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Motorcycle Only Checkpoints and the Fourth Amendment

For the past several years, motorcyclists across the country have been hearing about motorcycle only checkpoints. Let me now go on record as being vehemently opposed to such checkpoints as I believe that they serve no purpose. Motorcycle only checkpoints are checkpoints where only motorcycles are stopped in order to check for operating licenses, safety equipment, etc. In New York, motorcyclists have challenged the legality of such checkpoints due to the method in which they are being conducted (we will come back to New York later in this article). Georgia has announced that they will begin conducting motorcycle only checkpoints in March to coincide with Daytona Bike week.

For the past year and a half I have been traveling throughout various states speaking about “Your Rights During a Traffic Stop.” The issue of motorcycle only checkpoints always comes up. Are these legal? Isn’t it discrimination? How can we fight these? The answer to those questions in order is probably but it depends, yes but discrimination is not illegal, and vigilance. Now that I have given you the short answers let’s dig a little deeper into the Fourth Amendment and discuss how the United States Constitution addresses traffic stops and more specifically checkpoints. That will give us a better understanding of these motorcycle only checkpoints.

The Fourth Amendment to the United States Constitution, among other things, prohibits unreasonable searches and seizures. When you are riding down the road and all of the sudden those blue lights come on behind you, you are being seized. The officer behind you is not extending to you an invitation to stop and chat. He is commanding you to cease your movement and submit to his authority under penalty of law. That is a seizure. As such, the officer must have reasonable suspicion of criminal activity before he can stop a person in that manner. In the 1979 U.S. Supreme Court Case of Delaware v. Prouse, the Supreme Court held that a random stop of a motorist in order to verify that the motorist was licensed was unconstitutional. The court concluded that “except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.” However, interestingly the court went on as follows:

This holding does not preclude the State of Delaware or other States from developing methods for 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.

These roadblock-type stops (checkpoints) are an exception to the reasonable suspicion requirement of the Fourth Amendment. At a checkpoint, the officers stop everyone who comes through. Each stop lacks any suspicion of criminal activity, yet under certain circumstances the United States Supreme Court has said that the lack of reasonable suspicion does not violate the Fourth Amendment because the stop is still reasonable. When the program is designed to serve special needs, beyond the normal need for law enforcement, checkpoints have been held to be valid provided that the detention is brief and the officers conducting the checkpoint do not have discretion over whom they stop. For instance, the checkpoint plan may call for stopping every vehicle or every third vehicle but it may not allow the officers to stop only those motorists that are deemed suspicious. Checkpoints which comply with these standards have been upheld when the purpose was to intercept illegal aliens near the border due to the unique problem and interest in securing our borders. Unites States v. Martinez-Fuerte, 428 U.S. 543 (1976). Sobriety checkpoints have been allowed due to the immediate hazard posed by drunk drivers and the State’s interest in getting drunk drivers off of the roads. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In Delaware v. Prouse The U.S. Supreme Court suggested that such checkpoints would be appropriate to spot check for motorist’s drivers license and vehicle registration due to the State’s interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that such motor vehicles are fit for safe operation. 440 U.S. 648 (1979). However, checkpoints have never been allowed in order to detect evidence of general criminal wrongdoing. In 2000 the United States Supreme Court struck down an Indianapolis Indiana program which used checkpoints to detect narcotics violations. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In that case the court pointed out that in most of the cases which allowed checkpoints, the thread of highway safety was present. They stated that there was a difference in the significance of highway safety interests and the general interest in crime control.

This brings us to the motorcycle only checkpoints. The National Highway Traffic Safety Administration (NHTSA) has offered law enforcement agencies grant money in order to set up checkpoints aimed solely at motorcyclists. NHTSA argues that such checkpoints are needed due to the problem of motorcycle fatalities and injuries. When I first started receiving calls about these checkpoints the argument I heard most often was that the checkpoints were a form of discrimination. They unfairly discriminated against motorcyclists. That may be true but discrimination is not illegal. WHAT?!? Danielson has lost his mind you say. No I have not. Discrimination is generally not illegal unless it is aimed at certain protected classes. The Equal Protection Clause of the Fourteenth Amendment has never meant that all people must be treated the same. That is a myth that we as a society have come to believe. Justice Kennedy pointed this out in the 1996 case of Romer v. Evans. He stated as follows:

