# Petition for Writ of Certiorari — Lowe v. Virginia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1084

## Text

85 - 1260 Ir Supreme Cowi, U.S.
FILED

No. ‘th
{ JAN 24 1986

tt Osea RH ORMIOL, JR.

CLERK

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

JIMMY DALE LOWE,
Petitioner
Vv.
COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI
ON APPEAL FROM THE
SUPREME COURT OF VIRGINIA

* Robert H. Blodinger

403 Park Street
Charlottesville, VA. 22901
(804) 293-9183

Francis McQ. Lawrence

416 Park Street
Charlottesville, VA. 22901
(804) 296-7138

Counsel for Petitioner

* Counsel of Record

QUESTION PRESENTED FOR REVIEW

Is it a violation of the Fourth
Amendment for the police to detain and
interrogate a person without any prior
individualized suspicion that such person
is guilty of any crime at a temporary
drunk driving roadblock or "sobriety
checkpoint" where the roadblock is
operated under internal police regulations
and where there is no showing that alter-
native, less-intrusive methods of detect-

ing drunk drivers are ineffective?

TABLE OF CONTENTS
Subject Index

QUESTION PRESENTED .ccccccccccceces

TABLE OF AUTHORITIES wcccccivecsecs

OPINION BELOW eoeeeteereeeeeensteeeeeeeeeee

JURISDICTION eeeeeeseneeeeeeeeeeeeeee

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED 6.00% paiseceesse

FACTS AND STATEMENT OF THE CASE ...

REASONS FOR
CERTIORARI

A. STATE

GRANTING WRIT OF

COURT DECISIONS ARE

IN CONFLICT ON THE CONSTI-
TUTIONALITY OF DRUNK DRIVING
OR "SOBRIETY CHECK" ROAD-
BLOCKS ccccccecceseseencsesese

B. THE DRUNK DRIVING ROADBLOCK
AT ISSUE IN THIS CASE WAS
CARRIED OUT UNDER STRINGENT
POLICE-PROMULGATED REGULA-

TIONS

C. THIS COURT'S DICTA IN

DELAWARE vy, PROUSE ARE BEING
MISAPPLIED BY THE STATE COURT.

CONCLUSION

ii

19

21
26

Appendix A

Appendix B

Appendix C

Decision of the Supreme
Court of Virginia

Letter Opinion of the
Judge of the Circuit
Court of the City of
Charlottesville, dated
June 26, 1984

Judgment Order of the
Circuit Court of the City
of Charlottesville, dated
June 27, 1984

Es%

OE ee eee ee ee CU

TABLE OF AUTHORITIES
CASES

Brown v. Texas, 443 U.S. 47
(1979) ee eeese#ssee#seeeeee#ee#ee#ee#ee¢e«#

Commonwealth v.Trumble, 396
Mass. 8l, 483 N.E.2d
1102 (1985) eeeeeeveee eer eee

Delaware v. Prouse, 440 U.S. 648
(1979) eeeeeee#3srPesnstreeeeeenrteee @

Little yv,State, 300 Md. 485,
479 A.2d 903 (1984) ......

People vy. Bartley, 125 I11.App.
3d 575, 466 N.E.2d 346

(I11.App. 1984), rev'd
Ill. Sup. Ct. 11/20/85,
Ill. N.E.2d
eS Se:

=m §

», 135 I1l.App.
3d 887, 482 N.E.2d 437
(1985) eeee*ee*e32s2eestcs<eestese@*enes#s8ee#28e#8et @

People v. Scott, 473 N.E.2d 1,
63 N.Y.2d 518, 483 N.Y.S.2d

649 (1984) wcccvccccccccece

State v,. Coccomo, 177 N.J. Super.
575, 427 A.2@ 131 (1980) ...

D ins, 234 Kan. 529,
G73 P.2G L176 (1983) wsceces

State v, Garcia, 481 N.E.2d 148
(Ind. App. 1 Dist. 1985) ...

iv

Page

13,17,21

10

9,18

Q , 499 A.2d 977,

37 Cr. L. 2441, New Hamp-

shire Supreme Ct., (8/16/85) 8,11

, 706 P.2d

225 (Wash. Supreme Ct.

1985) cccccsecssecseseeese 9
1 in, 496 A.2d 442

(Vt. 1985) wcccccccccscees 9

, 471 N.E.2d
1125 (Ind. App. 4 Dist.
1984) wecccccccccccccseses 9,13,14

ard, 248 N.W.2d
392 (S.D. 1976) wseeeeeeees 8

nith, 674 P.2d 562
(Okl. Cr. App. 1984) ...... 8,13

State vy, Super, Ct. In & For
of Pima, 143 Ariz.
45, 691 P.2d 1073 (1984) ... 9

(1975) .weceees seeceseceosess 10

United States v,. Martinez-
Fuerte, 428 U.S. 543
(2976) ca ncccccasssaeeassns 21,22

Webb v. State, 695 S.W.2d 676
(Tex. App. 5 Dist. 1985) .. 9

STATUTORY PROVISIONS
U.S. CONST. amend. IV eeccccccces

28 0.8.C. Sec. 1254(1) eoeeeeveeeve
)

TREATISES

"Curbing the Drunk Driver

Under the Fourth Amendment:

the Constitutionality of
Roadblock Seizures," 71 Geo.

beds 2457 (1983) saccesesecssaces

"The Drunk-Driving Roadblock:
Random Seizure or Minimal
Intrusion?" 21 Crim. Law

Bull. 197 (1985S) wccosccsssesseecs

"The Use of Safety Checkpoints
for DWI Enforcement," published
by the U.S. Department of Trans-
portation, National Highway
Traffic Safety Administration,
Office of Alcohol Countermeasures
and Office of Driver and Pedes-
trian Research (September,

1983) eeeoenoenononenve7e2e 8202020202802 80280220808208080 80 @

vi

15

12

16

No.

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

JIMMY DALE LOWE,
Petitioner
Vv.
COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI
ON APPEAL FROM THE
SUPREME COURT OF VIRGINIA

Petitioner, Jimmy Dale Lowe, a
resident of Virginia, respectfully prays
that a Writ of Certiorari issue to review
the judgment and opinion of the Supreme
Court of Virginia entered in this pro-

ceeding on November 27, 1985.

LN W

The opinion of the.Supreme Court of
Virginia is reported in 230 Va... ,
1385 and 2 VLR 738, 1985. (Attached as

Appendix A).

