Providing Information at a Tennessee DUI Roadblock or Sobriety Checkpoint

Image courtesy of Naypong at FreeDigitalPhotos.net

At a typical sobriety checkpoint trying to identify drivers under the influence of alcohol and/or drugs, motorists are forced to stop their vehicle, roll down their window, and usually provide certain documentation to an officer.  The documentation generally includes a valid driver’s license, proof of registration and proof of financial responsibility (liability insurance). While the driver is gathering these documents, the officer may also ask questions about what the driver may or may not have been doing before reaching the checkpoint. The purpose of these questions is to assist the officer in identifying those driving while intoxicated (DWI).

Florida lawyer Warren Redlich disagrees with motorists being forced to roll down their window and verbally communicate with an officer at a sobriety checkpoint. In order to avoid

forced communication with an officer at a checkpoint, Mr. Redlich has developed state specific signs or placards intended to replace the responsibility of the motorist to roll the window down and answer questions. Some of the words in bold on these signs include “I remain silent,” “No Searches,” and “I want my lawyer.” Mr. Redlich’s opinion is that a motorist should not be forced to answer questions at a checkpoint.

Instead, Mr. Redlich believes it is sufficient to simply place the previously mentioned sign against the car window where it can easily be read. Anticipating being asked for one’s driver’s license, registration and insurance proof, Mr. Redlich suggests placing these items in a plastic bag and hang it from the driver’s window.

Peter Gerstenzang, a lawyer practicing in New York, thinks that using these signs “…[I]s really dumb.” See: http://news10.com/2015/02/11/fla-lawyer-dwi-checkpoint-signs-spark-controversy/. He suggests if the motorist has nothing to hide then the motorist has no reason to use the sign at a sobriety checkpoint.

Steven Oberman, a lawyer practicing in Tennessee, echoes the thoughts of his colleague, Mr. Gerstenzang. If a motorist finds him/herself at a checkpoint (a common occurrence throughout Tennessee), the motorist should simply provide any requested documentation.

If the officer asks about conduct that may incriminate the driver or if the motorist is uncomfortable answering a question, he/she should politely decline to answer the question. The motorist should advise the officer that they feel they are being accused of a crime they didn’t commit and advise the officer that they prefer that any personal questions only be answered in the presence of their lawyer. The motorist should then ask if they are free to leave (this may later assist the motorist in defending any charge that may be brought against the motorist).

Following the advice of Mr. Redlich would, in the opinion of this author, only make it more likely that the investigating officer would find a reason to arrest the driver for DUI, a related driving offense, or perhaps even for “Obstruction of Law Enforcement” as prohibited by Tennessee Code Annotated § 39-16-602. As with other matters of importance, it is suggested to use your common sense rather than trying to take the advice of someone unfamiliar with the facts of your specific situation. It is always best to rely on the legal advice of a lawyer licensed in your state and familiar with the laws applicable to your case.

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,000 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be certified as a DUI Defense Specialist by the Tennessee Commission on Continuing Legal Education and Specialization and the NCDD.

He is the author of DUI: The Crimes & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 7th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 23 states, the District of Columbia and three foreign countries.

You may contact Steve through his website at www.tndui.com or by telephone at (865) 249-7200.

Continue Reading...

ARE YOU REQUIRED TO ROLL DOWN YOUR WINDOW AT A DUI ROADBLOCK / CHECKPOINT?

There has been quite a bit of buzz lately about a video illustrating a Florida attorney’s creative advice on handling DUI roadblocks / checkpoints. The video suggests you hang your ID and other documentation outside of your rolled up car window in a zip-lock bag along with a note stating “I remain silent. No searches. I want my lawyer….”  In the video, this approach works like a charm, but that does not mean it is good advice for drivers to follow in the real world? Can a driver at a checkpoint be legally ordered to roll down his or her window? What about refusing to verbally communicate with the police. Let’s take a look at the first of these questions. We will consider the second question is a later post.

The reasoning for hanging a baggie out a closed window is to prevent officers from justifying further detention based on their interaction with the driver. Officers often use their subjective observations of drivers during a roadblock encounter to further detain them, which could lead to a DUI or other arrest. For example, an officer my claim he or she smelled the odor of alcohol coming from inside the vehicle or that the driver’s speech was slurred. These types of observations are highly subjective and prone to abuse by unscrupulous officers.

If you don’t speak and you remain behind closed windows, an officer could not credibly testify that your speech was slurred or that you smelled of alcohol.  However, the question remains, is the citizen required to roll down a window at a roadblock at the request of an officer?

