The State of Inertia has enacted what has widely been referred to as the consent-or-walk statute. In its attempt to curb drunk driving, the state has passed a law that essentially considers any driver on Inertia's highways to have consented in advance to any potential stop at a sobriety checkpoint. The Inertia Supreme Court has deemed the statute constitutional under the Fourth Amendment. The court reasoned that other warrantless, suspicionless searches were sometimes permissible and concluded that the A-consent granted in exchange for the privilege of operating a motor vehicle was sufficiently analogous to the type permissible under the implied consent doctrine so as to validate it in the eyes of the court.

The state has conducted an extensive highly visible publicity campaign in an attempt to ensure that all residents of Wisconsin are aware of the new law, using TV, radio, billboard and newspaper advertising. Furthermore, Inertia has granted a six month grace period before the it began to enforce its provisions.

It has now been one year since the Inertia legislature passed the consent-or-walk statute. Bear Lee Conscious is a resident of a small town in rural Inertia, who never reads the newspaper or watches television and is wholly unaware of the new law. His is subsequently stopped at a sobriety checkpoint.

Has Conscious given his consent?
 How about if his brother, Usa Lee, up from Texas for the holidays, was driving at the time of the stop?
What legal claims could the Conscious brothers raise to challenge the stop and/or the statute? How would they be resolved?

John Minano

Emory University School of Law

Answer

See Eustace T. Francis, Combating the Drunk Driver Menace: Conditioning the Use of Public Highways on Consent to Sobriety Checkpoint Seizures B The Constitutionality of a Model Consent Seizure Statute,@ 59 Albany Law Review 599 (1995).

Police may set up a fixed check-point on the roadway to test for compliance related to driver safety.  They can stop to check for drunkenness and can probably check to see that the driver is licensed and the vehicle is registered.  Mich. Dept. of State Police v. Sitz; Delaware v. Prouse.  Police may not set up a fixed checkpoint to pursue general crime-fighting objectives such as narcotics detection.