JURISDICTION

The Court in this instance is
requested to review the decision of the
Supreme Court of Virginia entered on

November 27, 1985.

This Court's jurisdiction in this

matter is pursuant to 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The question involved in this case

is wnether the Petitioner's rights under

the Fourth Amendment to the United States
Constitution were violated, to-wit:

The right of the people to be
secure in their persons, houses,
papers, and effects, against
unreasonable searches and seiz-
ures, shall not be violated, and
no warrants shall issue, but upon
probable cause, supported by oath
or affirmation, and particularly
describing the place to be
searched, and the persons or
things to be seized. :

FACTS AND STATENENT OF THE CASE

The facts are essentially undispu-
ted. Beginning on the night of December
30, 1983, and continuing on every subse-
quent Friday and Saturday evening between
the hours of 11:00 P.M. and 3:00 A.M.,
through the date of Petitioner's trial in
the Circuit Court on June 21, 1984, the

Charlottesville Police had been conducting

sobriety check roadblocks. These driving

under the influence or DUI roadblocks
were conducted pursuant to a year-long
federal grant from the U.S. Department
of Transportation which will evaluate
the program for its impact on drunk
driving. Prior to Petitioner's arrest
the effectiveness of the roadblocks in
identifying and catching drunk drivers
was unknown.

During the early morning hours of
January 28, 1984, Petitioner was operating
a motor vehicle and was stopped at a road-
biock in the City of Charlottesville which
had been set up py the police ostensibly
as a “License and Sobriety Checkpoint."
Information as to the location of the
roadblock was not available to the public
prior to the event. The roadblock was
designed in such a fashion so as to make
it impossible for a motorist to avoid it
once having been alerted to the impending

+

roadblock from a sign which had been
erected.

Prior to Petitioner's being stopped
no one had observed anything in his driv-
ing or behavior to suggest that he was
a DUI suspect. After the stop, the
officer questioned the Petitioner, noticed
that the Petitioner's eyes were red, and
smelled the odor of alcohol. Petitioner
was then directed to pull off to the side
of the road where he failed three dexteri-
ty tests. At that point he was arrested
on the charge of operating a motor vehicle
on the public highway while under the in-
fluence of alcohol or other self-adminis-
tered intoxicant or drugs. He suosequent-
ly submitted to a breathalyzer test which
was administered in a mobile van police
unit that had been parked on the side of

the road at the scene of the roadblock.

The test showed a blood alcohol content in
excess of the legal limit.

At trial before the General
District Court of the City of Charlottes-
ville on April 3, 1984, Petitioner was
convicted ot DUI. He appealed to the Cir-
cuit Court for the City of Charlottes-
ville.

Prior to the trial de novo in the
Circuit Court, Petitioner was heard ona
two-count motion to suppress all evidence
gathered or derived from the DUI roadblock
seizure. The Circuit Court heard evidence
on the motion to suppress but deferred
ruling on it, and then heard evidence on
the case-in-chief. Thereafter, the court
held Petitioner's Fourth Amendment rights
were not violated by the seizure in

question. (Letter opinion, Appendix B).

Accordingly, Petitioner was found guilty

of the charge and an order was entered to
the same effect on June 27, 1984. (Appen-
dix C). From this conviction Petitioner
appealed to the Supreme Court of Virginia
which affirmed the trial court in an
opinion and judgment entered on November
27, 1985. (Appendix A).

The federal constitutional ques-
tion raised in this appeal was raised in
the trial court and throughout the trial,
and was again raised in the Petition for ‘
Appeal, briefed, and argued in the highest
court in the Commonwealth of Virginia.

The court in each instance failed to rule
that the seizure at issue violated the
Petitioner's rights under the Fourth
Amendment to the Unitea States Consti-
tution, the Virginia Supreme Court hold-

ing “balancing the State's strong interest

in protecting the public from the grave

risk presented by drunk drivers, against
the minimal inconvenience caused motorists
approaching the roadblock, we hold that
the action of the police in this case was
not an impermissible infringement upon
defendant's reasonable expectation of

privacy." See App. A, pp. 18-19.

REASONS FOR GRANTING WRIT OF CERTIORARI

A. STATE COURT DECISIONS ARE IN
CONFLICT ON THE CONSTITUTION-
ALITY OF DRUNK DRIVING OR
"SOBRIETY CHECK" ROADBLOCKS,
The decisions of state courts that
have considered "sobriety check" road-
Dlocks are not in accord. A number of

recent decisions have held such roadblocks

illegal. State v, Koppel, 499 A.24d 977,

3? Ce.i. 266%, New Hampshire Supreme Ct.,

(8/16/85); State y, Smith, 674 P.2d 562,

(Okla. Crim. App. 1984); State Vv, Olgaard,

248 N.W.2d 392 (S.D. 1976); Webb v,. State,
695 S.W.2d 676 (Tex. App. 5 Dist.1985);

Marc qd, 706 P.2d 225 (Wash. Su-

preme Ct. 1985); State vy. McLaughlin, 471
N.E.2d 1125 (Ind. App. 4 Dist. 1984).

Other state courts, however, have
incorrectly relied on this Court's dicta
in Delaware v. Prouse, 440 U.S. 648
(1979), to uphold sobriety roadblocks.
State v,Super,Ct, In & For County of Pima,
143 Ariz. 45, 691 P.2d 1073 (1984);
People v.Conway, 135 Ill. App.3d 887,
482 N.E.2d 437 (1985); State v. Garcia,
481 N.E.2d 148 (Ind. App. 1 Dist. 1985);
State v. Deskins, 234 Kan. 529, 673 P.2d
1174 (1983); Little v. State, 300 Md. 485,
479 A.2d 903 (1984); Commonwea 4
Trumble, 396 Mass. 81, 483 N.E.2d 1102
(1985); State v. Coccomo, 177 N.J. Super.
575, 427 A.2d 131 (1980); People v. Scott,
473 N.E.2d 1, 63 N.Y.2d 518, 483 N.Y.S.2d

649 (1984); State v, Martin, 496 A.2d 442
9

|
|
|
|

(Vt. 1985); People v, Bartley, 125

Ill. App.3d 575, 466 N.E.2d 346 (Ill.
App. 1984) rev'd lll. Sup. Ct. 11/20/85,

saa . N.E.2d sae Cr.

In Prouse, this Court suggested
that its holding did not preclude states
"from developing methods for spot checks

hat involve less intrusion or that do not
involve the unconstrained exercise of
discretion. Questioning of all oncoming
traffic at roadblock-type stops is one
possible alternative." 440 U.S. at 663.

