There are two main reasons people come to Fair DUI: Our flyer and our DUI book. Here’s an example of the flyer:
The idea behind the flyer is that you keep it in your car and show it to police at checkpoints and traffic stops. This is NOT for everyone, nor for every situation. To find out whether the flyer is for you, and when you should (and shouldn’t) use it, please read more on our Flyer page.
To better understand police encounters and how to protect yourself, you should consider buying the Fair DUI book. At this writing (February 2015), the book has 32 reviews on Amazon with an average of 4.7 stars out of 5.
Warren challenged NYPD’s checkpoint policy in a 2016 federal lawsuit that is coming close to a decision in late 2019 or early 2020.
NYPD officers conducted a checkpoint in the Washington Heights section of Manhattan. They stopped the clients, arresting the driver for DWI and his wife for interfering.
The driver registered a 0.03 on the station breath test – he was innocent. His wife was innocent too – the police could not get their stories straight about her supposed interference.
But most important, they should not have been stopped at all. NYPD checkpoint policy is unconstitutional, and the way these officers conducted this checkpoint didn’t even comply with policy.
Warren discusses NYPD checkpoint policy in depth in this video:
As of this writing (mid-October 2019) the case is awaiting the result of summary judgment motions. Oral argument is scheduled for mid-December and then we will hopefully have a decision soon after that.
Drivers who had detectable THC in their blood at the time of the crash were not necessarily experiencing impairment in their ability to drive safely, nor were they necessarily at fault for the crash. Determination of actual impairment or fault status was beyond the scope of the study. Relatedly, many of those who were positive for THC were also positive for alcohol and/or other drugs, which in some cases likely contributed more significantly to the crash than did the THC. Research on the relationship between THC presence and risk of crash involvement has been inconclusive.
In fact, the most recent and thorough study on crash risk from drugs (pdf) found that for both marijuana and other illegal drugs: “analyses … did not show a significant increase in levels of crash risk associated with the presence of drugs.” AAA’s study acknowledged that, but Tom Costello and The Today Show didn’t mention it. Did they actually read the article? Or did they deliberately mischaracterize it?
Other media are covering marijuana DUI research more accurately, but still misunderstand it. Ashley Halsey III of the Washington Post and Joan Lowy of the Associated Press both did a somewhat more responsible job by covering a related AAA study (pdf) that shows that tests measuring the amount of THC in the blood do not reliably indicate impairment.
What both articles get wrong (thanks to misleading or misquoted statements from AAA’s Jake Nelson) is that using police officers trained as “Drug Recognition Experts” (DRE) will solve the problem. First of all, the study does not recommend that approach but rather includes it as one of several options:
In the absence of a scientifically based cannabis per se law, there are several options. One is to train officers to detect the signs and symptoms of cannabis use in drivers stopped at roadside. Initial suspicion of cannabis use would lead to a field sobriety test (SFST). This process could be coupled with rapid, on-site oral fluid screening for evidence of drug use. The technology to detect certain drugs (including cannabis) in a specimen of oral fluid quickly at roadside is improving and could be used in a manner comparable to preliminary breath testing devices currently used to test for alcohol. The suspect would then be taken for a complete drug evaluation by a DRE. This approach requires enhancing the complement of DRE officers available to conduct assessments for impairment. The … approach, however, does have limitations ….
While the AAA study does discuss some of those limitations, it leaves out the question as to whether police officers with a few hours of training are really qualified to perform neurological and ophthalmological testing and to draw medical conclusions from such testing. They’re not.
It also ignores the evidence mentioned above that marijuana and other illegal drugs do not increase crash risk. The option not mentioned by any of these journalists is to recognize that DUI laws should focus on alcohol. We should stop wasting time and money – and stop arresting and prosecuting innocent drivers – over things that do not increase crash risk.
In the Fair DUI court fight over drivers not rolling down their windows, the Coral Gables police have set their position as to why police need to hold the license in their hands. They claim you can’t see the hologram security feature in the license unless they hold it.
They’re lying. Watch Sgt. Escobar repeat this lie persistently in his testimony, and then see how big of a lie it is.
Don’t believe us? Try it for yourself.
Sheet glass has been transparent for roughly 1000 years. It allows light to pass through.
We’ve made a lot of progress getting the Fair DUI Flyer into court and it’s time to update our readers.
Working with the journalists from PINAC, Warren challenged a DUI checkpoint in Coral Gables back in August. As we hoped for purposes of getting this into court, Warren was arrested. You read Warren’s description of the arrest, and you can watch PINAC’s video of it here:
There are two court cases going. Warren was “unarrested” at the scene and then ticketed for “failure to exhibit license.” That traffic case was initially dismissed. Coral Gables hired an attorney who made a motion for a rehearing. The case was reopened and a trial was held on January 13th. County Court Judge Steven Leifman found Warren guilty despite numerous issues that called for a different result. Warren filed his “Notice of Appeal” yesterday (document at bottom).
