If you have the bad luck to toll up on a DUI “sobriety” checkpoint, how should you handle it?
The fact that you haven’t been drinking is, unfortunately, immaterial.
Every person entering one of these checkpoints is treated as presumptively “drunk” until they convince a cop that they are not. You may be asked to perform curbside gymnastics or take a roadside breath test.
Any refusal on your part to be “cooperative” will be taken as an affront to the authoritah of the cops – and as “evidence” that you have been drinking.
And it doesn’t leave much room to maneuver.
But there are things you should do – and things you should never do.
* Never make a U turn –
Do this and you can expect the Full Rodney . . . as in Rodney King. They will come after you, felony stop style. Even if the U turn was legal. Even though you aren’t “drunk” and merely wish to avoid the hassle and the affront to your right to be left alone. In the crazy times we live in, it is considered “suspicious” to seek to avoid dealing with cops – and passing through checkpoints. It may even be enough “probable cause” to justify (according to some judge, later on) a search of your vehicle. Keep in mind the danger of that – even if you haven’t got anything illegal in the car. Something illegal might just be “found” during the search.
This has been known to happen.
And – again these days – all it takes a drug dog conveying to its handler via inscrutable yips and body movements that it smells drugs in your car. Hey, presto! – you’re off to jail and your car to the auction lot.
*Record everything –
Cops can and do lie – legally – and their word (for what it’s worth) is not considered “hearsay” in court.
But video evidence is hard to gainsay.
The fact that you are recording – be sure to tell the cop – may all by itself save you a lot of trouble. He is less likely to abuse you if he knows such abuse may go viral on YouTube before the end of his shift. And regardless, it is objective evidence about the event that may be crucial to your defense later on, if things go beyond the usual “papers, please” low-rent Gestapo kabuki theater.
* Do not rummage around in the car –
If you didn’t buckle up for “safety,” it’s too late now. If the cop sees you rummaging around (or what looks like it to him) you’ve just given him what he needs to claim later on that he “feared for his safety” and that’s why he escalated the situation. Stay calm, don’t move much; keep both hands visible. It’s wretched, but necessary.
These are the times in which we live.
If you have a gun (in states where open carry is legal) say so. If you have a CHP, tell them. In some states, it’s required that you do so – and failure to do so can bring down felonious consequences, apart from any “drunk” driving hassles. Most of all, don’t get shot. Keep both hands in plain sight; turn on the interior lights. Tell the cop where the gun is – and let him get it, if he feels the need. Do not reach for the gun yourself.
* When the cop approaches, crack your window just enough that you can pass through your driver’s license and other paperwork, but do not roll it all the way down –
You are legally obligated to acknowledge the cop – and to hand over your “papers” – but you are not required to roll down your window.
It may annoy the cop but it is smart policy because you are asserting the sanctity of your legal space as well as preventing him from physically sticking his nose inside your vehicle. It will be harder for him to smell – or to say he smelled – anything.
And harder for him to snoop.
Keep in mind that these “sobriety” checkpoints are also fishing expeditions – and you are the catch of the day. They are not looking only for “drunks.” They are looking for anything they can write a ticket for – or take you to the clink for.
* Do not answer questions, but don’t argue, either –
If the cop asks why you won’t roll down your window, remain silent and offer your license and other papers. If he asks whether you’ve had anything to drink – or where you’re headed – simply state: “I’d rather not answer any questions.” Followed up by: “Am I free to go?”
You are not legally required to engage in banter with the cop. And remember, he is not being friendly. He is conducting an investigation; he is looking for anything he can (and will) use against you. His questions are leading . . . to the backseat of his car, ultimately.
By not talking to him, you are giving him no rope with which to hang you. He will either let you go – or he won’t. If he won’t, you engaging him in “friendly” banter isn’t going to make any difference as far as doing you any good.
Ask whether you are free to go.
Depending on the cop’s mood, your demeanor and other intangibles, he will either wave you on or take it to the next level. Which will either be roadside gymnastics or the roadside breath test; very possibly both.
Here’s where things get serious.
The roadside gymnastics tests are right up there with phrenology and trepanning.
They are also the inverse of the dumbed-down traffic laws cops spend all day enforcing. On the one hand, we are told that speed limits are set preposterously low (most are the same today as they were in 1970, notwithstanding all the advances in car technology that have – surely – made it safer to drive faster than in 1970) because the average person can’t safely operate a car beyond those speeds and the average driver must be accommodated.
On the other hand, we are told that middle-aged people with bad knees and poor eyesight and the not-coordinated generally must successfully perform a series of challenging physical tasks by the side of the road, perhaps on uneven pavement, under the glare of a spotlight and the threat of incarceration – else be incarcerated for presumptive “drunk” driving.
If you have any doubt about your physical ability to perform these tests, do not attempt to perform them. Your stumbling – even if utterly sober – will be taken as sure evidence that you are “drunk,” and good luck convincing a judge you weren’t.
