You go out for dinner and share a bottle of wine. Or play a round of golf and have a round of drinks while you add up your scores.
On the drive home, you see a DUI checkpoint.
Should you be worried?
Police in Orange County, Los Angeles, San Bernardino, and Riverside Counties set up checkpoints to look for drunk or drug-impaired drivers. If the cops have reasonable suspicion that you're driving under the influence of alcohol or drugs, they will tell you to pull over for questioning.
Protect your rights by remaining silent. 5th Amendment, US Constitution. You can also refuse to do the field sobriety tests, and if you are 21 years of age or older and not on DUI probation, you can refuse the Preliminary Alcohol Screening Test (PAS) test. This is the breath test before you get arrested for DUI.
Can You Refuse a DUI Checkpoint?
- If you see a checkpoint up ahead, try to avoid it, if possible. You don't have to go through a checkpoint if you don't want to. If it is safe, go down a side road or make a U-turn. However, do not make a U-Turn in a business district, which is illegal. CVC 22102. Even if you make a legal U-Turn the police may come after you. Some police are under specific orders not to follow drivers for avoiding the checkpoint. Ingersoll v. Palmer (1987) 43 Cal.3d. 1321, 1336. However, pay attention to your speed and use your signals. Also, before you go out take down anything hanging from your rearview mirror. CVC 26708(a)(2). The cops will come after you if violate traffic laws, or if you they think you are driving under the influence. If a cop sees any type of traffic violation she may stop you even if it is a pretext for a DUI investigation. Whren v U.S. (1996) 517 US 806, 809-813.
- Slow down as you approach the checkpoint. Once you see the checkpoint up ahead if you are not going to avoid it, start to slow down and don't come to a jerky stop. Focus on your breath. Remain calm. Obviously do not try to speed through the checkpoint. This will cause you all sorts of problems. The police will chase you down, pull you over and you will end up on the news. Some clients have reported that the checkpoint looked like it was a construction zone. They didn't know it was a checkpoint until it was too late. All they saw were a few orange cones and some construction signs. The law requires the police to use adequate warning signs, adequate lighting, and signals, including substantial police presence. The California Supreme Court calls this the “need to provide an assurance of legitimacy of the search/seizure.” Ingersoll v. Palmer (1987) 43 Cal.3d. 1321, 1333. The checkpoint must look like an official checkpoint. The cones, flashing lights, and signs should give you enough notice to allow you to avoid the checkpoint.
- If you have not had any alcohol or drugs, the DUI Checkpoint is nothing to worry about. However, in some situations, especially in Orange County, cops will ask you about prescription drugs. It is not a defense if you have a prescription if you are driving under the influence of a drug. Protect yourself and remain silent. If you say you are taking prescription drugs and you are acting nervous, you could be asked to pull over for further questioning. If you tell the police you have been drinking, it doesn't matter how much you tell them you have had. (Almost everyone says they've had 2 drinks). Everyone knows the legal blood alcohol concentration (BAC) in California is .08 percent. That is the law under CVC 23152(b). What is not so common knowledge is that you can get a DUI if you are driving under the influence of alcohol under Vehicle Code Section 23152(a). This law does not say anything about a BAC. So if you blow into the breathalyzer and it reads below .08 percent, the cops still can arrest you for a DUI under CVC 23152(a).
- Get ready to give your driver's license and registration to the cop. At this point, the cop is gathering evidence. She is watching how you take your license out of your wallet. Fumbling with your license is a so-called sign of physical impairment. Also, if you can't find your registration or insurance card (which is quite common), the cop will attribute that to you being mentally impaired by alcohol or drugs. She is also looking to see if your eyes are bloodshot if your speech is slurred and if she can smell alcohol. During this time, the cop is also looking inside your car. If the cop sees contraband in your car, that is probable cause to arrest you. In re James M. (1977) 72 CA3d 133, 137. It is legal for the officer to use a flashlight to look inside your car. Texas v Brown (1983) 460 US 730, 739. And to bend down to get a better view. People v Rogers (1978) 21 C3d 542, 549. At this point in your encounter with the police, if you have not been arrested and if the police do not suspect you have contraband in your car, the police may not search your car without a warrant or your consent.
- In California, if you are legally arrested you have three choices: (1) breath test, (2) blood test, or (3) refuse. You do not have a right to speak with a lawyer before making this choice. CVC 23612. If you refuse, in almost every instance the cops will get a search warrant and get a sample of your blood anyway. If it is later proven you refused, you will not be eligible for a restricted license. So even if your BAC is off the charts and you have prior DUIs, you should be able to get a restricted license.
- In those situations where everything goes OK, you should be on your way in no time. How long you were stopped is vital because “the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.” U.S. v Place (1983) 462 US 696, 709. The law requires the detention to be “minimized.” It should last “only long enough for the officer to question the driver briefly and to look for signs of intoxication.” Ingersoll v. Palmer (1987) 43 Cal.3d. 1321, 1346. Questioning must “be strictly limited to the purpose of the stop.” In re James D. (1987) 43 C3d 903, 915. Do not drive away until the officer says you are allowed to go. Make sure you obey all traffic laws as you steadily pull away.
This is for general purposes only. It is not designed to provide legal advice. If you require legal assistance, please call DUI Attorney Richard Wagner at 714-721-4423 for a Free Consultation.
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