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 this work.
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 officer 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 prevent 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 driver's 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 should work to prevent being searched at one of these checkpoints.