The good news is that in most states, you have the right to refuse this test. The bad news is you don’t have the right to refuse the second one: The notoriously unreliable Breathalyzler test. These test have been proved less-than-accurate but are still used routinely because (wait for it) they favor presumptive guilt. And unlike the physical coordination tests – which you may still decline to take without being immediately arrested and presumed guilty of “drunk” driving – you have to take the breath test.
If you want to avoid being arrested as a presumptive “drunk” driver.
So, should you – or shouldn’t you?
If you have not been drinking at all, taking the roadside breath test is probably a risk worth taking – purely as a practical matter; to get you out of there and out of their clutches. But be aware that if you’ve been drinking even a little, taking the test could cause you big trouble. Even worse trouble than being arrested and taken in as a presumptive “drunk” because you refused to take the test.
As a proved “drunk.”
Here is a not well-known fact about DUI laws: In most states, you can be arrested for “drunk” driving with a BAC below .08 (the national per se standard that automatically defines “drunk” driving) if the cop – in his judgment – asserts that in his opinion you are “impaired.” And you can be convicted of DUI/DWI (the verbiage differs from state to state but largely means the same thing, in terms of repercussions) with a measured BAC level of .06 or even .04 or less.
The only distinction being that a measured BAC of .08 or higher is taken on the face of it as proof you were in fact legally impaired while if the measured BAC is less than .08 the cop/prosecutor will have to convince the judge you were – which isn’t very difficult given the enormous politically correct pressure on judges (who often have political aspirations) to be “tough” on “drunk” drivers.
This, by the way, includes those under the age of 21 with any trace of alcohol in their systems – under “zero tolerance” policies. Thus, a 20-year-old who drank a single beer two hours ago can be convicted of “drunk” driving if the breath tests detects any trace of it.
Which is why he’d be well-advised to not take the test. Same goes for those over 21 who have been drinking a little bit more – not enough to impair them, but enough to “bust” them.
They will be arrested for refusing to assist in their own prosecution, for declining to provide evidence to be used against themselves in a criminal proceeding – under odious “implied consent” laws in force in all states that insist we agreed to submit do all the foregoing as a condition of being allowed to leave our houses and travel on “public” roads.
However, it will take time to arrest you and transport you to the clink. The more time that goes by, the more time your body has to process whatever alcohol may still be in your system. With luck, there will be less in you by the time they finally get around to testing you.
Be aware that in some states, you can be physically forced to submit to the test, even forced to provide a blood sample. But at least you’ll be tested by better equipment and (with any luck) better-trained people and (usually) under at least some supervision.
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I made a safe and legal u turn while approaching a sobriety checkpoint in Seal Beach, California and the police did not come after me. I went home via another route. In California there has to be an opportunity for drivers to legally avoid the checkpoint.
You were lucky. In many instances, turning off the road to avoid a “checkpoint” arouses the swine and gives them “probable cause” to go after you. This whole “checkpoints” thing is intolerable in a free society.
In California, the breath test administered is usually known as “PAS” (Preliminary Alcohol Screening), and is considered a Field Sobriety Test. Like the HGT (involuntary eye movements) or tests of balance/coordination, or reciting the alphabet and so on, you are NOT
legally required to take it, but the cops can and WILL often lie and threaten you with arrest for ‘failure to test’ if you don’t. I would call their bluff, as these devices are notoriously subject to variations depending on the subject health, body composition, and what perfectly legal and otherwise innocuous products you might have recently consumed being present in your digestive tract.
We need to do whatever we legally can to make these blatant infringements on our freedoms as difficult and onerous for law enforcement to conduct as possible. I say, WHY “co-operate?” Did the Jews just throw themselves into the gas chambers to ‘convenience’ the Nazis?
“simply state: “I’d rather not answer any questions.” ”
I use this wording: “Respectfully, officer, I do not wish to answer any questions and I do not consent to searches.”
Had to repeat it once when I last got pulled over, but then they got down to business, issued the piece of paper taxing me on the spot, and then I got to leave.
A single beer in a guy like me might show over .08 in a few minutes after having drunk that beer. If you have eaten after the beer, the smell may not be there or barely there. Be advised that something like a Hall’s Mentholyptus you are sucking on or have just sucked on WILL show you drunk.
In Tx. you don’t have a choice to not take a test. Breath refused is blood drawn ifn’ they gotta hold you down and now they carry syringes just for this…..not a pretty thought eh?
Be calm and alert. Start friendly with a Good Evening, How are you? or something similar. You’ll know by his response if this will be of any use which most of the time it certainly won’t hurt.
