's presence not authorized by statute); People v. Horvath (1982) 127 Cal.App.3d 398 [ 179 Cal.Rptr. 577] (neither Pen. Code nor Pub. Util. Code authorized arrest of pilot who flew while intoxicated outside officer's presence); or People v. Aldapa (1971) 17 Cal.App.3d 184 [ 94 Cal.Rptr. 579] (arrest outside jurisdiction not authorized by former Pen. Code, § 817). In each case, the officer breached a statutory limitation on his authority; none of these decisions holds that methods of law enforcement not specifically authorized are prohibited. It is illogical to suggest that an officer who has a reasonable suspicion an individual is driving under the influence of intoxicants and thus endangering the public may take corrective action, but that a law enforcement agency having knowledge that on any given night hundreds of drivers will be under the influence of intoxicants and thus endangering the public may not. The threat to public safety in the second instance is immeasurably greater than in the first. We conclude, as did the Court of Appeal majority, that the requisite authority is implicit in law enforcement's statutory authority to enforce criminal laws generally or traffic laws specifically. (See, e.g., Veh. Code, § 2400; Gov. Code, §§ 26600, 26601.) (9b) With respect to the second point, it is true that the Vehicle Code generally preempts the field of traffic regulation vis-a-vis local ordinances. *1349 (See Veh. Code, § 21.) FN7 We have observed that unless the Legislature so provides, a city has no authority over traffic control. (See Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 550 [ 183 Cal.Rptr. 73, 645 P.2d 124] [city has no authority to erect traffic barriers not qualifying as traffic control devices under Veh. Code].) While this rule of preemption might conceivably prevent municipalities from establishing permanent drunk driving roadblocks that might in effect regulate traffic, it does not affect the statutory authority of the CHP and local police to enforce the Vehicle Code and other laws with checkpoints at more temporary locations. (See, e.g., Veh. Code, § 2400; Gov. Code, §§ 26600, 26601.) FN7 Vehicle Code section 21 provides: “Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all

Page 14

counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.”

(10b) Petitioners' arguments as to their third point, again go far beyond the authority they cite. Petitioners point out examples in which the Legislature has permitted police to stop or inspect cars. The Vehicle Code authorizes police officers to require motorists to stop and submit their vehicles for safety inspections upon reasonable cause to believe that the vehicle is in violation of the code. (Veh. Code, § 2806.) CHP and law enforcement officers “whose primary responsibility is to conduct vehicle theft investigations” may make warrantless inspections for vehicle registration. (Veh. Code, § 2805.) The CHP is authorized to run mechanical inspection stations. (Veh. Code, § 2814.) And the Legislature has provided for agricultural inspection stations at state borders. (Food & Agr. Code, § 5341 et seq.) But it does not follow that because the Legislature has specifically authorized these inspections, no other inspections are permissible under the general police power. Indeed, it may be more reasonable to assume the Legislature would not feel obliged to enact specific legislation authorizing conduct it deemed to be constitutional and appropriate within the scope of existing police power. Legislative silence is an unreliable indicator of legislative intent in the absence of other indicia. We can rarely determine from the failure of the Legislature to pass a particular bill what the intent of the Legislature is with respect to existing law. FN8 “As evidences of legislative intent they [unpassed bills] have little value.” (CITATIONS OMITTED cf. 2A Sutherland, Statutory Construction (4th ed. 1984) § 49.10, pp. 407-408.) FN8 Petitioners point out the failure of Senate Bill No. 5 (1985-1986 Reg. Sess.) (see Sen. Weekly Hist., No. 134 (1985-1986 Reg. Sess.) Sept. 13, 1985) and Assembly Bill No. 14 (1985-1986 Reg. Sess.) (see Assem. Weekly Hist., No. 128 (1985-1986 Reg. Sess.) Sept. 13, 1985). They also cite the failure of Assembly Bill No. 104 (19831984 Reg. Sess.) and Assembly Bill No. 3604 (1983-1984 Reg. Sess.). Disposition For the reasons stated, the judgment of the Court of Appeal denying the writ of mandate is affirmed. Lucas, C. J., Arguelles, J., and Eagleson, J., concurred.

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Miranda v. City of Cornelius, 429 F.3d 858 (9th Cir. 2005) Case Brief Facts Mrs. Miranda drove around her neighborhood slowly in her husband’s car while he was teaching her how to drive. He had a license and registration but she was unlicensed. A city police officer activated his overhead lights on his patrol car and followed the vehicle to the driveway in front of Plaintiffs’ home and cited Mrs. Miranda for operating a vehicle without a license and cited Mr. Miranda for permitting the operation of the vehicle by an unlicensed driver. Plaintiffs submitted evidence that they had trouble understanding the Officer because they have limited English skills and did not know their vehicle was to be impounded. A city ordinance (authorized by state statute) allows an officer to tow a vehicle without prior notice if the officer has reasonable belief that the driver is operating it without a valid license. When plaintiffs’ car is impounded following traffic infractions given while the vehicle is parked on plaintiffs’ driveway, is this an unreasonable seizure under the Fourth Amendment? Plaintiffs contend that the impoundment was an unreasonable seizure under the Fourth Amendment. The court first examined whether probable cause to believe that the driver committed a traffic violation is sufficient justification by itself to make the impoundment of a vehicle reasonable under the Fourth Amendment. The court concluded that in this case, probable cause to believe there had been a traffic infraction was insufficient to justify an impoundment of a vehicle parked in the owner’s driveway, in the absence of a valid caretaking purpose. The need to deter a driver’s unlawful conduct is by itself is insufficient to justify a tow under the “caretaker” rationale. The impoundment of Plaintiffs’ vehicle was an unreasonable seizure not justified by the community caretaking doctrine because: the police have no duty to protect a vehicle parked on the owners’ property and there was no reason to believe that impoundment would prevent or pose any threat to public safety.

Issue

Analysis

Holding/ Decision

What you should remember from this case:

Community Caretaking Doctrine
Your car should not be towed if: It is not a risk to public safety; It is not an inconvenience to other drivers; It does not delay or impede traffic; It would not be damaged or stolen if left parked.

Jorge MIRANDA; Irene Miranda, Plaintiffs-Appellants, v. CITY OF CORNELIUS; Acme Towing, Inc., Defendants-Appellees.
No. 04-35940. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2005. Filed November 17, 2005. 859*859 860*860 Shelly Latin, Oregon Legal Services Corp., Pendleton, OR, (argued); Spencer M. Neal, Oregon Law Center, Portland, OR, for the plaintiffs-appellants. Gerald L. Warren, Salem, OR, for the defendants-appellees. Before: FISHER, GOULD, BEA, Circuit Judges. GOULD, Circuit Judge: We consider a constitutional challenge to the impoundment of a vehicle from the owners' driveway after a police officer observed the husband teaching his unlicensed wife how to drive. Plaintiffs Mr. Jorge and Mrs. Irene Miranda ("Plaintiffs") appeal the district court's grant of summary judgment for Defendants City of Cornelius (the "City") and Acme Towing, Inc. (collectively "Defendants") and the denial of Plaintiffs' motion for partial summary judgment on Plaintiffs' claim that Defendants' impoundment of their vehicle violated their constitutional rights under the Fourth and Fourteenth Amendments. Plaintiffs allege that the impoundment was an unreasonable seizure under the Fourth Amendment because it conflicts with the principles of the community caretaking doctrine. Generally, the community caretaking doctrine allows the police to impound where necessary to ensure that the location or operation of vehicles does not jeopardize the public safety. We hold that, under the special circumstances of this case, the impoundment of Plaintiffs' vehicle was an unreasonable seizure not justified by the community caretaking doctrine because the police have no duty to protect a vehicle parked on the owners' property and there was no reason to believe that impoundment would prevent any threat to public safety from its unlawful operation beyond the brief period during which the car was impounded. We reverse the district court's grant of summary judgment, and we remand for further proceedings.

