Car seizures at DUI checkpoints prove profitable for cities, raise legal questions
(Ryan Gabrielson) Sobriety checkpoints in California are increasingly turning into profitable operations for local police departments that are far more likely to seize cars from unlicensed motorists than catch drunken drivers.
An investigation by the Investigative Reporting Program at UC Berkeley with California Watch has found that impounds at checkpoints in 2009 generated an estimated $40 million in towing fees and police fines – revenue that cities divide with towing firms.
Additionally, police officers received about $30 million in overtime pay for the DUI crackdowns, funded by the California Office of Traffic Safety.
In dozens of interviews over the past three months, law enforcement officials and tow truck operators say that vehicles are predominantly taken from minority motorists – often illegal immigrants.
In the course of its examination, the Investigative Reporting Program reviewed hundreds of pages of city financial records and police reports, and analyzed data documenting the results from every checkpoint that received state funding during the past two years. Among the findings:
- Sobriety checkpoints frequently screen traffic within, or near, Hispanic neighborhoods. Cities where Hispanics represent a majority of the population are seizing cars at three times the rate of cities with small minority populations. In South Gate, a Los Angeles County city where Hispanics make up 92 percent of the population, police confiscated an average of 86 vehicles per operation last fiscal year.
- The seizures appear to defy a 2005 federal appellate court ruling that determined police cannot impound cars solely because the driver is unlicensed. In fact, police across the state have ratcheted up vehicle seizures. Last year, officers impounded more than 24,000 cars and trucks at checkpoints. That total is roughly seven times higher than the 3,200 drunken driving arrests at roadway operations. The percentage of vehicle seizures has increased 53 percent statewide compared to 2007.
- Departments frequently overstaff checkpoints with officers, all earning overtime. The Moreno Valley Police Department in Riverside County averaged 38 officers at each operation last year, six times more than federal guidelines say is required. Nearly 50 other local police and sheriff’s departments averaged 20 or more officers per checkpoint – operations that averaged three DUI arrests a night.
Law enforcement officials say demographics play no role in determining where police establish checkpoints.
Indeed, the Investigative Reporting Program’s analysis did not find evidence that police departments set up checkpoints to specifically target Hispanic neighborhoods. The operations typically take place on major thoroughfares near highways, and minority motorists are often caught in the checkpoints’ net.
“All we’re looking for is to screen for sobriety and if you have a licensed driver,” said Capt. Ralph Newcomb of the Montebello Police Department. “Where you’re from, what your status is, that never comes up.”
Additionally, the 2005 appellate court ruling includes exceptions, allowing police to seize a vehicle driven by an unlicensed motorist when abandoning it might put the public at risk. Examples include vehicles parked on a narrow shoulder or obstructing fire lanes.
But reporters attending checkpoints in Sacramento, Hayward and Los Angeles observed officers impounding cars that appeared to pose no danger.
Reporters also noted that many of the drivers who lost their cars at these checkpoints were illegal immigrants, based on interviews with the drivers and police. They rarely challenge vehicle seizures or have the cash to recover their cars, studies and interviews show.
Some tow truck company officials relayed stories of immigrant mothers arriving at impound lots to remove baby car seats and children’s toys before leaving the vehicle to the tow firm.
“I have to stand here for days and watch them take their whole life out of their vehicles,” said Mattea Ezgar, an office manager at Terra Linda Towing in San Rafael.
This wasn’t what lawmakers intended when they passed an impound law 15 years ago – the same law that the federal court has since questioned, said David Roberti, former president of the state Senate.
“When something is that successful, then maybe it’s too easy to obtain an impoundment, which should usually be way more toward the exception than the rule,” Roberti said.
The impound law granted police the authority to seize unlicensed drivers’ cars for 30 days. The California Attorney General’s Office said in a written statement that the state law is murky in terms of whether vehicles driven by unlicensed motorists can be taken at all.
