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.
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.
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.
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.
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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