I
On April 10, 2003, Mrs. Miranda slowly drove the Ford Aerostar van of her husband, Mr. Miranda, around the neighborhood as her husband taught her how to drive. Although Mr. Miranda is a licensed and insured driver with valid registration of the vehicle, Mrs. Miranda did not have a driver's license. Officer John Calvert, a police officer with the City, noticed that Mrs. Miranda was driving poorly and at a speed of about ten miles per hour, and suspected that she was impaired or improperly licensed. Officer Calvert activated the overhead lights on his patrol car and followed the vehicle until Mrs. Miranda pulled into the driveway in front of the Mirandas' home. After learning that Mrs. Miranda did not have a driver's license, Officer Calvert cited her for operating a vehicle without a license and also cited Mr. Miranda for permitting the operation of the vehicle by an unlicensed driver. Officer Calvert told the Mirandas that their vehicle would be impounded. In their declarations opposing summary judgment, Plaintiffs submitted evidence that they had trouble understanding Officer Calvert because they have limited English skills and did not know that their vehicle was to be impounded.

A city ordinance, authorized by state statute, allows an officer to tow a vehicle, without prior notice, if the officer has a reasonable belief that the driver is operating it without a valid operator's license. Cornelius City Code § 7.455; Or.Rev.Stat. § 809.720. Officer Calvert waited until the tow truck from Defendant Acme Towing, Inc. removed the vehicle from the Mirandas' driveway, which occurred about thirty minutes after the stop. On the morning of the next day, April 11, Mr. Miranda appeared at the police station to pay an administrative fee. He retrieved his vehicle at the impoundment lot after paying additional towing charges and impound fees. Mr. Miranda stated in his declaration that he lost a day's pay from taking this time to retrieve his vehicle. Also on April 11, Ms. Dolley Mack, a police services aide with the City, mailed to Plaintiffs a Notice of Towed Vehicle report, which informed them of their right to contest the tow by mailing a request to the police department within ten days of the tow. On April 15, Mr. Miranda wrote a letter in Spanish to the police department complaining about the tow. The City submitted into evidence the declaration of Ms. Mack stating that "to the best of [her] knowledge, no request for hearing was ever received." Mr. Miranda then received the City's notice, but he did not respond to it. He later went to the City Hall and, as he described it, "spoke with a woman about the tow who told him that he had no basis to complain about the tow." On May 6, Plaintiffs appeared at municipal court and pled guilty to the traffic violations. Plaintiffs did not contest the impoundment during this hearing, and the court imposed no fines on them. In their complaint brought under 42 U.S.C. § 1983, Plaintiffs alleged that the impoundment was an unreasonable seizure under the Fourth Amendment as incorporated in the Fourteenth Amendment and that they were deprived of due process under the Fourteenth Amendment. Plaintiffs also sought a declaratory judgment that the city ordinance, Cornelius City Code § 7.455, is unconstitutional. The district 862*862 court held that the seizure complied with the Fourth Amendment because Plaintiffs lacked a [2] reasonable expectation of privacy in their parked car on their unenclosed driveway. On the issue of due process, the district court held that Plaintiffs did not have a right to a hearing before the tow and that they were not denied an opportunity to contest the seizure in a post-tow hearing. The district court granted Defendants' motion for summary judgment and denied Plaintiffs' motion for partial summary judgment. Plaintiffs appeal this order. Plaintiffs request further that summary judgment be entered in their favor on the issues of unreasonable seizure and deprivation of due process, or, alternatively, that the case be remanded for a trial on the issue of whether they were improperly denied an opportunity for a timely postdeprivation hearing.

II Standard
The impoundment of an automobile is a seizure within the meaning of the Fourth Amendment. A seizure results if "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). The Fourth Amendment protects against unreasonable interferences in property interests regardless of whether there is an invasion of privacy. Id. at 62-64, 113 S.Ct. 538 ("Although lacking a privacy component, the property rights in both instances nonetheless were not disregarded, but rather were afforded Fourth Amendment protection."). "A seizure conducted without a warrant is per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions. The burden is on the Government to persuade the district court that a seizure comes under one of a few specifically established exceptions to the warrant requirement." United States v. Hawkins, 249 F.3d 867, 872 (9th Cir.2001) Defendants acknowledge that the only exception applicable to this impoundment is the "community caretaking" doctrine, but they assert, in light of Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), that we cannot second-guess an officer's decision to impound so long as the officer had probable cause to believe that the driver violated a vehicle regulation that authorizes the impoundment. Plaintiffs counter that the reasonableness of an impoundment requires more than just the

existence of probable cause, but that the impoundment itself must comply with the principles of the "community caretaking" doctrine.

A
In assessing these claims, we first determine whether probable cause to believe that the driver committed a traffic violation is sufficient justification by itself to make the impoundment of the vehicle reasonable under the Fourth Amendment. In Atwater, the Supreme Court held that an officer is deemed to act reasonably under the Fourth Amendment in making a warrantless arrest if the officer had probable cause to believe that the arrested person violated a criminal statute. Id. at 354, 121 S.Ct. 1536("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without 863*863 violating the Fourth Amendment, arrest the offender."). The Supreme Court in Atwater relied on the historical discretion allowed a police officer to make a warrantless arrest when supported by probable cause to believe that the suspect committed a crime. See id. at 327-45, 121 S.Ct. 1536. In applying this bright-line rule, the Court distinguished other situations where the reasonableness of a search or seizure was determined by "balancing the need to search (or seize) against the invasion which the search (or seizure) entails." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) "Terry certainly supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that either a warrant (in the case of a search) or probable cause (in the case of arrest) provides; but at least in the absence of `extraordinary' circumstances, there is no comparable cause for finicking when police act with such justification." Atwater, 532 U.S. at 347, 121 S.Ct. 1536, n. 16 In sharp contrast to the broad discretion granted in Atwater, the Supreme Court in allowing the impoundment and search of vehicles under the community caretaking doctrine has limited the discretion of the impounding officer and has taken a more finely tuned approach to determining reasonableness under the Fourth Amendment. In Colorado v. Bertine, the Court allowed "the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). A leading treatise declares that this language is "highlighting that while the Supreme Court was not prepared to mandate any particular rules as to when impoundment incident to arrest for a traffic violation was permissible, impoundment is not a matter which can simply be left to the discretion of the individual officer." 3 Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment § 7.3, at 624(4th ed.2004) (emphasis in original). The police's authority to search and seize property when acting in its role as "community caretaker" has a different source than its authority to search and seize property to investigate criminal activity. The reasonableness of a seizure under the "caretaker" function differs from the bright-line rule concerning [3] probable cause in the criminal context. "The standard of probable cause is peculiarly related to criminal investigations, not routine, non-criminal procedures. The probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations." South Dakota v. Opperman, 428 U.S. 364, 371, 96 S.Ct. 3092, 49 L.Ed.2d 1000, n. 5 (1976). 864*864 In their "community caretaking" function, police officers may impound vehicles that "jeopardize public safety and the efficient movement of vehicular traffic." Opperman, 428 U.S. at 368-69, 96 S.Ct. 3092. Whether an impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft. See United States v. Jensen, 425 F.3d 698, 706(9th Cir.2005) ("Once the arrest was made, the doctrine allowed law enforcement officers to seize and remove any vehicle which may impede traffic, threaten public safety, or be subject to vandalism."); Hallstrom v. City of Garden City, 991 F.2d 1473, 1477, n. 4 (9th Cir.1993) (impoundment of arrestee's car from private parking lot "to protect the car from vandalism or theft" was reasonable under the community caretaking

function). A driver's arrest, or citation for a non-criminal traffic violation as in this case, is not relevant except insofar as it affects the driver's ability to remove the vehicle from a location at which it jeopardizes the public safety or is at risk of loss. But no such public safety concern is implicated by the facts of this case involving a vehicle parked in the driveway of an owner who has a valid license. The reasonableness of an impoundment under the community caretaking function does not depend on whether the officer had probable cause to believe that there was a traffic violation, but on whether the impoundment fits within the "authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience. . . ." Opperman, 428 U.S. at 369, 96 S.Ct. 3092. We conclude that, in the circumstances of this case, probable cause to believe that there had been a traffic infraction or non-criminal violation was insufficient to justify an [4] impoundment of a vehicle parked in the owner's driveway, in the absence of a valid caretaking purpose.