Police do not typically seize the cars of motorists arrested for drunken driving, meaning the owners can retrieve their vehicles the next day, according to law enforcement officials.
To be sure, DUI checkpoints have saved countless lives on the nation’s roadways and have brought thousands of drunken drivers to justice. And by inspecting driver’s licenses, police catch motorists driving unlawfully, typically without insurance, and temporarily remove them from the road.
With support from groups such as Mothers Against Drunk Driving, California more than doubled its use of sobriety checkpoints the past three years.
State officials have declared that 2010 will be the “year of the checkpoint.” Police are scheduling 2,500 of the operations in every region of California. Some departments have begun to broaden the definition of sobriety checkpoints to include checking for unlicensed drivers.
Checkpoint impact not limited to drunken drivers
The checkpoints have rocked lives of sober motorists such as Luis Gomez.
In the early evening of Jan. 2 of this year, Gomez was driving his Chevy truck through downtown Los Angeles when traffic slowed to a stop.
A couple blocks from the Staples Center, orange cones narrowed Olympic Boulevard’s three westbound lanes to two. Los Angeles Police Department officers, stationed beneath a freeway overpass, began questioning drivers as part of a DUI checkpoint.
Gomez, a 42-year-old construction worker, said the roadblock didn’t concern him. He said he doesn’t drink alcohol.
But the illegal immigrant was driving without a license. Gomez received a traffic citation.
A tow truck operator took his truck.
Owners who do recover their vehicles pay between $1,000 and $4,000 in tow and storage charges and fines assessed by local governments, municipal finance records show.
Officers do not inquire about the drivers’ residency status. Nor do they contact U.S. Immigration and Customs Enforcement when they suspect unlicensed motorists are in the country illegally.
Gomez said he’d try to save whatever money he could to get back his truck. The Chevy is critical for him to continue finding work at construction sites, jobs that have supported him for two decades in the United States.
“It’s going to be hard, because times are hard,” Gomez said.
Impounds aid cash-strapped local governments
Cities have their own money problems.
Since 2007, the sales tax revenues of California municipalities have shrunk by $471 million, figures from the California State Board of Equalization show.
Property values have withered, too, causing financial woes at every level of government.
“If a city wants to try to raise revenue, in mostly all cases you have to go to the voters,” said Daniel Carrigg, legislative director for the League of California Cities. Local governments, instead, are adding to fees for services and fines for an assortment of violations.
Local governments often charge unlicensed drivers a fine to get their vehicles released from impound – on average more than $150, finance records show. Cities, increasingly, also get a cut of the fees that tow operators charge vehicle owners, generating hundreds of thousands of dollars a year.
Some local governments ensure they get a larger share as their police departments seize more and more cars.
In Los Angeles County, the city of Montebello requires its tow operator to increase its cut of impound revenue when the police department seizes a higher volume of cars.
Tow company Helms and Hill Inc. pays Montebello $200 per tow when officers order more than 151 cars hauled away each month, the city’s finance records show.
Montebello’s DUI checkpoints rank among California’s least effective at getting drunks off the road.
Last year, officers there failed to conduct a single field sobriety test at three of the city’s five roadway operations, state records show.
Montebello collected upward of $95,000 during the last fiscal year from checkpoints, including grant money for police overtime.
The California Office of Traffic Safety, which is administered in part by officials at UC Berkeley, continues to fund Montebello’s operations, providing a fresh $37,000 grant for this year.
Checkpoint location may influence impounds
Most of the state’s 3,200 roadblocks over the past two years occurred in or near Hispanic neighborhoods, the Investigative Reporting Program’s analysis shows. Sixty-one percent of the checkpoints took place in locations with at least 31 percent Hispanic population. About 17 percent of the state’s checkpoints occurred in areas with the lowest Hispanic population – under 18 percent.
Further, police impound the most cars per checkpoint in cities where Hispanics are a majority of the population, according to state traffic safety statistics and U.S. Census data.
