PETERSON, C.J., dissenting.

I disagree with the majority. The state and federal constitutions aim to protect individuals against the excesses of government. In interpreting the constitution we must be mindful of the legitimate needs of the government and other citizens. The majority's decision protects the rights of the individual stopped but fails to recognize legitimate needs of the government and other citizens. I therefore disagree with virtually every holding in the majority opinion insofar as sobriety checkpoint stops are concerned.

Woodrow Wilson described the Constitution as follows:

"The Constitution itself is not a complete system; it takes none but the first steps in organization. It does little more than lay a foundation of principles. It provides with all possible brevity for the establishment of a government having, in several distinct branches, executive, legislative, and judicial powers. It vests executive power in a single chief magistrate, for whose election and inauguration it makes carefully definite provision, and whose privileges and prerogatives it defines with succinct clearness; it grants specifically enumerated powers of legislation to a representative Congress, outlining the organization of the two houses of that body * * *; and it establishes a Supreme Court ample authority * * *. Here the Constitution's work of organization ends, and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. The growth of the nation and the consequent development of the governmental system would snap asunder a constitution which could not adapt itself to the measure of the new conditions of an advancing society. If it could not stretch itself to the measure of the times, it must be thrown off and left behind, as a by-gone device; and there can, therefore, be no question that our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building; or, rather, to return to the old figure, it is a root, not a perfect vine."

The Constitution of the United States is a remarkable instrument. Though filled with elegant ambiguities, it is meant to apply to everyday life.

The ambiguities guarantee continual tension between the departments of government. Experience has proved, however, that this very tension insures a stable government, with no department gaining ascendancy over the other. This tension, which creates seemingly destructive friction at times, has created growth in the governed society. The instrument, written 200 years ago this year, was designed to accommodate change without impairing its inherent effectiveness.

The Bill of Rights, written several years later, is also written in broad, general terms. It limits the power of government, sometimes with clear, unmistakable clarity; at other times with unmistakable ambiguity. The Bill of Rights, no less than the document of which it became a part, also has accommodated changes. Indeed, it often has been the catalyst for needed societal change.

Like the original constitution, the Bill of Rights was written with a view to a maintenance of a proper tension between the departments of government, as well as tension between the rights of the governed and the governors, a tension that rarely is constant. The constitution's elasticity is part of its greatness.

The existence of rights guaranteed by the constitution in only general terms creates, in addition, uncertainty. The tension and uncertainty result, at times, from a conflict between two or more beneficial public policies. Shall the Executive Branch have the right to administer foreign policy without interference from the Legislative Branch? Does a person have the right to speak out at any time and any place on any subject, without respect to the harm that might (or will) result from the exercise of free speech?

The Fourth Amendment is a particularly ambiguous statement of a right — the right of persons to be free from "unreasonable searches and seizures." What is an unreasonable search or seizure? Is it "unreasonable" to subject every person to a search before boarding a public air carrier? Is it unreasonable to subject every person to a search before entering a courtroom?

The answers to these questions are anything but clear if one looks at only the words in the constitution. The answers, usually but not always, are made by courts, and often are controversial. The interpretations given by courts are themselves subject to change. The starting point is, however, that the Fourth Amendment statement in terms of the right — "the right of [all persons] to be secure * * * against unreasonable searches and seizures" — also states the limitation upon the right — persons have no right to be secure from searches and seizures that are not unreasonable.

Or, looking at the Fourth Amendment strictly in terms of a limitation upon the power of government, the governors may make some searches and seizures of persons without a warrant. All courts of this land, state and federal, recognize this. The case reports contain thousands of reports of situations involving the enforcement of the criminal law in which warrantless searches and seizures have been upheld.

Each case — every one — involves tension between the right of those governed to be secure from unreasonable searches and seizures and the legitimate law enforcement needs of the governors. It is permissible for a police officer to search a person arrested for a felony to see if a bulge in the jacket or pocket is a gun or a knife. Safety deems such a search not unreasonable. There, the tension (or conflict, if you prefer) between the rights of the governed and the governors, tips in favor of the latter.

