Sobriety checkpoints (or “DUI checkpoints”) are roadblocks that law enforcement officers set up on roads for the purpose of catching people driving under the influence of alcohol. Some of us also think they are used to generate revenue for police departments and the State, since the stops often result in citizens being slapped with minor (finable) offenses. Of course, the blatantly plunderous civil asset forfeiture racket has been implemented during these stops as well.
Twelve states do not conduct sobriety checkpoints because they prohibit them by state law or their interpretation of state Constitution. If you live in, or are driving through, any of these 12 states, you won’t have to worry about encountering entrapment checkpoints: Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming. Out of that list, Texas is the only state that prohibits DUI checkpoints based on their interpretation of the US Constitution.
Let’s stop here to review the Fourth Amendment of the United States Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Interestingly, many of the 38 states that DO conduct checkpoints do so under the belief that they are “upheld” under the federal Constitution. Washington, D.C. also allows them for that reason.
And, the U.S. Supreme Court has ruled that in the case of DUI checkpoints, our Fourth Amendment rights don’t apply. That court found that the state’s interest in reducing drunk driving outweighs the “minor infringement” on a driver’s Constitutional rights.
Certain requirements for “Constitutional” checkpoints do apply, though:
In order for the checkpoints to be Constitutional there must be clear guidelines that are carefully followed by the legal authorities. Additionally, the Court has left it up to each individual state to develop these guidelines. In California, for example, the state supreme court has held that the decisions about where to set up sobriety checkpoints and about which cars to stop (i.e. every car, every sixth car, etc) must be made by supervisors prior to officers setting up the checkpoints. The sites selected should be in areas that have a high incidence of drunk driving and the length of each stop should be minimized. (source)
The Fourth isn’t the only amendment that is often disregarded during DUI checkpoint stops – the Fifth and Sixth also can be ignored.
Let’s review the Fifth Amendment now:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A question police often ask after stopping a driver at a checkpoint is, “Have you been drinking tonight?” or some variation of that inquiry.
The Fifth Amendment protects us from self-incrimination. But, unfortunately, in some cases the U.S. Supreme Court has disregarded this right as well. In South Dakota v. Neville, the U.S. Supreme Court ruled that DUI suspects have no right to refuse a breath test. Breathalyzers can provide highly incriminating evidence in DUI cases – objective, physical evidence. But here’s the kicker: many states have “implied consent” laws that allow your refusal to submit to a breath test to be admitted as evidence for a DUI case.
And, chances are if you refuse a breath test, the officer(s) will ask you to step out of your vehicle for field sobriety exercises. If you refuse to submit to those, one of two things will likely happen: you’ll either be allowed to leave, or you’ll be arrested (usually this only happens if there is strong reason to believe you are intoxicated).
In some states, refusing to submit to a breath test or field sobriety exercises can lead to an automatic suspension of your driver’s license for at least one year.
When a person is arrested, police are required to inform the suspect of their Sixth Amendment rights (“Miranda rights”).
The Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
This doesn’t happen at DUI checkpoints, because the person being questioned hasn’t officially been arrested or detained – a checkpoint stop is considered “temporary detention” at most. If you answer questions during a checkpoint stop or agree to sobriety tests, you are doing so without an attorney present.
So, if you encounter a DUI checkpoint during your travels, what do you do?
You could attempt to remain silent and see how that goes for you, as the person in this video did:
It doesn’t always work that way, though, as this video shows:
This video reviews another actual checkpoint encounter and covers more of the legal issues surrounding such stops:
As you can see, Constitutional rights appear to be subject to interpretation by the courts (and the officers conducting the stops) in the case of DUI checkpoints. There are a lot of videos circulating that show individuals exercising their Fifth Amendment rights during these kinds of stops with a positive outcome. While that is encouraging, it is important to know that refusal to comply with showing ID or arguing with police too much can sometimes open a can of worms and make the situation harder for you.
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