For 12 years, Francisco Ruiz has run El Potro, a Latin music nightclub, at the northeast corner of A Street and Hesperian Boulevard in Hayward. Not once had he seen a DUI checkpoint. Then, in 2009, the city’s police department conducted four operations just outside his front door.
“They’re not taking drunk drivers,” Ruiz said as he watched cars crawl through a Dec. 18 checkpoint at the intersection. “They’re taking people without a license.”
An hour into the operation that evening, officers had yet to make a DUI arrest, reporters observed.
But about a half dozen cars were impounded, leaving drivers stranded. Only one of the drivers could show he was a legal U.S. resident.
The state does not consistently collect data on where local police departments set up checkpoints. A majority of California law enforcement agencies declined to release records showing which intersections they target, or what transpired at checkpoints, making it difficult to perform a statistical analysis of seizures in heavily minority communities.
But cities across the state operate checkpoints in high-minority communities, the Investigative Reporting Program found through demographic data and more than three dozen interviews with law enforcement officials at DUI crackdowns.
In the Los Angeles suburb of South Gate, Hispanics make up 92 percent of the population. The police department averaged 86 impounds each time officers shut down a road last year for a sobriety checkpoint. By comparison, they averaged a little more than four drunken driving arrests.
Checkpoints in cities where Hispanics are the largest share of the population seized 34 cars per operation, a rate three times higher than cities with the smallest Hispanic populations, the Investigative Reporting Program’s analysis shows.
The checkpoint data tells a similar story in two-dozen other cities. A majority of these communities are crowded together east of Los Angeles within the Inland Empire.
The disparity between vehicles impounds and DUI arrests exist in virtually every region of California.
Marin County checkpoints raise questions
San Rafael sits at the entrance to the northern Bay Area, crisscrossed by freeways from San Francisco and East Bay cities.
Hispanics comprise only a quarter of the city’s residents, according to demographic data from the U.S. Census Bureau. San Rafael’s Hispanic neighborhoods cluster along the freeways, near the water in what is called the Canal District.
During the past two years, 10 of the city’s 12 sobriety checkpoints took place on streets surrounding these neighborhoods. Those operations resulted in four DUI arrests and 121 impounded cars for driver’s license violations.
“We do not put checkpoints right there in the Canal District,” said Lt. Glenn McElderry, head of San Rafael police’s traffic unit.
While police have not staged operations directly inside the Canal District, the department’s records show San Rafael officers repeatedly conducted checkpoints right outside the neighborhood.
During the past two years, police sobriety checkpoints halted traffic on the Canal District’s two primary feeder streets – Francisco and Bellam boulevards.
McElderry said San Rafael police start their checkpoints in the southern part of the city, near the Canal District, and then move to intersections further north after 10 p.m. when traffic slows.
San Rafael’s data on drunken driving arrests, made independent of checkpoints during the past three months, show police made 20 DUI arrests, only three of which took place in the Canal District.
Impounds at DUI checkpoints are incidental, not intentional, law enforcement officials argue. And the operations do not target Hispanic communities, they say.
“Our checkpoints are sobriety and driver’s license, but one thing we always emphasize: The reason why we’re out here are drunk drivers,” said Officer Don Inman, grant administrator for the Los Angeles Police Department’s traffic division. “The driver’s license, that’s just a side issue that we deal with. We always try to make sure we pick in locations where we’re going to get drunk drivers.”
LAPD averaged six DUI arrests per checkpoint in 2009, state data shows, more than most California departments.
The state traffic safety agency requires that police wait until 6 p.m. to begin screening cars, though a few start earlier. The checkpoints typically last six hours over a single night.
Even still, the LAPD’s driver’s license impounds doubled the past two years. One operation in December netted 64 vehicle seizures and four drunken driving arrests.