B
We consider next whether the seizure of the Mirandas' vehicle from their driveway is justified by the community caretaking doctrine. In assessing this question, we must examine whether this seizure is reasonable based on all of the facts presented. See Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (The issue of "whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. . . . "). We begin with the premise, apparently not recognized by the Defendants, that the decision to impound pursuant to the authority of a city ordinance and state statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment, as applied to the states by the Fourteenth Amendment. 865*865 "The question in this Court upon review of a state-approved search or seizure is not whether the search (or seizure) was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment." Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. [5] 1889, 20 L.Ed.2d 917 (1968). An impoundment may be proper under the community caretaking doctrine if the driver's violation of a vehicle regulation prevents the driver from lawfully operating the vehicle, and also if it is necessary to remove the vehicle from an exposed or public location. See United States v. Gutierrez, 995 F.2d 169, 171 (9th Cir.1993) ("After determining that neither Gutierrez nor Cervantes possessed a valid driver's license, the officers advised them that they were free to go, but that they could not drive the Cadillac."); United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir.1991) ("Upon ascertaining that neither occupant was properly licensed to drive, the decision not to let the vehicle continue on its journey was quintessentially reasonable."). The violation of a traffic regulation justifies impoundment of a vehicle if the driver is unable to remove the vehicle from a public location without continuing its illegal operation. On the other hand, a decision to impound a vehicle that is not consistent with the police's role as "caretaker" of the streets may be unreasonable. See United States v. Duguay, 93 F.3d 346, 352 (7th Cir.1996). In Duguay, the court held that "impoundment based solely on an arrestee's status as a driver, owner, or passenger is irrational and inconsistent with `caretaking' functions. Under [the police officers'] policies, towing is required any time the arrestee is carted off to jail, regardless of whether another person could have removed the car and readily eliminated any traffic congestion, parking violation, or road hazard." Id. at 353. "The policy of impounding the car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for impoundment is for the `caretaking' of the streets." Id. The state has the right to allow the driver to drive away with the vehicle only if he or she is able to do so in [6] compliance with all regulations intended to ensure the vehicle's safe operation. However, the decision to impound a vehicle after the driver has violated a vehicle regulation must consider the location of the vehicle, and whether the vehicle was actually "impeding traffic or threatening public safety and

convenience" on the streets, such that impoundment was warranted. See Opperman, 428 U.S. at 369, 96 S.Ct. 3092. While Officer Calvert may not have believed that the Mirandas would comply with all regulations in the future, when he issued citations and called for the vehicle to be impounded, the vehicle was already 866*866 parked in the Mirandas' home driveway. Mr. Miranda was licensed to drive the car. Under these circumstances, the Mirandas' car was not creating any impediment to traffic or threatening public safety. An officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers. See United States v. Squires, 456 F.2d 967, 970 (2d Cir.1972) ("However, since the Cadillac was parked in the parking lot behind the apartment house in which appellant lived, which was an appropriate place for it to be, and appellant did not consent to its removal, the officers did not have a reasonable basis for concluding that it was necessary to take the Cadillac to the police station in order to protect it."). Defendants have argued that the impoundment satisfied the "caretaking" function by deterring the Mirandas from repeating this illegal activity in the future. Such a rationale would expand the authority of the police to impound regardless of the violation, instead of limiting officers' discretion to ensure that they act consistently with their role of "caretaker of the streets." See Duguay, 93 F.3d at 352. The decision to impound must be guided by conditions which "circumscribe the discretion of individual officers" in a way that furthers the caretaking purpose. Bertine, 479 U.S. at 376, 107 S.Ct. 738, n. 7. While the Supreme Court has accepted a deterrence rationale for civil forfeitures of vehicles that were used for criminal activity, see Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), the deterrence rationale is incompatible with the principles of the community caretaking doctrine. Unlike in civil forfeitures, where the seizure of property penalizes someone who has been convicted of a crime, the purpose of the community caretaking function is to remove vehicles that are presently impeding traffic or creating a hazard. The need to deter a driver's unlawful conduct is by itself insufficient to justify a tow under the "caretaker" rationale. The deterrence rationale is also not a sufficient justification here because of the negligible deterrent effect in this case. Mr. Miranda was at all relevant times licensed to drive. And because Mr. Miranda retrieved the car the next morning, its absence cannot be viewed as a significant deterrent to further unlicensed driving by Mrs. Miranda. In addition, the towing fees simply replaced the actual fines from the citations because the municipal judge who held the citation hearing waived any additional fine. Thus, the effect of any conceivable financial deterrent was neutralized. The City has not demonstrated in law or logic that deterrence is a sufficient purpose to justify the particular impoundment that occurred here.

III
Plaintiffs further claim that they were deprived of procedural due process in violation of the Fourteenth Amendment. They assert that they were entitled to notice and a hearing on the validity of the impoundment before their vehicle was seized and impounded. They also assert that they were denied a meaningful opportunity to contest the impoundment in a post-deprivation hearing.

A
"We assess due process case-by-case based on the total circumstances." California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700, 711 (9th Cir.2003). "Constitutional due process requires that a party affected by government action be given `the opportunity to be heard at a meaningful 867*867 time and in a meaningful manner.'" Id. at 708, n. 6 (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). In determining what process is due, we apply the factors specified by the Supreme Court in Mathews v. Eldridge:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S.Ct. 893. Cases decided by us are cited by Defendants, and previously by the district court in its order, to support the proposition that procedural due process does not require pre-deprivation notice and a hearing before impoundments. See, e.g., Soffer v. City of Costa Mesa, 798 F.2d 361, 363(9th Cir.1986); Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1323-24 (9th Cir.1982); Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1342 (9th Cir.1977). However, none of these cases is controlling in light of the unusual facts presented here. In these cases, the police clearly were acting within their legitimate caretaking functions. See Goichman, 682 F.2d at 1324(recognizing "the government's interest in efficient and inexpensive towage of illegally parked automobiles"); Stypmann, 557 F.2d at 1343 ("The public interest in removing vehicles from streets and highways in the circumstances specified in the traffic code is also substantial, though differing in the various situations in which removal is authorized."). The crucial factual differences that we confront here, as explained above, are that the Mirandas' vehicle, when seized to be impounded, was safely and securely in the driveway of their home, and Mr. Miranda, at all relevant times, had a valid registration for the vehicle and a valid driver's license. Defendants have not provided a legitimate caretaking purpose for the impoundment here. Impoundment of a vehicle left in a public place or a vehicle for which there is no licensed driver, although those circumstances are not presented here, presumably would not require pre-deprivation notice and a pre-seizure hearing because the burden of such procedures would vitiate the legitimate purposes of the impoundment. Impoundments in such cases are likely justified by the need to respond immediately to the hazard or public safety threat caused by the location of the vehicles, which would be incompatible with a requirement of notice and a hearing beforehand. However, the novel question, squarely presented in this case, of whether a pre-deprivation hearing is required for an impoundment from the driveway of the owners' home, cannot be resolved without more factual development and a more detailed analysis of the competing interests involved. Because Defendants have not provided us with a legitimate caretaking purpose in impounding the car, the question whether a pre-deprivation hearing was required for the [7] Mirandas' case cannot be properly determined on the record before us. Therefore, the district court should determine on remand whether any legitimate caretaking purpose offered by Defendants outweighs the affected private 868*868 interest of the Mirandas in uninterrupted possession of their car and the risk of erroneous deprivation.