What determines whether a search or seizure is unreasonable? A host of factors are implicated, some of which will be discussed below. The starting point is worthy of restatement: The constitution itself is designed to protect the rights of those governed, the rights of others in society, and to accommodate the legitimate needs of the governors. Some warrantless searches and seizures are permissible. Others are not.

In 1980, this court upheld a criminal conviction of a driver based upon evidence obtained at a game checkpoint roadblock. The court stated the test as follows:

"The test is easily articulated. In determining the constitutionality of a particular government procedure, the promotion of the legitimate government interest at stake is balanced against the individual's right to have his or her privacy and personal security be free from arbitrary and oppressive interference. The Court has considered the following factors to be important:

"(1) the importance of the governmental interest at stake;

"(2) the psychologically and physically intrusive nature of the procedure;

"(3) the efficiency of the procedure in reaching its desired goals; and

"(4) the degree of discretion the procedure vests in the individual officers.

"No one factor is held to be determinative. As with any balancing test, its application to a particular set of facts may prove to be difficult."

State v. Tourtillott, 289 Or. 845, 864-65, 618 P.2d 423 (1980), cert den 451 U.S. 972 (1981).

The question involved in this case has been considered by a number of state and federal courts. The answers (though not apparent from the majority opinion, more on this later) are surprisingly consistent. Sobriety checkpoint stops, if conducted pursuant to safeguards (that will be discussed below), are permissible without a warrant and without authorizing legislation.

The logical starting point is: Why was the seizure or search necessary or appropriate?

Intoxicated drivers may well create the largest law enforcement problem in the United States.

Nationally:

• Approximately 50 percent of all traffic fatalities occur in alcohol-related crashes. This means that more than 20,000 lives are lost each year in alcohol-related crashes.

• About 560,000 people are injured each year in alcohol-related crashes, 43,000 of them seriously.

• More than half of alcohol-related fatalities occur in single vehicle crashes.

• About two-thirds of all people killed in alcohol-involved crashes are drivers or pedestrians who had been drinking, while one-third are innocent victims: drivers or non-occupants (primarily pedestrians and pedalcyclists) and passengers in either vehicle.

• The proportion of alcohol-related fatal crashes is about three times greater at night than during the day. Between midnight and 4 a.m., about 80 percent of drivers killed have been drinking.

In Oregon:

• In 1985, 558 persons were killed on Oregon's streets and highways and 37,204 persons were injured, 4,506 of them seriously. It is estimated that at least half of these crashes were caused by an intoxicated driver.

• 23,807 persons were arrested for DUII in Oregon in 1985. This is 20.3% of all reported arrests in the state.

• In 1985, 11,483 persons were convicted of DUII — about 33.5% for a second or subsequent time. In 1984-85, 14,503 first offenders entered a diversion program.

• Drivers who have been drinking kill and injure more people than all the other violent criminals put together.

• 1986, there were 22,415 arrests for DUII and 11,331 convictions.

Most courts have upheld sobriety checkpoint stops, after considering the need. I quote from representative opinions.

"The importance of the governmental interest here involved is beyond question. `The carnage caused by drunk drivers is well documented and needs no detailed recitation here' (South Dakota v. Neville, 459 U.S. 553, 558; see, also, Mackey v. Montrym, 443 U.S. 1, 17-18, n 9; Presidential Commission on Drunk Driving, An Interim Report to the Nation [1982]; Report of Governor's Alcohol and Highway Safety Task Force [1981]; Drunk Driving Reform in New York State, 1980-84, Report of the Subcommittee on Drunk Driving of the Assembly Transportation Committee; L 1981, ch 910, § 1 [`Because of the persistence of the problem, it is essential that the state take further steps to protect those who make use of roads from the needless deaths, injuries and property damage resulting from drunk driving']; Ifft, Curbing the Drunk Driver Under the Fourth Amendment: Constitutionality of Roadblock Seizures, 71 Georgetown LJ 1457, n 1)."