The ticket is a $129 non-moving, non-criminal violation. Despite what would seem a very minor offense, the Coral Gables attorneys submitted over 50 pages of documents. At the first appearance one attorney showed up for the city. Then two came to the next one, along with the arresting officer. For the trial the city sent at least four attorneys. We estimate they’ve spent over $5000 pursuing a minor non-moving violation. Apparently taxpayers are not well represented in Coral Gables.
The other case – and far more important – is Redlich’s federal lawsuit which was filed on January 1st, and served on the various defendants at the trial and afterward. The full document is at bottom but here’s a picture of part of the first page:
There are many issues raised. The biggest underlying issue we are shooting for is the question of whether a driver has to roll down their window at a checkpoint or traffic stop. Some people think this is an obvious yes, but we disagree and we’re not alone. In December the Kentucky Supreme Court threw out a checkpoint case. The reason was different, but one of the judges wrote this:
Must everyone stop at one of these roadblocks? Can one blow off the officer and speed right past? Can a motorist be cited for not stopping? That question is yet to be decided.
There is little or no case law discussing what a driver is required to do in a checkpoint (as well as in traffic stops for things like speeding). This is the heart of our challenge. We believe drivers retain their rights under the 4th, 5th and 6th Amendments and we’re fighting for that.
There’s a lot more in our federal lawsuit, but the most critical part is here:
Plaintiff seeks injunctive relief, including but not limited to:
a. An order barring Defendants from conducting any checkpoints; or
b. An order strictly limiting the scope of any checkpoints conducted by
Defendants and limiting the manner in which such checkpoints are
c. An order mandating that Defendants, while conducting checkpoints,
wave through anyone who asserts their constitutional rights without
any inquiry or demands; or
d. An order mandating that Defendants, while conducting checkpoints,
wave through anyone who asserts their constitutional rights without any inquiry or demands unless police have articulable probable cause related to the stated purpose of the checkpoint; and
e. An order mandating that Defendants allow, without any interference or hindrance, people to photograph and record checkpoints using photography and both audio and video recording devices.
We already knew Florida prosecutors were in a tizzy trying to deal with the Fair DUI flyer. Now we know their rage is national.
Mr. Devallis Rutledge, a refugee from the Orange County DA’s office, writes his opinion about various issues and in this case he took on our California Fair DUI flyer.
In his “brief” on the issue we get this from Rutledge:
The license and identification must be examined to assure validity and the presence of restrictions. … There can be little doubt that in both circumstances [license and registration], the driver is expected to surrender the specified documents to the peace officer for examination….”
People v. McKay (2002) 27 Cal.4th 601, 621-22.
This is a great example of a prosecutor using the wrong case to get to what he wants. People v. McKay was not about the encounter between a police officer and a driver at the window.
Around 6:00 p.m. on June 19, 1999, Los Angeles County Deputy Sheriff Valento observed defendant riding a bicycle in the wrong direction on a residential street.
A bicycle? Mr. Rutledge, please.
The statute refers to Section 40302(a) of the California Vehicle Code, which says:
40302. Whenever any person is arrested for any violation of this code … the arrested person shall be taken without unnecessary delay before a magistrate … in any of the following cases:
(a) When the person arrested fails to present his driver’s license or other satisfactory evidence of his identity for examination.
The Fair DUI Flyer talks about what happens before arrest. If you’re stopped by a police officer, you haven’t been arrested yet, so 40302 doesn’t apply. And even if it did,
Upon analysis it will be seen that one cannot be arrested on the sole authority of section 40302: “such section … is not penal in nature and cannot form the basis for a lawful arrest.”
There’s certainly an argument that if you’ve been stopped for a traffic violation you might have to hand over your license at some point – particularly when the officer has decided to write you a citation. But the initial encounter at the window is before that decision has been made.
Keep in mind that most of the flyer’s publicity comes from checkpoints, and in a checkpoint the driver hasn’t been stopped for any traffic violation. So there is no requirement to physically hand over the license in a checkpoint.
Rutledge also misapplies another case:
[E]very motorist knows that the officer will wish to speak with him, however briefly…. It may be necessary, for example, for the driver to roll down his window.” People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 822.
Kiefer is a case where the court ruled for the defendant:
The controlling issue in this proceeding is whether in the circumstances shown Officer Cameron’s act of opening the door of defendants’ car and looking inside was an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution. We conclude that the question must be answered in the affirmative, and that the trial court correctly granted defendants’ motion to suppress.
The court’s reference to rolling down the window was only to explain why the actions and movements of the driver and passenger inside the car were not suspicious. They didn’t say the driver has to roll down the window. They said it might be necessary.
Mr. Rutledge claims this is the bottom line:
BOTTOM LINE: Upon demand of a peace officer at a lawful traffic stop or CDL/sobriety checkpoint, the driver must give required documents to the officer, and may not merely exhibit them through rolled-up glass.
We disagree. The bottom line is that you do not have to give the documents to police at a traffic stop until the officer has decided to give you a citation. You should only give it to the officer if you are ordered to do so. And you don’t have to do it at all at a checkpoint.
With that said, consistent with what we say on the back of the flyer, if you are ordered by police to do something it is safer to comply. Your lawyer can fight the legality of that order later in court.