B
Assuming that pre-deprivation notice and a hearing is not required, we do not find that any due process violation resulted from the absence of a post-deprivation hearing to contest the validity of the impoundment in light of the opportunity for such a hearing that was given to the Mirandas. To establish Defendants' liability under section 1983, Plaintiffs "must demonstrate that action pursuant to official municipal policy of some nature caused a constitutional tort." Berry v. Baca, 379 F.3d 764, 767 (9th Cir.2004). "In order to impose liability based on a policy of deliberate inaction, the plaintiff must establish: (1) that he [or she] possessed a constitutional right of which he [or she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's. The first question under this standard is whether the Mirandas were deprived of any constitutional right. In accord with the requirements of due process, the City has a policy of sending notices within forty-eight

hours of an impound to the owners explaining their right to request a hearing to contest the impoundment. See Scofield v. City of Hillsborough, 862 F.2d 759, 764 (9th Cir.1988) (holding that these "procedures ensure that any erroneous deprivation of an owner's vehicle will be slight, and satisfies due process concerns"). Plaintiffs contend that they requested a hearing in their letter to the City Hall, and that their request was ignored. The City presented evidence, by contrast, that it sent notice to the Mirandas of their right to a hearing, and that no request for a hearing was made. Further, the City submitted evidence that at the hearing on the traffic infractions, no issue was raised about the impoundment. The Mirandas replied that they did not submit a hearing request in response to the City's letter of notice because they felt that their prior Spanish-language letter made a request for a hearing. They also contended that Mr. Miranda later went to City Hall and "spoke with a woman about the tow who told him that he had no basis to complain about the tow." Possibly both sides acted in good faith and there was a misunderstanding [8] because of language barriers. Even assuming that the City did not respond to the requests for a hearing that the Mirandas made in a letter written in Spanish and made in person at City Hall, relief against the City cannot be granted in the absence of a policy of the City that caused or contributed to the assumed deprivation of a constitutional right. On this ground, the Plaintiffs' claim is defeated under the undisputed facts. Plaintiffs do not show that a municipal policy of deliberate inaction was the "moving force" behind the City's inaction towards the Mirandas' requests for a hearing. Rather, the absence of a hearing concerning the seizure on the undisputed 869*869 facts was inadvertent and not as a result of a deliberate inaction under a City policy. "In order for a municipality to be liable for a section 1983 violation the action alleged to be unconstitutional must implement a policy officially adopted by the municipality." Scofield, 862 F.2d at 765. Based on Plaintiffs' statement of facts and all reasonable inferences thereon, there is no evidence that the lack of response to Plaintiffs' letter was the result of a policy officially adopted by Defendants. In addition, construing Mr. Miranda's statement that he "spoke with a woman about the tow" in the most favorable light, it does not provide a basis for liability under section 1983. Because a denial of a hearing would be directly contrary to the City's official policy, any comment by the woman was not sufficient to establish the existence of a policy contrary to the City's written policy. We conclude that there was no genuine issue of material fact precluding the district court's grant of summary judgment to Defendants on the due process claim. On the record before us, we must conclude that there was no City policy to deprive Plaintiffs of a meaningful opportunity to contest the deprivation of their vehicle. Accordingly, the district court did not err in granting summary judgment on the issue of post-deprivation due process because the facts do not support a finding of liability even when they are viewed in a light most favorable to Plaintiffs.

IV
Viewing the evidence in the light most favorable to Plaintiffs in their appeal of the summary judgment granted to Defendants, the impoundment must be considered an unreasonable seizure because the impoundment did not satisfy any acceptable purpose under the community caretaking doctrine. On remand, the district court may consider whether Defendants can offer evidence of a legitimate government purpose for the impoundment sufficient to render the seizure reasonable and to permit a deprivation of the property without prior notice and a hearing. On the issue of post-deprivation due process, we affirm the district court's summary judgment in favor of Defendants. We accordingly reverse in part the district court's judgment and remand for further proceedings consistent with this disposition. Costs will be awarded to the plaintiffs-appellants. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
[1] We review de novo the district court's grant of summary judgment and may affirm on any ground supported by the record. U.S. ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140, 1144 (9th Cir.2004). We must determine whether there is any genuine issue of material fact viewing all evidence in the light most favorable to the non-moving party. Id. The facts are largely undisputed, but to the extent

any dispute exists, we credit the factual statements submitted by the Mirandas and any reasonable inferences thereon in our assessment of the appeal of the summary judgment granted to Defendants. [2] The district court did not determine whether the impoundment itself was unreasonable. On appeal, Plaintiffs concede that they lack a reasonable expectation of privacy but still allege that the impoundment was an unreasonable seizure. [3] The statutory authority at issue here classifies driving without a license as a traffic violation and not as a traffic crime. See Or.Rev.Stat. § 807.010 (2003). Traffic violations, which were originally called traffic infractions, have been decriminalized in Oregon: The legislature established a distinction between traffic offenses which it deemed serious enough to carry criminal penalties and those which should not. These latter offenses were defined as traffic infractions. The distinguishing features of the traffic infraction were the absence of incarceration as a possible penalty and the removal of the protections extended to individuals prosecuted for criminal offenses. Oregon v. Porter, 312 Or. 112, 817 P.2d 1306, 1309 (1991) (citations and internal quotation marks omitted). [4] Probable cause to believe there has been a traffic violation is sufficient justification for police officers to seize a vehicle for a traffic stop. See Whren v. United States, 517 U.S. 806, 817, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Court in Whren recognized "that the foremost method of enforcing traffic and vehicle safety regulations is acting upon observed violations, which afford the quantum of individualized suspicion necessary to ensure that police discretion is sufficiently constrained." 517 U.S. at 817-18, 116 S.Ct. 1769(citations and internal quotation marks omitted). It held that a seizure following a traffic stop is always justified by probable cause because a traffic stop is a necessary requisite to the enforcement of traffic regulations. However, the impoundment of a legally-parked vehicle is not necessary to enforce traffic regulations and requires some additional justification, as is typically demonstrated by the community caretaking purpose. [5] Accordingly, we do not make any conclusion as to the constitutionality of the city ordinance, but confine our analysis to the reasonableness of the seizure at issue here. See Sibron, 392 U.S. at 62, 88 S.Ct. 1889 ("Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions."). [6] An impoundment is proper to prevent the immediate and continued unlawful operation of the vehicle or to remove a vehicle left in a public location where it creates a hazard. An officer, acting within the scope of his or her community care-taking function, is not required to consider "the existence of alternative less intrusive means" when the vehicle must in fact be moved to avoid the creation of a hazard or the continued unlawful operation of the vehicle. See Bertine, 479 U.S. at 374, 107 S.Ct. 738(internal quotation marks omitted). [7] As explained in the previous section, the Defendants' deterrence rationale is insufficient justification for the impoundment of the Mirandas' vehicle from the Mirandas' driveway. [8] We do not suggest that the City had a duty under the Constitution to interpret a Spanish language letter purportedly sent by the Mirandas and to ignore the lack of response by the Mirandas to the English language notice letter. We need not reach this question because we ground our opinion on the lack of evidence of a City policy contributing to denial of a hearing.

Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990 Case Brief

Facts

Michigan State Police Department had established a highway sobriety checkpoint program with guidelines governing checkpoint operations, site selection, and publicity. Motorists in the state of Michigan brought an action challenging the state’s operation of those DUI checkpoints. The first (and only, at the time of the case) DUI checkpoint operated under the program resulted in the detainment of two drivers for field sobriety testing, one of which was found to be driving under the influence of alcohol. A third driver who drove through without stopping was pulled over by an officer in an observation vehicle and arrested for driving under the influence. The Circuit Court (a lower court) in Wayne County, Michigan invalidated the program. The Court of Appeals affirmed that decision. The Supreme Court of the United States found that a “seizure” occurs when a vehicle is stopped at a checkpoint but the checkpoint program at issue did not violate Fourth Amendment. The decision was reversed and sent back to lower court. Whether a state’s use of highway sobriety checkpoints violates the rights protected under Fourth and Fourteenth Amendments? (Right to be free from unreasonable seizures and the right not to be deprived of one’s property without due process) The court used a balancing test from Brown v. Texas, 443 U.S. 47 (1979), which involved: “balancing the state’s interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual’s privacy caused by the checkpoints.” Michigan’s Police Department’s highway sobriety checkpoint program is consistent with the Fourth Amendment because the state’s interest in preventing drunk driving weighs in favor of the sobriety checkpoint program, given the low degree of intrusion upon individual motorists who are briefly stopped.

Procedural history/ What happened before Issue

Analysis

Holding/ Decision

110 S.Ct. 2481 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412, 58 USLW 4781 (Cite as: 496 U.S. 444, 110 S.Ct. 2481) Supreme Court of the United States MICHIGAN DEPARTMENT OF STATE POLICE, et al., Petitioners v. Rick SITZ, et al. No. 88-1897. Argued Feb. 27, 1990. Decided June 14, 1990. Motorists brought action to challenge constitutionality of highway sobriety checkpoint program. The Circuit Court, Wayne County, Michigan, Michael L. Stacey, J., invalidated program and appeal was taken. The Court of Appeals of Michigan, 170 Mich.App. 433, 429 N.W.2d 180,Lambros, J., affirmed. Certiorari was granted. The Supreme Court, Chief Justice Rehnquist, held that: (1) Fourth Amendment “seizure” occurs when vehicle is stopped at checkpoint, and (2) checkpoint program did not violate Fourth Amendment. Reversed and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 2488. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 2488. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined as to Parts I and II, post, p. 2490. *447 Chief Justice REHNQUIST delivered the opinion of the Court. This case poses the question whether a State's use of highway sobriety checkpoints violates the Fourth and Fourteenth Amendments to the United States Constitution. We hold that it does not and therefore reverse the contrary holding of the Court of Appeals of Michigan. Petitioners, the Michigan Department of State Police and its director, established a sobriety checkpoint pilot program in early **2484 1986. The director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its charge, the advisory committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity.

Page 1

Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist's driver's license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer's observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately. *448 The first-and to date the only-sobriety checkpoint operated under the program was conducted in Saginaw County with the assistance of the Saginaw County Sheriff's Department. During the 75minute duration of the checkpoint's operation, 126 vehicles passed through the checkpoint. The average delay for each vehicle was approximately 25 seconds. Two drivers were detained for field sobriety testing, and one of the two was arrested for driving under the influence of alcohol. A third driver who drove through without stopping was pulled over by an officer in an observation vehicle and arrested for driving under the influence. On the day before the operation of the Saginaw County checkpoint, respondents filed a complaint in the Circuit Court of Wayne County seeking declaratory and injunctive relief from potential subjection to the checkpoints. Each of the respondents “is a licensed driver in the State of Michigan ... who regularly travels throughout the State in his automobile.” See Complaint, App. 3a-4a. During pretrial proceedings, petitioners agreed to delay further implementation of the checkpoint program pending the outcome of this litigation. After the trial, at which the court heard extensive testimony concerning, inter alia, the “effectiveness” of highway sobriety checkpoint programs, the court ruled that the Michigan program violated the Fourth Amendment and Art. 1, § 11, of the Michigan Constitution. App. to Pet. for Cert. 132a. On appeal, the Michigan Court of Appeals affirmed the holding that the program violated the Fourth Amendment and, for that reason, did not consider whether the program violated the Michigan Constitution. 170 Mich.App. 433, 445, 429 N.W.2d 180, 185 (1988). After the Michigan Supreme Court denied petitioners' application for leave to appeal, we granted certiorari. 493 U.S. 806, 110 S.Ct. 46, 107 L.Ed.2d 15 (1989).

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110 S.Ct. 2481 Page 2 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412, 58 USLW 4781 (Cite as: 496 U.S. 444, 110 S.Ct. 2481) lancing analysis is appropriate, and that petitioners have demonstrated no such special need. To decide this case the trial court performed a balancing test derived from our opinion in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 [1][2] But it is perfectly plain from a reading of (1979). As described by the Court of Appeals, the test Von Raab, which cited and discussed with approval involved*449 “balancing the state's interest in preour earlier decision in United States v. Martinezventing accidents caused by drunk drivers, the effecFuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d tiveness of sobriety checkpoints in achieving that 1116 (1976), that it was in no way designed to repugoal, and the level of intrusion on an individual's pridiate our prior cases dealing with police stops of movacy caused by the checkpoints.” 170 Mich.App., at torists on public highways. Martinez-Fuerte, supra, 439, 429 N.W.2d, at 182 (citing Brown, supra, 443 which utilized a balancing analysis in approving U.S., at 50-51, 99 S.Ct., at 2640). The Court of Aphighway checkpoints for detecting illegal aliens, and peals agreed that “the Brown three-prong balancing Brown v. Texas, supra, are the relevant authorities test was the correct test to be used to determine the here. constitutionality of the sobriety checkpoint plan.” 170 Mich.App., at 439, 429 N.W.2d, at 182. [3] Petitioners concede, correctly in our view, that a Fourth Amendment “seizure” occurs when a As characterized by the Court of Appeals, the vehicle is stopped at a checkpoint. Tr. of Oral Arg. trial court's findings with respect to the balancing 11; see Martinez-Fuerte, supra, at 556, 96 S.Ct., at factors were that the State has “a grave and legiti3082 (“It is agreed that checkpoint stops are „seimate” interest in curbing drunken driving; that sozures' within the meaning of the Fourth Amendbriety checkpoint programs are generally “ineffecment”); Brower v. County of Inyo, 489 U.S. 593, 597, tive” and, **2485 therefore, do not significantly fur109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) ther that interest; and that the checkpoints' “subjec(Fourth Amendment seizure occurs “when there is a tive intrusion” on individual liberties is substantial. governmental termination of freedom of movement Id., at 439, 440, 429 N.W.2d, at 183, 184. According through means intentionally applied ” (emphasis in to the court, the record disclosed no basis for disturboriginal)). The question thus becomes whether such ing the trial court's findings, which were made within seizures are “reasonable” under the Fourth Amendthe context of an analytical framework prescribed by ment. this Court for determining the constitutionality of seizures less intrusive than traditional arrests. Id., at It is important to recognize what our inquiry is 445, 429 N.W.2d, at 185. not about. No allegations are before us of unreasonable treatment of any person after an actual detention In this Court respondents seek to defend the at a particular checkpoint. See Martinez-Fuerte, 428 judgment in their favor by insisting that the balancing U.S., at 559, 96 S.Ct., at 3083 (“[C]laim that a partictest derived from Brown v. Texas, supra, was not the ular exercise of discretion in locating or operating a proper method of analysis. Respondents maintain that checkpoint is unreasonable is subject to post-stop the analysis must proceed from a basis of probable judicial review”). As pursued in the lower courts, the cause or reasonable suspicion, and rely for support on instant action challenges only the use of sobriety language from our decision last Term in Treasury checkpoints generally. We address only the initial Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. stop of each motorist passing through a checkpoint 1384, 103 L.Ed.2d 685 (1989). We said in Von Raab: and the associated preliminary questioning and observation*451 by checkpoint officers. Detention of particular motorists for more extensive field sobriety “[W]here a Fourth Amendment intrusion serves testing may require satisfaction of an individualized special governmental needs, beyond the normal suspicion standard. Id., at 567, 96 S.Ct., at 3087. need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is [4] No one can seriously dispute the magnitude impractical to require a warrant *450 or some level of the drunken driving problem or the States' interest of individualized suspicion in the particular conin eradicating it. Media reports of alcohol-related text.” Id., at 665-666, 109 S.Ct., at 1390-1391. death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. “Drunk drivers cause an annual death toll of **2486 over Respondents argue that there must be a showing 25,000[FN*] and in the same time span cause nearly of some special governmental need “beyond the norone million personal injuries and more than five bilmal need” for criminal law enforcement before a ba-