Petitioner submits that the better
reasoned opinions have distinguished
border and license checkpoint stops, where
there is an "absence of practical alterna-
tives" for enforcement available (United

states v. Brignoni-Ponce, 422 U.S. at

881), from DUI roadblocks, and have held
that the state has failed to prove as a
matter of law that the seizure advances

10

the public interest more effectively than

traditional methods of observing and

apprehending drunken drivers.

To justify the search or
seizure of a motor vehicle, absent
probable cause or even a reason-
able suspicion that a criminal
offense is being committed, the
State must prove that its conduct
significantly advances the public
interest in a manner that out-
weighs the accompanying intrusion
on individual rights. It must
further prove that no less intru-
Sive means are available to ac-
complish the State's goal. ...

»- « « "({I]n cases where the
Supreme Court has either expressly
Or impliedly sanctioned checkpoint
stops, the criminal activity
targeted was of such a nature that
there was no other less intrusive
but ecually effective means of
detecting violators. Transporters
of illegal aliens and violators of
license and safety equipment laws
can rarely be detected by observ-
ing traffic. In contrast, the
foremost method of detecting drunk
drivers has been by observing
driving behavior." (citation
omitted).

State v. Koppel, 499 A.2d at ee & |

Cet. Bt 2442.

11

Te) ae Sy

ee

eee nn - —

<1 ln Si Naar IC tg i aa palit
eae

As this Court noted in Prou 9
"[t]he foremost method of enforcing
traffic and vehicle safety regulations,
it must be recalled, is acting upon
observed violations." 440 U.S. at 659.

Petitioner submits that some state
courts, including the Virginia Supreme
Court in the instant case, are establish-
ing precedents which would permit the use
of roadblocks for whatever purpose which
happens to suit the climate at a particu-
lar time. As one author noted, "The
specter of roadblocks becoming a common
feature of everyday life is not Simply
another trite Orwellian prophecy." "The
Drunk-Driving Roadblock: Random Seizure

Or Minimal Intrusion?" 2i Crim. Law

Bull. 197 at 215 (1985). A concern for

this prompted the court in State y,. Smith,

674 P.2d 562, at 564, to observe:

The Court finds such activities
by law enforcement authorities,
while commendable in their ulti-
mate goal of removing DUI offend-
ers from the public highways, draw
dangerously close to what may be
referred to as a police state.

- « e The Court is not so naive to
think that criminal conduct does
not occur regularly in the form of
DUI offenders. Yet, a basic tenet
of American jurisprudence is that
the government cannot assume crim-
inal conduct in effectuating a
stop such as the one presented
herein.

Thus, in State vy. McLaughlin, 471
N.E.2d 1125 (Ind. App. 4 Dist. 1984),
after an extensive survey of state and
this Court's decisions on roadblock

seizure cases, the court held, under the

three-part analysis of Brown v,. Texas, 443

U.S. 47, 50-51 (1979), that although the
State had met the standards of the first
element by demonstrating a "grave public
concern," it had failed to adequately

13

ks a Oe eS

demonstrate that the method used "advanced
the public interest" Sufficiently to
outweigh the "severity of interference
with individual liberties."

In summary of the government
interest side of the Brown
balancing test, we find that,
although the Gravity of the pub-
lic interest served by the road-
block seizure -- identifying and
apprehending drunk drivers -- is
enormous, the state presented no
evidence that the roadblock pro-
cedure advanced this public
interest to any degree greater
than would have been accomplished
by more traditional, less intru-
Sive methods based on individual-
ized suspicion.

471 N.E.2d at 1138,

One means by which the balancing
scales of the Brown test might be weighted
in favor of the governmental interest is
for the state legislature to enact a bill
on the subject at issue. A more conclu-
Sive instance of a compelling state

interest cannot be Given. This has not

14

been done in Virginia. Thus, police offi-
cers and other local public officials,
‘under the guise of a statutory right to
stop for driver licensing checks, are
the only ones who are asserting that there
is a governmental interest at stake here.
Information relating to the effec-
tiveness of the roadblock method is essen-
tial to assessing the reasonableness of
the intrusion created by the DUI road-
block, "Curbing the Drunk Driver Under
the Fourth Amendment: The Constitution-
ality of Roadblock Seizures," 71 Geo. L.J.
1457, 1470-1471. As shown above, several
courts have struck down sobriety check-
points aS unreasonable intrusions into the
citizen's reasonable expectations of pri-
vacy where the state could not demonstrate
that the effectiveness of the method ade-
quately compensated for the Fourth Amend-
ment intrusions it created. In the case

15

at bar there was no such demonstration by
the state. When questioned about the
impact Of DUI roadblocks on drunk driv-
ing, Chief Bowen of the Charlottesville
Police testified, "I haven't seen anything
that says you identify more this way Or
that you identify less." When asked what
the impact of the roadblocks has been on
identifying and catching drunk drivers,
Chief Bowen replied, "I don't know."
Similarly, the Department of
Transportation has stated that "[Slatety
checkpoints limitations are that they have
not proven cost effective when used solely
for producing DWI arrests ... the effec-
tiveness of different Screening techniques
in detecting impaired drivers and influ-
encing their perception of the risk of
being detected is unknown." "The Use of
Safety Checkpoints for DwI Enforcement,"

published by the U.S. Department of

16

|

Transportation, Nationai Highway Traffic
Safety Administration, Office of Alcohol
Countermeasures and Office of Driver and
Pedestrian Research (September, 1983)

D. 2.

Petitioner submits that this
failure to satisfy the standards for the
second part of the three-part analysis
formulated in Brown, in itself provides
sufficient grounds to invalidate the
roadblock on Fourth Amendment grounds.

While there is little doubt that
the concerns raised and problems posed by
drunk driving roadblocks are properly the
concern and responsibility ot the state
legislature and not a local police
officer, the state court decisions do not
adequately address this issue. Absent a
State-wide, uniform solution to the
problem, the citizens of this Commonwealth
are left to the unfettered discretion of

17

a

the local police, which may or may not be
exercised properly. For example, motor-
ists in Virginia under the present
scenario are potentially subject to
numerous seizures at multiple roadblocks
both intra-and inter-city without having
ever been suspected of committing the
slightest infraction. Even the Deskins
Court concluded that "it might well be
advisable that minimum uniform standards
for the operation of vehicular roadblocks
oe adopted and established by the legisla-
ture or attorney general, rather than
leave the determination thereof to local
officials." State v, Deskins, 673 P.2d
at 1185.

