It is common to come across DUI checkpoints on the highway or busy roads across the state. A DUI checkpoint’s purpose is to prevent motorists from driving under the influence. Usually, DUI checkpoints are manned by traffic police officers who stop vehicles at pre-determined intervals to perform DUI tests on motorists and confirm whether they are fit to operate their vehicles.
The reason lots of defense lawyers think DUI and other checkpoints have an unconstitutional smell, is because it allows a law enforcement officer to detain you without any evidence that you committed a crime. In most other traffic stops, an officer must have reasonable suspicion to force a motorist to pull over. Not so in a DUI checkpoint. Anyone who is unfortunate to drive into the checkpoint must comply with the officer’s demand to pull over and be detained. Just because the government does not need any reasonable suspicion to pull you over at a checkpoint, does not mean that the check point is necessarily constitutional and legal. There are certain requirements that must be met in order for the detention to be legal under California law and federal law.
Once at the checkpoint and detained, Officers will often ask the motorist questions and request they complete some roadside tests called Field Sobriety Tests. It is important to know what your rights are and what you are permitted to do and not do if you find yourself detained at a DUI checkpoint. Moreover, when you know your rights and all the possible outcomes of stopping at a checkpoint, you will be less fazed by interacting with a law enforcement officer. You will also be less likely to incriminate yourself!
Finding accurate and relevant information on DUI checkpoint operations and the possible consequences you may undergo may be difficult without an experienced attorney to guide you through the process. Thus, it is crucial to consider seeking a criminal defense attorney's services, especially when you or your loved one is facing DUI charges after arrest at a checkpoint.
At the Law Office of Ann Gottesman, Ann has worked with many clients in Pasadena Court and surrounding courthouses, providing DUI and criminal defense services for clients charged with various alcohol related and DUI charges. Ann is a dedicated lawyer who truly cares about her clients and the outcome of their cases. Unlike some large firms, Ann personally handles each case and communicates regularly with each client, understanding how stressful it can be to face criminal charges.
The Nature of a DUI Checkpoint
Since DUI checkpoints can also be used to check the validity of a driver’s licenses, there has to be a standard procedure for the checkpoint to ensure that approaching motorists are aware of the process ahead and know how to comply. Therefore, the roadblocks that create a DUI checkpoint should meet specific standards to promote proper engagement with the public. The primary standards that law enforcement officers should always uphold are:
Wearing Uniform at the DUI Checkpoints
Supervising and field officers should ensure that they wear their uniforms during DUI checkpoint operations to ensure that motorists do not have doubts about complying and stopping their vehicles. Moreover, wearing a uniform indicates that the officers are from a particular agency that is authorized to hold the DUI checkpoint operations.
Placing Warning Signs at a Reasonable Distance
Additionally, DUI checkpoints should have warning signs placed at reasonable distances from the checkpoint in order to warn motorists of an oncoming slowdown. In most cases, the roadblock requires that drivers use only one or two designated lanes for the vehicles to pass the checkpoints as the officers conduct the DUI checks and tests. Consequently, a failure to make adequate warning signs can create chaos for most motorists, leaving you susceptible to long delays.
Presence of Marked Police Vehicles with Flashing Lights
Moreover, the presence of police vehicles with the lights flashing up will let drivers know that they are approaching a law enforcement operation. The lights may also serve as a warning sign for motorists who can see them from a distance, meaning that they can avoid the area or approach it with caution. You are legally allowed to intentionally avoid a checkpoint by turning off onto another street prior to the checkpoint (as long as you do not commit any traffic violations while doing it)!
The Requirements for a Lawful DUI Checkpoint Operation
Often, those concerned with constitutional rights pose questions concerning the validity of sobriety checkpoints, especially considering the inconvenience and intrusion they impose on drivers who have not been observed to have committed any crime.
The California Courts have decided that a law enforcement officer does not need any reasonable cause to stop your vehicle at a DUI or driver’s license checkpoint. Despite this, the regulations governing sobriety checkpoints are regulated by several requirements that aim to strike a balance between preventing the non-objective stopping of motorists and fighting the problem of driving under the influence.
Criminal lawyers who care about the constitutional rights of the public to be free from government’s overreach, often complain that the California Supreme Court stretched the law beyond all reason in order to defend a ruling that allows the detention of motorists by police officers when those officers have no individualized reasonable that the motorist violated any law. Reasoning that the purpose of the stop was not to discover evidence of a crime (such as the crime of DUI--really?!!), but rather, was solely to deter impaired drivers from driving, the Court concluded that the standard of requiring reasonable suspicion before an officer can stop an individual for a criminal investigation does not apply to DUI checkpoints! (See Ingersoll v. Palmer Case- California Supreme Court)
Thus, a DUI checkpoint’s standard requirements try to ensure that the law enforcement officers act in an unbiased way while still being able to identify visible signs of intoxication of passing motorists.
