specially concurring.
I disagree with the lead opinion’s conclusion that roadblocks aimed at the detection of drunk drivers are per se invalid under the Oregon Constitution, and I also disagree with much of the opinion’s federal constitutional analysis. I join in the disposition only because I think that material questions of fact exist and that the trial court should not have decided the case by summary judgment.1
The lead opinion’s reasoning and conclusion pertaining to Article I, section 9, of the Oregon Constitution can be summarized quite simply: its syllogism is (1) a roadblock to *767find violators of the DUII law is a search for criminal offenders and for evidence of crimes; (2) searches for and seizures of criminal offenders and evidence are, without exception, constitutionally impermissible unless there is probable cause to believe or individualized suspicion that a particular person has committed an offense; (3) therefore, a roadblock designed to discover drunk drivers violates Article I, section 9, because no individualized basis for suspecting that a particular driver is intoxicated preexists the discovery of that fact at the roadblock. That reasoning and conclusion are preceded in the opinion by the observation that state courts have a duty to construe state constitutional provisions independently of the interpretations that have been given analogous federal constitutional provisions.2 In pursuit of its apparent understanding of that duty, the lead opinion performs its entire analysis of Article I, section 9, without even adverting to the significant body of Fourth Amendment case law which cogently disavows the lead opinion’s critical assumption that no search or seizure can be constitutionally acceptable unless there is probable cause or individualized suspicion to justify it.
The United States Supreme Court said in United States v. Martinez-Fuerte, 428 US 543, 560, 96 S Ct 3074, 49 L Ed 2d 1116 (1976), where it sustained criminal arrests at border checkpoints, that “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure * * * [b]ut the Fourth Amendment imposes no irreducible requirement of such suspicion.” (Footnote and citation omitted.) Later, in Delaware v. Prouse, 440 US 648, 654-55, 99 S Ct 1391, 59 L Ed 2d 660 (1979), the Court stated:
“* * * [T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to *768the discretion of the official in the field.’ ” (Citations and footnotes omitted; emphasis supplied.)
In State v. Tourtillott, 289 Or 845, 854-57, 618 P2d 423, cert den 451 US 972 (1980), the Oregon Supreme Court spoke to the same effect, at least with respect to the Fourth Amendment. See note 2, supra.
The Supreme Courts of Oregon and the United States have concluded, after well-reasoned analysis, that the Fourth Amendment does not require an individualized basis for the stop of vehicles at roadblocks and other fixed stop points. As an alternative safeguard to individualized probable cause or suspicion, those courts have articulated a four factor balancing test, which was described in State v. Tourtillott, supra:
“(1) [T]he importance of the governmental interest at stake;
“(2) the psychologically and physically instrusive 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. * * *” 289 Or at 864-65.
Implicit if not explicit in Prouse, Tourtillott and the other Fourth Amendment cases, as I understand them, is that the rule they express pertains only to the checkpoint procedure itself and that probable cause or reasonable suspicion requirements attach to police actions that follow from but are not part of the procedure. If, for example, the procedure has been defined to require officers to stop every tenth vehicle, inspect papers and ask the driver whether and how much he has imbibed during the past several hours, the officers may pursue further investigative or detention measures only to the extent that usual probable cause or individualized suspicion requirements would permit. In other words, the officers may not expand a limited purpose roadblock into a full-scale search of a vehicle or its driver, unless probable cause justifying such a search arises during the roadblock. By a parity of reasoning, the officers are not foreclosed from going beyond *769the purposes of the roadblock if, in the course of conducting it, a satisfactory probable cause or reasonable suspicion basis for a stop, search or arrest arises. For example, if a roadblock has been structured to require that every tenth vehicle be stopped, the officers would not impermissibly exceed the limits on their discretion by stopping the ninth car if they observed irregularities which gave them independent probable cause to believe that its driver was drunk.
