Category Archives: DUI Law
Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.
The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer. So how can law enforcement do this without having a warrant?
In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:
- The decision to conduct checkpoint must be at the supervisory level.
- There must be limits on the discretion of field officers.
- Checkpoints must be maintained safely for both the officers and the motorists.
- Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
- The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
- The checkpoint must show indicia of official nature of the roadblock.
- 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.
- 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.
Three years later in the case of 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. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.
Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.
Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.
If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?
The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep you mouth shut until given the opportunity to call your attorney.
Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.
At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.
As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.
This summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.
A few years ago, the United States Supreme Court held that DUI sobriety checkpoints were constitutionally valid. Michigan v. Sitz. In a 5-4 decision, Chief Justice Rehnquist admitted that such checkpoints violated a citizen’s rights under the Fourth Amendment, but held that this was only a "minimal intrusion" into those rights, and that violation was "outweighed" by the government’s interest in apprehending drunk drivers. See my posts The Slow Death of the Fourth Amendment and Sobriety Checkpoints: The Slippery Slope.
As part of that decision, however, the Court held that law enforcement must provide certain minimum safeguards in establishing those checkpoints. However, the Court left it up to the states to set up these procedures. The guidelines are typified by those named by the California Supreme Court in Ingersoll v. Palmer. These include the requirement that the police agency publish advance notice to the public of the checkpoint, so that citizens could choose to avoid them if they wished. Since then, cases have also established the principle that drivers who are approaching a checkpoint can turn away — if they can do so safely and without violating traffic laws; the police cannot pull them over for trying to avoid the checkpoint (a restriction that police routinely ignore).
If advance publicity is required, and if drivers can choose to turn away, can’t a citizen lawfully warn drivers that a checkpoint is ahead — assuming he is not obstructing traffic?
Ohio Man Sentenced to 240 Days for Recording Cops and Holding Up a Sign Warning Drivers of DUI Checkpoint
Cleveland, OH. Feb. 12 - An Ohio man was sentenced to 240 days in jail Thursday for First Amendment-related activities, including attempting to video record police in public and warning drivers of an upcoming DUI checkpoint by holding up a sign….
Odolecki, who was on trial for two incidents involving the Parma Police Department, was convicted of one count of misconduct at the scene of an emergency, two counts of obstruction of official business and one count of disorderly conduct…
The first incident took place on June 13, 2014 where Odolecki was standing on a sidewalk, holding up a sign reading “Checkpoint Ahead. Turn Now!” to warn motorists of an upcoming DUI checkpoint.
He was approached by two cops, one who told them he had the right to stand there with the sign, but he needed to remove the phrase “Turn Now!” from the sign…
Police cited Odolecki for obstructing and had his sign confiscated…
Then on July 29, 2015…Odolecki came across a group of cops gathering around a teenager near a bridge off a busy thoroughfare. Thinking the teen may have been getting unlawfully harassed, he began recording from across the street before crossing the street to get a better angle. He stood about 40 feet away with a railing separating himself from the cops when the cops told him to get lost because the teen was having “a real bad day.”…
Odecki was charged with obstructing and misconduct at the scene of an emergency in the second incident, and was later convicted for both incidents and received the maximum jail time.
Eight months in jail for holding up a sign and filming police on a cell phone from 40 feet away….
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.