Category Archives: DUI Law
As the New Year approaches, law enforcement efforts to halt drunk driving is more elevated than it has been all of 2015. Part of the anti-DUI efforts will inevitably include DUI checkpoints. When I warn friends and family of the DUI checkpoints, often I get the question: how are DUI checkpoints constitutional?
Normally, if an officer wants to stop a vehicle, they must have probable cause to believe that the driver committed a crime. And normally when an officer pulls someone over, the driver commits a traffic violation in the officer’s presence thus giving them the probable cause to be pulled over.
Such is not the case with DUI checkpoints. While officers do, in fact, stop drivers at checkpoints, unfortunately they don’t need the generally required probable cause.
The U.S. Supreme Court in Michigan v. Dept. of State Police v. Sitz held that, while random checkpoints technically violate the 4th Amendment right against unreasonable search and seizure, the governmental interest in preventing drunk driving outweighs the relatively minor infringement on the right not to be stopped absent probable cause.
The Court said, “[T]he balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment.”
The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are considered “administrative procedures” instead of “criminal investigations” making them more akin to agricultural checkpoints and airport screenings. The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:
1.) The location of the checkpoint should be made at the supervisory level.
2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.
3.) The checkpoint must be safe with proper lighting and signs.
4.) The checkpoint must be visible to oncoming motorists.
5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.
6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.
7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.
8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint. In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.
In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. However, most checkpoints have officers waiting in idle patrol cars ready to chase down motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.
While officers who witness motorists driving away from a checkpoint might be suspicious, there’s not much they can do about it…that is, unless they see you commit a traffic violation in the process of turning around.
If you don’t opt to turn around, exercise your 5th amend rights and remain silent. The officers posted at the checkpoint will likely ask where you’re coming from, where you’re going to, and whether you’ve had anything to drink. You do not need to answer these questions and you can respectfully decline.
The officers may request that you take a preliminary screening alcohol test, otherwise known as a pre-arrest breathalyzer. This too you have the right to decline and you should. The only time a drive must submit to a chemical test, whether a breath test or a blood test, is after that driver has been lawfully arrested on suspicion of a California DUI.
Lastly, the officers at a DUI checkpoint may ask drivers to perform field sobriety tests. As I’ve said multiple time before, field sobriety checkpoints are notoriously unreliable and subject to the self-serving interpretations of the officer. Fortunately, these too are optional. Never voluntarily perform these tests. While you may think you can “pass” them, many times even sober people fail.
Yes, California DUI checkpoints are constitutional. However, there are things that you can do this New Years to protect yourself should you find yourself driving through one.
I’ve posted repeatedly about "The DUI Exception to the Constitution". A particularly egregious example of this is the clear violation of the 4th Amendment represented by "DUI sobriety checkpoints" — the law enforcement practice of setting up locations on highways where they can stop motorists without "probable cause" to suspect a crime is being committed — in fact, for no reason at all.
So just how far is all of this going?
DUI Checkpoints Just the Tip of the Iceberg: Cops Now Going Directly Into Bars with Breathalyzers
Sacramento, CA. May 24 - Sacramento cops are rolling out a new program this Memorial Day to allegedly combat drunk drivers. While the reasoning for this new program may sound just, its implementation is anything but.
If you are out in a bar this weekend, be prepared to have multiple officers come in and ask the patrons in the bar to blow into a breathalyzer.
DUI roadblocks are apparently not invasive enough, so the Sacramento PD instituted a program to attack the source, the places where alcohol is consumed…
Police defend the new incursions into constitutional rights by saying that it is "voluntary" — that is, the bar patron can simply refuse. Of course, most of us realize that this will simply focus the attention of the officer on that individual; cops don’t like to have their authority flouted, and this individual will be asked to produce identification, etc., and possibly be followed once he leaves the bar. We’ve seen what happens when someone lawfully turns away from a checkpoint: a police car immediately follows and pulls him over (still without probable cause). Same thing with refusing a breathalyzer while sitting at a bar.
As the author of the article observed, "While the reasoning for this new program may sound just, its implementation is anything but".
(Thanks to Joe.)
In the past few months, you may have seen Youtube videos have been popping up left and right showing drivers in Florida passing through DUI checkpoints without having to submit to the standard inconveniencies normally associated with DUI checkpoints.
One video in particular (https://www.youtube.com/watch?v=YqEXTVe7MCQ) has been view more that 2.2 million times and has inspired others make their own videos driving through DUI checkpoints, most of which are similar in content.
Drivers pull up to DUI checkpoints and instead of rolling down their windows to speak to the police and possibly give a breath sample, they motion to a Ziplock baggie dangling by a string from the top of the closed window.
