Are DUI Checkpoints Constitutional?

Monday, December 28th, 2015

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.

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Floridians Exercise Rights at DUI Checkpoints with “Fair DUI Flier”

Monday, February 16th, 2015

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.

So what’s happening in these videos?

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.

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Turning Away from a California DUI Checkpoint

Monday, July 7th, 2014

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.

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Another Weapon in the “War on Drunk Driving”: Forced Catheterization

Thursday, May 22nd, 2014

Just how far are we as a free nation willing to go in MADD's jihad on drunk driving?  

Well, how about ramming a catheter up a male DUI suspect's penis to get a urine sample for alcohol analysis — even after he has already had a blood sample taken?


C.P. Man Seeking $11M in Catheterization Lawsuit

Hammond, IN.  May 12 – A Crown Point man is seeking at least $11 million in damages from Schererville, two of its police officers and the owners of Franciscan St. Margaret Mercy Health in a federal lawsuit in which he said he was subjected to a forced catheterization following a traffic stop.

William B. Clark, a former Schererville resident, is suing the town, police Officers Matthew Djukic and Damian Murks and Franciscan Alliance Inc., doing business as St. Margaret Mercy…

In the lawsuit filed Friday in U.S. District Court, Clark, 23, claims he was driving on U.S. 30 near the intersection of U.S. 41 in Schererville last May when he was stopped by Djukic. According to the lawsuit, Djukic allegedly observed the vehicle, which contained one other occupant, driving erratically and claimed he detected a moderate odor of alcohol in Clark's vehicle. Murks allegedly responded in a separate car.

The suit states that Djukic falsely claimed Clark's breath test results were 0.11, exceeding the legal limit of 0.08. The lawsuit also alleges the town failed to provide proof of the test result when a motion for discovery was filed in the criminal case against Clark, which is still pending.

According to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states Djukic, however, became impatient with Clark's inability to urinate to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

The suit claims Murks either used inappropriate force against Clark or failed to take reasonable steps to protect him from being subjected to the use of such force.

The lawsuit states Clark allegedly "loudly moaned in pain" as the process began. It adds that the actions taken to obtain the sample were "painful, degrading and humiliating."…


An isolated incident?  Hardly.  See my previous posts:  Catheter Forced up Penis After DUI Arrest (Washington) and DUI Suspect Forced to Have Penis Catheterized (Utah), to name just two such incidents.   

What's next for citizens suspected of drunk driving?  Why not strap female DUI suspects down on a table and forcefully extract urine samples from them as well?
 

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Good Posture + Bad Complexion = Probable Cause to Stop for DUI

Friday, May 9th, 2014

We have this document called a "Constitution".  At least I think we still do.  And one of the things in that document is protection against police officers stopping us for no good reason.  To be stopped for investigation, the officer must have a "reasonable suspicion" that the driver is committing a crime.  In the past, this has commonly taken the form of observations like pronounced weaving, running stop lights, erratic driving, etc.

But that apparently was the past.  As for today, the following article shows the recent view of a federal circuit court of appeals:


Federal Court Finds Upright Driving, Acne Suspicious

Driving with good posture, with hands at the classic ten and two position on the wheel, is sufficient reason to pull over a driver with a bad complexion, according to a ruling handed down Thursday by the Tenth Circuit US Court of Appeals. A unanimous three-judge panel approved the Border Patrol's April 18, 2012 stop and search of a motorist who happened to be nervous when pulled over.

Border Patrol Agent Joshua Semmerling saw the white Ford F-150 pickup truck being driven in the opposite direction on Highway 80 in New Mexico, about 40 miles from the border with Mexico. It was 7:45pm, a time the Border Patrol agent found suspicious. The truck had an Arizona plate on the back and tinted windows, but its driver, Cindy Lee Westhoven, violated no traffic laws. Instead, Agent Semmerling noted she had "stiff posture" and hands "at a ten-and-two position on the steering wheel" so he decided to do a U-turn and pursue.

A registration check showed the truck was registered to a Lawrence Westhoven in Tucson, which suggested to the officer that Westhoven was either smuggling illegal aliens or drugs. He hit his emergency lights and forced her to pull over. Agent Semmerling testified that he believed Westhoven must have been a methamphetamine addict after he noticed she had acne. Agent Semmerling ran Westhoven's license, and it came back with no warrants, but he continued the stop.

"I thought you were going to let me go," Westhoven told the Border Patrol agent. "Do you think I'm hauling illegal aliens?"

The agent asked to search the vehicle, but she refused to give him permission. Westhoven was ordered out of the truck so a drug dog could sniff it. She was told she was not under arrest but that she was being detained. Twenty minutes into the stop the drug dog arrived and alerted, revealing marijuana. Westoven's lawyer pointed out that the federal agent's story sounded fishy.

"Agent Semmerling contends that he noticed in passing the vehicle that it had an Arizona license plate," attorney Bernadette Sedillo told the district court. "The F-150 does not have a front license plate so Agent Semmerling would have had to observe the rear license plate in the rear view mirror traveling the speed limit of 60 miles per hour."

Sedillo added that there was no reason to continue the stop after Westhoven provided her license, which proved she was a US citizen. The appellate panel was not convinced, finding the totality of circumstances suggested that Westhoven was transporting illegal aliens over the border.

"Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves," Judge Scott M. Matheson, Jr wrote for the appellate panel. "But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity."


Why do the courts continue this charade of grasping at ridiculous reasoning in their pretense of honoring our Constitution?  Why don't they just come out and say it: the Bill of Rights is dead.  It's open season for law enforcement.
 

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