One police agency, the California Highway Patrol, has far different results at its checkpoints. In 2008, state records show, the CHP arrested four intoxicated motorists for every one car that deputies seized.
The highway patrol does not charge a fee to release impounded vehicles and collects no revenue from seizures, said Sgt. Kevin Davis, who oversees checkpoints in CHP’s research and planning division.
Police say they consider a number of factors when setting up a checkpoint.
Sgt. Dennis Demerjian, of the El Monte Police Department, said he typically consults his agencies’ internal data to find intersections where clusters of alcohol-involved collisions have taken place.
Riverside County Sheriff’s Office Deputy Jarod Howe said roadways must have heavy traffic to justify placing officers there.
A street needs to be wide enough to allow cars to pull off safely. Officers also need space to conduct field sobriety tests and question motorists without licenses.
And the area needs to accommodate the tow trucks to remove seized vehicles, Howe acknowledged.
Police and state traffic safety officials contend that impounding the cars of unlicensed drivers is, like catching drunken drivers, a critical part of making California’s roads less dangerous.
“It’s well known that drivers driving without licenses are frequently involved in accidents,” said Sgt. Jeff Lutzinger, the head of Hayward’s traffic safety division.
Research by the National Highway Traffic Safety Administration has shown that motorists driving with a suspended or revoked license cause collisions at a higher rate. These drivers are also typically uninsured.
The state’s traffic safety office has declared vehicle seizures an effective way to remove risky, uninsured drivers.
“Law enforcement agencies have stated that these tools have helped decrease the number of unsafe drivers on public roads as well as reduce the number of hit-and-run traffic collisions,” a 2005 report from the state agency said.
Funding for DUI crackdowns plays major role
The federal government provides the California Office of Traffic Safety about $100 million each year to promote responsible driving that reduces roadway deaths. Of that, $30 million goes into programs that fund drunken driving crackdowns, particularly checkpoints.
Police officer overtime accounts for more than 90 percent of the expense of sobriety checkpoints. Departments do not assign officers to work checkpoints during their regular shifts.
Law enforcement agencies tend to use more officers than a checkpoint requires, according to guidelines established by the National Highway Traffic Safety Administration.
Statewide, police departments on average deployed 18 officers at each checkpoint, according to state data. The federal traffic safety agency advises that police can set up DUI checkpoints with as few as six officers.
The additional dozen officers typical at a California roadway operation cost state and federal taxpayers an extra $5.5 million during the 2008-09 fiscal year, according to the Investigative Reporting Program’s analysis.
The LAPD sent 35 officers, on average, to every sobriety crackdown.
At least a dozen officers spent hours sitting and chatting at an operation in early January in downtown Los Angeles. A couple of officers smoked cigars as they watched cars go through the screening.
Officers seized 22 cars that evening and made one DUI arrest.
The state data shows that last fiscal year LAPD spent $16,200 per checkpoint, all of it on officer overtime.
Impounds a lucrative business for cities, towing companies
Cities and private towing operators make tens of millions of dollars a year from checkpoints. This cash comes from tow fees and daily storage charges, finance records at a half dozen cities show.
If the car’s owner cannot afford to recover the vehicle, then after 45 days, the tow operator can sell it to pay the bill.
Cities are also increasingly charging franchise fees to tow operators.
The fees give cities a cut of the more lucrative side of towing, the long-term storage costs from 30-day impounds.
In early 2007, El Monte’s top officials went shopping for new tow contracts.
The suburb, east of Los Angeles, had called on tow operators to remove almost 5,000 cars a year from its streets, El Monte Police Chief Ken Weldon explained in a memo to the city manager.
The operators hauled the cars at no cost to El Monte; however the chief found the city was denying itself a source of cash.
“A survey of surrounding agencies revealed that many agencies are recovering costs by collecting a ‘franchise fee’ from the tow company,” Weldon, now retired, wrote.