In Ingersoll v. Palmer (1987) 43 Cal.3d 1321, the California Supreme Court ruled that DUI checkpoints involving detention of motorists with no individualized reasonable suspicion is constitutional if the checkpoints follow the basic principles found in the guidelines below.
Prior Notice of DUI Checkpoints and Roadblock Signs
While a checkpoint roadblock can help the government identify and catch drunk drivers without any previous investigation or tracking, you, as a motorist, also have a right to know when and where they will be placed. Contrary to popular belief, providing the public with such notices does not necessarily result in “drunk drivers” escaping capture. The publicization is supposed to deter people from driving drunk and also allow those who do not want to drive through a checkpoint, with the inconvenience and delays it can cause, avoid those streets when a checkpoint is active. Thus, the relevant law enforcement departments should provide information on DUI checkpoints on their websites and local newspapers so that people have a choice as to whether they want to drive through a checkpoint.
Unbiased and Neutral System of Stopping Motorists
A supervising officer must make advance decisions regarding how police officers on the street will stop vehicles coming through the checkpoint. An officer is not permitted to decide which vehicle they want to stop on the “fly” or based upon an individual decision to stop, for example, young men, or sports cars. A predetermined way of deciding which cars to stop must be in place before the checkpoint begins.
Therefore, traffic police officers should ensure that they use a reasonable and objective strategy when choosing vehicles to stop. One of the most neutral methods applied involves stopping motorists at numerical intervals. For example, the officers in charge of the checkpoint operations may decide to tell his deputies to stop every fifth car that passes the roadblock, or every other car. If there is not too much traffic, the police are allowed to stop every single car. The point is that is must be a predetermined decision made by the supervising officer.
However, the traffic police retain the right to stop you when you exhibit visible signs of intoxication by the way you drive or behave as you drive through the roadblock. So even if you are a car that is waived through, if the officer notices objective signs of intoxication he or she can detain you.
The Supervising Officer Should make all Decisions.
In a DUI checkpoint operation, the head of the entire process is a supervising officer who guides the field officers during each stage of the checkpoint operation. A supervising officer should be in charge of making all decisions affecting the checkpoint operations, including where the checkpoint will be located and which vehicles should be stopped (must be determined by a neutral process). If it is learned that the officers in the field, and not a Sergeant or supervising officer made such decisions, your attorney may be able to argue that your detention at the checkpoint was not constitutional. The reason the Court requires a supervising officer dictate the checkpoint guidelines is to ensure that motorists are not stopped in a prejudicial manner.
Proper Safety Precautions Should be Implemented
When vehicles are required to merge from two or more lanes into one lane, safety concerns can arise. Thus, the law enforcement officers owe you and other motorists a duty to ensure that the location where they place the checkpoint is reasonably safe and conducive to safely merging traffic. The police must place signs that notify motorists that a checkpoint is up ahead so that drivers have notice that traffic will be slowing down and likely merging into a single lane. As an additional safety measure, traffic officers should also ensure that the stopped vehicles have adequate parking space that does not interfere with the proceeding cars.
The DUI Checkpoints Should be at Reasonable Locations
There is no doubt that some highway areas are more prone to accidents and drunk drivers than others. It would be impractical for the traffic officers to place roadblocks for checkpoints in areas where such incidents rarely occur, as it creates road congestion and delays for no good practical reason. The DUI checkpoints should adhere to the operations' primary goal: to reduce the negative effects of drunk driving and by deterring under the influence drivers from driving in those areas. Therefore, the locations of checkpoints should be in areas with high incidents of DUI arrests and accidents.
Detention Should Only Be For a Reasonable and Minimal Duration
If a traffic officer stops you at a DUI checkpoint, he/she should uphold expeditious operations that do not take up too much of your time, whether or not you are guilty of driving under the influence. If the officer suspects that you are intoxicated and cannot safely operate the vehicle, he/she should ensure that you are processed as soon as possible. If the officer has probable cause to believe you are in violation of the DUI laws, you will likely be arrested and detained in the police car for transportation to the station.
The duration of detentions should be reasonable and not overly intrusive. When motorists are driving through, officers are required to only stop drivers for only a brief time to determine if they are exhibiting signs of intoxication. Officers typically look at the driver’s eyes, look for the odor of alcohol, or slurred speech to determine if there is reasonable suspicion to detain that driver further.