People v. Scott, 63 N.Y.2d 518, 525-26, 483 N.Y.S 2d 649, 473 N.E.2d 1 (1984).

"We find that no Fourth Amendment or Article 26 violation occurred when appellants were stopped at the sobriety checkpoint involved in the present case. Clearly the State has a compelling interest in controlling drunk driving. Indeed, as the record discloses, about sixty percent of the drivers killed in automobile accidents have elevated levels of alcohol in their blood; nationally, fifty-five percent of all traffic fatalities are alcohol related. The magnitude of the problem created by intoxicated motorists cannot be exaggerated. As the Supreme Court said recently in South Dakota v. Neville, 459 U.S. 553, 558, 103 S Ct 916, 920, 74 L.Ed.2d 748 (1983):

`The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation's highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957)("The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield"); Tate v. Short, 401 U.S. 395, 401, 91 S.Ct. 668, 672, 28 L.Ed.2d 130 (1971)(BLACKMUN, J., concurring) (deploring "traffic irresponsibility and the frightful carnage it spews upon our highways"); Perez v. Campbell, 402 U.S. 637, 657 and 672, 91 S.Ct. 1704, 1715 and 1722, 29 L.Ed.2d 233 (1971)(BLACKMUN, J., concurring)("The slaughter on the highways of this nation exceeds the death toll of all our wars"); Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321 (1979) (recognizing the "compelling interest in highway safety").'"

Little v. State, 300 Md. 485, 504-05, 479 A.2d 03, 912-13 (1984).

"Several states have considered the issue in connection with driver's license check roadblocks or in some cases more candidly described as DUI roadblocks. It is obvious, without resort to the record or otherwise, that the problem of the drunk driver is one of enormous magnitude affecting every citizen who ventures forth upon the streets and highways. There can be no doubt that there is an overwhelming public and governmental interest in pursuing methods to curtail the drunk driver. Most states, however, which have considered the validity of roadblocks to `check drivers' licenses and auto registration' or to check for drunk drivers have found the methods used to be violative of Fourth Amendment rights and as failing to meet the implied tests set forth in the extensive dicta in Prouse. The use of a DUI roadblock has principally two purposes: (1) to apprehend and remove the drunk driver from the streets before injury or property damage results, and (2) in serving as a deterrent to convince the potential drunk driver to refrain from driving in the first place. As a fringe benefit the DUI roadblock also serves to disclose other violations pertaining to licenses, vehicle defects, open containers, etc."

State v. Deskins, 234 Kan. 529, 536-37, 673 P.2d 1174 (1983).

The existence of crime does not authorize police officers to stop and search anyone they please. The existence of a law enforcement problem does not justify any means to meet the challenge. The means chosen must be effective in meeting the challenge, responsive to the challenge, and not unreasonably intrusive. If less intrusive methods are available, those methods must be pursued.

I am satisfied that sobriety checkpoint stops are a reasonable response to the threat and advance the public interest because:

1. Some drunken drivers are identified and removed from the highways, both temporarily, and if convicted, for longer periods. The threat to public safety is reduced.

2. The detection of drunken drivers in such a manner may be more effective than by roving patrols. At the hearings before the Senate Committee on Commerce, Science and Transportation, there was evidence that one out of every 50 drivers on the highway has a blood alcohol count of .10 or higher. See also State v. Superior Court, 143 Ariz. 45, 691 P.2d 1073 (1984) (increased patrols have not reduced injuries from alcohol-related accidents). It has been estimated that only one of every 2,000 drunken drivers is apprehended.

3. Finally, and most importantly, the deterrent effect from sobriety checkpoint stops is great. Publicized in advance (as many such checkpoint stops are), the beneficial effect is considerable for others using the highway, for the intoxicated person and his or her family and loved ones, as well as for others who are aware of the governmental action and change their conduct as a result. The perception of imminence of detection is a substantial deterrent. Roadblock stops are an effective weapon to apprehend drunken drivers and to deter drunken driving.