Because cof the conflict and con-
fusion among the various states in
applying this Court's holding in a drunk
driving roadblock situation, this Court's
guidance is urgently needed.

18

B. THE DRUNK DRIVING ROADBLOCK AT

ISSUE IN THIS CASE WAS CARRIED

OUT UNDER STRINGENT POLICE-

PROMULGATED REGULATIONS.

The Charlottesville roadblock was
effected without specific statutory auth-
Orization. Thus, the state legislature
had not enacted legislation prescribing
the manner in which the roadblock was
conducted. However, as the Virginia
Supreme Court noted, the Charlottesville
plan was adopted after "extensive re-
search" and resulted in an elaborate
manual of procedures and extensive
training of police officers who were to
man the roadblock. (App. A, p.- 13-14).
Both the manual and the training were
developed in conjunction with the Federal
Department of Transportation. The Char-
lottesville roadblock was intended to be,
and arguably was, a model of how such a
roadblock should be conducted in an

19

es

attempt to minimize both subjective and
objective intrusion to the individual.

The result prompted the Virginia Supreme
Court to state that "the Charlottesville
system is safe and objective in its
Operation, employs neutral criteria, and
does not involve the standardless,
unbridled discretion by the police officer
in the field, which was condemned in
Prouge.” (App. A, p. 19).

Because tnis roadblock wes intended
as a model, it is particularly appropriate
for this Court to review and reverse the
decision holding that Petitioner's Fourth
Amendment rights were not violated. Even
a "model" roadblock which permits police
officers to detain and interrogate indi-
viduals in the absence of any "individual-
ized suspicion" to detect criminal acti-
vity which can be detected by other means
is a violation of the Fourth Amendment.

20

———————

C. THIS COURT'S DICTA IN DELAWARE

v. PROUSE ARE BEING MIESAPPLIED

BY THE STATE COURT.

As discussed above, Petitioner sub-
mits that the instent case provides the
Court with the appropriate fact situation
to apply the Brown analysis to a roadblock
which seeks to detect crime which is un-
related to state licensing and registra-
tion laws. Thus, this Court can clarify
and limit the Prouse dicta that "gues-
tioning of all oncoming traffic at road-
block stops is one possible alternative."
440 U.S. at 663.

Petitioner submits that this Court
meant its statement in United States v,
Martinez-Fuerte, 428 U.S. 543 (1976), that
the requirement of "some guantum of indi-
vidualized suspicion" is ordinarily a pre-
requisite to a constitutional search or

seizure. Id. at 561. The Court found the

Hi

fixed citizenship roadblock in Martinez-
Fuerte constitutional as an instance of
where the “individualized suspicion"
requirement could not be applied.
Martinez-Fuerte is an example of
where "questioning of all oncoming traf-
fic at roadblock stops" is appropriate.
There are no alternative means of detec-
ting illegal aliens. Similarly, the
"questioning of all oncoming traffic at
roadblock stops" may be necessary to en-
force licensing and registration laws.
Pecitianas submits that the intru-
sion involved in both of these types of
stops (citizenship and license/registra-
tion) is truly minimal. In theory, com-
pliance with the officer's request can be
had by the individual handing his or her
license, registration, or evidence of
citizenship to the government agent
through the automobile vent window.

22

In contrast, DUI or "Sobriety

check" roadblocks involve an intimate
examination of the person. They are the
essence of intrusion. State courts up-
holding the DUI roadblock (and those
finding it unconstitutional) have failed
to focus on the fact that the object of
the detention and interrogation is to
determine the contents of an indivi-
dual's insides.

Petitioner submits that "individu-
alized suspicion" cuts with two edges
against conduct injurious to an indivi-
dual's rights. First, it precludes dis-
crimination or an opportunity for discrim-
ination. Second, it assures law-abiding
citizens of freedom from intrusion, of any
kind, by government agents.

Thus, the requirement of "individu-
alized suspicion" should only be dispensed

23

with when the opportunity for discrimina-
tion is neutralized and when there is no
alternative consistent with the law-abid-
ing citizen's right to be left alone.
Petitioner submits that to sustain an
intrusion which is more than de minimis,
there must be a showing that there is no
less-intrusive method.

In the border situation, illegal
aliens, unchecked, can result in the
destruction of our society. And, there is
no alternative to an ID check to identify
illegal aliens. In the license situation,
there is no alternative to an ID check to
icentify the unlicensed drivers and un-
registered vehicles. Furthermore, the
intrusion is truly minimal. It is pos-
sible to comply with a license and regl-
stration check with no personal intrusion.
Petitioner submits that compliance with a
license/registration check could involve

24

handing a card to the officer:
I am exercising my rights under

the Fourth and Fifth Amendments to

the United States Constitution. I

will not answer any questions. I

will not roll my window down. Upon

your request, I will hand my

license and registration through

the window. Upon your request, I

will sign my name to compare with

the signature on the license and

registration.

In marked contrast, it is not an

ID, license, registration, or other papers
permitting travel that interests the gov-
ernment agent at the DUI roadblock. It is
the person -- indeed, the person's
insides. The police officer wants to
examine and poke and prod and interrogate
the driver to find out what he or she is
about, and what he or she has been doing.
The object of such roadblock is, fundamen-
tally, intrusive and, Petitioner submits,
not intended to be sanctioned by this

Court's dicta in Delaware y,. Prouse.
25

CONCLUSION

For the aforesaid reasons, a Writ
Of Certiorari Should issue to review and

reverse the judgment and Opinion of the

Supreme Court of Virginia.

Respectfully Submitted,

Kiberk Lf. | 3 a

Ropert H, Blodinge
403 Park Street

Charlottesville, VA. 22901

7. Me Kgute__

Francis McQ. Lawrence
416 Park Street

Charlottesville, VA. 22901

Counsel for Petitioner

26

APPENDIX A

Present: All the Justices
JIMMY DALE LOWE
OPINION BY
JUSTICE A. CHRISTIAN COMPTON
November 27, 1985
v. Record No. 841618
COMMONWEALTH OF VIRGINIA :
FROM THE
CIRCUIT COURT OF THE CITY
OF CHARLOTTESVILLE
Herbert A. Pickford, Judge

The question for decision in
this criminal case is the legality of a
roadblock established for the purpose of
checking the sobriety of motor vehicle
operators.