Remember, you are not required to answer an officer’s questions such as “have you been drinking?”. You are allowed to remain silent and the officer is required to have at least reasonable suspicion that you are driving under the influence before he can detain you further and require you take a chemical test.
The Checkpoint Should Clearly Show That it is Official
Police must erect signs and wear their police uniforms to show that the checkpoint is official and being conducted by the government. This tells motorists the checkpoint is formal and reduces the chance of fear by drivers who may not otherwise want to stop, for fear of being a victim of criminal activity. A DUI checkpoint typically displays flashing lights and signs, prior to the check point, and drivers will see police vehicles and officers in uniform.
Signs That Officers Check for Before Making an Arrest
Once an officer stops you at a DUI checkpoint, it does not necessarily mean that you will face automatic arrest or even that you will be asked to perform FSTs or a chemical test. The traffic officers operate under a set of rules that provide them with the steps to identify a motorist who is most likely to be under the influence of alcohol or other drugs. Some of the observations that traffic officers look to identify before taking further action with the driver are:
Driver’s Speech: Are you Struggling with Speech or Unable to Answer Simple Questions?
A significant indicator of possible impairment is when a driver exhibits slurred speech caused by alcohol levels that slow down automatic body movements. Therefore, police officers often use conversation as a way to observe whether you can keep up with normal conversation and to determine if you are slurring your words. If you struggle to pronounce words or make incoherent conversation with the officer, he/she may find a basis of subjecting you to a test to confirm suspicions that you are under the influence.
Moreover, finding it difficult to answer simple questions posed by the traffic officer is also an indication of being impaired or under the influence of drugs or alcohol. Such difficulties arise because your brain is overwhelmed by the chemical combinations of alcohol or other drugs that inhibit neural transmission. It is always better to remain silent and not answer questions proposed to you by officers. Remember, the officer’s job is to collect sufficient evidence against you so he or she can effect a proper arrest based upon probable cause.
Cops Look at a Driver’s Physical Appearance for Signs of Impairment
A traffic officer can also consider your physical appearance as a factor that may corroborate an officer’s belief that you are intoxicated. For example, if your eyes are red and watery, you keep jerking your head forward to avoid falling asleep, or you have vomit or disheveled clothing, an officer may include these observations in his written report under the probable cause section, where he or she must demonstrate there was probable cause to arrest you for a DUI.
Additionally, physical indicators may also be evident from the way you speak, walk, or how you perform on the Field Sobriety Tests. Delaying or fumbling when reaching for your license, almost falling when exiting a vehicle, and certain driving behaviors may be noticed by an officer who is looking for signs of mental and physical impairment.
Presence of Alcohol in the Vehicle
If an officer requests to check your vehicle’s interior after stopping you at a DUI checkpoint, you should always object. Never consent to any search by police. You have a constitutional right to say “No,” and your refusal to consent to a search of your vehicle can not be used against you in court. However, most people are afraid to say no and acquiesce to the show of authority. Of course, sometimes, items in a vehicle are visible to an officer looking through the window. When an object is in plain sight and the officer sees it from a lawful vantage point, then any incriminating information revealed by the existence of that item may be used against you.
For example, if you are in a DUI checkpoint and the officer asks if you had been drinking that day, and you say “No”, evidence of open containers of alcohol in the vehicle could indicate to the officer that you are not being truthful. Of course, those open containers could have been placed there on a previous night, but cops will usually include the fact that there was alcohol in the vehicle in their report. Obviously, the presence of alcoholic beverage containers in a vehicle is not proof that the driver recently consumed those beverages, or that he was even impaired at the time of driving. However, police officers tend to be suspicious by nature, so if asked questions about the alcoholic beverages, it is always advisable to exercise your right to remain silent.
Oftentimes, even when there are no alcoholic containers or bottles in a vehicle, a DUI officer will claim he or she smells the odor of an alcoholic beverage emanating from the vehicle and/or the driver’s person. The smell of alcohol and an officer’s claim that he observed red or watery eyes or other objective signs of intoxication, is typically enough evidence for the officer to order a driver out of the car in order to conduct a DUI investigation.
Field Sobriety Tests are Voluntary!
During a DUI investigation, the Field Sobriety tests that an officer asks the driver to complete vary, but often they include three of the following tests: the HGN test, Romberg test, Walk and Turn, One Leg Stand and Finger to Nose. Most people do not realize that these tests are not mandatory. You can refuse to take them, and everyone should! These FSTs can not be done perfectly by anyone, and the only purpose of these tests is to give the police officer reason to arrest you. The preliminary alcohol screening test, referred to as a “PAS” is also voluntary test and should not be taken.