Regarding the first question, the law seems is a bit ambiguous.  There are two Supreme Court case that may shed some light on the situation though neither is directly on point.  The first case is Pennsylvania v. Mimms, 98 S.Ct. 330 (1977).  In Mimms the court held that: it does not violate the 4th Amendment for an officer who is making a routine traffic stop to order that the driver step out of the vehicle during the encounter, even when there is no reason to suspect the driver of any criminal activity beyond what he is being ticketed for.  The Supreme Court weighed the intrusion into the driver’s liberty against the safety of the officer. The Court found the officer’s interest in his safety “legitimate and weighty” and while the intrusion into the driver’s liberty was minimal.

The second U.S. Supreme Court case is Maryland v. Wilson, 117 S.Ct. 882 (1997), which extended the holding in Wilson by holding that police making a traffic stop may order passengers to get out of the car pending completion of the stop. While Mimms and Wilson involved a traffic stops and not a checkpoints.  A court very well could extend their reasoning to checkpoint stops as well. If so, then officers could force the driver to exit, which would negate the benefit of not rolling the window down.

Another issue is that the behavior of not rolling one’s window down could arguably give officers a reasonable suspicion to further detain the driver for a DUI investigation.  Further, an overzealous officer might also arrest the driver under the particular state’s obstructing governmental operations/administration statute – a vague catchall statue. See, e.g., Alabama Code 13A-10-2. While the driver might well prevail in the ensuing prosecution, the cost, hassle and risk involved are a high price to pay to prove a point.

In a future post I hope to consider the question of whether you are required to verbally interact with officers at a roadblock / checkpoint stop.

Continue Reading...

Another Roadblock case

Posted On: February 19, 2010 by Bruce M. Robinson

I recently tried another DUI Roadblock case in Howard County District Court. Yes, another roadblock case, I have written extensively regarding the legality of roadblocks and the DUI Defendant's responsibility in Maryland. For those who are interested, the seminal case is Little v. State which spells out the Government's obligations to you (the people of Maryland) and your legal rights under this evasive big brother type of traffic stop scenario in which the Government has placed their stamp of approval.

It is an "evasive big brother" type of traffic stop because the police are stopping your car with no probable cause and with no "reasonable articulable suspicion" that the driver has committed any crime or traffic infringement whatsoever (this is required by case law to stop a vehicle). The people of this country are protected (used to be protected) against stops like this by the U.S. Constitution. However, the Government has saw fit to override your Constitutional Protections in light of the nefarious drunk drivers and boisterous arguments advanced by MADD. Drunk driving is indeed dangerous and stupid, it hurts people and cannot be tolerated in any form; however, the way to go about the problem is not to trample the Constitution and stop every car for an "inspection" like Nazi Germany, the way to handle the problem is through highway supervision like it is normally done, where there does exist reasonable suspicion protections to pull drivers over when they are weaving, speeding or exhibit some other transgression on the roadway.

In the DUI Roadblock case, drivers do have certain important rights which I will reiterate here. When those rights are violated by the police, as happened in my recent DUI/DWI case in Howard County, the Court will throw out illegally obtained evidence and you can win your case, even if you blew an illegal breath alcohol (BAC) number.

At a roadblock, there MUST be physical signs leading up the roadblock to advise drivers what is going on down the road, you have the absolute right to make a LEGAL turn and go the other way and not be molested by the cops. A legal turn is one that does not violate any laws, such as in illegal U-turn. If you do make an illegal turn, they will of course stop you at that point.

If you do not turn away, you have the legal right NOT to roll down your window when directed to do so by the authorities. They can speak through the window, as you can and if they don't notice any other documentable reasonable suspicion, then asking you to pull over will not stand in court. To that end, you do not need to even speak with them at all when they try to engage you to do so, they will note your "slurred" speech when you do speak and use that against you as a basis for the stop. That's not to say that you will have slurred speech (and if you do, you shouldn't be driving) but they will note it anyway.

Finally, there will be a stop sign placed at the check point which you must legally stop at, but after stopping, you are actually free to carry on about your business, ie. no eye contact, no talking to them . They will most definitely follow you out of the checkpoint as you have not succumbed to their authority in an attempt to identify poor driving, but assuming that you have not been drinking, you should not exhibit any poor driving, speeding etc. If they do "order" you to pull over when you refuse to speak with them, you must follow their orders, or you will get in breach for failure to follow their order, but they will have not legal basis for the stop and their case will be very weak or non-existent in Court. As usual, you are under NO obligation to do any field sobriety testing and you should not. Nor should you speak to any police following arrest without first speaking to counsel.

Welcome to America....

View the original article here

Continue Reading...