Yes, You Have Constitutional Rights at an Arizona DUI Checkpoint
“The best way to deal with a DUI checkpoint is to be prepared for it. Lack of preparation or knowledge of your rights can lead to a false arrest, and violations of your rights.” A Case of False Arrest at a DUI Checkpoint
One spring evening, 61 year old, Michael Wilhelm found himself in a DUI Checkpoint Line-up operated by Cape Coral Police. He was not driving impaired or under the influence of any alcohol or drugs. He asked to take a breath or blood test because instead of Field Sobriety Roadside tests (FSTs), because he was recovering from opened heart surgery. But the officers instead administered the field sobriety tests. Michael Wilhelm was arrested following the FST roadside test even before a breath test was taken. Police finally decided to do a breath test, while Wilhelm was still placed under arrest. Then while the police were preparing for the breath tests, Wilhelm began complaining of severe chest pains. He was taken to the hospital. There he requested the blood test to prove that he was not under the influence of drugs or alcohol. The hospital complied with his request. The DUI blood tests were all negative. The criminal charges were finally dismissed. He filed suit against the city and police and spent the next two years of his life in civil litigation. The case was finally settled for a meager $18,750.00 in Wilhelm’s favor. This was one of two DUI checkpoint cases for false arrests that ran concurrently against the city at that time over false arrests that took place at DUI Checkpoints.
Overview
There’s no hiding the fact that checkpoints exist to seek out impaired drivers and criminal activity that may be in progress. Yet, even though you may not be driving impaired, or engaging in a crime, being stopped at a roadblock can be not only inconvenient, but uncomfortable, and stressful. It’s natural and common for even unimpaired drivers to become anxious while in a DUI roadblock line-up. Some drivers experience a heightened sense of anxiety, and nervousness, in absence of severe medical conditions. They may fumble, or unknowingly do or say things that can often incriminate themselves. This can sometimes lead to false arrests of unimpaired drivers.
The best way to handle yourself at a DUI checkpoint, and to avoid a false arrest is to be prepared. One part of preparation is knowing your rights, both state laws and your Constitutional Rights. For example, according to guidelines by the National HIghway Traffic and Safety Administration (NHTSA) not everyone is a candidate for roadside field sobriety testing, including those medically or physically unable due to a serious medical condition or recovery from surgery. It’s uncertain as to why the police officers did not recognize that the driver in the case illustration was not a candidate. In any event, the driver tried and was arrested unjustly, due to his performance of the FST as judged by the police. States may vary with regard to field sobriety testing. In Arizona, the suspect has the right to refuse, which we will discuss in more detail below. It is unknown if they were optional but the driver was not aware of his right to refuse.
In this article we will outline some important rights you have at a DUI checkpoint; 7 Tips to avoiding false arrest; and what to do and what to expect if you find yourself in a check-point line-up.
Arizona DUI Checkpoints – Constitutionality and Guidelines
The US Supreme Court has held that DUI Sobriety Checkpoints are Constitutional. Despite this, at least 11 states prohibit them under their State Constitutions, impose limitations, or lack authority to conduct them. But in Arizona they are legal and the state recognizes their Constitutionality. In a Checkpoint stop the police can make a lawful stop in absence of having “reasonable suspicion” that a crime is in progress or has occurred, in order to pull you over.
Arizona has also, adopted many of the National Highway Traffic and Safety Administration (NHTSA) Guidelines. One of the guidelines calls for the selected stops to be made in some sort of mathematical sequence such as every car, every other car, 3rd car and so on. The NHTSA guidelines also require that the formal checkpoint be decided in advanced by city or county officials in coordination with law enforcement agencies; take place in a designated location, and be widely announced to the public using a variety of media resources, and signs visible to the public as they approach.
A DUI Checkpoint stop is different than a routine pullover stop by police due to one important element. In a routine stop, constitutional law requires that the police officer have a “reasonable suspicion” that a crime has occurred or is in progress. In other words, the officer can’t just pull you over because they have a “hunch” that someone is a red sports car, playing loud music must be driving drunk. Such a stop as described would be unconstitutional or unlawful. If an arrest ensues as a result of such a stop, the driver would have a defense for suppression of any evidence that was gathered after the stop occurred by police. The driver’s attorney would file a motion to suppress the evidence. If the presiding judge agrees to the unconstitutionality of the stop, any breath or blood tests or other evidence would be prohibited from being used against the driver in court. This usually leads to dismissal of charges.