The only test you must take, upon pain of losing your driving privilege for between one and three years (with no restricted license possible) is the chemical test. This is a breath test conducted after arrest, usually at the police station, or a blood test. The law only requires you take a test AFTER arrest. So, any tests before arrest should be politely declined.
It is important to realize however, that even if you refuse all tests prior to arrest, a police officer can still effectuate a lawful arrest if he or she has probable cause to believe you are driving under the influence of alcohol or drugs, or a combination of both. Officers can use their training and experience to detect objective symptoms of intoxication, such as red or watery eyes, slurred speech and unsteady gait. However, if you are eventually charged with a DUI, there will be less evidence that the prosecution will have against you if you refused to do the FSTs and PAS test.
Possible Charges You Could Face After Arrest at a DUI Checkpoint
Upon facing arrest after failing a sobriety test and/or chemical test, the officers will submit to the prosecutor’s office the relevant information, including your BAC levels, physical appearance and behavior, driving observations, and any evidence of alcohol or drug use found in your car or on your person. Remember that FSTs, are not scientifically shown to prove a particular alcohol level or even impairment. Studies do not support the theory that a person who fails to complete the FST’s properly must be under the influence. A good DUI lawyer will be able to educate the jury about this issue at trial.
After the arresting officer forwards his report to the prosecutor or District Attorney’s Office, the filing prosecutor will use the information to determine which charges, if any to file. If criminal charges are filed, you or your attorney will appear at the arraignment where the charges will read, and your attorney will enter a not-guilty plea (in most cases). If arrested for a DUI, the charges you are likely to face, include the following:
A Violation of Section 23252(a) of the Penal Code- Driving Under the Influence
Section 23152(a) of the California Penal Code makes it an offense to drive a vehicle under the influence of alcohol. The traffic officers at the roadblocks are responsible for gathering all the required data to justify an arrest for driving under the influence. In court, the prosecutor will rely on this information as proof of your intoxication. To prove you were driving under the influence the prosecutor must prove beyond a reasonable doubt that you actually drove a vehicle while impaired. Being impaired has a legal definition under California’s jury instructions. Impairment means a driver’s “mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.” (Calcrim 2110 Jury Instruction for VC 23152(a).) Simply drinking alcohol and driving is not a crime. Impairment must be proven.
The penalties for violating section 23152(a), a misdemeanor, include:
- Mandatory attendance of a DUI school
- A license suspension for a minimum of six months
- A fine of $390 plus additional court assessments
- Facing an informal probation period
- Up to a maximum one in year county jail but usually there is no jail on a first offense
Violating Section 23152(b)- Surpassing the Set BAC Level of 0.08% When Driving.
Apart from being guilty of driving under the influence, you may also be liable for further charges if your BAC level is at 0.08% or more at the time of stopping at a DUI checkpoint. Such high levels often indicate that you are highly intoxicated and cannot coordinate your mind correctly to drive safely.
The prosecutor relies on your sobriety tests to prove that your BAC levels were above 0.08% when you drove, meaning that you violated section 23252 (b) that prohibits driving with such high blood alcohol levels.
The penalties for such a violation may vary because it is a wobbler crime. Such a crime may attract felony or misdemeanor charges, depending on the circumstances of your DUI violation. When facing misdemeanor penalties, you may receive:
- Up to three years of license suspension
- One year in county jail
- Mandatory installation of an Ignition Interlock Device (IID)
- Mandatory DUI school
When charged with a felony DUI, you may face:
- Between 16 months and ten years in state prison, depending upon whether there are injuries, a death, gross negligence, etc…
- Up to 10 years suspension depending on charge and the Court’s discretion
- Designated status of a habitual traffic offender
- Court fines
There are other charges that you may face, especially if you are under the age of twenty-one years or are a repeat offender. (See the main DUI page for more information.) It is important to speak to an experienced DUI lawyer about the possible charges you are facing and defenses you may have.
Contact DUI Defense Attorney Ann Gottesman
Facing a DUI arrest at a checkpoint can be stressful, embarrassing and scary. However, you do not need to face criminal charges on your own! At The Law Office of Ann Gottesman, Ann provides quality legal representation and to help you fight your DUI charges. Ann has successfully represented many DUI clients in Pasadena and in the surrounding Los Angeles courts. Call Ann today at 626-710-4021 for a free and confidential consultation.