Written by attorney Daniel Shanfield

Your Papers Please: DUI Checkpoints, Auto Impounds, and the Undocumented Immigrant Driver

California law enforcement officials declared 2010 the "Year of the DUI Checkpoint". A report by Pulitzer Prize winning Journalist Ryan Gabrielson of the UC Berkeley Investigative Reporting Program revealed how California law enforcement is disproportionately targeting Latino immigrant neighborhoods for these operations. Rather than netting DUI arrests and keeping drunk drivers off the road, however, these checkpoints have yielded a bonanza of revenue for localities through 30-day impound fees and sales of vehicles seized and sold at auction from unlicensed drivers, many of whom are undocumented immigrants.

According to the Report, checkpoint impounds in 2009 generated an estimated $40 million in towing fees and police fines statewide. Cities like Oakland, San Jose, San Rafael, Hayward and Redwood City split the revenue with towing companies, leading to windfall profits for towers. While providing an economic benefit for cash-strapped California cities, it comes at a cost to U.S. taxpayers generally. In the last fiscal year, $30 million of federal funds earmarked for DUI enforcement was authorized to pay overtime for checkpoint operations. Some check points are "padded" with cops, likely because their overtime for working such DUI operations is paid for by the state. Essentially, U.S. taxpayers are subsidizing overtime for police to conduct low-priority enforcement and maximize profits for towing companies.

According to the UC Berkeley Report, law enforcement officials disclaim any racial profiling where the police establish checkpoints. However, as reported in the Sacramento Bee, in municipalities where Latinos are the largest slice of the population, police impounded an average of 34 cars at each checkpoint – three times the rate in cities with the smallest Latino populations. In the City of Montebello alone, the Washington Times reports the rate of impounds to DUI arrests was an astonishing 62 to 1.

“Mr. Dillinger, why do you rob banks?" “Because", Dillinger replied “that is where the money is."

The numbers speak for themselves. Latino communities are perceived by cash-strapped municipalities as a target rich environment for impounds, even if not for DUI arrests, making checkpoints in these neighborhoods a sound financial decision. The Constitutional implications of the practices however are another matter, and a lawsuit challenging the constitutionality of California’s 30-day impound law is awaiting oral arguments before the Ninth Circuit Court of Appeals later this year. As discussed in the Report:

“It is assumed under the law that the taking of personal property without a warrant is unconstitutional," said Martin J. Mayer, a founding partner in the Fullerton law firm Jones & Mayer, which represents numerous police agencies . . .

The law protects everyone within the United States, regardless of whether they are in the country illegally . . . In 2005, the Ninth U.S. Circuit Court of Appeals ruled in an Oregon case that law enforcement can’t impound a vehicle if the only offense is unlicensed driving.

One exception is called the “community caretaker" doctrine, which permits police to impound a car if it poses a threat to public safety, is parked illegally or would be vandalized imminently if left in place.

The ruling dramatically altered the law regarding vehicle impounds. In response, the Legislative Counsel of California in 2007 called into question the legality of the state’s impound procedures.

“If a peace officer lawfully stops a motor vehicle on the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not sufficient justification for the peace officer to cause the impoundment of the motor vehicle," Legislative Counsel Diane F. Boyer-Vine, who advises state lawmakers, wrote in a response to Sen. Gilbert A. Cedillo, D-Los Angeles. The legislative counsel has no authority over police departments.

Even right-wing news outlets like the Washington Times have decried these operations as unconstitutional:

This clumsy, police-state tactic was once reserved for places such as the Soviet Union. We join with Supreme Court Justice Clarence Thomas in lamenting the judicial contortions used to whitewash this unconstitutional practice. "Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing," Justice Thomas wrote in a 2000 dissent on a checkpoint case.

The risk of deportation for undocumented immigrants caught up in a checkpoint is unclear. Many police departments conducting checkpoints also maintain INA section 287(g) cooperation agreements with ICE. If a police officer were to inquire of an undocumented immigrant the reason for not possessing a driver's license, and the immigrant admitted to being in the U.S. unlawfully, the officer would then be authorized to take the immigrant into custody for processing by ICE, and for deportation from the United States. If taken into custody, immigrants should exercise their legal rights, refuse to provide a statement or sign any documents, and demand to speak with an immigration defense lawyer and see an immigration judge.

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