In my last Blog Post entitled “DUI Checkpoints – How are they Legal?” I explained Ohio DUI Checkpoint Law and discussed the various elements associated with it. More importantly, I hit on why I believe DUI Checkpoints are intrusive and clearly violate a motorist’s Fourth Amendment right to be free from unlawful search and seizures. As you can imagine, this is a hot button topic throughout the country. So much so, one Florida defense attorney offered what some call controversial advice to avoid problems at a police sobriety checkpoint.
Attorney Redlich states on his blog that motorists should put their license, registration, proof of insurance, and a flyer that states “I remain silent,” “No Searches” and “I want my Lawyer” in a plastic baggie attached to the exterior of their vehicle. And then prior to approaching the checkpoint, the motorist should roll up their window and not talk to the Officer(s). Below is a video of this advice in practice.
This video was reportedly filmed at a DUI Checkpoint in Levy County, Florida. Just for disclaimer purpose, I do not know if this is a real DUI Checkpoint or if it was just an attorney hiring a bunch of actors to prove his point on how to handle a DUI Checkpoint. But for sake of argument, I am going to assume this was a real life DUI Checkpoint with Levy County Sheriff’s Office.
In the video you can see that the driver placed his valid license, current insurance card, and vehicle registration card within a clear plastic bag. Along with his personal identification material, the driver has a flyer instructing the officer’s he does not want to talk with them and if they want to talk him to call his lawyer. In describing what he is doing, the driver also explains that the reason why he wants his window up the entire time is because he believes that no matter what the cops can say that he had an odor of alcohol on his breath and his speech was slurred. So in theory, by having the window up, the driver avoids two clues the police can use to find reasonable suspicion of alcohol consumption. In this video, the police officers read the information contained in the plastic bag and send the driver through.
Awesome!! This is a great victory for a private citizen standing their ground against the unlawful search and seizure of their person. Now before anyone goes around trying out the Plastic Bag Technique when driving through a DUI Checkpoint, check out this video of two men going through a DUI Checkpoint in Escondido County, California. They had a very different experience.
In this video (which I am positive was shot before the Plastic Bag Technique described above) shows two gentlemen driving through a DUI Checkpoint. The driver’s window was not rolled all the way down, but rather just a couple inches. The officer was obviously not happy with the window only being rolled a couple inches down. Showing his displeasure, he instructs the driver to roll the window completely down. A conversation between the police officer and driver ensues. Then after only a few short minutes the police officers break the driver’s window and place him under arrest for most likely some form of obstructing official business.
Two videos of drivers trying to maintain their Constitutional Rights under the Fourth Amendment from unlawful search and seizures with two very different results!!
Let’s break down these two videos to find the differences which could have led to the different results.
- The first thing I noticed was that these two DUI Checkpoints were different in nature. The Levy County DUI Checkpoint seemed to be just that, a DUI Checkpoint. But, the Escondido DUI Checkpoint was also a License Checkpoint, meaning that in addition to just checking for drunk driving the officers could inquire as to the license status of the driver. So, even though the Escondido County Driver did not want to give the officer his license, technically he was supposed to hand it over to the officer. Side Note: The Ohio Supreme Court upheld the Dayton Police Department’s License Checkpoint in State v. Orr, 2001-Ohio-50.
- The Escondido Driver had his window cracked only a couple of inches whereas the Levy County Driver had his window completely up.
- The Escondido Driver, throughout the entire police interaction, repeatedly asked if he was free to leave or if he was being detained. The Levy County Driver never let the police take over the conversation. In fact, the Levy County Driver did not have to say a word because all of the information the police would require was placed in a plastic bag with instructions of what the driver was willing to discuss.
- Prior to entering the checkpoint, the Levy County Driver placed his plastic bag with his information and instructions to the police on the outside of his car BEFORE entering the DUI Checkpoint. The Escondido County Driver entered the Checkpoint and then rolled down his window a couple of inches. I believe that when the Officers in Escondido saw the window going down only a couple of inches, they became immediately irritated. And I further believe this could have happened to the Levy County Driver had he rolled down his window at the Checkpoint, placed his plastic bag on the outside of his car, then rolled his window back up.
Even when breaking down the videos, I think it is very apparent that the results could have been completely different. For example, the officers could have just sent the Escondido County Driver on his merry way. In contrast, the officers could have taken the Levy County Driver’s information out of the plastic bag, ran it through their police computer system, and demanded he stepped out of his vehicle. And if the Levy County Driver still refused to exit his vehicle, well I think he would have been in the same position as the Escondido driver. What it really comes down to is the police officers manning the DUI-Checkpoints. There are good cops and there are bad cops.
After the Levy County DUI Checkpoint video went viral, various Florida County Sheriff Departments announced their plans to combat people placing their driver’s information in a plastic bag outside of their window. One Sheriff Department threatened to arrest any motorist for obstruction who utilized this technique. Another Sheriff Department was informed by legal counsel that an officer can order a person to roll down their window and step out of their vehicle, if that officer witnesses erratic driving, drugs in plain view, or other problematic conduct. Hmmmmmm…..other problematic conduct?? Do you suppose this legal counsel defines other problematic conduct as placing one’s driver’s information in a plastic bag and placing that bag on the outside of the driver’s side window?
So this begs the question…..what should one do during a sobriety checkpoint? In answering this question, I think the most important thing to remember is that you have rights throughout this DUI Checkpoint process.
- You have the right to remain silent and to not answer any of the officer’s questions without your attorney present. Do not admit to drinking, do not admit to drug use, do not admit you have a suspended license, do not admit to not having insurance. Just remain silent and instruct the officer that you wish to have an attorney present during any and all questioning.
- You have the right to not perform any field sobriety tests. If asked to perform field sobriety tests, politely decline and ask to speak with your attorney immediately. Remember, these tests are designed for you to fail. No one can pass them.
- You have the right to deny search of your person and your vehicle. Simply ask that the vehicle be locked and left at the scene. Without your consent, police officers need probable cause and warrant. Make them work for it! And if they start to search your vehicle without your consent, remain calm!! Just better defenses for your case!
And in case you were wondering, there is no Ohio Law stating that a driver must completely roll down his window when talking to an officer either at a DUI Checkpoint or during a routine traffic stop. However, don’t be surprised if the stopping officer demands that you must roll down your window. At this point, the choice is yours….either comply or stick to your guns! And if you choose the latter, hopefully you will not have a broken window!
In closing, as much as I truly like Attorney Redlich’s approach to handling a DUI Checkpoint, I would highly advise against trying the Plastic Bag approach in Ohio. You will bring unwanted attention to yourself! Remember your constitutional rights and immediately contact your attorney!
In my next Blog Post I will be discussing the U.S. Supreme Court’s decision of upholding Police Manufacture Consent with regards to Co-Inhabitants of an apartment.