Yet, from the very beginning the meaning of “equal protection” has at times been confusing, perhaps because the framers of the Fourteenth Amendment left us no explanation of exactly what they meant. On the other hand, the phrase could be read to mean that any law, no matter what common sense suggests, will be applied rigidly to all people. Such an extreme notion that laws cannot in any way, shape or manner discriminate among individuals or groups, can become silly. Passing a vision test as a requirement for securing a driver’s license clearly discriminates against people who are blind or have sight impediments, yet this is an appropriate form of distinction.

The bottom line is that when it comes to discrimination, it is illegal to discriminate against a protected class. The government cannot discriminate based upon race, religion, etc. It is not illegal to discriminate due to the clothes a person is wearing or the vehicle that he or she operates. In short, motorcyclists are not a protected class for the purposes of the Equal Protection Clause. (This is where I stress that you can hate the message but don’t hate the messenger).

So then how do we fight these checkpoints? I think we look to what New York has done. The New York State Police instituted a checkpoint system. It was done in the name of highway safety. However when the motorcycles were pulled over they were checked for more than licenses. They had members of the gang and auto theft units searching VIN numbers in order to detect stolen motorcycles. Some motorcyclists were detained for up to 45 minutes. In the end, the majority of tickets written were for equipment violations such as illegal exhausts and the so called non-approved helmet. A law suit has been filed challenging these stops and I believe that it will be successful. Not because the checkpoints are discriminatory but because they do not confirm to the ridged guidelines set out by the United States Supreme Court.

First and foremost, looking for stolen motorcycles is clearly not related to highway safety. That falls under the general interest in crime control. The same can be said for exhaust tickets. I am unaware of any exhaust system that caused an accident or injury. You cannot claim that checking motorcycle exhausts is a matter of highway safety. I would make the same argument for the helmet citations. No helmet has ever caused an accident. Additionally, for many reasons it is impossible to determine the safety of a helmet by merely visually inspecting it. One would have to conduct a test to determine how the helmet dissipates energy in a crash. Even if one could do that I would find it hard to believe that the statistics concerning people injured in crashes while wearing a so called non-approved helmet would justify this assault on the motorcyclists right to travel free of arbitrary governmental intrusion. For these reasons I believe that motorcyclists in New York will prevail. I further believe that all motorcyclists owe them a debt of gratitude for standing up for the rights of motorcyclists everywhere. We will all continue to monitor this law suit.

This brings us to Georgia and the other states who want to attempt to utilize motorcycle only checkpoints. Under past U.S. Supreme Court decisions, I do not believe that all motorcycle only checkpoints would be automatically illegal. If the detention were brief and the officers conducting the checkpoints were afforded no discretion in who they stopped then such checkpoints would be, in my opinion, legal so long as they were aimed solely at highway safety.

That last part is the Achilles heel of these programs. They are not aimed at highway safety. They are aimed at general crime control. They are aimed at equipment violations that have nothing to do with highway safety. They are aimed at curbing the problem associated with stolen motorcycles. This too has nothing to do with highway safety.

I believe that these programs are highly vulnerable to attack. If you or someone you know are involved in one of these checkpoints please contact my firm. We want to keep track of these checkpoints and challenge them whenever possible. This is not an advertisement for business as we do not charge a fee for this service. We as motorcyclists need to keep a close eye on these programs that threaten our right to travel the roads free from unwarranted governmental intrusion.

As always if you have any questions or comments concerning this article or any other matters of interest to motorcyclists, please do not hesitate to contact VCOM.