The checkpoint officers look at the baggie which contains several items; a driver’s license, proof of insurance, registration, and the “fair DUI flier.” The flier, created by Boca Raton defense attorney, Warren Redlich, states in bold lettering, “I remain silent. No searches. I want my lawyer.”
After inspecting the contents of the baggie, the officers wave the motorists through the checkpoint.
Although many of the YouTube videos show officers waving motorists through the checkpoint without incident, many law enforcement agencies take issue with the approach claiming that it’s a way for drunk drivers to avoid arrest.
Redlich, however, created the “fair DUI flier” to protect sober motorists from a false arrest. “People don’t realize that innocent people get arrested for drunk driving; it happens a lot,” said Redlich and I wholeheartedly agree.
I’ve said it before on this blog before that I, and other DUI defense attorneys, have defended many people where the arresting officer “observed the objective signs of intoxication” and it was later determined that the person was well below the legal limit or even sober. So why give them the opportunity to “observe” the bloodshot eyes, hear the slurred speech, smell the alcohol, etc.?
“If you don’t roll down your window and don’t speak, you’ve taken away some of those,” Redlich told NBC affiliate WTVJ.
Redlich’s method doesn’t sit well with Sheriff David Shoar of St. Johns County and president of the Florida Sheriffs Association. Pointing to the Michigan Department of State Police v. Sitz case that I mentioned in my last post, Shoar told the associated press, “[Motorists] wouldn’t be allowed out of that checkpoint until they talk to us. We have a legitimate right to do it.”
Sorry, Mr. Shoar, you’re only half right.
Sure, law enforcement has a legitimate right to set up checkpoints. They do not have a legitimate right to force motorists to talk to them. In fact, it is the people’s constitutional right not to talk to law enforcement. And Redlich’s flier only ensures that people exercise their constitutional rights.
Sobriety checkpoints have been held to be an exception to the rule that law enforcement officers need probable cause to stop and, even if brief, detain a motorist in order for the detention to be constitutional.
Normally, police obtain that probable cause through witnessing a traffic violation, witnessing driving which would indicate drunk driving, or receiving an anonymous tip that a person may be driving drunk. Only then can law enforcement stop and detain a person.
Although officers at sobriety checkpoints do not have the probable cause usually required to stop a motorist, both the United States Supreme Court and the California Supreme Court have held that checkpoints are constitutional.
In Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop.
Three years before the decision in Michigan Department of State Police v. Sitz, the California Supreme Court in 1987 decided the case of Ingersoll v. Palmer and set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:
1. The decision to conduct checkpoint must be at the supervisory level.
2. There must be limits on the discretion of field officers.
3. Checkpoints must be maintained safely for both the officers and the motorists.
4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
6. The checkpoint must show indicia of official nature of the roadblock.
7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.
Without this last consideration, motorists would not know that there was an upcoming checkpoint to turn away from. However, because checkpoints are highly visible, motorists have the ability to turn away before reaching the checkpoint.
There are no laws that require you to drive through a checkpoint. Therefore it is perfectly legal to turn away from a checkpoint. But if you do turn away from a checkpoint, be sure that you do not break any traffic laws in the process like, say, an illegal U-turn.
Remember that an officer needs probable cause to stop and detain a motorist. By committing a traffic violation in their presence, they’ll have the probable cause to stop a motorist, not for suspicion of driving under the influence, but for the violation itself. However, once the officer has the motorist pulled over for whatever violation, you can bet that the officer will “observe the objective symptoms of intoxication” whether they’re present or not.
So you’re driving along the highway one evening, minding your own business, and suddenly looming up in front of you is a DUI sobriety checkpoint…
No problem! You just pull a small printed sign out of your glove compartment and hold it up to the unopened car window for the cop to read. He reads it through the glass with his flashlight, a quizzical look on his face…and then reluctantly waves you through the checkpoint.
Fantasy? Watch this YouTube video of a DUI sobriety checkpoint in Florida, in which the driver held such a note up to the window for the cop to read. The note stated (with Florida state statutes cited):
I REMAIN SILENT
I WANT MY LAWYER
Please put any tickets under windshield washer.
I am not required to sign – 318.4(2).
I am not required to hand you my license – 322.15.
Thus I am not opening my window.
I will comply with clearly stated lawful orders.
It worked, and the driver got through the checkpoint without opening his window — and possibly having the cop claim that his speech was slurred or that he had alcohol on his breath. But a word of warning: it may not work for you in your state. Your laws may be different….and cops generally don’t take well to having their authority challenged.