Your Constitutional Rights at a DUI Sobriety Checkpoint
If you are stopped at a roadblock, you will be asked to produce your driver’s license and registration. This is a lawful request at a checkpoint. You are required to provide it this information as well as any other routine ID and residential information.
But you should know that license and auto registration is not the only thing the officer is looking for. They are also observing your attitude, behavior, response, and your ability and coordination skills in the process of providing it. That is part of their investigation at the stop, and the officers are trained to look for certain cues of impairment. The problem is that some of these cues may be mistaken for severe anxiety or nervousness, medical conditions, fatigue, and other circumstances, besides driving impaired due to alcohol or drugs. If the officer asks you to step out of your vehicle, or pulls you out of the line traffic to question you further, you must comply. Failure to comply with their instructions will result in other criminal charges, for example, disorderly conduct.
The police may decide ask you to participate in a DUI Standard Field Sobriety Tests (FST). These are not mandatory by law in Arizona. Most criminal defense attorneys will advise you to politely refuse the FSTs. This is because they are often inaccurate; may be difficult for unimpaired drivers to pass; and are often biased. The bias originates from the fact that the officer determines whether or not the driver is a candidate, and not all driver are according to the NHTSA guidelines. The police are also the instructors, administrators, and graders of the tests. If instruction, or administration was improper, or testing influenced by a variety of potential factors, the results are usually inaccurate.
Next the police may ask you to participate in a breath test. You can also refuse this test as well. But you should know there are civil consequences. Refusal of the tests results in a one year loss of driving privileges, even if you were not impaired. Also, the prosecution can use your refusal against you at trial. If the police have “probable cause” given other evidence available they can order a warrant from the judge on call, to draw your blood to test it for drugs or alcohol without your consent. Usually, you will be taken to a nearby police or command station where the blood will be drawn by trained and certified phlebotomy personnel.
7 Tips Avoid Raising “Reasonable Suspicion” or False Arrest
Of course, it goes without saying the safest way to avoid raising reasonable suspicion; probable cause; and avoiding arrest is to drive unimpaired, and not under the influence of toxic drugs or alcohol. But even that won’t guarantee you that you will not be falsely accused or arrested. Knowing your rights, and how to handle yourself during a checkpoint stop, however, will decrease your chances of a false arrest. Here are 7 important tips which include some important rights Constitutional protections:
• Try to stay as calm as possible. Keep in mind this is routine and everyone in the line is going through the same thing. You are not a suspect, just a number in the line-up.
• Do not joke around with the police, or complain about the checkpoint or being stopped. Try to remember the police officer is just doing his or her job. Be polite, courteous and respectful.
• Before you get to the checkpoint, instruct all passengers to remain quiet through the entire process. It is your future and freedom on the line. However, sometimes the police will attempt to engage in conversation with the passengers, especially if the officer suspects underage 21 drinking violations. The officer does not have the right to begin questioning them, but does have the right to interact with them. However, this is a known strategy used to prompt suspects to talk and say something that will incriminate them.
• Make sure your Driver’s License and Vehicle Registration are valid and current. Upon request by the officer, you must provide your driver’s license, vehicle registration. You must also answer routine ID and resident questions. Produce your license and registration as requested timely and without question. Always know where your Driver’s License and Registration on your person or in the vehicle, so you do not have to fumble, or become frustrated if they cannot be located.
• Often, the officer will begin to engage in cordial discussion with you as the driver. You do not have to say where you have been or where you are going. Do not offer any information about having had any alcohol or drugs or when you did last, if you did either recently, days or weeks ago. You don’t have to tell them when you last ate, drank or slept. Do not offer information about any medical conditions you may have, over-the-counter or prescription medications you may have in your possession to treat them. Remember what may seem innocent as far as questions and answers may lead to self-incrimination.
