Checkpoints

The Fair DUI flyer can be more effective in checkpoints than it is in a traffic stop. In a traffic stop the officer has stopped your vehicle because of reasonable suspicion that you’ve done something wrong. Typically such a stop involves a traffic violation that the officer witnessed, such as speeding or running a stop sign. Since you’ve “done something wrong,” the courts are more likely to be favorable to the police officer in this situation.

In a checkpoint, by contrast, there’s no evidence you’ve done anything wrong. While the Supreme Court allowed DUI checkpoints in Michigan v. Sitz, the opinion referenced guidelines that were followed. Many state courts have required that checkpoints be conducted pursuant to specific guidelines. Those guidelines help make the Fair DUI flyer more effective.

Why?

Because the guidelines don’t tell the police what to do when someone holds up the flyer to their window. Or more generally, they don’t indicate what they should do when someone asserts their rights.

Typically the guidelines will instruct the officers to do an initial check – perhaps a brief vehicle inspection to make sure the equipment looks proper and the license plate is valid. Then the officer is supposed to check your license, insurance and registration. If these things check out, they’re supposed to send you on your way.

However, if you admit to drinking, they smell alcohol, or if your speech is slurred, the guidelines will direct them to detain you and do a more thorough investigation.

Here’s an excerpt, probably old, from the Pima County (Arizona) guidelines:

pima-guidelines

And here are guideline suggestions from the NHTSA:

Detection and Investigation Techniques
… Officers should look for the following indicators of impairment during initial contact with a driver at a checkpoint: odor of alcoholic beverages or other drugs (marijuana, hashish, some inhalants); bloodshot eyes; alcohol containers or drug paraphernalia; fumbling fingers; slurred speech; admission of drinking or drug use; inconsistent responses; detection of alcohol by a passive alcohol sensor; etc. … Police are using the techniques taught in the SFST course to quickly detect signs of driver impairment.

Once an officer’s suspicion is raised, further investigation can take place out of the traffic lane without impeding the flow of traffic. …

Notice that some of the things they look for can only come from you opening the window and talking with them. Odors, admissions, slurred speech, inconsistent responses and “passive alcohol” detection are all things they will not be able to observe if you keep your window and your mouth shut.

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43 thoughts on “Checkpoints

  1. Leonardo

    Can the police order you out of your car at a DUI checkpoint? Even if I followed all of the steps on the flyer?

    Reply
    1. wredlich Post author

      That’s not exactly the right question. The police can do all sorts of things to you that they should not. They can even shoot you.

      The correct question is whether it’s legal for them to do so. Ordering you out of the car at a checkpoint is a pretty clear violation of your rights under the Fourth Amendment.

      At checkpoint stops the police are supposed to have written guidelines that meet constitutional standards and they’re supposed to follow them. If the guidelines are not written, if they’re unconstitutional, or if they’re not followed, then any evidence that flows from that order should be suppressed by the judge handling the criminal case.

      It also creates a civil rights claim for the person who was ordered out of the car, though it may be difficult to find a lawyer to take on that case.

      Reply
    2. Derek

      Mr. Redlich,

      You represented me in several traffic infractions while you were practicing in Albany, all favorable outcomes on my part. Thank you again. I’m glad you are standing up and giving the layman a voice when it comes to these checkpoints. I still reside in NY. There is an almost weekly checkpoint in my area except in winter. I remember seeing in the NY DUI checkpoint guidelines that a driver MUST have the ability to avoid the checkpoint legally, whether this means turning around or turning down a side street. This particular checkpoint funnels every car through and there is no legal place to turn around. Does this deem it unconstitutional? Any clarification would be much appreciated.

      Reply
        1. Derek

          Mr. Redlich,

          Thanks for the advice. However, in that article in sounds like the judge entered the checkpoint and then suddenly drove off. I’m referring to simply avoiding the checkpoint before actually entering it. Is that reasonable suspicion enough to be pulled over and questioned as to why I turned down a side street, etc before following the rest of the vehicles?

  2. Keny

    In the state of Tennessee they have a new No Refusal law. That means they can draw blood without your permission. Well this work in Tennessee?

    Reply
    1. Isaac

      That has got to be illegal….no way they can take your blood without your consent…that should be fought without a doubt.

      Reply
      1. Dave

        In Georgia, under the “no refusal” law, if you refuse a field sobriety test, the cops can arrest you, take you to the station, tie you down to a chair/table, and draw blood. They have been doing this in Douglas County for some time now. It has been filmed and shown on the local news.