Comments of other courts concerning the efficacy of sobriety checkpoint stops include these:

"DUI roadblocks serve the public interest in different but related ways. On the one hand, DUI roadblocks are a safety measure, operating as one method of detecting motorists driving while under the influence of intoxicating liquor. The arrest of an individual immediately removes such driver from the public highway, eliminating at least one immediate (albeit temporary) threat to public safety. For those suspects who are subsequently convicted of driving while under the influence of intoxicating liquor, pursuant to the provisions of 23 V.S.A. § 1201 (1978 and Supp. 1984), the penalties imposed under 23 V.S.A. §§ 1206, 1208 (Supp. 1984) will suspend or revoke their right to legally operate a motor vehicle on a public highway.

"On the other hand, DUI roadblocks act to further the public interest in reducing the number of motorists driving while under the influence of intoxicating liquor by acting as a deterrent to any person who might consider driving after drinking. Once the public is aware that DUI roadblocks are not per se illegal, and may be utilized by state and local law enforcement authorities, drivers are more likely to think carefully about the possibility of being apprehended and prosecuted for driving while under the influence of intoxicating liquor."

State v. Martin, 145 Vt. 562, 569-70, 496 A.2d 442 (1985) (emphasis in original).

"The value of roadblocks in decreasing drunk driving is attested by both the United States Department of Transportation and the Governor's Alcohol and Highway Safety Task Force. A 1983 paper on Safety Checkpoints For DWI Enforcement issued by the Department of Transportation's National Highway Traffic Safety Administration's Office of Alcohol Countermeasures emphasizes the importance of informing the public about DWI checkpoint operations as the chief means of deterring driving while intoxicated (id., at p 26), and the Governor's Task Force found `that the systematic, constitutionally conducted traffic checkpoint is the single most effective action in raising the community's perception of the risk of being detected and apprehended for drunk driving' (Report, at p 103). Moreover, the Supreme Court has held deterrence to be a legitimate governmental purpose not only with respect to legislation (South Dakota v. Neville, 459 US, at p 559, supra; see Delaware v. Prouse, 440 US, at p. 660, supra), but also with respect to checkpoint stops (United States v. Martinez-Fuerte, 428 US, at p 557, 96 S Ct at p. 3082, supra; see United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S Ct 2573, 2579, supra). We conclude, therefore, as did the Maryland Court of Appeals in Little v. State (supra) (see, also, State v. Shankle, 58 Or. App. 134, 647 P.2d 959, supra) that deterrence by fear of apprehension is a constitutionally proper means of keeping drunk drivers off the highways, though it may not be with respect to pedestrians (see People v. Johnson, 63 N Y 2d 888, 483 N.Y.S.2d 201, 472 N.E.2d 1029).

"* * * * *

"Nor, finally, is there sufficient question about the productivity of DWI checkpoints to require invalidation of the procedure. The contrary argument is based on the effectiveness of the procedure as a means of apprehension and ignores entirely its deterrent effect. There can be no question that substantial reductions have occurred since 1980 in the deaths, injuries and damage resulting from drunken driving. Thus, the Report of the Subcommittee on Drunk Driving of the Assembly Transportation Committee (at p 2) contains findings that highway fatalities from 1980 to 1983 decreased by 21%, while the risk of being in an accident, as measured by vehicle miles traveled, increased by 5.5%; alcohol-involved fatal accidents decreased 25% from 1981 to 1983; all accidents have declined by less than 1.5% since 1980, while reported alcohol-involved accidents have fallen at almost ten times that rate (14.5%); accidents during bar hours have declined 21.3% since 1980, while nonbar hour accidents actually have increased 3.6%; and fatal accidents during bar hours have decreased 33% since 1980, while nonbar hour fatal accidents have decreased only 11%. The extent to which those results stem from legislative reforms during that period as distinct from the deterrent effect of roadblocks and other educational and public information programs aimed at combatting the problem is not revealed, but in our view is not of constitutional moment. It is enough that such checkpoints, when their use becomes known, do have a substantial impact on the drunk driving problem (Little v. State, 300 Md., at p 504, 479 A.2d at 913, supra). The State is entitled in the interest of public safety to bring all available resources to bear, without having to spell out the exact efficiency coefficient of each component and of the separate effects of any particular component (cf. Mackey v. Montrym, 443 US, at p 19, supra). There being a reasonable basis for concluding that considering both its detection and its deterrence effect, the DUI checkpoint procedure in question is a valuable component of the program to control drunk driving, we conclude that it is a sufficiently productive mechanism to justify the minimal intrusion involved."