• The Fourth Amendment protects a person from unlawful search and seizures unless they voluntarily consent to the search; the police have warrant to search; or officers have “Probable Cause” to believe they will find evidence suggestive of criminal activity. You should never voluntarily consent to a search or seizure of your vehicle or anything inside of it, without a warrant for probable cause. Refuse politely, and respectfully, and explain that you are familiar with the protections provided by the Constitution related to search and seizures to vehicles. If the officer persists in the search, you must remain calm and non-combative. Never raise your voice, or physically try to stop them. To do so, may prompt them to use force if they feel they have probable cause to proceed with the search. Failure to follow this advice may result in physical harm to you by police, and additional criminal charges. These may include but are not limited to disorderly conduct, felony assault, obstructing justice, or other charges. You can always deal with the unconstitutional search after the incident through a criminal defense or civil rights attorney depending on the circumstances.
• The driver is in control, and must set the rules. Never allow passengers to have or carry opened alcoholic beverage containers in your vehicle. Let them know your rules in advance of leaving for your destination. Simply explain that you do not wish to transport opened alcohol containers, drugs, or drug paraphernalia in your vehicle. It’s not easy to say to a friend, especially in light of peer pressure. But it’s your responsibility as the driver to enforce your rules.
Chandler AZ and East Valley Task Forces/Saturation Patrols Announced
The State of Arizona has continued to see impaired driving incidents rise sharply over the last 7 years. Even more alarming is the fact that average Blood Alcohol Content (BAC) level of those arrested has been to the Extreme (0.15 percent BAC). Prescription drug DUI charges have also continued to rise, as well as underage drinking. The most recent statistics reported by Mothers Against Drunk Driving (MADD) reveal that there were 227 drunk driving fatalities in 2012, which represented nearly 28 percent of all Arizona traffic fatalities. This was also a 7 percent increase from the prior year.
As a result the Arizona Governor’s Office of Highway Safety (AGOHS) along with law enforcement agencies, city and county officials throughout the state have combined efforts, and additional resource funding to increase police presence, to combat impaired driving.
The Chandler AZ Police Department announced its DUI task force for the July 4the weekend. It began on Thursday July 3rd and will run through Saturday July 5, 2014. Chandler, Mesa, and Gilbert AZ officers will also be conducting East Valley saturation patrols in all three cities during this time, in select locations. Saturation patrols are organized patrols consisting of an overwhelming number of officers, within designated locations and cities seeking out impaired drivers, under the influence of drugs or alcohol.
The DUI Command Posts for the tri-city effort will be set up at 1950 S. Country Club Drive in Mesa AZ. Expect checkpoints and saturation patrols can be expected at areas that will be holding lawful and formal firework displays; roadways to popular swimming, parks, and other water recreation such as the Salt River, and Lake Pleasant. DUI
Attorney for Defense Chandler AZ
Any violations of impaired driving laws in Arizona are serious. Convictions result in criminal penalties that include jail, loss of driving privileges, fines, fees, alcohol/substance abuse counseling, installation of Ignition Interlock Devices upon reinstatement of your driver’s license, and other penalties. To go to court unrepresented, usually leads to a swift and harsh criminal conviction. You should always consult a qualified and experienced criminal defense lawyer to represent you. They will defend your rights, make sure you are treated fairly, and in some cases may be able to apply defenses specific to your case that will lead to a favorable outcome. This may include reduction of charges and sentencing, avoidance of jail terms, and a partial or total dismissal of charges. You chances of getting any favorable outcome will increase with proper legal advocacy. If you or a loved one faces impaired driving charges, you should in the least consult a criminal attorney to discuss your options for defense. The Law Office of James Novak defends drivers who have been arrested for impaired driving in Tempe, Mesa, Chandler, Scottsdale, Gilbert, and Phoenix AZ. James Novak is a former DUI and Criminal Prosecutor for Maricopa County who has been practicing exclusively in defense. Call today to discuss your defense options and speak with James Novak directly if you face active charges.
Additional Resources
• Chandler PD Announcement DUI Checkpoints July 4th 2014
• Implied Consent Laws Arizona – Breath Test Refusals
• Mothers Against Drunk Driving – East Valley, Arizona Offices
• Arizona Governor’s Office of Highway Safety 2013 DUI Statistics Other Articles related to this topic by Law Office of James Novak
• Facts about Safety Checkpoints
• DUI Arrest without Breath, Blood, or other Chemical Testing