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110 S.Ct. 2481 Page 3 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412, 58 USLW 4781 (Cite as: 496 U.S. 444, 110 S.Ct. 2481) lion dollars in property damage.” 4 W. LaFave, point operation minimize the discretion of the officSearch and Seizure: A Treatise on the Fourth ers on the scene. But the court also agreed with the Amendment § 10.8(d), p. 71 (2d ed. 1987). For dectrial court's conclusion that the checkpoints have the ades, this Court has “repeatedly lamented the tragepotential to generate fear and surprise in motorists. dy.” South Dakota v. Neville, 459 U.S. 553, 558, 103 This was so because the record failed to demonstrate S.Ct. 916, 920, 74 L.Ed.2d 748 (1983); see Breithat approaching motorists would be aware of their thaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, option to make U-turns or turnoffs to avoid the 412, 1 L.Ed.2d 448 (1957) (“The increasing slaughter checkpoints. On that basis, the court deemed the subon our highways ... now reaches the astounding figjective intrusion from the checkpoints unreasonable. ures only heard of on the battlefield”). Id., at 443-444, 429 N.W.2d, at 184-185. FN* Statistical evidence incorporated in Justice Steven's dissent suggests that this figure declined between 1982 and 1988. See post, at 2491, n. 2, and 2494, n. 7 (citing U.S. Dept. of Transportation National Highway Traffic Safety Administration, Fatal Accident Reporting System 1988). It was during this same period that police departments experimented with sobriety checkpoint systems. Petitioners, for instance, operated their checkpoint in May 1986, see App. to Pet. for Cert. 6a, and the Maryland State Police checkpoint program, about which much testimony was given before the trial court, began in December 1982. See id, at 84a. Indeed, it is quite possible that jurisdictions which have recently decided to implement sobriety checkpoint systems have relied on such data from the 1980's in assessing the likely utility of such checkpoints. Conversely, the weight bearing on the other scale-the measure of the intrusion on motorists stopped briefly at sobriety checkpoints-is slight. We reached a similar conclusion as to the intrusion on motorists subjected to a brief stop at a highway checkpoint for detecting illegal aliens. See MartinezFuerte, supra, at 558, 96 S.Ct., at 3083. We see virtually no difference between the levels of intrusion on law-abiding motorists *452 from the brief stops necessary to the effectuation of these two types of checkpoints, which to the average motorist would seem identical save for the nature of the questions the checkpoint officers might ask. The trial court and the Court of Appeals, thus, accurately gauged the “objective” intrusion, measured by the duration of the seizure and the intensity of the investigation, as minimal. See 170 Mich.App., at 444, 429 N.W.2d, at 184. [5] With respect to what it perceived to be the “subjective” intrusion on motorists, however, the Court of Appeals found such intrusion substantial. See, supra, at 2485. The court first affirmed the trial court's finding that the guidelines governing checkWe believe the Michigan courts misread our cases concerning the degree of “subjective intrusion” and the potential for generating fear and surprise. The “fear and surprise” to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in lawabiding motorists by the nature of the stop. This was made clear in Martinez-Fuerte. Comparing checkpoint stops to roving patrol stops considered in prior cases, we said: “[W]e view checkpoint stops in a different light because the subjective intrusion-the generating of concern or even fright on the part of lawful travelers-is appreciably less in the case of a checkpoint stop. In [United States v.] Ortiz, [422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975),] we noted: *453 “ „[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he **2487 can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion. 422 U.S., at 894-895 [95 S.Ct., at 2587-2588].‟ ” Martinez-Fuerte, 428 U.S., at 558, 96 S.Ct., at 3083. See also id, at 559, 96 S.Ct., at 3083. Here, checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle. The intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte. [6] The Court of Appeals went on to consider as part of the balancing analysis the “effectiveness” of the proposed checkpoint program. Based on extensive testimony in the trial record, the court concluded

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110 S.Ct. 2481 Page 4 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412, 58 USLW 4781 (Cite as: 496 U.S. 444, 110 S.Ct. 2481) that the checkpoint program failed the “effectiveweigh-stations and inspection checkpoints, at which ness” part of the test, and that this failure materially some vehicles may be subject to further detention for discounted petitioners' strong interest in implementsafety and regulatory inspection than are others.” Id., ing the program. We think the Court of Appeals was at 663, n. 26, 99 S.Ct., at 1401, n. 26. wrong on this point as well. Unlike Prouse, this case involves neither a comThe actual language from Brown v. Texas, upon plete absence of empirical data nor a challenge to which the Michigan courts based their evaluation of random highway stops. During the operation of the “effectiveness,” describes the balancing factor as “the Saginaw County checkpoint, the detention of the 126 degree to which the seizure advances the public invehicles that entered the checkpoint resulted in the terest.” 443 U.S., at 51, 99 S.Ct., at 2640. This pasarrest of two drunken drivers. *455 Stated as a persage from Brown was not meant to transfer from pocentage, approximately 1.6 percent of the drivers litically accountable officials to the courts the decipassing through the checkpoint were arrested for alsion as to which among reasonable alternative law cohol impairment. In addition, an expert witness tesenforcement techniques should be employed to deal tified at the trial **2488 that experience in other with a serious public danger. Experts in police States demonstrated that, on the whole, sobriety science might disagree over which of several mecheckpoints resulted in drunken driving arrests of thods of apprehending drunken drivers is preferrable around 1 percent of all motorists stopped. 170 as an ideal. But for purposes of Fourth Amendment Mich.App., at 441, 429 N.W.2d, at 183. By way of analysis, the choice among such reasonable alternacomparison, the record from one of the consolidated tives *454 remains with the governmental officials cases in Martinez-Fuerte showed that in the assowho have a unique understanding of, and a responsiciated checkpoint, illegal aliens were found in only bility for, limited public resources, including a finite 0.12 percent of the vehicles passing through the number of police officers. Brown 's rather general checkpoint. See 428 U.S., at 554, 96 S.Ct., at 3081. reference to “the degree to which the seizure adThe ratio of illegal aliens detected to vehicles stopped vances the public interest” was derived, as the opi(considering that on occasion two or more illegal nion makes clear, from the line of cases culminating aliens were found in a single vehicle) was approxin Martinez-Fuerte, supra. Neither Martinez-Fuerte imately 0.5 percent. See ibid. We concluded that this nor Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, “record ... provides a rather complete picture of the 59 L.Ed.2d 660 (1979), however, the two cases cited effectiveness of the San Clemente checkpoint,” ibid., by the Court of Appeals as providing the basis for its and we sustained its constitutionality. We see no jus“effectiveness” review, see 170 Mich.App., at 442, tification for a different conclusion here. 429 N.W.2d, at 183, supports the searching examination of “effectiveness” undertaken by the Michigan In sum, the balance of the State's interest in precourt. venting drunken driving, the extent to which this system can reasonably be said to advance that interest, In Delaware v. Prouse, supra, we disapproved and the degree of intrusion upon individual motorists random stops made by Delaware Highway Patrol who are briefly stopped, weighs in favor of the state officers in an effort to apprehend unlicensed drivers program. We therefore hold that it is consistent with and unsafe vehicles. We observed that no empirical the Fourth Amendment. The judgment of the Michievidence indicated that such stops would be an effecgan Court of Appeals is accordingly reversed, and the tive means of promoting roadway safety and said that cause is remanded for further proceedings not incon“[i]t seems common sense that the percentage of all sistent with this opinion. drivers on the road who are driving without a license is very small and that the number of licensed drivers It is so ordered. who will be stopped in order to find one unlicensed operator will be large indeed.” Id., 440 U.S., at 659U.S.Mich.,1990. 660, 99 S.Ct., at 1399. We observed that the random Michigan Dept. of State Police v. Sitz stops involved the “kind of standardless and uncon496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412, 58 strained discretion [which] is the evil the Court has USLW 4781 discerned when in previous cases it has insisted that the discretion of the official in the field be circumEND OF DOCUMENT scribed, at least to some extent.” Id., at 661, 99 S.Ct., at 1400. We went on to state that our holding did not “cast doubt on the permissibility of roadside truck

