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State v. Hicks9/11/2001
eld in Downey that the public interest must also be advanced by the roadblock and that the roadblock must be established and operated in accordance with "predetermined operational guidelines and supervisory authority that minimize the risk of arbitrary intrusion on individuals and limit the discretion of law enforcement officers at the scene." Id. at 104. After carefully considering these factors in Downey, we concluded that although sobriety roadblocks are not per se unconstitutional, the specific roadblock in question was not established and operated in a manner that limited the discretion of individual officers at the scene and thus violated article I, § 7 of the Tennessee Constitution. Id.
In contrast, application of the Downey analysis yields a different result when applied to roadblocks used to stop motorists for the purpose of checking drivers' licenses. With regard to the first Downey factor, for example, the State asserts the general argument that drivers' license roadblocks, like sobriety roadblocks, serve the public interest of maintaining highway safety. The dissent likewise theorizes that such roadblocks serve a "critical interest in protecting its citizens from drivers who are either not qualified to drive or have been forbidden to drive because of a record of driving offenses." Neither the State nor the dissent offer or cite to any empirical evidence, anecdotal evidence, or even persuasive argument in support of their assertions.
In my view, there is no basis upon which to reasonably conclude that a motorist who is not in possession of a valid drivers' license necessarily poses an immediate danger of death or serious bodily injury great enough to warrant the suspicionless stop of all drivers at a checkpoint. Indeed, even the possession of a valid drivers' license does not necessarily assure the safety and fitness of any motorist. In Tennessee, for example, motorists who obtain a drivers' license at the age of 16 may never again during their lifetimes be tested or examined to ensure their continued skill and fitness. See Tenn. Code Ann. § 55- 50-322 (1998 & Supp. 2000). In short, the present case is easily distinguishable from the sobriety checkpoints at issue in Downey. The State has presented no empirical evidence, anecdotal evidence, or persuasive argument that would demonstrate that the public interest served by drivers' license roadblocks even remotely approaches that served by sobriety roadblocks.
I differ from the majority's analysis to the extent that it asserts the State should have an opportunity to establish a sufficient public interest supporting drivers' license checkpoints in a future case. Although the defendant's motion to suppress did not expressly allege that drivers' license roadblocks are per se unconstitutional, it did broadly allege that the "roadblock was conducted in violation of the `predetermined operational guidelines,' and in violation of Article I, section 7 of the Tennessee Constitution." The issue has been fully briefed and argued on appeal without objection by the State. Moreover, I would note that the State established its interest in Downey not by introducing empirical evidence in the trial court but by presenting anecdotal evidence and asserting persuasive arguments. Neither were presented in this case.
With regard to the second Downey factor, I seriously question whether drivers' license roadblocks are necessary to advance any alleged public interest. The State's argument, mirrored by the dissent, that such roadblocks are the only means through which to enforce the requirement that a motorist possess a valid drivers' license is flawed in at least two respects. First, as a practical matter, the drivers' license requir
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