People v. Scott, supra, 63 N.Y.2d at 526-28 (1985) (footnotes omitted).

If need and efficacy are established (and I believe that they are), what must exist for a sobriety checkpoint stop to pass muster? For the answer to this question I look to the cases cited in the appendix.

Although a number of sobriety checkpoint stops have been struck down for failure to meet the criteria listed below, all but two courts that have considered this question have held that sobriety checkpoint stops are permissible without statute or rule if specified criteria are met.

Most courts have concluded that sobriety checkpoint roadblock stops pass constitutional muster if:

1. The roadblock is established and conducted pursuant to a plan formulated or approved by executive-level officers of the applicable law enforcement agency.

2. The plan contains reasonable standards respecting the time and place and manner of conducting the stop.

3. The execution of the roadblock stop involves no exercise of discretion by the officers conducting it.

4. The roadblock must have the appearance of regularity so that motorists are not put in fear.

5. The length of detention must be short. 6. The interrogation should be reasonable.

I see no threat to the state or federal constitutional rights of persons if such procedures are followed. Indeed, I am convinced that the test is a reasonable one, whether viewed through the eyes of James Madison in 1789, a hypothetical James Madison in 1987, or John Q. and Jane F. Public in 1987.

The intrusion is not substantial. The Maryland court's discussion on this point is typical.

"Balanced against the State's compelling interest in detecting and deterring drunk driving, the intrusion on individual liberties caused by the checkpoints is minimal. The checkpoints are operated under limitations imposed by clear, carefully crafted regulations approved by high level administrators. The regulations severely restrict the discretion of the officers in the field. All vehicles are stopped; there is virtually no risk that motorists will be singled out arbitrarily. The procedures to be followed when communicating with each driver are set forth in detail in the regulations; thus, the risk of police harassment is greatly reduced. The amount of fright and annoyance caused to motorists who pass through the checkpoints is minimal. Adequate advance warning of the checkpoint is given; motorists who do not wish to stop may make a U-turn and follow a different route. Moreover, a driver who stops at the checkpoint but refuses to roll down the car window is allowed to proceed. The stops themselves last less than a half a minute. Officers do not interrogate motorists or search their vehicles. Each checkpoint is well illuminated and staffed by a sufficient number of uniformed officers to show that it is a legitimate exercise of police authority. Ample provision is made for the safety and convenience of the public; operation of the checkpoints is suspended if traffic becomes congested. The sobriety checkpoints are operated pursuant to a comprehensive set of detailed regulations; they function in a manner that minimizes the possibility of fright and inconvenience to the public. In this regard, we think the effect upon the motorist resulting from the officer's use of a flashlight is greatly exaggerated by appellants."

Little v. State, supra, 300 Md. at 506.

Article I, section 9, of the Oregon Constitution does not prohibit sobriety checkpoint stops. Though the case cited above was decided under the Fourth Amendment, the text of section 9 is not materially different. As we have done on other occasions, we are free to apply the same rule.

