Appeals Court (April 13, 2010)

The odor of alcohol alone is enough to establish reasonable suspicion by the screener to further detain an operator for testing at a sobriety checkpoint.

Checkpoints carried out in accordance with the Massachusetts State Police Division Commander's Order, TRF-15, and the troop commander's letter are constitutional.

After being stopped at a sobriety checkpoint, the defendant was charged with operating under the influence of alcohol. The defendant moved to dismiss the complaints claiming that the checkpoint procedures were not consistent with constitutional requirements. Before a hearing on the motion, the District Court Judge reported two questions to the Appeals Court:

1. Is mere odor of alcohol sufficient reasonable suspicion to detain an operator for further testing?

2. Is the Massachusetts State Police Guideline on sobriety checkpoints (TRF-15) as applied to the checkpoint in question through the Division Commander's Order constitutionally valid?

The Court answered both questions in the affirmative citing the Supreme Judicial Court's recent decision in Commonwealth v. Murphy, 454 Mass. 318 (2009).

Odor of Alcohol:
The troop commander's order for this checkpoint stated that further screening after the initial stop "should be made" if the screening officer observed "any articulable sign of possible intoxication." The Court in Murphy decided that the odor of alcohol alone is enough to establish reasonable suspicion to detain an individual for further testing.

Division Commander's Order 07-DFS-056:
All sobriety checkpoints are regulated by the following State Police Documents:
1. GuidelinesTRF-15;
2. The troop commander's letter containing operational instructions to the officer in charge of the checkpoint; and
3. The Division Commander's Order.

Although the Court in Murphy found that the State Police Sobriety Checkpoint Guidelines (TRF-15) and the troop commander's letter were constitutionally sound, they did not consider the Division Commander's Order (07-DFS-056) which is designed to cover all highway safety programs. The defendant now challenges the constitutionality of the Division Commander's Order. The Court found the Division Commander's Order to be constitutionally sound because it contained a zero tolerance policy for all traffic violations which essentially eliminates discretionary enforcement which gives rise to constitutional challenges during checkpoints.

Note: Division Commander's Order 07-DFS-056 was replaced on December 10, 2009, with Division Commander's Order 09-DFS-83. This new version contains the same zero tolerance language as the prior Division Commander's Order.

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