As noted above, the lead opinion arrives at a very different rule from that of the Fourth Amendment cases, and it does so with no consideration of the reasoning in those cases. It is correct, as the lead opinion observes, that we have a responsibility to interpret the state constitution and that there is no “inevitability of parallel interpretation of Article I, section 9, and the Fourth Amendment.” 79 Or App at 760. However, I do not subscribe to the lead opinion’s operational understanding of our responsiblity, which seems to be that our “independent” duty requires us to construe the state provision in blissful ignorance of the treatment by other courts of virtually identical issues arising under a virtually identical constitutional provision. We have previously indicated that we must not only be familiar with prevailing interpretations of corresponding federal constitutional provisions before accepting or rejecting them as the state rule, but that we should also have a better reason for rejecting them than visceral disagreement. We said in State v. Mills, 76 Or App 301, 710 P2d 148 (1985), rev den 300 Or 546 (1986):
“Although we may interpret our own state constitution to provide greater protection to our citizens than United States Supreme Court interpretations of the federal constitution provide, steps to adopt a stricter standard should be taken cautiously and be supported by reasoned analysis and sound policy considerations. * * *” 76 Or App at 305. (Citations omitted.)
I find no occasion to adopt a state constitutional rule here that differs from the federal rule. The reasoning of the federal constitutional cases is persuasive. Although a different conclusion from the one they reach is obviously tenable, it is by no means compelling. The individual rights assured by the Fourth Amendment and Article I, section 9, are amply protected by the Prouse - Tourtillott safeguards in connection with stops of vehicles at roadblocks. The only basis that the *770lead opinion offers for a different Oregon rule is that recent holdings by the Oregon Supreme Court and this court have developed certain principles concerning search law and warrant requirements under Article I, section 9, that are not the same as the rules that have been developed under the Fourth Amendment. The issue here is related to the general issue in those recent cases only in that one is the diametric opposite of the other: the question here is not what the general search and warrant requirements under the respective constitutions are but whether those requirements, as opposed to the alternative safeguards that the United States and Oregon Supreme Courts have found to satisfy the Fourth Amendment, have any application to roadblocks. I would hold that the answer to the latter question is no, under Article I, section 9, as well as the Fourth Amendment.
After its seeming obliviousness to the existence of the Fourth Amendment cases throughout its discussion of the Article I, section 9, issue, the lead opinion finally turns to those cases in its discussion of plaintiffs section 1983 claim, which turns directly on whether the roadblock violated the Fourth Amendment. The lead opinion states that my opinion “would allow the stop and search of every person driving a car on the rationale that DUII is dangerous and that, when weighed in some balance, the public’s need for protection is heavier than the constitution. ” 79 Or App at 761. (Footnote omitted; emphasis supplied.) The emphasized language appears to attribute the balancing test to me rather than to the Fourth Amendment cases which are its source and which govern our consideration of the section 1983 issue. Moreover, the lead opinion language evinces a peculiar understanding of what I have balanced against what and of what the federal case law requires to be weighed. The balancing process under Prouse and Tourtillott is not a weighing of the public interest against the constitution; rather, it requires the courts to weigh governmental interests, intrusiveness and the other factors enumerated in Tourtillott to determine if constitutional requirements have been violated.
The lead opinion then proceeds to apply the balancing test to the Fourth Amendment issue in this case, and it concludes that there are factual questions which require reversal of the summary judgments. The opinion states that:
*771«* * * during the two and one-quarter hours it was maintained, only two DUII arrests were made, but the record does not show how that compares with arrests made on the basis of individualized suspicion in the course, say, of highway patrols. A police sergeant in charge of the operation said in an affidavit that the place for the roadblock was chosen because of the frequency of suspected intoxicated drivers, but there is no evidence to indicate why, or if, that road would have more ‘illegitimate traffic’ than any other road. The police contend that they followed the procedures set out in the State Police Policy Manual for conducting license and registration checks and, therefore, that the discretion of individual officers was properly limited.9 It is unclear how guidelines that limit an officer’s discretion in checking driver’s licenses and vehicle registrations can serve as adequate safeguards to limit discretion in the context of a drunk driving roadblock. Furthermore, the record does not indicate whether any of the guidelines would minimize the roadblock’s intrusiveness by limiting the officers’ discretion in choosing which motorists would be required to take field sobriety tests. The state admits that plaintiff was required to get out of her car and perform those tests, even though she did not show any signs of poor driving or intoxication.
