GET THROUGH SOBRIETY CHECKPOINTS: Sobriety checkpoints are one of the most
misunderstood police tools in common use. A viral video posted this week
shows a Florida man testing out a clever approach that allows him to drive
through a DUI checkpoint without being stopped. The question is would
THE LAW: First, Virginia checkpoints have to be publicized. Websites like
www.duiblock.com publish lists of announced roadblocks. More importantly, officers are
required to try to minimize the time delay for each vehicle that passes
through the checkpoint. They do not stop every car. They use a predetermined
formula (e.g. stopping every fourth car) to make sure drivers are not
harassed on inappropriate criteria. Police are only allowed to further
detain a driver is they see *obvious* signs of alcohol or drug use. The
most common examples used in courts are (1) glassy eyes (2) slurred speech
(3) odor of alcohol or (4) erratic or improper driving. If an office sees
one of these criteria and suspects driving under the influence, the office
will direct the driver to go to another area for further examination.
BLOWING THROUGH THE CHECKPOINT: In a video posted to YouTube last week,
a police activist tried a new approach. He put his (1) license, (2) registration,
and (3) insurance information in a plastic freezer bag and displayed them
from his driver side window in plain view. He also included a message
to police that said "I remain silent. No searches, I want my lawyer."
In the video, the police see the note and let the driver go. The question
is, is this real and would it work?
WHY THIS COULD WORK: In a traffic stop where officers notice an infraction,
police can require a person to produce information and demonstrate that
he is a licensed driver. The driver must roll down the window and comply
with police limited instigation. In a
checkpoint stop however the police have a driver that did not commit an infraction.
A checkpoint driver is stopped for the limited purpose of determining
whether he is intoxicated. The constitutional exception that allows for
the roadblock searches only justifies the stop and the officer asking
to see the driver's license and/or proof of auto insurance. By displaying
that information on the outside of the vehicle, the police have no valid
reason to ask the driver to roll down the window. By not rolling down
the window the drivers prevents police from claiming that they smelled
alcohol or noticed slurred speech – two claims that are so subjective
they are nearly impossible to dispute in court. The brilliance of the
ziplock approach is that it prevents an officer from obtaining the legal
vantage point (the rolled down window) where he can smell or see evidence
of intoxication. The final component of this issue is that the police/citizen
interaction is being recorded. The police here cannot exaggerate or embellish
the facts if they are being recorded.
MAYBE: The problem with this ziplock bag approach is that some police would
be frustrated at the drivers attempt to outthink them. If an officer claims
to see any swerving or regular bloodshot eyes, he could use this as a
pretense to make a traffic stop. If an officer asked a driver to roll
down the window and the driver refuses a bad officer might be desperate
to find some violation. I cannot advise anyone to drink, drive and then
expect a reasonable result. However, in theory the ziplock approach
work to prevent being searched at one of these checkpoints.