If you see one of the checkpoints take evasive action as quickly as you can. If there’s a business or even a house, stomp on the brakes while giving a signal and pull in there and kill the lights, get out and go knock on the door. They may be watching you(assume they are)so go on in if a business is open or get someone to the door if you can see them and it’s not open. Ask whatever questions of them that seem reasonable(I’m looking for “a place you already know you’ve passed or any such bs). Engage those people in conversation as long as possible. Ask to use the phone since your cell is dead, left at home, lost, etc.. This looks like where you were headed so getting in the door appears you were heading there to begin with. If it’s a residence, do the same thing and be sure to be as nice as possible. You might mention it looks like they’re having a party down the road and keep it light. If they seem to resent the checkpoint and the cops you might ask them if they minded if you just sat in your vehicle for a while and they may invite you inside. They may not also. Houses that appear as if no one is home are good places to pull up, cut off the lights, get out and go to a door they can’t see(if there is one). Maybe it’s time to walk into the back yard and hang out a while if they have a fence. There’s a lot of other plays on this same idea, just be sure to not alarm anyone. I once pulled around behind a house(make damned sure you don’t keep your foot on the brake)and killed my lights and engine before I got there. After the pursuing occifers passed by a porch light came on, a door opened. I apologized out the window and said I needed a bit of safe harbor for a few minutes and if I caused any damage to the lawn or anything I’d make it right. I had a guy get a laugh out of that and just said, We weren’t asleep, you just can’t see our light. Stay as long as you like and try not to wake us as we’re about to turn in.
My wife and I left some friends house one morning after a late party night complete with an all day shoot-out and gunsmithing. I had a lot of long guns in cases in the back seat, a few handguns, in cases and in holsters and a danged old Uzi just laying there on the floor for all the world to see in the back floorboard. We had more guns, beer and cases of ammo in the trunk. We weren’t exactly being subtle since we were in a highly modified Z 28 with under the fender headers that turned down the length of the car and turned out some barely muffled exhaust(lake pipes) to the side. Racing wheels and tires, added to that we weren’t going to pass for gramps and granny even from a distance. The instant I got around the curve enough to see the roadblock(from fence to fence)I hit the blinker, slammed on the brakes just barely not skidding the tires and took a connecting road between the two highways that intersected right behind me where we’d turned about 3/8ths of a mile. I eased to where they couldn’t see the car and romped on it a bit to get to the other highway. I turned back as if to go back to the highway I had been on but went across it at the light and continued on to the interstate. Gee, it was nice to be up on the interstate early Sunday morning with light traffic and knowledge of where all the DPS would probably be. We only drove as far as the first exit, turned off onto a dirt road and eased the back roads to the house. Somewhere in there seemed a good place for our first beer of the day in a different county, the one we lived in. I told the guy who owned the car about it a week or so later. He said “I don’t ever drive any road I know leads to a lake(what we encountered) or hardly ever any two lane roads……ever seen a roadblock on the interstate?” Point taken.
I’m well aware of switches to kill your brake lights not be legal but a hidden switch that cuts the tail lights and another for the brake lights have saved my butt several times. You’d be surprised how hard it is to see a car at night with no rear or brake lights and the headlights on. I’ve been in cars I used the E brake to slow with no lights showing. That works too.
And by the by, some interesting video regarding breathylizers and mouthwash:
(Eric: This lawyer is from Virginia.)
“…even forced to provide a blood sample.”
The doctor/nurse that would actually do the bidding of some cop that comes into their realm: THAT person should really be ashamed. Any doctor/nurse that did not tell the cop to bugger off and get out of my hospital, might actually be worse than the cop.
Ask the person doing the blood draw how your records will be protected under HIPAA.
It’s still possible for the medic to be an authoritarian, like the ones at the El Paso hospital that did a body cavity search on a woman, and then billed her for the procedure. She naturally sued and got $1.1 million from the hospital’s insurers, and later almost $500k from the CBP.
Since then we have the example of the SLC nurse Alex Wubbels, a former skiing champion and then also a mother of a toddler…she refused to draw blood on a comatose patient as it was against hospital policy, so the SLC PD Sergeant simply arrested her and DRAGGED her out to his car. Fortunately, the uproar that ensued not only exonerated Ms. Wubbels, it also got that sergeant FIRED and his supervisor demoted, and she got a decent settlement.
One thing about the BAC meters – they’re calibrated to a “standard human response”. Meaning they are set up at the factory for a standard measurement of how fast alcohol transfers from your blood into your lungs and thus your breath. So if your body is significantly different from their standard, perhaps because you’re small or large statured, or if you have impaired lung function for some reason, that means the measurement is incorrect.
Your attorney should know this. Mention it to them if they don’t bring it up.
They were running TV ads in the Chicago area with the verbiage “buzzed driving IS drunk driving”. So yes, being under .08 won’t get you out of a drunk driving bust. One drink can get you a DUI.
Hell, it doesn’t even have to be alcohol to get a DUI. It’s “driving under the influence”, not driving under the influence of alcohol. It can be ANYTHING, like the guy in California who got arrest for caffeine! Piss off the hero and they will invent a law to bust you for.
A wonder how an American IRA has not emerged yet seeing the rampant acts of state terrorism we in the failed republic are subject to.
I believe it is coming, Thought… especially given the current irreconcilable differences between Trump and those opposed.