I have several problems with that statement. First, it assumes that every aspect of the police decision about where to locate the roadblock and how to conduct it is susceptible to judicial oversight. I do not think that the likelihood that drunk drivers will in fact be found in significant numbers on a particular road is a legal prerequisite to establishing a roadblock on it. It is at least arguable that the very unpredictability of where roadblocks will be located is what makes them effective and that placing them only on roads where past DUII incidence has been high will have the self-defeating effect of causing drunk drivers to avoid the beaten path. Second, and *772relatedly, comparative arrest' statistics may have some relevance to the inquiry. However, I do not agree with the lead opinion’s implication that the arrest yield of a particular roadblock is of conclusive significance in assaying its validity. I disagree as well with the implication that the effectiveness of roadblocks is determinable by numbers of arrests alone; any deterrent effect they may have, among other considerations, can also be relevant.
My final difficulty with the lead opinion’s statement is its understanding that the State Police Policy Manual guidelines governing officers’ discretion in checking licenses and vehicle registrations cannot be effective “to limit their discretion in the context of drunk driving roadblocks.” It may be that the license and registration inspection provisions of the manual do not authorize drunk driving roadblocks, but, as the lead opinion holds, authority is not an issue in this case. The immediate question is whether the guidelines from the manual, which were designated for use on the roadblock by a command decision, satisfy the requirement of curtailing the discretion of the officers actually conducting the roadblock. If the portions of the manual used are adequate to limit the discretion of the police as to which vehicles to select for license and registration checks, the same random selection guidelines can obviously be adequate to limit the officers’ discretion over what vehicles to stop regardless of why they are being stopped. The officers’ demand that plaintiff take field sobriety tests does not seem to me to be relevant to whether there was excessive police discretion in connection with the roadblock procedure. No party appears to assert that plaintiffs car was outside the preordained selection scheme determining which vehicles were to be stopped. Whether or not compelling plaintiff to submit to sobriety testing exceeded the scope of the roadblock or had to be justified independently by probable cause or reasonable suspicion are questions which — if the parties even raise them — turn on factual determinations that have not been made.3
I agree with the lead opinion that there are unre*773solved questions of fact that are pertinent to whether plaintiffs Fourth Amendment rights were violated. Because I conclude that the same constitutional rule should apply to both provisions, I would hold that the same questions are also germane to whether plaintiffs rights under Article I, section 9, were abridged. For reasons which follow from what I have said, I do not necessarily agree with the lead opinion about what questions of fact are material. However, I do concur in the holding that a plenary trial is necessary.
agree with the lead opinion’s conclusions that we have jurisdiction; that the state defendants’ motion to dismiss should not be addressed; that the question of authority for the roadblock also does not require resolution; that ORS 131.615 does not apply to roadblock procedures in view of State v. Tourtillott, 289 Or 845, 618 P2d 423, cert den 451 US 972 (1980); and that plaintiff cannot seek punitive damages.
I assume only for argument that the majority is correct in regarding State v. Tourtillott, supra, as not being controlling on the state constitutional issue. If the majority’s understanding and my assumption are wrong, the Supreme Court presumably can say so much more clearly than it may have attempted to do in State v. Caraher, 293 Or 741, 748, n 7, 653 P2d 942 (1982).
“The manual also prohibited operating a roadblock at night and during peak traffic unless most unusual circumstances existed. The roadblock in this case was operated from 11 p.m. to 1:15 a.m., and it interfered with peak traffic created by a shift change at a local lumber mill. The record contains no evidence as to what the ‘most unusual circumstances’ were that required violating the manual’s provisions.” 79 Or App at 764. (Emphasis in original.)
The lead opinion states that plaintiff “did not show any signs of poor driving or intoxication.” 79 Or App at 764. However, she did tell the officers that she had ingested some alcohol during the course of the evening. What the officers reasonably could have believed cannot be decided as a matter of law from this record, assuming that the decision of that matter is relevant to resolve the parties’ contentions.