Pursuant to ORS 181.280, the legislature has delegated to the Superintendent of State Police the general authority to make instructions and rules concerning the manner in which state police carry out their duties as prescribed in ORS 181.030 and 181.040, including the enforcement of laws relating to the operation of vehicles on all highways such as the requirements of carrying a license and vehicle registration while driving a motor vehicle and not driving while under the influence of intoxicants. In promulgating rules under which officers are to exercise their administrative duties under the traffic laws, it was within the authority of the State Police Superintendent to provide for administrative inspection procedures for licenses, registration and sobriety of drivers similar to those enacted by the legislature for equipment inspections. Cf. ORS 810.510 (equipment inspection procedure).

We recognized in State v. Lowry, 295 Or. 337, 344 n 6, 667 P.2d 996 (1983), that authorization for police action may be found in the state police manual. I assume that the court realized in that case that authority for rulemaking lay with the State Police Superintendent under ORS 181.280. In this case, the record includes a memorandum dated December 7, 1982, reflecting amendments to the state police manual by the State Police Superintendent. I cite our statement in Lowry and the record here to demonstrate that, consistent with the legislative charge, the source of the rules in the state police manual is the State Police Superintendent.

With respect to roadside checkpoints, the state police manual states in part:

"The U.S. Supreme Court, in Delaware v. Prouse (No 77-1571, 3/27/79) prohibits random vehicle stops but permits inspection or roadblock procedures if the procedures followed are pursuant to pre-established and specifically declared department policy. The decision as to which vehicle is to be stopped must not be at the discretion of the member.

"This restriction, of course, does not apply where a member has an articulable and reasonable suspicion that the motorist is in violation of the motor vehicle laws.

"Prior to instituting the inspection procedure, a decision must be made as to the method of selecting vehicles, such as:

"1. All passing vehicles will be stopped, or

"2. A designated number, such as every fifth vehicle or every tenth vehicle will be stopped, or

"3. The first passing vehicle will be stopped, with all other vehicles permitted to pass until the inspection is completed, at which time the very next vehicle must be stopped for inspection. This procedure is then repeated until the completion of the inspection.

"Good judgment must prevail to insure that all of the following cardinal principles are observed:

"1. The site selected must afford ample room for off pavement parking and an unobstructed view from either direction for a considerable distance.

"2. Motorists approaching the selected spot must be given timely warning to stop by means of an inanimate sign judiciously placed or by a member posted where he can do so by signal if more than one vehicle at one time is to be halted and held in line.

"3. To conserve everyone's time each member when taking part in an extensive inspection, will be assigned to specific tasks to perform according to prearranged plan. No motorist will be detained any longer than is absolutely necessary. Tactful handling and courteous treatment is indispensable to an efficient and well managed operation.

"4. The Trooper present with greater tenure will be in charge, except when three or more members are engaged a Senior Trooper or Non-Commissioned officer will be on hand to exercise command. Regular uniform will be worn.

"5. Unless most unusual circumstances dictate the need, checks will not be held on Saturday afternoons, Sundays or holidays, not during hours of darkness, not while traffic is at its peak and not on freeways.

"6. The rights of motorists must be given full consideration and extreme care exercised that we do not exceed the bounds of our authority.

"* * * * *"

On December 7, 1982, the State Police Superintendent amended these rules and directed "all state police stations and posts [to] enter into a cooperative effort with local sheriffs for the purpose of organizing and conducting joint operator's license, vehicle registration inspection, and detection of drunk drivers." The key change was the lifting of all nighttime, weekend and holiday restrictions. These rules demonstrate that specifically declared departmental policy and guidelines were formulated by the state police authorizing officers to make sobriety checkpoint stops.

The plurality, however, places a limitation upon the powers necessarily implied by the nature of the police function and would require express legislative approval for some practices:

"However, some procedures may invade the personal freedoms protected from government interference by the constitution. Roadblocks are seizures of the person, possibly to be followed by a search of the person or the person's effects. For this reason, the authority to conduct roadblocks cannot be implied. Before they search or seize, executive agencies must have explicit authority from outside the executive branch."

Nelson v. Lane County, 304 Or. 97, 103, 743 P.2d 692 (1987).