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2011 California Vehicle Code General Provisions and Divisions Table of Contents Division 6 Chapter 1 Article 1§ Article 2§ Article 3§ Article 4§ Article 5§ Chapter 2 Article 1§ Article 2§ Article 3§ Article 4§ Chapter 3 Article 1§ Article 2§ Article 3§ Article 4§ Article 5§ Chapter 4§ Chapter 5 Article 1§ Article 2§ Chapter 6 Article 1§ Article 2§ Chapter 7 Article 1§ Article 2§ Article 3§ Article 4§ Article 5§ Article 6§ Article 7§ Drivers’ Licenses Issuance of Licenses, Expiration, and Renewal Persons Required to Be Licensed, Exemptions, and Age Limits Student Licenses Issuance and Renewal of Licenses Signature and Display of Licenses Identification Cards Suspension or Revocation of Licenses General Provisions (Suspension or Revocation of Licenses) Suspension or Revocation by Court Suspension and Revocation by Department Procedure Investigation and Hearing Investigation and Re-examination Notice Hearing Probation Review of Orders Violation of License Provisions License Fees Imposition of Fees Collection of Fees Driver License Compact Generally Compact Terms Commercial Motor Vehicle Safety Program Intent Definitions Driver Notification Requirements Employer Responsibilities Commercial Driver’s License Endorsements Sanctions

§ 12500-12527 § 12650-12661 § 12800-12819 § 12950-12954 § 13000-13008

§ 13100-13106 § 13200-13210 § 13350-13376 § 13377-13559

§ 13800-13803 § 13950-13954 § 14100-14112 § 14250-14253 § 14400-14401 § 14600-14611

§ 14900-14907 § 14910-14911

§ 15000-15003 § 15020-15028

§ 15200 § 15210-15215 § 15220-15230 § 15240-15242 § 15250-15263 § 15275-15278 § 15300-15325

V C Section 12500 Unlawful to Drive Unless Licensed (a) A person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver's license issued under this code, except those persons who are expressly exempted under this code. (b) A person may not drive a motorcycle, motor-driven cycle, or motorized bicycle upon a highway, unless the person then holds a valid driver's license or endorsement issued under this code for that class, except those persons who are expressly exempted under this code, or those persons specifically authorized to operate motorized bicycles or motorized scooters with a valid driver's license of any class, as specified in subdivision (h) of Section 12804.9.

V C Section 12801 Social Security Number Required (a) Notwithstanding any other provision of law, the department shall require an application for a driver's license to contain the applicant's social security account number and any other number or identifier determined to be appropriate by the department. (b) Notwithstanding any other law, the social security account number collected on a driver's license application shall not be displayed on the driver's license, including, but not limited to, inclusion on a magnetic tape or strip used to store data on the license.

V C Section 12801.5 Verification of Citizenship or Legal Residence (a) Notwithstanding any other provision of law, the department shall require an applicant for an original driver's license or identification card to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law. (b) The department shall not issue an original driver's license or identification card to a person who does not submit satisfactory proof that the applicant's presence in the United States is authorized under federal law. (c) The department shall adopt regulations to carry out the purposes of this section, including procedures for, but not limited to, (1) verifying that the applicant's presence in the United States is authorized under federal law, (2) issuance of a temporary license pending verification of the applicant's status, and (3) appeal hearings from a denial of a license, temporary license , or identification card . (d) On January 10 of each year, the department shall submit a supplemental budget report to the Governor and the Legislature detailing the costs of verifying the citizenship or legal residency of applicants for driver's licenses and identification cards, in order for the state to request reimbursement from the federal government. (e) Notwithstanding Section 40300 or any other provision of law, a peace officer may not detain or arrest a person solely on the belief that the person is an unlicensed driver, unless the officer has reasonable cause to believe the person driving is under the age of 16 years. (f) The inability to obtain a driver's license pursuant to this section does not abrogate or diminish in any respect the legal requirement of every driver in this state to obey the motor vehicle laws of this state, including laws with respect to licensing, motor vehicle registration, and financial responsibility.

V C Section 12951 Possession of License (a) The licensee shall have the valid driver's license issued to him or her in his or her immediate possession at all times when driving a motor vehicle upon a highway. (b) The driver of a motor vehicle shall present his or her license for examination upon demand of a peace officer enforcing the provisions of this code.

V C Section 14601 Driving When Privilege Suspended or Revoked (a) No person shall drive a motor vehicle at any time when that person’s driving privilege is suspended or revoked for reckless driving in violation of Section 23103, 23104, or 23105, any reason listed in subdivision (a) or (c) of Section 12806 authorizing the department to refuse to issue a license, negligent or incompetent operation of a motor vehicle as prescribed in subdivision (e) of Section 12809, or negligent operation as prescribed in Section 12810.5 , if the person so driving has knowledge of the suspension or revocation.

V C Section 14602.6 Vehicle Impoundment Suspended Revoked or Unlicensed Driver Hearing (a) (1) Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked, driving a vehicle while his or her driving privilege is restricted… or driving a vehicle without ever having been issued a driver’s license, the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle... A vehicle so impounded shall be impounded for 30 days. (2) The impounding agency, within two working days of impoundment, shall send a notice by certified mail, return receipt requested, to the legal owner of the vehicle, at the address obtained from the department, informing the owner that the vehicle as been impounded. Failure to notify the legal owner within two working days shall prohibit the impounding agency from charging for more than 15 days’ impoundment when the legal owner redeems the impounded vehicle. The impounding agency shall maintain a published telephone number that provides information 24 hours a day regarding the impoundment of vehicles and the rights of a registered owner to request a hearing. The law enforcement agency shall be open to issue a release to the registered owner or legal owner, or the agent of either, whenever the agency is open to serve the public for regular, nonemergency business. (b) The registered and legal owner of a vehicle that is removed and seized under subdivision (a) or their agents shall be provided the opportunity for a storage hearing to determine the validity of, or consider any mitigating circumstances attendant to, the storage, in accordance with Section 22852. (d) (1) An impounding agency shall release a vehicle to the registered owner or his or her agent prior to the end of 30 days’ impoundment under any of the following circumstances: (A) When the vehicle is a stolen vehicle. (B) When the vehicle is subject to bailment and is driven by an unlicensed employee of a business establishment, including a parking service or repair garage. (C) When the license of the driver was suspended or revoked for an offense other than those included in Article 2 (commencing with Section 13200) of Chapter 2 of Division 6 or Article 3 (commencing with Section 13350) of Chapter 2 of Division 6. (D) When the vehicle was seized under this section for an offense that does not authorize the seizure of the vehicle. (E) When the driver reinstates his or her driver’s license or acquires a driver’s license and proper insurance. (2) No vehicle shall be released pursuant to this subdivision without presentation of the registered owner’s or agent’s currently valid driver’s license to operate the vehicle and proof of current vehicle registration, or upon order of a court. (e) The registered owner or his or her agent is responsible for all towing and storage charges related to the impoundment, and any administrative charges authorized under Section 22850.5. (f) A vehicle removed and seized under subdivision (a) shall be released to the legal owner of the vehicle or the legal owner’s agent prior to the end of 30 days’ impoundment if all of the following conditions are met: (2) (A) The legal owner or the legal owner’s agent pays all towing and storage fees related to the seizure of the vehicle... Neither the impounding authority nor any person having possession of the vehicle shall collect from the legal owner of the type specified in paragraph (1), or the legal owner’s agent any administrative charges imposed pursuant to Section 22850.5 unless the legal owner voluntarily requested a poststorage hearing.