On Saturday, January 28, 1984,
at 1:55 a.m., defendant Jimmy Dale Lowe
was operating a motor vehicle south on
Avon Street across a bridge in the City

of Charlottesville. The city police had

established a roadblock at the south end

of the bridge about three hours earlier.
The roadblock was announced to motorists
by a sign, stating "License and Sobriety
Checkpoint, Prepare to Stop," located on
the crest of the bridge facing
southbound traffic.

After crossing the bridge,
defendant proceeded into the roadblock
and stopped where city police patrolman
Lawrence B. Brown was standina. Brown
had not observed defendant drive
erratically nor was there any other
indication that defendant was driving
while intoxicated, Brown asked for
defendant's operator's license, which
cefendant handed to Brown. While
talking to defendant to verify his
address, the officer noticed defencant's
eyes "were very rec" and Brown smelled

the odor of alcohol about defendant's

person. The officer directed defendant
to drive his vehicle "around the corner
off of the bridge" to enable other
vehicles to come to the checkpoint. The
officer next asked defendant to step out
of his vehicle and to perform three
dexterity tests, which defendant failed.
Defendant then was arrested for driving
under the influence of alcohol (DUI).
See Code § 18.2-266. He elected to have
his breath analyzed. A police van was
located at the scene for the purpose of
administering such tests, The test
showed that defendant's blood alcohol
content was .17, an amount which raises
a presumption of intoxication. See Code
§ 18.2-269.

Defendant was convicted of the
charge in the general district court and

he appealed to the circuit court. Prior

to trial in the circuit court, defendant
filed a motion to suppress all evidence
derived from the stopping of his vehicle
On the ground that his constitutionally
protected right against unreasonable
seizures was violated, Sitting without
a jury, the circuit court heard the
evidence on the motion together with
evicence on the merits of the case. The
court denied the motion and found
defendant guilty as charged, Giving rise
to this appeal.

Specifically, the issue before
uS is whether the seizure of defendant
under the circumstances of this
roadblock was unreasonable under the

Fourth and Fourteenth Amendments to the

United States Constitution, and art. I,
§ 10 of the Constitution of Virginia.

The applicable provisions
protect, of course, only expectations of
privacy that are reasonable. Katz Vv.

United States, 389 U.S. 347, 331<33

(1967). Nevertheless, a person

lmhe Fourth Amendment provices:

"The right of the people to be
secure in their persons,
houses, papers, and effects,
against unreasonable searches
and seizures, shall not be
violated, and no warrants shall
issue, but upon probable cause,
supported by oath Or
affirmation, ana particularly
describing the place to be
searched, and the persons OF
things to be seized."

Local law enforcement personnel are
subject to the requirements of the
Fourth Amendment under the due process
clause of the Fourteenth Amendment.
Mapp v. Qhio, 367 U.S. 643, 655 (1961).

"Operating or traveling in an automobile
does not lose all reasonable expectation
of privacy simply because the automobile
and its use are subject to government

regulation.” Delaware v. Prouse, 440
U.S. 648, 662 (1979). And stopping a

Article I, § 10 of the Virginia
Constitution provides:

"That general warrants, whereby
an officer or messenger may be
commanded to search suspected
places without evidence of a
fact committed, or to seize any
person or persons not named, or
whose offense is not
particularly described and
Supported by evidence, are
grievous and oppressive, and
ought not to be granted."

The Virgin:a requirements, under our
constitution and the statutes
implementing the constitutional
provision, are "substantially the same
as those contained in the Fourth
Amendment.” A. Howard, I Commentaries
on the Constitution of Virginia 182
(1974). See Tri-Pharmacy, Inc. v.
United States, 203 Va. 723, 728, 127

motor vehicle and detaining the operator
constitute a "seizure" within the
meaning of the Fourth Amendment, even
though the purpose of the stop is
limited and the resulting detention is
quite brief. Leeth v. Commonwealth, 223
Va. 335, 340, 288 S.E.2d 475, 478
(1982), citing Prouse, 440 U.S. at 653.
Therefore, the pertinent inquiry here is
whether defendant's detention, when he
was stopped at the initial checkpoint at
the south end of the bridge, was

constitutionally unreasonable.

S.E.2d 89, 92 (1962), cert, denied, 371
U.S. 962 (1963); Zimmerman v. Town of
Bedford, 134 Va. 787, 801-02, 115 S.E.
362, 366 (1922). The Fourth Amendment
is but declaratory of the common law on
the subject. McClannan v. Chaplain, 136
Va. 1, 14, 116 S.E. 495, 498-500 (1928).
Thus, we will focus on the Fourth
Amendment in discussion of the issue
presented.

During the last decade, the
Supreme Court of the United States has
decided four cases which impact the
constitutional validity of roadblock
stops of vehicles, United States v.
Brignoni-Ponce, 422 U.S. 873 (1975)
(random stops of vehicles near Mexican
border to detect entry of illegal aliens
ruled invalid); United States v.
Martinez-Fuerte, 428 U.S. 543 (1976)
(permanent checkpoint stops to stem flow
of illegal alien traffic from Mexico
approved); Delaware v. Prouse, supra;
and Brown v. Texas, 443 U.S. 47 (1979).
Althouch the Court has not ruled
directly on the validity of roadblock
seizures employed to detect drunk
drivers, it has fixed definite
limitations of the right of police to

maintain roadblocks under the Fourth

Amendment. Basically, law enforcement
personnel may not stop motorists in a
wholly random and discretionary manner
unless there is, at least, articulable
and reasonable suspicion either that the
operator is unlicensed, the vehicle is
unregistered, or the operator or other
occupant is subject to seizure for
violation of law. The Court in EFrouse,
however, in striking down a random,
discretionary stop made to check license
and registraticn, said in dicta:

"This holding does not preclude the. .
spot checks that involve less intrusion
or that do not involve the unconstrained
exercise of discretion. Questioning of
all oncoming traffic at roadblock-type
stops is one possible alternative. We
hold only that persons in automobiles on
public roadways may not for that reason
alone have their travel and privacy
interfered with at the unbridled
discretion of police officers." 440
U.S. at 663.

Cf. Virginia Code § 46.1-7(c) (requiring
Operators of vehicles to stop upon

command of a police officer to exhibit
drivers' licenses).

