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...

Can you Turn Away from a Sobriety Checkpoint?

Sobriety checkpoints have been held to be an exception to the rule that law enforcement officers need probable cause to stop and, even if brief, detain a motorist in order for the detention to be constitutional.

Normally, police obtain that probable cause through witnessing a traffic violation, witnessing driving which would indicate drunk driving, or receiving an anonymous tip that a person may be driving drunk. Only then can law enforcement stop and detain a person.

Although officers at sobriety checkpoints do not have the probable cause usually required to stop a motorist, both the United States Supreme Court and the California Supreme Court have held that checkpoints are constitutional.

In Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop.

Three years before the decision in Michigan Department of State Police v. Sitz, the California Supreme Court in 1987 decided the case of Ingersoll v. Palmer and set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

1.       The decision to conduct checkpoint must be at the supervisory level.

2.       There must be limits on the discretion of field officers.

3.       Checkpoints must be maintained safely for both the officers and the motorists.

4.       Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.

5.       The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.

6.       The checkpoint must show indicia of official nature of the roadblock.

7.       Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.

8.       Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Without this last consideration, motorists would not know that there was an upcoming checkpoint to turn away from. However, because checkpoints are highly visible, motorists have the ability to turn away before reaching the checkpoint.

There are no laws that require you to drive through a checkpoint. Therefore it is perfectly legal to turn away from a checkpoint. But if you do turn away from a checkpoint, be sure that you do not break any traffic laws in the process like, say, an illegal U-turn.

Remember that an officer needs probable cause to stop and detain a motorist. By committing a traffic violation in their presence, they’ll have the probable cause to stop a motorist, not for suspicion of driving under the influence, but for the violation itself. However, once the officer has the motorist pulled over for whatever violation, you can bet that the officer  will “observe the objective symptoms of intoxication” whether they’re present or not.

This entry was posted on Monday, February 2nd, 2015 at 11:11 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

Continue Reading...

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.

Read all posts by Sam Harden

Continue Reading...

How to Get Through a Sobriety Checkpoint?

So you’re driving along the highway one evening, minding your own business, and suddenly looming up in front of you is a DUI sobriety checkpoint…

No problem!  You just pull a small printed sign out of your glove compartment and hold it up to the unopened car window for the cop to read.  He reads it through the glass with his flashlight, a quizzical look on his face…and then reluctantly waves you through the checkpoint.

Fantasy?  Watch this YouTube video of a DUI sobriety checkpoint in Florida, in which the driver held such a note up to the window for the cop to read.  The note stated (with Florida state statutes cited):  

I REMAIN SILENT

NO SEARCHES

I WANT MY LAWYER

Please put any tickets under windshield washer.

I am not required to sign – 318.4(2).

I am not required to hand you my license – 322.15.

Thus I am not opening my window.

I will comply with clearly stated lawful orders.

It worked, and the driver got through the checkpoint without opening his window — and possibly having the cop claim that his speech was slurred or that he had alcohol on his breath.  But a word of warning: it may not work for you in your state.  Your laws may be different….and cops generally don’t take well to having their authority challenged.

This entry was posted on Wednesday, January 7th, 2015 at 9:21 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

Continue Reading...

Florida Man Goes Through DUI Checkpoint Without Saying A Word

In order to avoid an incorrect assertion of a person’s speech being slurred or the smell of alcohol or drugs wafting from the car at a DUI checkpoint, a man in Florida tested out a novel approach. Jeff Gray put his license, registration, and insurance information in a plastic bag out his window with a message from Fair DUI:

“I remain silent

No searches

I want my lawyer”

Apart from a few strange glances, Jeff made it through the checkpoint without incident.

Read more.

Continue Reading...

HCSO Cancels the 4th of July DUI Checkpoint

It looks like the Hillsborough County Sheriff’s Office waited until the last minute to cancel a July 4th DUI Checkpoint.

Two days ago, the checkpoint was still listed on the HCSO website for an undisclosed location in District II from 2100 hours to midnight. BAT and transportation were to be provided at a location to be announced. Today, that checkpoint was wiped off the schedule.

HCSO is still planning a Saturation Patrol. The Tampa Police Department and other local police departments are expected to have increased patrols through the holiday weekend.

The University of South Florida Police Department website doesn’t disclose any checkpoints for July.

Everyone have a happy and safe 4th of July!

Continue Reading...

Sep 13, DUI Checkpoint Alert

Continue Reading...

