Category Archives: Sobriety Checkpoints
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.
In a widely-criticized 5-4 decision, the United States Supreme Court in Michigan vs Sitz decided some years ago that DUI sobriety checkpoints (aka “DUI roadblocks) did not violate the search-and-seizure provisions of the Fourth Amendment of the U.S. Constitution. See my post Are DUI Roadblocks Constitutional?.
However, it is not illegal to detect and avoid DUI sobriety checkpoints. And, in fact, the court in Sitz indicated that there were restraints on law enforcement in planning, setting up and administering these sobriety checkpoints. These restraints were left up to the individual states to determine, but most have adopted guidelines similar to those recommended by the California Supreme Court in Ingersoll vs Palmer. Among these are that the checkpoints must be publicized to minimize intrusiveness.
A further requirement, the Court in Ingersoll said, is that “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.” See Turning Away from a California DUI Sobriety Checkpoint. Of course, the police will be suspicious of anyone attempting to avoid a DUI sobriety checkpoint — and will commonly try to find some justification for stopping them, such as the driver making an illegal U-turn or having defective brake lights.
The best course of action: since the sobriety checkpoints must be previously publicized, find out where and when any DUI checkpoints in your area are going to be set up — and avoid them. Unfortunately, the police usually choose to “publicize” them in a tiny notice in the back pages of a minor newspaper.
So how can you locate planned DUI sobriety checkpoints in your area?
Simple: Visit the sobriety checkpoint page on my DUI defense law firm’s website: Sobriety Checkpoints: Laws and Locations. Understandably, the focus is on sobriety checkpoints located in California, but there is also information on access to the locations of checkpoints nationwide.
With the amount of law enforcement and checkpoints out on the streets this past weekend, it was inevitable that I would be asked questions at the party I attended for the 4th of July. Over the years, I’ve gotten used to being the go-to person for legal questions even on my days off. In discussing checkpoints with another guest of the party, they were surprised to learn that they were legally allowed to turn away from a checkpoint. They reacted like most do when learning that it is, in fact, completely legal to turn away from DUI checkpoints.
The United States Supreme Court, in the landmark case of Michigan Department of State Police vs. Sitz, held that, unlike a normal “seizure” which requires probable cause, checkpoints need not have such probable cause. The Court reasoned that the slight intrusion into the motorist’s privacy rights was outweighed by the government’s interest in keeping drunk drivers off the road.
The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are “administrative procedures” rather than “criminal investigations” and, as such, are 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. Most checkpoints have officers waiting in idle patrol cars ready to chase after 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.
But here’s the catch: They cannot pull someone over unless they have probable cause to believe the motorist committed a crime or a traffic violation.
Merely avoiding a checkpoint does not give them that probable cause.
Making an illegal U-turn does. Driving improperly does. A malfunctioning break light does. And it doesn’t matter that the officer has the ulterior motive of investigating for a DUI as long as the officer has the probable cause to pull someone over independent of the motorist’s avoidance of the checkpoint. But you can be sure that if the officer does pull someone over, they’ll be looking for the telltale signs of a drunk driver: bloodshot eyes, smell of alcohol, slurred speech, etc.
In fact the Court in Ingersoll said, “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.”
So if you decide to avoid a DUI checkpoint, make sure that you do so legally and know that even if you do, law enforcement will be watching you and waiting for you to slip up.