NHTSA Meeting April 25, 2011

Last week The National Highway Traffic Safety Administration (NHTSA) held meetings in DC with stakeholders in motorcycle safety. While many things were discussed there were a few items of particular interest to motorcyclists. I’m sure that by now everyone has heard about the motorcycle only checkpoints that were done in Georgia the week of Daytona Bike Week. According to attendees at the meeting it was reported that these weren’t actual traffic stops but rather rolling checkpoints. Which is to say that most people didn’t stop, only slowed down through a closed truck weigh station to be observed by officers and then stopped if the police felt they had reason to inspect more closely. Things being observed were lighting, exhaust systems, valid tags and of course “non-compliant” helmets. $70,000.00 in federal grant money was spent on these stops and normally these grants require matching state funds bringing the total to $140,000.00. All this money and manpower and to date we have not had confirmation of a single ticket being issued. We have confirmed numerous warnings but no tickets. We will keep looking.

Besides the monumental waste of money and the intrusion upon the citizens right to travel free from governmental interference, the manner in which these check points were operated raises some serious constitutional issues. As you know from the previous article that I wrote on this issue, one of the restrictions that the United States Supreme Court has placed upon checkpoints is that the officers operating the checkpoint must not have discretion as to who they stop. They must stop every vehicle or every third vehicle etc. They cannot have unfettered discretion as to who will be stopped. It appears that that particular rule was ignored in Georgia. We’ll keep you posted as we find out more about these and other similar stops around the country.

On another note, it appears that another issue being studied by NHTSA is license plate lighting and mounting. Apparently NHTSA is concerned about tags mounted on the side of bikes, tucked deep underneath luggage or surrounded by bright lights. I am not quite sure why this is an issue for NHTSA in that their focus is supposed to be highway safety. I have yet to hear of a motorcycle accident that was caused by the manner in which the license plate of the motorcycle was mounted. At the end of the day this is not a safety issue. However, automated enforcement equipment such as red-light cameras are becoming increasingly popular with state legislators. Tags mounted on the side of a bike, tucked deep underneath luggage or surrounded by bright lights can make it difficult to issue automated tickets as the cameras can have a hard time getting a good picture of the tag. Once again, this does not seem like a safety issue so I question why NHTSA is involved. We will continue to watch this issue.

Portions of Virginia’s Motorcycle Helmet Law Declared Unconstitutional

Portions of Virginia’s motorcycle helmet law were declared unconstitutional on Friday, December 9,2005 by a judge of the Newport News Circuit Court. In a ten page memorandum order, Hon. H. Vincent Conway, Jr. held that the portions of Va. Code §46.2-910 which defined the standards that a protective helmet must meet or exceed were unconstitutionally vague, denied due process and were unenforceable. The decision marked another victory in the battle by the Law Offices of Tom McGrath, to challenge Virginia’s helmet law.

McGrath and his Newport News associate, Matt Danielson, concentrate their practice on representing injured motorcyclists. In addition, they provide legislative lobbying services and traffic citation defense for the motorcycling community. In the past five years, they have successfully defended over fifty bikers charged with violation of Virginia’s helmet statute. Although the constitutional arguments have been raised many times before, the courts have previously ruled that the Commonwealth could not prove a violation of the statute and thereby avoided a ruling on the constitutional issues. Judge Conway did not follow this course and instead found at least some of McGrath’s arguments to be persuasive.

McGrath says the impact of Judge Conway’s decision is that any helmet selected by a motorcyclist in Newport News now complies with the statute since the standards previously used have been invalidated.

Virginia Motorcyclist Appointed

Tom McGrath, Richmond attorney, has been appointed by Governor Mark Warner to represent motorcyclists on the Commonwealth Transportation Safety Board (CTSB).Tom will be the first member to represent motorcyclists as his primary function. Motorcyclists were previously represented by John Mazaa, who held the aviation seat and took on the role of representing motorcycles as a secondary function. We owe John our thanks for the work he has done for us, as well as setting the groundwork for a full-time representation on the Board.

Tom has spent many years in Richmond specializing in the needs of motorcyclists. His dedication to motorcycling brought him to the Capitol where he recognized a need to have full time-political representation and founded the Virginia Coalition of Motorcyclists (VCOM) in 1992. We’ve had a strong voice at the legislature ever since. Tom has also been very involved in other areas of motorcycling: working with VDOT to open the HOV lanes to motorcyclists, developing signs to alert motorcyclists of hazards like edge traps, milled pavement, and open joints. Tom is currently working with VDOT on toll booth safety issues, and is always working with DMV and the Virginia Rider Training Program to meet the needs of new riders.

