Category Archives: DUI/OVI

DUI Checkpoints – One Florida Attorney’s Controversial Advice to Motorists

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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.

https://www.youtube.com/watch?v=YqEXTVe7MCQ#t=27

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.

https://www.youtube.com/watch?v=pTG5rWF_Uis

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.

  1. 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.
  2. 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.
  3. 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.

DUI Checkpoints – How are They Legal?

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A Breakdown And Basic Understanding Of DUI-Checkpoints

Driving down the highway and seeing an Ohio State Trooper standing on the side of the road with his laser gun pointed directly at me always makes my heart stop. I start to think, “Crap, was I speeding?” Because the last thing anyone needs is to be stopped by a police officer. It is a nerve-racking event that not too many people enjoy. The officer or trooper approaches your vehicle and starts to ask for your license, insurance, registration, etc. Then you sit there and wait while the officer or trooper runs your personal information. Assuming you have no warrants and your license is valid, you get a ticket or a warning.

Overall, not a pleasant experience by any account. But let’s break this down.

  1. A trooper pointed a speed detecting device at your car (laser gun);
  2. Registered your speed to be in excess of the posted speed limit;
  3. Pulled up behind your vehicle;
  4. Activated his overhead lights (informing you that he is conducting a stop);
  5. Stops you;
  6. Investigates not only the speed infraction but anything else he can find;
  7. Then assuming everything with you is good to go, you receive a speeding ticket or a warning.

So, this whole stop was based on the trooper’s Reasonable Suspicion that you were speeding. And that was his sole justification for pulling you over. Okay….that is a typical scenario in the court. But what if there is no Reasonable Suspicion? And that leads us into DUI-Checkpoints.

During a DUI-Checkpoint, a motorist enters into the checkpoint and is given instructions to stop. Once stopped and just like any other traffic stop, the officer asks for the motorist’s license, automobile insurance, and registration. It is during this time, the officer can order the motorist out of the vehicle if he smells alcohol on the motorist’s breath or believes the motorist is impaired from drug use. Well isn’t that a problem? How is the officer not violating the motorist’s Fourth Amendment right to unlawful searches and seizures? After-all, the motorist has not committed any traffic infractions! He is just driving down the road and then being stopped for no particular reason…RIGHT?!?!

Unfortunately, the U.S. Supreme Court in Brown v. Texas did not feel the same way. The Court found a three-part balancing test to determine the reasonableness of stops and seizures under the Fourth Amendment relating to sobriety checkpoints. The Court stated, “Consideration of the constitutionality of such seizures involves:

  1. A weighing of the gravity of the public concerns served by the seizure,
  2. The degree to which the seizure advances the public interest, and
  3. The severity of the interference with individual liberty.”

This is a pretty general balancing test without much guidance. The Ohio 2nd Appellate District felt the same way and adopted a test developed by the Iowa Supreme Court in State v. Hilleshiem. The Ohio 2nd District in State v. Goines found that a vehicle may be stopped where there are all of the following:

  1. A checkpoint or roadblock location selected for its safety and visibility to oncoming motorists;
  2. Adequate advance warning signs, illuminated at night, and timely informing approaching motorists of the nature of the impending intrusion;
  3. Uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community; and
  4. A predetermination by policy-making administrative officers of the roadblock location, time, and procedures to be employed, pursuant to carefully formulated standards and neutral criteria.

Reading the 2nd District’s test, it seems to me that this test goes to the third prong of the U.S. Supreme Court’s balancing test above. This makes sense, because the severity of the interference with individual liberty is what is truly at stake. Don’t worry though, the U.S. Supreme Court addressed this very issue in a separate case.

Eleven years after developing the three-prong balancing test in Brown v. Texas, the U.S. Supreme Court was at it again with sobriety checkpoints. In Michigan Dept. of State Police v. Sitz, the Court found that individual liberty or privacy can be broken down into objective and subjective intrusions. An objective intrusion is based on “the duration of the seizure and the intensity of the investigation.” A subjective intrusion is based on “the fear and surprise engendered in law-abiding motorists by the nature of the stop.”

Based on those two definitions of objective and subjective intrusion, the U.S. Supreme Court held that a state’s use of sobriety checkpoints does not violate the Fourth Amendment, and that the objective and subjective intrusion of privacy is minimal. The Court went on to say that the fear and surprise of motorists – subjective intrusion – are further lessened because “at traffic checkpoints the motorists can see that other vehicles are being stopped and can see visible signs of the officers’ authority.”

Now, the other two factors to be weighed in the balance test also need to come into play, but I do not believe they are difficult for the state to show. So, there is the gravity of the public concerns served by the seizure and the degree to which the seizure advances the public interest. Okay, I can sum those two up real quick. A State Trooper Captain gets on the News and states, “We are cracking down on impaired driving on Wilmington Avenue from the corners of Patterson to Dorothy Lane. We have statistics that show on this stretch of Wilmington Avenue there has been more OVI arrests in the past two months than any other stretch of roadway. In addition, we have had four accidents involving impaired drivers, one was with a fatality. In order to reduce impaired driving, the Ohio State Patrol along with the Kettering Police Department will be conducting a sobriety checkpoint from 8 p.m. to 11 p.m.” BOOM! The public concern is impaired drivers lead to car accidents and the public interest is to stop and get impaired drivers off of the road through the use of sobriety checkpoints. That is good enough for most courts.

Going back to my example of breaking down a stop for speeding, I think it is clear that any stop is intrusive in nature. And that is just with one to two police officers on scene! Sobriety checkpoints have multiple police officers looking into your vehicle, asking questions, demanding to see documentation. But hey, the surprise and fear is gone, at least according to the U.S. Supreme Court, because you see fellow motorists being stopped in front of you and visible signs of police officers’ authority are comforting. Well, NOT FOR THIS GUY!

Now that there is a basic understanding of DUI-Checkpoints, next blog will readdress DUI-Checkpoints and talk about one Florida Attorney’s controversial advice for avoiding contact with police officers during a checkpoint stop.