Fair DUI Flyer in Action

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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.

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6 thoughts on “Fair DUI Flyer in Action

  1. Mike A.

    Can the police lawfully order you out of your vehicle at a checkpoint without reason as in Pennsylvania v. Mimms?

    Pennsylvania v. Mimms, 434 U.S. 106 (1977), is a United States Supreme Court criminal law decision holding that a police officer ordering a person out of a car following a traffic stop and conducting a pat-down to check for weapons did not violate the Fourth Amendment to the United States Constitution.

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  2. Warren Redlich

    Mike is somewhat correct in his comment above, but not completely.

    The Mimms case involved a traffic stop, not a checkpoint. And they did not rule the police can order you out of your vehicle “for no reason.” They can order you out of your car for the specific purpose of conducting a pat down where the officer is concerned about his own safety.

    So if the officer orders you out of your car and then immediately goes into the car to look around inside, that does not comply with the purpose of checking you for weapons. And if it’s at a checkpoint, ordering you out of your car would likely be unconstitutional for a few reasons.

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  3. Mike A.

    Thanks for your response, I have always questioned this “lawful order” to exit the vehicle at a checkpoint.

    If stopped at a checkpoint and ordered out of your vehicle, must you comply? Can’t the officer always claim he is concerned about his own safety? Then they have access to smell the interior of your car or claim you are unsteady on your feet or other signs of impairment.

    Can you explain the reasons why it would be unconstitutional?

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  4. Warren Redlich

    To be constitutional, checkpoints have to be conducted according to written guidelines. Ordering the occupant out of the car would generally not fit the guidelines. And if the guidelines did call for ordering every occupant out of their cars, that would also likely be held unconstitutional by the courts.

    Now, if you are “ordered” out of your car at a checkpoint (or traffic stop) – ordered as in you are commanded to and you are not consenting to it voluntarily – then it is safer to comply. Since this order is unconstitutional, anything that comes of it would likely be thrown out of court, and the driver would have a potential civil rights claim against the officer.

    Keep in mind that Mimms was a traffic stop case. The driver had done something wrong. In a checkpoint the driver has done nothing wrong so the standards for the police are more stringent.

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  5. Warren Redlich

    But it’s important to record the encounter. Some police will lie and claim that you voluntarily got out of your car on their polite request. You want to make it clear that this was not on consent. The officer’s use of language in getting you out of the car should be clear that it’s an order.

    Situation 1: The officer says: “Sir, would you mind stepping out of the car please?”
    That’s not an order and you should not get out of the car.

    Situation 2: The officer says: “Get out of the f…ing car now or I’ll smash the window in and drag you the f… out of it.”
    That’s an order and you should voluntarily get out.

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