Tom’s appointment is the result of persistence on the part of Bob Crouch, the Governor’s Counsel and former Chief Deputy Secretary of Public Safety. The CTSB is in charge of reviewing and awarding federal grants for highway safety projects and ongoing programs, . For example, the Virginia Rider Training program gets some money for awareness programs and equipment needs. Some monies go to VCU for motorcycle accident investigation training. The list goes on. With a motorcyclist on the Board, we now know our voice will be heard, and our needs will not go unnoticed.

New Signs Warn Motorcyclists of Potential Roadway Hazards

Motorcyclists riding in Virginia will soon be alerted to dangerous roadway conditions by a new statewide signage program. VCOM lobbied VDOT officials and worked with the agency’s staff for more than a year to improve its sign program, critical to the safety of motorcyclists.

The Virginia Department of Transportation (VDOT) has developed the new signs as part of a motorcycle safety awareness program in association with VCOM, the Virginia Department of Motor Vehicles, the Motorcycle Safety League, the American Motorcycle Association, and local government. The new signs alert riders to open joints on bridges, expansion joints, rough road surfaces, bumps, and uneven lanes.

“Navigating certain roads and highway work zones is often difficult in a vehicle, but it’s many times more dangerous on a motorcyclist. Riding across bridge joints, open trenches or loose gravel can be treacherous,” said Tom McGrath, founder of VCOM. &#x201C For me as a motorcyclist, these are real problems during the day. But at night or during rain or both, they can become a matter of critical injury or even death because I can’t see the road ahead to anticipate potential problems.”

The warning signs will be placed to allow the motorcyclist time to reduce speed and adjust his or her ride appropriately.

As part of the program, McGrath and VCOM Director Jim Cannon have been meeting with VDOT resident engineers and other employees to talk about motorcycling and explore ways to ameliorate roadway conditions that present particular hazards to the motorcyclist.

A brochure on the new signs now is available to motorcyclists through the Department of Motor Vehicles and the Virginia Rider Training Program. The following information explaining specific roadway conditions and their warning is contained in the brochure entitled “Get Your Motor Running/Motorcycle Safety” –

Open Joints on Bridge: Used in advance of open longitudinal joints large enough that a motorcycle could lose control, typically when the joint is parallel or no more than 30 degrees from parallel to the traffic lane and the joint is at least 1-1/2 inches wide.

Expansion Joints: Used when a joint across lanes creates a significant bump or is wide enough to cause a traction loss in wet weather so that a motorcyclist could lose control.

Rough Road, Bump, or Uneven Lanes: Used when certain road conditions, such as gravel or milled pavement, affect the roadway surface and create potentially difficult conditions for motorists, especially motorcyclists. (August 2004)

State ‘Motorcycle Virginia’ Effort Boosts Motorcycling in the Commonwealth

VCOM’s McGrath, Cannon Serve on Steering Committee Promoting Motorcycling, Tourism

All of us in VCOM have always known it: Virginia is a great place to ride. We’ve long encouraged fellow motorcyclists, both in Virginia and elsewhere, to enjoy our state’s natural beauty, good roads, and diverse attractions. More motorcyclists on Virginia’s roads is a win for motorcycling and a win for business and the economy.

Now, the Commonwealth of Virginia has joined in our efforts.

Marketing our state to motorcyclists as an attractive place to ride is an important initiative undertaken by state government. A new committee chaired by Deputy Secretary of Public Safety Robert Crouch was formed this past spring (2004) to look at ways various state agencies and private organizations concerned with motorcycling can work together to make Virginia a “better ride.” Tom McGrath and Jim Cannon are serving on the committee, along with representatives from the Virginia Tourism Corporation, Department of Motor Vehicles, the State Police, the Alcohol Beverage Control Board, the Virginia Department of Transportation, the Motor Sports Coalition, and others.

Work is in the early stages. This summer bumper stickers declaring “Motorcycle Virginia” began appearing. Also in development are suggested routes for scenic, historic and other rides and a calendar of bike related events statewide.

Check this site for more news from Motorcycle Virginia. (August 2004)