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.

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Rolling down your window at a check point

By Jessica Towne

There's a "controversial" YouTube video by the Fair DUI flyer folks about how to get through a DUI checkpoint without comprising your 4th amendment rights or even worrying about your Miranda rights. In the video, which was shot in Florida, the driver has placed his drivers' license, proof of insurance and registration, along with a "fair DUI flyer" which reads "I remain silent. No searches. I want my lawyer" inside a clear baggie which hangs outside his window. Will the cops let him through? They do! A miracle! You can watch it here.

Let's break this down.
1. Any driver stopped by the police must give the officer a license.

There is NO REQUIREMENT to roll your window down.

2. You do have to stop at a checkpoint.

You do have to hand over your license. You don't have to answer any questions, and you don't have to get out of the car unless the officer has the legal right to require you to get out (to arrest you).

3. You do not have to follow unlawful commands. If your license is valid, there is no reason to arrest you for a license irregularity.

Most equipment and moving violations require you to sign a ticket. Make sure your baggy is big enough to hold a ticket and pen, and pull them into your car, sign and then give everything back to Officer Friendly.

This is what will happen in an ideal world. While looking for this video, I also came across a Georgia news video (not actual stop) telling what happened to a man who turned around to avoid the blue lights which he presumed meant accident and really meant DUI check, refused to roll down his window all the way and was arrested for obstruction. Now, will this hold up in court? The only thing that is for sure is that it will cost money to get it sorted out.

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Man Gets Through DUI Checkpoint Without Rolling Down His Window

A man in Chiefland, Florida posted a video to YouTube showing how he pulled through a DUI checkpoint without ever rolling down his car window or speaking to the police. His solution? Attach a ziplock bag to the outside of his car that had his “Fair DUI” statement inside it, along with his license, insurance information and vehicle registration. Here’s the video:

The police handled the situation pretty smoothly and looked, at least to me, a little bemused by the whole thing. The driver, Jeff Gray, has a YouTube channel called “Honor Your Oath” where he encourages people to “Stay cool, Be polite, Flex Your Rights, and Always Film The Police.” Gray also says his goal is to “teach citizens that our rights do still exist, and to show how best to assert those rights.” Gray also points out that he is not an attorney.

Over a million people have watched the video. Two Sheriffs in Florida gave statements about what happened, which provoked this not-so-well-thought-out article.

So if Jeff Gray was able to cruise through a DUI checkpoint without ever rolling down his window or saying a word to the police, does that mean everyone can legally do that?

Let’s get some things straight first.

One, please don’t take video of something working once on YouTube as evidence that it will always work. That’s a twist on the old logical fallacy known in Latin as “argumentum ad traditio” – the appeal to tradition, although I guess we could update it as the “argumentum ad YouTubio” – the Appeal to YouTube.

Second, don’t take the fact that the police did nothing as evidence or confirmation that they couldn’t do anything. We’ll talk about this more below, but please understand that the police make mistakes. They’re not robots. Just because they didn’t stop Gray, or order him to roll down his window, get out of the car, etc., doesn’t mean that they couldn’t have. We’ll talk about the law on this in a moment, but as a matter of common sense don’t get these ideas confused.

Back in 1990 the U.S. Supreme Court decided a case called Michigan Dept. of State Police v. Spitz. The question in that case was whether states could use DUI checkpoints and briefly examine drivers for signs of intoxication without violating the constitution. The Court weighed the interests of the state in keeping drunk drivers off of the road against the interests of the drivers in not being detained. The Court sided with the state, and held that DUI checkpoints are not unconstitutional.

So what does that actually mean? That means that states are allowed to operate DUI checkpoints to check drivers for signs of intoxication. This would, naturally, include stopping drivers and interacting with them to see if they had glassy eyes, slurred speech, and/or smelled like alcohol.

But there are restrictions. If they’re not running a DUI checkpoint, the police have to have a reason to pull your car over. This can be for any traffic violation, moving (like speeding) to non-moving (having an expired license plate). And, until the U.S. Supreme Court’s recent decision in Heien v. North Carolina, the police had to had to be legally about their legal reason for initiating a traffic stop. Not anymore.

If you decide to try Mr. Gray’s trick for avoiding a DUI checkpoint be aware the police have every right to insist that you speak with them. Although it worked for him, it probably won’t work for you.

Sam proudly represents those accused of crimes and injured through no fault of their own throughout the greater Tampa Bay area.

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