- posted: Nov. 14, 2014
This week is Memorial Day and that means "our finest" will be out in force with DUI Checkpoints for those of us drinking and partying. I am often asked if these checkpoints are legal. The short answer is YES.
Checkpoints are generally legal however there can be situations where a particular DUI checkpoint could be found illegal. Not all roadside sobriety checkpoints are necessarily set up and administered in a constitutionally permissible manner.
It is interesting to note the court have not upheld drug checkpoints. Let's see what happens with the easing of California's Marijuana laws in the near future.
When opponents have challenged DUI checkpoints, it has usually been on the grounds that they are a violation of the 4th Amendment to the U.S. Constitution's prohibition against unreasonable searches and seizures. However, when courts have tackled the issue, they have ruled that the intrusion of checkpoints is justified by the seriousness of Drunk Driving and the possible deterrent effect of sobriety checkpoints. Few of my readers realize that we have more Drunk Driving FATALITIES here in the greater Palm Springs area than anywhere else in California.
With a checkpoint there is no need for an officer to have probable cause to stop you...as is usually the case. Normally an officer must have probable cause (a reason) to stop you. However at a sobriety checkpoint anybody can and will be stopped and a breath test can be administered on the spot. Remember that once an officer stops you, at a checkpoint or for any other vehicle code violation, he can investigate further. If he smells alcohol or sees a bag of Marijuana or a Gun in plain sight then the officer can arrest you for those additional charges.
Remember however that Field Sobriety Tests (FST's) are optional. Thus you do not have to take the eye test, walk the line & finger to nose etc. Courteously explain you are willing to do anything that is mandatory and you understand FST's are elective, therefore you elect not to take the test.
If you have failed a breath test or a sobriety test at a checkpoint, all your right have not been compromised. There are procedures and guide lines that all officers at a checkpoint must follow for a DUI test to be held valid.
Saturation Patrols are similar to checkpoints but involve Riverside Sheriffs and other agencies putting more officers on the road to be look for drunk drivers. Thus they hover outside of popular watering holes and restaurants guessing anyone they stop will be under the influence....and they are usually right. The Memorial Day weekend traditionally features a lot of parties and thus the odds are in favor of anyone stopped being under the influence.
Remember you do not have to be DRUNK. You merely have to be under the influence and that means 2-3 one oz. drinks for most people. The issue is really not the number of drinks but the amount of alcohol in each drink. Thus if you are getting a 2 oz. pour of alcohol instead of a 1 oz. pour that Being Under the Influence with many will occur with the 2nd drink.
We all know that officers frequently over charge and over-arrest people because of their incentivizations. These can include, but are not limited, to promotions, pay increases, vacation schedule priority, etc. based upon their sheer number of arrests and tickets issued. The 4th, 5th and 6th Amendment rights are frequently violated in the process.
Likewise the DA, when given the arrest report by the arresting officer, makes a decision on how to file the case and too often over file or over charge to gain leverage for a future plea. By doing so it makes it easier for the DA in the courtroom, to extract a plea to something by the defendant.
The Supreme Court considers Checkpoints to be within the confines of the law. However don't think you will be able to skirt a DUI by swallowing pennies, sucking on a mint or challenging a breathalyzer test........the chances of success are virtually nil.