DUI Checkpoint for Gettysburg Bike Week

Motorcycle enthusiasts from all over will be flocking to Gettysburg for the 13th Annual Gettysburg Bike Week.  Police are planning to target the event with a DUI checkpoint:

A sobriety checkpoint is slated for Bike Week in Gettysburg, according to the Center for Traffic Safety.

The checkpoint will be held sometime between 6 p.m. Wednesday and 6 p.m. Friday, the news release states.

As always, The McShane Firm encourages you to make safe and responsible decisions.  Before you go out, please remember to read our blog post:

If you need to talk to an attorney, please call 1-866-MCSHANE.  Our lines are open 24/7.

comments

Continue Reading...

Holiday DUI checkpoints to be out in full force this weekend

PHOENIX -- Wednesday is the day before Thanksgiving. That means that night is traditionally one of the busiest nights of the year for Valley bars and restaurants.
That is because many college students are in town to visit family and friends for the holiday and may be heading out for a night on the town. With the holidays in mind, some newly elected political leaders are helping to get the word out that police in Arizona will be out looking for drunk drivers this holiday season.
Over 80 law enforcement agencies will be taking part in holiday DUI checkpoints and/or saturation patrols across the state starting on Friday night.
Governor-elect Doug Ducey said at a press conference at the Arizona State Capitol on Tuesday that if you are drunk and behind the wheel, you are asking for trouble.
"Arizona is known for the toughest law enforcement in the country for DWI," Ducey said. "I think that's right, and I think that's good."
Attorney General-elect Mark Brnovich agreed with Ducey that you should not drink and drive.
"If you do, there are a dedicated group of public servants and law enforcement officials here that will make sure that if you break the law, you will be arrested, and you will be prosecuted," Brnovich said.
Phoenix Police Chief Daniel Garcia believes that stepped-up enforcement of DUI laws saves lives.
"We will never know how many lives law enforcement has saved by making an arrest, and we'll never know how many lives that we'll save by moving forward on this initiative today," said Garcia. "But we do know one thing. You must not drive impaired in the state of Arizona."
There is one sign that people may be getting the message that if you "drive hammered," you will "get nailed" in Arizona. The total number of DUI arrests dropped by 600 between 2012 and 2013.

Continue Reading...

Montgomery County DUI Checkpoint

Pennsylvania State Police has issued a release stating that they will be conducting a DUI checkpoint somewhere in western Montgomery County between July 6 and July 9. Though the exact location was not released, the report did indicate that the location is “considered a high-risk area.”

View the original article here

Continue Reading...

DUI Checkpoint I-79, I-70

Pennsylvania State Police have announced DUI checkpoints for June 29, 30 on I-79 and I-70.

For more timely alerts you can follow our Pennsylvania DUI Checkpoint Feed.

View the original article here

Continue Reading...

Willow Grove PA DUI Checkpoint

Police will be conducting a DUI checkpoint on the night of July 6th from 9:30 p.m. – 2 a.m  in Willow Grove along Route 611 (Old York Road) near Abington Hospital.

As always we encourage all drivers to make responsible decisions.

If you would like to stay up-to-date on DUI Checkpoints in PA, subscribe to our our Pennsylvania DUI Checkpoint Feed.

We also encourage you to read:

If you have any questions and need to talk to an attorney, please call 1-866-MCSHANE.  Our lines are open 24/7.

View the original article here

Continue Reading...

DUI Checkpoint in Pottsgrove and Coventries

Police in Lower, Upper and West Pottsgrove, North and East Coventry, Douglass,  and Upper Providence townships will be out in full force for DUI enforcement efforts this week. The multi-jurisdictional group called “Team DUI” will conduct DUI check points at several unspecified locations across western Montgomery County beginning on  Friday (June 29) and continuing through the Independence Day (July 4) holiday.

If you are stopped at a DUI checkpoint and need legal advice, call the Pennsylvania DUI hotline at 1-866-MCSHANE.

View the original article here

Continue Reading...

Orange County Holiday DUI Checkpoint Results – July 4th Edition

A Fourth of July fireworks display at the Washington Monument.

The Fourth of July Holiday ‘Avoid the 38’ DUI Campaign period has ended with the deployment of a Sobriety Checkpoint, special DUI Saturation Patrols and officers on  routine patrol focused on impaired drivers to lower deaths/injuries on streets and highways in Orange County.

For the 48 hour effort from 12:01 AM Tuesday, July 3, 2012 through Midnight Wednesday, July 4, 2012, officers representing 38 county law enforcement agencies arrested 78 individuals for driving under the influence of alcohol or drugs. In 2011, 107 DUI arrests occurred during the final 2 days of the July 4th state holiday. There were no DUI fatalities reported.