One issue that we expect to see in federal court in the future is whether a state statute requiring surrender of the license outweighs the driver’s Fourth Amendment rights. In 1968 which Rutledge refers to, police may have needed physically hold the license in their hands (though that still seems weak). But today police can write down the license number and other information, and check it on the computer in their car or call it in. That kind of technology did not exist in 1968.
There are states that clearly require surrender of the license. That’s an attempt to get around the Fourth Amendment and we can only hope that the federal courts will reject such an end run.
Another issue is what happens if a driver doesn’t follow our advice, refuses an order, and police smash the window. Police officers should be very careful with this, as they could be held liable for excessive force under Deville v. Marcantel.
It’s easy for prosecutors to offer up opinions like this. They’re not the ones who get sued in federal court when a cop goes too far on their advice. People think Fair DUI is anti-cop. We’re not. We do want police to follow the law (and many don’t like that), but we also want to protect police from dumb advice from the lawyers who are supposed to be on their side.
A fan of Fair DUI in New York’s Capital Region (Albany, Schenectady, Troy, Saratoga and more) sent us a video. The video shows the Fair DUI flyer for New York State in action in a State Police checkpoint in the town of Brunswick. Note that in New York State drunk driving is commonly referred to as DWI (Driving While Intoxicated) and there is a lesser offense called DWAI (Driving While Ability Impaired). Drugged driving is called DWAI Drugs.
The Trooper took a brief look at the flyer and just waved the driver through without even asking him to roll down his window. New York is a good state for the Fair DUI flyer. There is no law requiring drivers to hand over their license. All you have to do under NY law is show it through the window. And if you get pulled over for a traffic violation, there is no requirement to sign tickets.
The video consists of two clips. The first clip looks like a handheld camera operated by the driver, possibly a cell phone. The second half is the dashcam. If you look close in the dashcam portion you can see two “Sobriety Checkpoint” signs, one early on the right and one within the checkpoint on the ground on the left.
He reported this took place just outside the city of Troy. Based on our knowledge of the area (Fair DUI founder grew up nearby) we think it was on Route 7, somewhere near the point shown on the map below:
Toward the end of the video you can see the Cap Com credit union sign on the right side.
The “Fair DUI” movement is growing. Our big video got over 3.1 million views and was featured in national media including the Washington Post, Fox News and CBS News. We’ve had plenty of local media coverage too.
If you’re a DUI lawyer you can be a part of the movement – for free! You can help our effort to make DUI laws more fair. You can help clients protect themselves from wrongful DUI arrests. And in the process you can get become the go-to lawyer for the Fair DUI community in your area.
Free? Really free?
Yes. Really. There will be ways you can pay to get more out of it, but you can join for free.
We are building a state-by-state DUI directory on the internet at FairDUI.org. Our website is growing and getting more traffic. So is our e-mail list, now approaching 6000 subscribers.
We want to include lawyers in our directory. Our readers are asking for help. You can be one of them.
How It Works
First, the Fair DUI lawyer directory is only available to lawyers who support our movement. You can read the rough details on our issues page. In short we want two things:
1. Procedural protections that protect innocent drivers from wrongful DUI arrests.
2. Change the approach to first offenders to minimize punishment and focus on education and treatment.
While it was not our original focus, we also oppose DUI checkpoints.
You don’t have to agree with us on all of these issues. But if you think the current DUI system is already fair and doesn’t need significant changes then the Fair DUI directory is not for you.
Second, you have to at least minimally support the Fair DUI flyer. You should review the flyer for your state (we’ve done 30 states so far), check the relevant statutes and make sure you understand the issues we are raising. If you think we’ve got something wrong, let us know.
As part of this you should be willing to do some free consultations with people who have questions about the flyer.
I will be doing a “CLE” (no credit) video about the legal issues. It’s almost ready. If you’re going to be a Fair DUI lawyer, you should watch it.
Once you’ve been approved as a Fair DUI lawyer, you should include a link from your website to your state’s page for the Fair DUI website. Sooner or later we’ll come up with “Fair DUI Lawyer” banner you can use.
Third, if you’re on board with the above, please let me know and I will include you on the state page for your state. Please e-mail me at firstname.lastname@example.org and include a link to your website or other contact information. You can also contact me on LinkedIn if you prefer.
We will add premium listings where you will be able to pay to be listed at the top of the page for your state and with additional info – maybe a photo and more.
Eventually I would like to work with lawyers to do state editions of the Fair DUI book. This will be available to the top paying lawyer in each state who will add comments to each chapter and add two or three chapters to the book relevant to that state.
I’m biased but it’s a good book. Look at the reviews on Amazon – 44 reviews averaging 4.7 stars at this writing. You won’t find any book like it that does nearly as well. And you can help make it better for readers in your state.
You won’t make money on the book. The price is kept low deliberately. But you will help people. More potential clients will know your name, and you will establish yourself as an authority.
Please let me know if you’d like to join the movement. E-mail me at email@example.com. If you know a lawyer who might be interested please ask them to contact me.