Subsequently, the Court in
Brown v. Texas, supra, stated that the
reasonableness of seizures, less
intrusive than traditional arrests,
depends on a balancing test. In
declaring the application of a Texas
stop-and-icentify statute unconstitu-
tional, the Court set forth three
Criteria by which the validity of such
seizures should be gauged. There must
be a weighing of (1) the gravity of the
public concerns served by the seizure,
(2) the Gegree to which the seizure
advances the public interest, and (3)
the severity of the interference with
individual liberty. 443 U.S. at 50-51.
The Court, in Brown, noted that a
"Central concern" in balancing the

foregoing competing considerations has

10

been to make certain that "an
individual's reasonable expectation of
privacy is not subject to arbitrary
invasions solely at the unfettered
discretion of officers in the field,"
Id, at 51. Thus, the Court said, "the
Fourth Amendment requires that a seizure
must be basea on specific, objective
facts indicating that society's
legitimate interests require the seizure
of the particular individual, or that
the seizure must be carried out pursuant
to a plan embodying explicit, neutral
limitations on the conduct of the
individual officers." Jd,

The evidence in this case
shows that defendant was not stopped
because the police suspected that a
crime had been, was being, or was about

to be committed. Consequently, we must

11

Sed ae rr ee ee

examine the city's plan for maintaining
this DUI roadblock to determine whether
defendant was stopped pursuant to a
practice embodying nzéutral criteria.

According to the evidence, the
first roadblock under the Charlottes-
ville pian was set up on December 30,
1983, about a month before defendant's

arrest. The city was asked to establish

such a plan by representatives of the

2 The public interest in eliminating
the drunken driver from the highways is
overwhelming. "The carnage caused by
drunk drivers is well documented and
needs no detailed recitation here."
south Dakota v. Neville, 459 U.S. 553,
3798 (i963). But a number of state
courts have determined that roadblocks
used by police to detect drunk drivers
run afoul of the Fourth Amendment, while
other jurisdictions have found that such
roadblocks do not offend the
constitutional provisions.

For state cases finding such
roadblocks invalid, see Jones v. State,
459 So.2d 1068 (Fla. Dist. Ct. App.
1984); State v. McLaughlin, 471 N.E. 2d

12

Virginia Alcohol Safety Program, working
in conjunction with the federal Depart-
ment of Transportation. The Charlottes-
ville plan was adopted after extensive
research. The police officials
consicered, among other things, the law
on the subject, the safety of the

police, and the safety of motorists. In

Dame came. Ct. App. 1984); State v.
Koppel, _.... A.2d ____ (N.H. 1985); State
v. Smith, 674 P.2d 562 (Okla. Crim. App.
1984); State v. Olgaard, 248 N.W.2d 392
(S.D. 1976); Webb v. te, 695 S.W.2d
676 (Tex. Ct. App. 1985).

For state cases approving DUI
roadblocks, see State v. Super, Ct, In &
For County of Pima, 691 P.2d 1073 (Ariz.
ayee)? Reeple v. Conway, —... Ill.
Ape.3G .., 482 N.E.20d 437 (1985);
State v. Garcia, 481 N.E. 2d 148 (Ind.
Ct. App. 1985); State v. Deskins, 673
P.2d 1174 (Kan. 1983); Little v. State,
300 Md. 485, 479 A.2d 903 (1984);
Commonwealth v. Trumble, __._ Mass.
, 483 N.E.20 1102 (1985); State v.
Coccomo, 177 N.J. Super. 575, 427 A.2d
131 (1980); People v. Scott, 473 N.E.2d
1, 63 N.¥.2d 518, 483 N.Y.S.2d 649
(1984); State v. Martin, 496 A.2c 442
(Vt. 1985).

13

kl ee ey es

RS Sa ea ct a cle ~~

— Bs of aati

addition, the police department analyzed
the locations within the city where
there had been drunk-driving arrests and
alcohol-related accidents in order to
determine the places where the check-
points should be established.

The police officers to be
assigned to the roadblocks were given 24
hours of training by outside experts and
a manual of procedures was prepared
entitled "Charlottesville Driver's
License & Sobriety Checkpoint Program."
The manual's preface, over the Signature
of the Chief of Police, states that the
project was intended "to reduce the
number of alcohol-related motor vehicle
accidents" by using "license and
sobriety checkpoints to aid in the
detection and apprehension of drivers

who are intoxicated or driving when not

14

properly licensed," The project,
according to the manual, "is expected to
increase public perception that drunk
drivers will be caught and arrested, and
will serve as a deterrent to the
potential drunk driver."

Topics covered in the
procedural manual include criteria for
selection of a particular area for
designation as a checkpoint site;
provisions that a high-ranking police
officer make the daily assignment of a
previously designated site for operation
of a roadblock and that such officer
assign the personnel to work a
particular roadblock; specific provis-
ions for the manner in which a roadblock
site should be manned and equipped; and
detailed routine for bringing traffic to

a stop, interviewing motorists, and

io

evaluation of an operator suspected of

driving under the influence,

Testimony showed that exten-
Sive media publicity about the project
took place before the first roadblock
was set up on December 30th and that the
few roadblocks that followed were widely
publicized before the instant case
arose, No publicity was given to the
Specific location of a checkpoint before
it was established, The police were
aware, however, that such information
was shortly possessed by proprietors of
local bars and restaurants who passed it
to their customers,

At the time of defendant's
arrest, five uniformed police officers,

wearing reflector vests, were assigned

16

to the scene. The area and the warning

sign were well-lighted. There were two
marked police vehicles present with red
lights flashing. The geography of the
site permitted adequate space for the
momentary initial detention to check
licenses and to afford space for
vehicles, whose operators required
further evaluation, to pull aside. The
officers at the checkpoint had no
discretion regarding which vehicles to
stop; every southbound vehicle was
halted. If congestion occurred,
vehicles were permitted to move through
the checkpoint until the congestion
cleared. The police endeavored to
detain a motorist no more than 30
seconds for the license check.

During the brief time the plan

had been in effect prior to trial, the

17

police noted favorable results of the

roadblock procedure. More motorists
were being identified who had license
Violations and other traffic infractions
than had been detectee uSing traditional
patrol procedures, [n addition, drunk
drivers were being detected at lower
blooc alcohol content levels than had
previously been identified uSing routine
patrol methods,

We conclude that the trial
court correctly ruled that the seizure
of defendant upon the initial stop at
the checkpoint in question was
constitutionally valid, Balancing the
State's strong interest in protecting
the public from the Grave risk presented
by drunk drivers, against the minimal
inconvenience caused motorists approach-

ing the roadblock, we hold that the

18

action of the police in this case was
not an impermissible infringement upon
Gefendant's reasonable expectation of
privacy. The Charlottesville system is
safe and objective in its operation,
employs neutral criteria, and does not
involve standardless, unbridled discre-
tion by the police officer in the field,
which was condemned in Prouse.

