Attorney Warren Redlich suggests that motorists put their license, registration, proof of insurance and a flier in a plastic baggie attached to the exterior of their vehicle and then roll up the driver’s window as they approach the checkpoint.
One example of the flier states in large-font capital letters, “I remain silent,” “no searches” and “I want my lawyer.” It cites statutory law to support the driver’s claimed right not to roll down the window, explaining that any ticket can be placed under the windshield wiper and advising that the driver will obey “clearly stated lawful orders.”
Critics say the approach shields motorists from the consequences of driving under the influence by preventing officers from smelling any odor of alcohol and hearing whether their speech is slurred. (I agree!) Redlich disagrees, explaining that his approach protects motorists from overzealous enforcement and dubious subjective claims, as he sees it.
“A lot of people are uncomfortable with the idea that police can just stop you for no reason. If you are not comfortable with that, this is a good way of handling a checkpoint… There are good cops and there are bad cops. The purpose of this flier is to protect innocent (and maybe not so innocent) people from bad cops.”
A now-viral video of a Levy County Fl, DUI-checkpoint stop in which the technique was used on New Year’s Eve shows sheriff’s deputies shining a flashlight on the baggie, reading the information and then waving the car on.
However, other DUI checkpoint stops may not go as smoothly. At least one sheriff in another Florida county has threatened to arrest motorists who try the technique for obstruction (probably from obeying an officer’s order. But the question remains: was the stop lawful?
Does an officer have a right to stop you if there is no evidence of a traffic violation? I say no.
And sheriff’s officers in Pasco County were informed by the department’s legal counsel that motorists can be told to roll down their windows and step out of their vehicles if officers witness erratic driving, drugs in plain view or other problematic conduct. So what that says to me is if there is no bad driving or drugs or an open container in plain view, there is no probable cause (PC) to stop you and have you step out of your car.
“It’s legal, but you draw attention to yourself,” attorney Elliott Wilcox, a DUI defense lawyer in Tampa, says. “When you draw attention to yourself, then you’d better be squeaky clean going through because otherwise, you give them another reason to pay attention to you. If you are not squeaky clean, that could be the worst thing that happens to you.
But it is worth a shot because if you have been drinking and you roll down your window, there probably is an odor of alcohol which gives them a reason to have you do some Field Sobriety Tests. (FSTS): walk and turn, nine steps up, nine steps back, one leg stand for 30 seconds and the Horizontal Gaze Nystagmus test to see if your eyes are able to track the officer’s finger or a pen that he moves in a horizontal line. If there is any involuntary jerking that is an indicia of driving under the influence. But the officer is the sole judge whether you pass or fail. If he smells alcohol on your breath, he will
probably say that you fail. Okay, I am a cynic, but just because you are paranoid doesn’t mean they are not out to get you.
My standard advice is NOT to do the FSTS. If there is no bad driving, remember — you can’t fail the FSTS if you don’t do them! Sometimes the best way to win the game is not to play. But, an odor of alcohol is an indicia of Driving Under the Influence. Also, if asked, do NOT agree to a breath or a blood test. Make them get a warrant; this will take longer and in Nevada the chemical test MUST be done in two hours in order for the results to be admissible.