We’re pleased to report that the Fair DUI Flyer has been successfully used at a DUI checkpoint in Florida. See the video from Jeff Gray on his Honor Your Oath YouTube Channel, below:
The card is displayed in the video initially at 40 seconds in.
The first pass through the checkpoint begins at 2:16 in.
There’s more in the video but those are the key points.
We enjoyed seeing them in action but have a couple of suggestions about how to use them in the future.
The driver opened the window a crack, handed his license to the officer, and spoke with him. This is not what I recommend.
First, the idea behind remaining silent is that you remain silent. That means not talking – not a single word. While that may make the encounter more uncomfortable (both for you and the officer), I really mean it. The moment you say a single word you give the officer the opportunity to claim that your speech is impaired, slurred, or otherwise an indication of intoxication. They will use that as an excuse to elevate the level of the encounter and get you out of the car for a more involved (and unpleasant) investigation.
Even if your speech is fine, some officers will claim it wasn’t. And even if you’ve recorded the encounter, this issue is resolved by a judge, not a jury. In my experience judges may accept an officer’s word over the sound quality of a recording. But it’s much harder for a judge to find the officer credible if he claims you had impaired speech and the recording shows you didn’t say anything at all.
Second, you should not open your window at all. In the video the driver does so to hand his license to the officer and also to be better able to record the officer’s voice for the recording. You do not have to hand your license to the officer in Florida, and the same is true in New York, California and at least a few other states (check with lawyer in your home state to be sure). The law only requires you to show, display, or exhibit your documents to the officer. So you can press these items up against the window so the officer can see them. It’s a good idea to have them ready so that you don’t have to look around for them.
Similar to the “impaired speech” issue, once you open your window the officer can claim he smelled something from the inside of your car. Your video and audio recording is incapable of contradicting that. The way I usually hear officers say it in court: “I detected the odor of alcoholic beverage.”
It’s often phony. Who talks like that? And what is the “odor of alcoholic beverage”? Because the various forms of such drinks smell quite different. When I ask police on the stand what it smelled like, the most common answer they give is: “It smelled like alcohol.” On further questioning they’ll admit that alcohol is odorless. Fun for me as your lawyer, but if you get to that point you’re not a happy camper.
Do not give police the opportunity to create evidence against you. Keep both your mouth and your window shut.