Even though DUI roadblocks had

been in operation only for a brie

[onal

period, tangible results appearec that
were not evicent under traditional
methods of detection, Moreover, the

deterrent effect of such a highl

we,
‘

95)

publicized program is obvious; such
visible project is bound to increase the
perceived risk of arrest in the minds of
those drunk drivers who are never

arrested,

4° r= ae ee

Accordingly, the defendant's

conviction will be

ied

20

APPENDIX B

Herbert A. Pickford, Judge

City Courthouse

315 E. High Street
Charlottesville, Virginia 22901
804-293-5859

David F. Berry, Judge
Madison, Virginia

E. Gerald Tremblay, Judge
Charlottesville, Virginia

F. Ward Harkrader, Jr., Judge
Louisa, Virginia

SIXTEENTH JUDICIAL CIRCUIT
Cigceui¢t Ceurcte ef tne City of
Charlottesville and the Counties of
Albemarle, Culpeper, Fluvanna, Greene,
Goochland, Louisa, Madison and Orange

June 26, 1984

Richard H. Barrick, Esq.
Commonwealth's Attorney

P. O. Box 911

Charlottesville, Virginia 22902

Robert H. Blodinger, Esq.
Attorney at Law

403 Park Street
Charlottesville, Virginia 22901

Re: Commonwealth v. Jimmy Dale Lowe
Gentlemen:
Defendant's motion to suppress

places in issue (1) the constitution-

ality of the procedure by which he was
stoppec and detained by the Charlottes-
ville Police early January 28, 1984, and
(2) the admissibility of the certificate
of analysis relative to his blood alco-
hol content at the time.

Dealing with the certificate first,
the results of the defendant's breath-
alyzer test are crucial to a conviction,
Defendant's eyes were "very red," and
there was an odor of alcohol on his
breath according to Officer Larry Brown.
Furthermore, the defendant failed three
dexterity tests. The evidence did not
tell us what those tests were.
Defendant told the officer he had had a
"couple of beers after getting off from
work," We do not know when that

occurred. Other than the test result,

this is the sum total of the evidence
concerning defendant's intoxication.
With the test result, the evidence con-
victs. Without it, it does not. The
accuracy of the Smith and Wesson Breath-
alyzer Model 900A machine usea to test
the defendant is a matter of substance,
The testing of the machine for accuracy
is not classified as a matter of
procedure in Code § 18.2-268(s). It
fits into the same substantive catecory
as do the test operator's qualifica-
tions, See Brooks vj City of Newport
News, 224 Va. 311, where the operator's
possession of a valid license was held
to be a matter of substance.

The breath test certificate raises

"a reasonable inference" that the test

MN si dita a Deas"

performed upon a person was properly
conducted in accorc with the matters it
represents to be true. It is incumbent
upon the defendant to offer evidence to
dispute this. See Calfee vy, Common-
wealth, 215 Va. 253 at page 255. Mr.
Lowe contends that his test was not
conducted in accord with the manufactur-
er's specifications in violsétion of Code
§ 18.2-268(r1l). In support of this, he
introduced as defendant's exhibit no, 2
the instruction manual for the breath-
alyzer in question and the September 10,
1982 Smith and Wesson Consumer Advisory
setting out guidelines for testing of
possible radio frequency interference on
said machine (see defendant's exhibit

no. 3). Defendant's exhibits indicate

that a safe operating radius for the

machine is that it be at least twenty-
five yards from a hand held radio trans-
mitter. The evidence indicated the
officer accompanying the defendant into
the testing van may have had a trans-
mitter with him, however there is no
evidence it was being used for
transmissions at the time. Defendant's
exhibits further indicated the breath-
alyzer should be retested for accuracy
if moved from one location to another.
The evidence is that the breathalyzer is
moved to the scene of each roadblock.

In view of the defendant's evi-
dence, was the accuracy of the breath-
alyzer seriously placed in question?
The answer is in the negative because
Elwood Shiffiett, operator of the

machine, checked its accuracy before and

a a ker at

after the test with the use of a
Simulator. His description of his use
of the simulator for that purpose
conforms with Smith and Wesson's
Instruction Manual (defendant's exhibit
no. 2) at page 14, It says the
Simulator "provides a predictable
alcohol reading, with which calibration
and certification procedures may be
performed." Kis calibration procedure
showed a .10 reading which, according to
the manual, indicates proper operation
of the machine. Furthermore, the April
29, 1983 notification of the Department
of General Services, Division of
Consolidated Laboratory Services
(defendant's exhibit no. 4) reported
that any racio frequency signal
interference with the breath test

results on the Model 990A Breathalyzer

"is readily detectable by the breath
test operator through unexplained
movement of the needle of the
instrument's null meter....” Operator
Shifflett testified he could so detect
such interference had there been any
during defendant's breath test, and
there was none.

As to the constitutionality of the
Stoppine of Mr. Lowe, the Charlottes-
ville Police Department employed the
guise of an operator's license and
registration check to afford its offic-
ers the opportunity to observe the
appearance and behavior of the operators
of automobiles they stopped the night of
January 28, 1984, as they proceeded
south from the Belmont Bridge. Their

acknowledged purpose in this is to

apprehend drunk drivers and to make the
public less likely to mix Grinking and
driving, The United States Supreme
Court in Delaware v. Prouse, 440 US
648(1979), suggested roadblock detention
@as a possible alternative to the random
Stopping of vehicles which it found to
be unconstitutionally intrusive into the
Fourth Amendment rights of motorists.
Virginia has accorded police the right
to stop motorists under certain circun-
stances, In particular is Code § 46.1-
7(c) which requires motorists to stop
upon Signal of a police official for the
purpose of responding to his request for
the operator to exhibit his registration
Card and/or operator's license. In
discussing Virginia Code §§ 46.1-6,
46.1-7, 46.1-8 and 46.1-9, the Virginia

Supreme Court, in its opinion of Shirley

v. Commonwealth, 218 Va. 49, recognized
the legitimacy of such stops. At page
52 it stated, “It is routine for law
enforcement officers to stop cars and to
inspect automobile registration papers
as well as operators’ licenses. Viewing
such papers is an accepted part of the
regulatory system." While the Delaware
vy. Prouse case invalidates random stops
for such purposes, Virginia's police are
clearly authorized to conduct license
and registration checks, and such
authority is not negated by the fact
that they simultaneously make observa-
tions of the operator for signs of
inebriacy.