As others have reported, looks like DUI arrests are plummeting.  If you have questions for our Orange County DUI Lawyers, call me at (877) 568-2977.

View the original article here

Continue Reading...

PA DUI Checkpoint Alerts: Weekend of July 13-15

Here is a round-up of DUI checkpoints announced for the weekend of July 13-15.  If you are arrested for a DUI please call PA DUI Attorney Justin McShane at 1-866-MCSHANE

Police in Lower Merion  police will hold DUI checkpoints and roving patrols this weekend in an effort to stop drunk driving, according to a township release.

The efforts will be conducted Friday, July 13 through Sunday, July 15.

The Pennsylvania State Police, along with municipal police departments, and the Bradford County DUI Task Force are conducting “Pennsylvania State Police Checkpoint Strike Force II.  The areas covered are Bradford, Sullivan, Wyoming and Luzerne counties.  Under this initiative, DUI checkpoints or roving patrols will take place every weekend for the rest of the year.

A DUI checkpoint will be help in York County and a roving DUI patrol will he held in Lancaster County this weekend between 6 p.m. Friday and 6 p.m. Sunday.

If you would like to stay up-to-date on DUI Checkpoints in PA, subscribe to our our Pennsylvania DUI Checkpoint Feed.

View the original article here

Continue Reading...

Orange County DUI Checkpoint – Costa Mesa tonight

Our Newport Beach DUI Lawyers have a tip just in… Costa Mesa DUI checkpoint at Bristol & Baker right now (8pm) today, Friday, June 1, 2012.

Be careful out there and avoid long traffic delays!  If you need to speak to a DUI expert, call me at (877) 568-2977.

View the original article here

Continue Reading...

Orange County DUI Checkpoint Locations: Santa Ana

T

Flag of Santa Ana - did you even know Santa Ana had a flag?

he Santa Ana Police Department will be conducting a DUI/Drivers License checkpoint on Saturday, May 26th, 2012. It will begin at 7:30PM and is scheduled to conclude at 1:30AM. It will be conducted in the area of 800 W. First Street, Santa Ana, CA.

If you have questions for our Orange County DUI Lawyers, call us toll free at (877) 568-2977

Tags
California, Driving under the influence, Orange County California, orange county dui lawyer, police, Random checkpoint, Santa Ana, Santa Ana Police Department

This entry was posted on Friday, May 25th, 2012 at 6:34 pm and is filed under Dui Checkpoints, DUI News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

View the original article here

Continue Reading...

Costa Mesa Memorial Day weekend DUI Checkpoint results in One (1) DUI arrest

Another weekend, another sobriety checkpoint, another ten thousand in officer overtime.

Costa Mesa Police Department Traffic Unit conducted a DUI/Drivers License checkpoint on May 26, 2012, at W. 19th Street and Pomona Ave., between the hours of 7:00 p.m. and 12:00 a.m.

DUI Checkpoints statistically are not even nearly as effective as DUI Saturation Patrols in apprehending and arresting persons actually driving under the influence.  However, since all the federal, state, and MADD funding is done to support DUI checkpoints, law enforcement prefers them for monetary reasons.  The statistics for this DUI checkpoint, with a 0.00187% arrest rate, bear this out yet again.  Ah, politics.

The checkpoint resulted in the following:
532 Vehicles through the checkpoint
532 Vehicles Screened
1 DUI-Alcohol suspect arrested
0 DUI-Drug impaired suspect arrested

Tags
California, Costa Mesa California, Driving under the influence, dui lawyer, dui lawyer newport beach, dui lawyers long beach, dui lawyers los angeles, dui lawyers newport beach, dui lawyers orange county, DUI Saturation Patrols, dui specialist orange county, lawyer, long beach dui lawyers, los angeles dui, newport beach dui lawyers, orange county, Orange County California, orange county dui, orange county dui arrests, orange county dui checkpoint locations, orange county dui courts, orange county dui lawyer, orange county dui lawyers, orange county dui schools, orange county dui statistics, police, Random checkpoint

This entry was posted on Tuesday, May 29th, 2012 at 3:52 pm and is filed under Dui Checkpoints. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Continue Reading...

Pittsburgh DUI Checkpoint Memorial Day Weekend

Pittsburgh police will conduct sobriety checkpoints/roadblocks this Memorial Day weekend.

The patrols will be in place between the hours of 11 p.m. and 4 a.m. throughout the South Hills and West End sections of the City.

If anyone has more information please share it.

View the original article here

Continue Reading...