As we have discussed previously, Texas is one of only a handful of states that does not legally permit the police to set up checkpoints to screen for drunken drivers. While most states allow the police to operate these checkpoints if they meet certain conditions, the practice is barred entirely in Texas. That does not mean all forms of checkpoints are illegal.
While state law prevents the police from operating random checkpoints for the purpose of investigating criminal acts, it does allow checkpoints for noncriminal reasons. One of those reasons is for public health emergencies like the current COVID-19 pandemic. While these checkpoints may not intentionally target criminal activity, it does not mean the police are barred from making an arrest if they find probable cause that a crime was committed during the course of the checkpoint.
Current Public Health Checkpoints throughout Texas
During the COVID-19 pandemic, the State of Texas has begun operating routine checkpoints on state highways. These checkpoints are part of an effort to screen drivers entering Texas from Louisiana that could have the virus. Any drivers entering the state from Louisiana are required by order of the Governor to quarantine for 14 days upon entry into the state. During these checkpoints, the police will also require motorists to complete paperwork that provides details about where in Texas the driver will quarantine themselves.
The Legality of Public Health Checkpoints in Texas
The United States Supreme Court has long left the legality of checkpoints up to the states. Since 1990, the Supreme Court has held that checkpoints are not seizures for purposes of the Fourth Amendment so long as they are minimally intrusive. However, each state is required to set out its own guidelines on when checkpoints are allowed for them to be legal. To date, Texas has failed to adopt these standards for DWI purposes.
That said, noncriminal reasons for setting up checkpoints are allowed. In fact, Texas Government Code 418 sets out a large number of state laws that the Governor has the power to suspend during a public health emergency. This emergency declaration allows the police to set up these checkpoints.
DWI Arrests at Public Health Checkpoints in Texas
The police are limited in using checkpoints for the purpose of enforcing the Governor's order regarding quarantine for drivers entering the state from Louisiana. However, the police do not have an obligation to look the other way if they discover evidence of a crime during the course of a public health checkpoint.
If – during the course of making contact with a driver at a checkpoint – the police determine that driver is intoxicated, they can further investigate. The officers can hold the driver at that point just like it was any traffic stop. If the totality of the circumstances result in the police believing a person is intoxicated, they have the power to arrest them at the checkpoint. At trial, it is not a defense to the crime if the checkpoint ultimately resulted in the arrest.
If you were arrested at a public health checkpoint for DWI, you still have rights. It is vital that you discuss your options with a DWI Board Certified Houston DWI defense lawyer immediately.