On average, nearby cities charged tow operators $50 for every car the police department ordered towed or impounded. Weldon calculated the fee would provide El Monte $241,600 a year.
The city wrote the fees into its new contracts with Albert’s Towing and Freddie Mac’s Towing.
During holiday checkpoints last fiscal year, El Monte police seized 680 cars for driver’s license violations, state data shows.
Each of the impounds was worth at least $2,035 in tow charges and fees, according to city financial records. El Monte received at least $164,000 from the vehicle seizures.
The city’s tow operators likely collected about $1.2 million from the seizures. That figure might have been higher or lower, depending on how many car owners retrieved their vehicles and what price the companies got for the remaining impounded cars.
Owners abandon their cars at tow lots roughly 70 percent of the time, said Perry Shusta, owner of Arrowhead Towing in Antioch and vice president of the California Tow Truck Association.
Tow operators provide communities a kind of garbage service, removing junk cars that don’t operate and are worth only the value of their metal frame.
DUI checkpoints catch a higher quality of vehicle, Shusta said. “The good cars are how we afford to get rid of all the cities’ junk.”
Impounds spur search and seizure concerns
The Fourth Amendment specifically restricts law enforcement’s authority to seize private property without a court order.
“It is assumed under the law that the taking of personal property without a warrant is unconstitutional,” said Martin J. Mayer, a founding partner in the Fullerton law firm Jones & Mayer, which represents numerous police agencies.
The law protects everyone within the United States, regardless of whether they are in the country illegally.
California police have seized the cars of unlicensed drivers for 15 years under the state law that allows such vehicles to be impounded for 30 days.
But in 2005, the Ninth U.S. Circuit Court of Appeals ruled in an Oregon case that law enforcement can’t impound a vehicle if the only offense is unlicensed driving.
One exception is called the “community caretaker” doctrine, which permits police to impound a car if it poses a threat to public safety, is parked illegally or would be vandalized imminently if left in place.
The ruling dramatically altered the law regarding vehicle impounds. In response, the Legislative Counsel of California in 2007 called into question the legality of the state’s impound procedures.
“If a peace officer lawfully stops a motor vehicle on the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not sufficient justification for the peace officer to cause the impoundment of the motor vehicle,” Legislative Counsel Diane F. Boyer-Vine, who advises state lawmakers, wrote in a response to Sen. Gilbert A. Cedillo, D-Los Angeles. The legislative counsel has no authority over police departments.
A lawsuit challenging the constitutionality of California’s 30-day impound law is awaiting oral arguments before the Ninth Circuit Court of Appeals later this year. The state and several cities that are defendants in the case argue that impounds are penalties for a criminal offense, and therefore car owners are not subject to Fourth Amendment protection.
Most California law enforcement agencies continue to seize vehicles based on driver’s license violations alone.
Reporters with the Investigative Reporting Program observed police at checkpoints in three different cities impound cars after the vehicles had been moved out of harm’s way and parked legally.
Mayer represents the California Peace Officers Association and also alerted law enforcement that the federal ruling prohibited the state’s police from seizing cars solely on the charge of unlicensed driving.
The attorney said he was startled by his clients’ angry response to his memo explaining the appeals court case.
“I never expected the volume of e-mails, phone calls and death threats all from law enforcement, especially motor officers,” Mayer said. “I’m being flippant you understand. They wanted to kill me though because I’m interfering with a process they’ve been doing for years.”
Former state Sen. Roberti, then chairman of the Senate’s Judiciary Committee, said he and his fellow lawmakers did not consider how the 1995 impound law might impact unlicensed drivers.
“It’s turned out to be a far more vigorous enforcement than any of us would have dreamed of at the time,” he said.
Ryan Gabrielson, the winner of the 2009 Pulitzer Prize for Local Reporting, is a reporter and fellow at UC Berkeley’s Investigative Reporting Program directed by Lowell Bergman, one of the founders of the Center for Investigative Reporting.