        Reply
  3. Buster

    It appears that the local sheriff has his own ‘view’ as to what obstruction is and I wonder if his ‘view’ is written in the FL statutes? He apparently has a trained nose and is able/demanding/required to ‘smell’ you and determine your level of sobriety or impairment and then use that as probable cause to make you submit to a test.. May I suggest to all drivers stopped to carry a few cloves of fresh garlic and chew on them prior to any interaction with an officer to test how well the sheriff can sniff out a crime like a canine? I dont advocate breaking the law but defend my constitutional rights!

    LEE COUNTY, FL –
    It’s creating quite the buzz on social media – a Florida organization says it has found a way to legally breeze through DUI checkpoints.

    The video – from New Year’s Eve – shows Jason Gray, who is sober, going up to a checkpoint in Levy County.

    Local law enforcement and attorneys, however, shared some words of caution.

    In the video, Gray has what he calls his fair DUI flier with him. “You can see it has fair DUI flier language, I remain silent, I want my attorney,” said Gray.

    Inside the plastic bag hung from the driver’s side window, is his license, registration and insurance information, plus he’s cited two Florida statutes.

    Gray said: “I will not open my window cause they can smell alcohol or drugs in the vehicle.”

    Deputies look at the bag then waive Gray through the checkpoint. It’s an experiment Fairdui.org says has worked seven times in the state.

    “Obviously he’s trying to push the envelope as far as he can and test a system that’s designed to save lives,” said Lee County Sheriff Mike Scott.

    He says by law, a driver has the right not to answer questions from deputies but what he takes issue with is not rolling the window down.

    Sheriff Scott says tinted windows pose a threat to officers and deputies need to be able to interact with and smell drivers to know if they’re impaired.

    “A law enforcement officer standing at a window open just enough to slide a piece of paper through, is clearly obstruction in my view,” said Scott.

    LCSO policy states if a driver refuses to cooperate, they cannot leave the checkpoint and can be arrested.

    “If he comes to Lee County and tries that, he’s not going to like the outcome,” said Scott.

    Fort Myers defense attorney Scot Goldberg says there’s nothing wrong with exercising your right to remain silent, but he has a word of caution.

    “At the end of the day, you’re drawing more attention to yourself, unnecessary attention,” said Goldberg.

    Reply
  4. Isaac

    If I use this flyer in Georgia. Is there anything that could require me to have to roll down my window….like signing a ticket? What sort of tickets can be given at a checkpoint? As I read earlier if you use the flyer saying I REMAIN SILENT then ask am I being detained, you are going to look foolish. So with that being said, how do I handle a situation where they have issued a citation at a checkpoint? Am I required to sign? If so, what is the purpose of the flyer instructing to put any tickets under wipers?

    Reply
  5. Brandon

    I would very much like to try this in the great state of Louisiana. Please email me the Louisiana flyer as soon as it’s available. Thanks.

    Reply
  6. Matt

    Does it work for other traffic stops too?

    I offered a cop a very, very reasonable explanation for a very minor, non-alcohol-related traffic summons to no avail. When I contested the ticket in court, he implied my explanation was somehow an effort to escape punishment.

    Reply
  7. Pingback: Florida Attorney’s DWI Checkpoint Flyer | Rosensteel Fleishman, PLLC | Personal Injury DWI DUI Traffic Ticket Lawyer Charlotte North Carolina

  8. Gerald Bazar

    Need one for Virginia, they constantly have checkpoints set up on Holidays and during tourist season in Virgininia Beach, VA.

    Reply
  9. Sunshine

    I live in Vista Ca and the border patrol has a checkpoint on both the 5 north and 15 north so to go north of me I have to pass thru . I am unclear on my right and have been stopped and had my car searched more then one time . Is it legal for them to stop me ? And will this sign work for a border check that’s not on any border but in Northern California ?

    Reply
  10. Paul Caterina

    I was given a ticket for no seat belt and the officer put in the code for unrestrained child. I went to traffic court to fight the ticket and the officer didn’t show up. I asked the judge shouldn’t it be dismissed because the accusing officer wasn’t there and the judge said “there is always one.” She also changed the code on the ticket. She rescheduled over ten people because this cop didn’t show up while they all did. Is this correct?

    Reply
  11. Paul Caterina

    I was given a ticket for no seat belt and the officer put in the code for unrestrained child. I went to traffic court to fight the ticket and the officer didn’t show up. I asked the judge shouldn’t it be dismissed because the accusing officer wasn’t there and the judge said “there is always one.” She also changed the code on the ticket. She rescheduled over ten people because this cop didn’t show up while they all did. Is this correct?

    Reply
    1. wredlich Post author

      It doesn’t sound fair, but we can’t be sure if it’s “correct” under the law wherever this was.

      Reply

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