Although the plurality recognizes that a "broad directive to enforce the criminal laws * * * together with the specification of crimes developed by lawmakers impl[ies] authority to undertake tasks necessary to carry out the delegated function," id. at 103, under a newly fashioned rule of statutory construction they would apparently limit such implied authority to acts which do not implicate Article I, section 9 interests.

I disagree. Either the police have authority or they do not — if that is the issue. If they have such delegated authority, either express under a statute or implied by the nature of the duty imposed by the legislature, then the issue becomes one under the constitution. In State v. Atkinson, 298 Or. 1, 6, 688 P.2d 832 (1984), we stated: "It is not our function to decide as a matter of policy how, and for what purpose, automobiles or other private property that come into official custody should be examined." Similarly it is not our function to decide as a matter of policy how and for what purpose persons and their vehicles should be seized, so long as the actions do not violate the law.

The state police manual is designed to eliminate the possibilities for the "exercise of discretion" by state police officers at a temporary traffic checkpoint, and as indicated by the record in this case, the checkpoints were administered in compliance with the manual. The manual contains neutral criteria for detaining motorists; the officers at the checkpoint had no discretion in picking motorists for the initial stop. The requirement of neutrality is satisfied by stopping every vehicle or by other procedures "that equate with, but are less intrusive than, a 100% roadblock," "such as stopping every 10th car to pass a given point," Delaware v. Prouse, 440 U.S. 648, 663-64, 99 S Ct 1391, 59 L Ed 2d 660 (1979) (Blackmun, J., concurring) quoted in State v. Tourtillot, supra, 289 Or at 857, or "waving traffic through when a predetermined number of cars have been backed up." Comment, 20 Idaho L Rev 127, 155 (1984) quoted in 4 LaFave, Search and Seizure 79 (2d ed 1987). See People v. Bartley, 109 Ill.2d 273, 93 Ill Dec 347, 486 N.E.2d 880 (1985) (all vehicles stopped except on one occasion when traffic backed up); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985) (all vehicles stopped except when congestion occurred) cited in LaFave, supra at 79 n 127.

I read the majority opinion to hold that sobriety checkpoint stops for the purpose of detecting and prosecuting crime are per se impermissible.

I read the plurality opinion to hold that sobriety checkpoint stops are permissible for administrative purposes if authorized by the legislative branch and if certain criteria — criteria not unlike those I listed above — are met. But no person can be prosecuted for drunken driving if the evidence of drunken driving is obtained in whole or in part from the roadblock.

The majority holds that sobriety checkpoint stops may not be used to detect drunken drivers and to obtain evidence to prosecute drunken drivers. Only two jurisdictions, Oklahoma and Pennsylvania, have reached that conclusion. See appendix, part III. Other courts considering this issue have reached the conclusion that properly executed sobriety roadblocks may be used to detect and prosecute drunken drivers. See appendix, parts I and II.

We are still a Jeffersonian democracy; I do not advocate a government run by Madame LaFarge. But times change. Intoxilyzers and sobriety checkpoint stops were not needed in 1787 or 1887. But they are needed in 1987. Courts have reacted to technological change by limiting "new" intrusions, intrusions possible by reason of improved technology. See, e.g., Katz v. United States, 389 U.S. 347, 88 S Ct 507, 19 L Ed 2d 576 (1967) (telephone booth eavesdropping). Courts should and must respond to new societal problems stemming from bigger and faster cars and more intoxicated persons using the highway. Sobriety checkpoint stops are an appropriate response.

The plurality either adopts or comes close to creating the rule that acts of law enforcement officials must be expressly authorized by legislative act. I am troubled by the implications of the plurality opinion.

There is no textual source, either in the Oregon or United States Constitution, for the regulatory/criminal distinction propounded by the majority. To the contrary, the constitutional text, when read in conjunction with other provisions expressly restricted to civil cases or criminal prosecutions, affirmatively weighs against that distinction. The historical background of those provisions, which lies primarily in protests against abuse of regulatory searches by the Crown, further militates against the position of the majority.

I would affirm the trial court.