V C Section 14607.6 Impoundment and Forfeiture of Motor Vehicles (a) Notwithstanding any other provision of law, and except as provided in this section, a motor vehicle is subject to forfeiture as a nuisance if it is driven on a highway in this state by a driver with a suspended or revoked license, or by an unlicensed driver, who is a registered owner of the vehicle at the time of impoundment and has a previous misdemeanor conviction for a violation of subdivision (a) of Section 12500 or Section 14601, 14601.1, 14601.2, 14601.3, 14601.4, or 14601.5. (b) A peace officer shall not stop a vehicle for the sole reason of determining whether the driver is properly licensed. (c) (1) If a driver is unable to produce a valid driver's license on the demand of a peace officer enforcing the provisions of this code, as required by subdivision (b) of Section 12951, the vehicle shall be impounded regardless of ownership, unless the peace officer is reasonably able, by other means, to verify that the driver is properly licensed. Prior to impounding a vehicle, a peace officer shall attempt to verify the license status of a driver who claims to be properly licensed but is unable to produce the license on demand of the peace officer. (4) A registered or legal owner of record at the time of impoundment may request a hearing to determine the validity of the impoundment pursuant to subdivision (n). (5) If the driver of a vehicle impounded pursuant to this subdivision was not a registered owner of the vehicle at the time of impoundment, or if the driver of the vehicle was a registered owner of the vehicle at the time of impoundment but the driver does not have a previous conviction for a violation of subdivision (a) of Section 12500 or Section 14601, 14601.1, 14601.2, 14601.3, 14601.4, or 14601.5, the vehicle shall be released pursuant to this code and is not subject to forfeiture. (d) (1) This subdivision applies only if the driver of the vehicle is a registered owner of the vehicle at the time of impoundment. Except as provided in paragraph (5) of subdivision (c), if the driver of a vehicle impounded pursuant to subdivision (c) was a registered owner of the vehicle at the time of impoundment, the impounding agency shall authorize release of the vehicle if, within three days of impoundment, the driver of the vehicle at the time of impoundment presents his or her valid driver's license, including a valid temporary California driver's license or permit, to the impounding agency. The vehicle shall then be released to a registered owner of record at the time of impoundment, or an agent of that owner authorized in writing, upon payment of towing and storage charges related to the impoundment, and any administrative charges authorized by Section 22850.5, providing that the person claiming the vehicle is properly licensed and the vehicle is properly registered. A vehicle impounded pursuant to the circumstances described in paragraph (3) of subdivision (c) shall be released to a registered owner whether or not the driver of the vehicle at the time of impoundment presents a valid driver's license. (e) (1) The impounding agency, in the case of a vehicle that has not been redeemed pursuant to subdivision (d), or that has not been otherwise released, shall promptly ascertain from the department the names and addresses of all legal and registered owners of the vehicle. (2) The impounding agency, within two days of impoundment, shall send a notice by certified mail, return receipt requested, to all legal and registered owners of the vehicle, at the addresses obtained from the department, informing them that the vehicle is subject to forfeiture and will be sold or otherwise disposed of pursuant to this section. The notice shall also include instructions for filing a claim with the district attorney, and the time limits for filing a claim. The notice shall also inform any legal owner of its right to conduct the sale pursuant to subdivision (g). If a registered owner was personally served at the time of impoundment with a notice containing all the information required to be provided by this paragraph, no further notice is required to be sent to a registered owner. However, a notice shall still be sent to the legal owners of the vehicle, if any. If notice was not sent to the legal owner within two working days, the impounding agency shall not charge the legal owner for more than 15-days' impoundment when the legal owner redeems the impounded vehicle. (f) Any vehicle impounded that is not redeemed pursuant to subdivision (d) and is subsequently forfeited pursuant to this section shall be sold once an order of forfeiture is issued by the district attorney of the county of the impounding agency or a court, as the case may be, pursuant to subdivision (e).

(h) If the legal owner or agent of the owner does not notify the agency impounding the vehicle of its intent to conduct the sale as provided in subdivision (g), the agency shall offer the forfeited vehicle for sale at public auction within 60 days of receiving title to the vehicle. Low value vehicles shall be disposed of pursuant to subdivision (k). (i) The proceeds of a sale of a forfeited vehicle shall be disposed of in the following priority: (1) To satisfy the towing and storage costs following impoundment, the costs of providing notice pursuant to subdivision (e), the costs of sale, and the unfunded costs of judicial proceedings, if any. (2) To the legal owner in an amount to satisfy the indebtedness owed to the legal owner remaining as of the date of sale, including accrued interest or finance charges and delinquency charges, providing that the principal indebtedness was incurred prior to the date of impoundment. (3) To the holder of any subordinate lien or encumbrance on the vehicle, other than a registered or legal owner, to satisfy any indebtedness so secured if written notification of demand is received before distribution of the proceeds is completed. (4) To any other person, other than a registered or legal owner, who can reasonably establish an interest in the vehicle, including a community property interest, to the extent of his or her provable interest, if written notification is received before distribution of the proceeds is completed. (5) Of the remaining proceeds, funds shall be made available to pay any local agency and court costs, that are reasonably related to the implementation of this section, that remain unsatisfied. (6) Of the remaining proceeds, half shall be transferred to the Controller for deposit in the Vehicle Inspection and Repair Fund for the high-polluter repair assistance and removal program created by Article 9 (commencing with Section 44090) of Chapter 5 of Part 5 of Division 26 of the Health and Safety Code, and half shall be transferred to the general fund of the city or county of the impounding agency, or the city or county where the impoundment occurred. (j) The person conducting the sale shall disburse the proceeds of the sale as provided in subdivision (i) and shall provide a written accounting regarding the disposition to the impounding agency and, on request, to any person entitled to or claiming a share of the proceeds, within 15 days after the sale is conducted. (n) (1) The impounding agency, if requested to do so not later than 10 days after the date the vehicle was impounded, shall provide the opportunity for a poststorage hearing to determine the validity of the storage to the persons who were the registered and legal owners of the vehicle at the time of impoundment, except that the hearing shall be requested within three days after the date the vehicle was impounded if personal service was provided to a registered owner pursuant to paragraph (2) of subdivision (e) and no mailed notice is required. (2) The poststorage hearing shall be conducted not later than two days after the date it was requested. The impounding agency may authorize its own officer or employee to conduct the hearing if the hearing officer is not the same person who directed the storage of the vehicle. Failure of either the registered or legal owner to request a hearing as provided in paragraph (1) or to attend a scheduled hearing shall satisfy the poststorage hearing requirement. (3) The agency employing the person who directed the storage is responsible for the costs incurred for towing and storage if it is determined that the driver at the time of impoundment had a valid driver's license. (o) As used in this section, "days" means workdays not including weekends and holidays. (p) Charges for towing and storage for any vehicle impounded pursuant to this section shall not exceed the normal towing and storage rates for other vehicle towing and storage conducted by the impounding agency in the normal course of business. (q) The Judicial Council and the Department of Justice may prescribe standard forms and procedures for implementation of this section to be used by all jurisdictions throughout the state.