If the officer detects bloodshot
eyes, slurred speech, or an odor of
alcohol upon the operator's breath, such

is sufficient basis for an articulable

Suspicion that will justify a more
intrusive detention for the conduct of
sobriety tests. Failing them gives the
officer probable cause for an arrest,
following which the implied consent
law's blood alcohol content tests are to
be administered, In Leeth vy, Common-
wealth, 223 Va. 334 (1982), Virginia's
Supreme Court indicated its acceptance
of something less than probable cause as
being adequate justification for the
sobriety test phase of a motorist's
cetention.

Does Charlottesville's roadblock
procedure, as applied in Mr. Lowe's
case, afford the safeguards that the
Constitutions of the United States and
Virginia require? The measuring criter-

ia that have evolved from numerous court

10

decisions are ably discussed in

1€

b

Georgetown Law Journal, Volume 71 at
page 1457 in an article titled "Curbing
the Drunk Driver Under the Fourth Amend-

ment: The Constitutionality of Roa

——— a

block Seizures," anc also in S$tate of

Kansas v. Deskins, (Kan. 1983) 673 P.2d

1174. They indicate that Mr. Lowe was
lawfully seized.

The principle criteria, as dis-
cussed in The Georgetown Law Journal
article, arer (1) Site selection.
Charlottesville's selection of its sites
for roadblocks was based upon its empir-
ical data adduced from the records of
its police department and the
experiences of its individual officers
which pointed out areas high in alcohol

reletee ceci-ents. fCafety of the motor-

}-4

Peer re as Te A eee el. ee re
vy

ist anc the officer is also of Prime
consideration in site selection; (2)
Elimination of the individual officer's
discretion. Charlottesville's manual
(defendant's exhibit no.]l) governing the
roadblock procedure forbids arbitrary
invasions of the Privacy of motorists by
individual officers in the exercise of
their own discretion. Control of the
operation is exercised by administrative
personnel at headquarters. Execution of
the procedure is conducted at the scene
under the supervision of one officer,
leaving to the individual policeman the
Sole discretion as to whether the motor-
ist evidences sufficient Signs of
inebriacy to warrant further detention
for sobriety testing and arrest if the
officer finds probable cause as a result

thereof; (3) Concern for the fright and

12

annoyance of the motorist. The physical

characteristics of the roadblock make
clear to the motorist that he is not
being singled out by the police and that
the roadblock is being conducted by the
police. The prominent sign, properly
iliuminated so as to advise the motorist
of the impending stop and the purpose
therefor, as well as the uniformed
officers and their vehicles with flash-
ing lights evidence this; (4) Prior
judicial approval of the temporary road-
block procedure. None is given for
Charlottesville's procedure. I do not
deem such essential to its validity; (5)
Minimal detention. Less than thirty
seconds is involved unless the officer
requires sobriety testing. Ample
evidence in the instant case warranted

such test of Mr. Lowe; (6) Probable

a2

cause necessary for the breathalyzer
test, since this is the most intrusive
of the sobriety tests. Probable cause
existed justifying such test; and (7)
Provision for heavy flow of traffic. It
is permissible to allow a line of cars
to pass through to alleviate a long
tieup in traffic. This also lessens any
annoyance to a motorist that may be
incident to a roadblock. Once the traf-
fic jam is gone, the stopping procedure
is resumed. Discretion in the exercise
of this lies with the supervising
officer on the scene and is guiced by
the previous designation of certain
geocraphical points at each site. i
cars are backed up to that point, Chief
Bowen testified that the supervising
officer is to then permit the traffic so

backed up to pass through.

14

Having concluded that the Common-
wealth has met its burden of proof in
this case, I find the defendant guilty
as charged. The punishment will be the
same as that imposed by the General
District Court, plus costs.

Very truly yours,
S/
Herbert A. Pickford

HAP: jr

APPENDIX C

VIRGINIA: - AT A CIRCUIT COURT OF THE
CITY OF CHARLOTTESVILLE, ON TEE LAW SIDE
THEKEOF, HELD ON WEDNESDAY, JUNE 27TH,
1984.

Present:-Honorable HERBERT A. PICKFORD,
Judge

COMMONWEALTH OF VIRGINIA Plaintiff

V. Appeal No. 84-43-1 - Operate a
Motor Vehicle
While Under the
Influence of
Alcohol or
Other Self-
Administered
Intoxicants
Or Drugs
(2nd Offense
Within 5
Years)

JIMMY DALE LOWE Defendant
Date of Birth: 4/2/51

This matter having been

taken under advisement on June 21, 1984,

the Court, by letter opinion dated June

26, 1984, a copy of which i158
incorporated into, and mace a part of,
this Order, denied the Motion to
Suppress filed on behalf of the
defendant on June 1Z, 1984.

The Court finds the
defendant guilty of the charge as set
forth in the warrant and set punishment

at a fine of $400.00, a jail sentence of

‘

thirty days, payment of court costs, and
suspension of his driver's license for
three years, with the fine and twenty-
eight days of the jail term suspended
and a restricted license to be issued
for the purpose of the defendant's
attending Virginia Alcohol Safety Action
Program (VASAP) meetings.

The transcript is hereby

made a part of the record.

The Court sets the appeal
bond in the amount of $1,000.00 cash or
corporate surety, or $2,000.00 property.

The defendant shall
report to the Albemarle-Charlottesville
Joint Security Complex by Noon on July
28, 1984 should he fail to post an
appeal bond.

The defendant shall
forthwith surrender his operator's
license in accordance with Section 46.l-
425 of the Code of Virginia, 1950, as
amended.

Pursuant to Rule 1:13 of the
Rules of the Supreme Court of Virginia,
counsel for the defendant objects to the
ruling of the Court on the grounds that
the decision of the Court is contrary to

the law and to the evidence with respect

to the grounds set forth in the

Defendant's Motion to Suppress, the
additional grounds set forth in opening
argument that even if the seizure was
not in contravention of the State and
Federal Constitutions, it was
nevertheless in contravention of
Virginia statutory and common law, there
being no enabling statute permitting
such seizure, and such other objections
and exceptions as are set forth in the
transcript.

Enter:

S/ HERBERT A. PICKFORD, Judge

S/ Richard H. Barrick
Commonwealth's Attorney

Objected to
S/ Robert EF. Blodinger
Counsel for Defendant

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1395%3A1. Public record. Not legal advice.