Most of the tickets given out at these checkpoints are for seat-belt violations or other things not related at all to drunk driving and DUIs. If you have nothing to hide, waiting in line for these checkpoints is at best a time-consuming nuisance that might make you late for work or dinner.
But now, Warren Redlich, a Florida lawyer, is arguing that these checkpoints are not only unconstitutional, but that police do not have legal grounds to do anything but tell you to drive on if you present your drivers license at the window — with the window rolled up — and a sign that tells them you do not consent to a search, that you have no comment and that you want your lawyer. Would t his work in Nevada? I don’t know.
He says that his goal is not to protect drunken drivers (but it certainly would help them!), but to instead inform innocent people about their rights to not be presumed guilty and illegally detained without probable cause.
Some clients, he explained, have never had a drop of alcohol, but if they rub police officers the wrong way, then they are slapped with DUI charges, because the officer claims he could “smell alcohol” on them or that their speech was “slurred.” It’s then up to them to prove their innocence in court.
This is what he advocates: Get a Ziploc bag and put a card in it that says “I remain silent.
“No Searches. “I want my lawyer.
“Please put any tickets under windshield wiper.
“I have to show you my papers, not hand them to you.
“Thus, I am not opening my window.
“I will comply with clearly stated lawful orders.”
Also put your license, registration and proof of insurance in the bag. This method is used to avoid unnecessary police interaction. (Which I think is a great idea!)
Would this work in Nevada? If stopped by the police, Nevada drivers must identify themselves and show proof of registration. If you put license, registration and proof of insurance in the zip-lock bag so the officer can see these documents, the one wrinkle is that in Nevada, you are required to sign the ticket.
How can you get around it? I have a suggestion (not legal advice, so you do this at your own peril). YOU can put on the card under I Remain Silent, No searches, I want my lawyer:
I understand that Nevada law requires me to sign my ticket. Please hold ticket up to the window. I’ll digitally sign tickets and email them to you or to firstname.lastname@example.org. 15 US Code 7001 (a) (1) 15 US Code section 7001- General Rule of validity
(a) In general Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II of this chapter), with respect to any transaction in or affecting interstate or foreign commerce—
(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic
signature or electronic record was used in its formation.
I believe that the driver has complied with the law. I’m sure the cops will not like this, but In Nevada officers can only pull you over if they have reasonable suspicion that you have committed a traffic violation. If you are not driving badly, I don’t believe they have any lawful reason to stop you.
If you have had a couple of drinks, by using this technique the officers would not be able to smell your breath. You would not say anything, so they would not be able to say that you were slurring your words. But I could see an overaggressive officer breaking your window with his baton, in which case I would say that would be an unreasonable search.
I like this tactic because people usually end up putting their “foot in their mouth” during encounters with police. They tell the cops too much. They give the police an opening. Remaining silent does not give them an opening. It’s much easier for me to defend someone who hasn’t said anything to police.
In Nevada, now there is a requirement to get a telephonic warrant if there is no consent. Civil liberties advocates often question whether police checkpoints, which force motorists to submit to a criminal investigation on the basis of their geographic location rather than probable cause, violate the Fourth Amendment to the US Constitution.
Also, police positioned at checkpoints do not have an opportunity to see how a suspect has been driving and instead must rely on less precise indicators like red eyes or fatigued behavior, which might also suggest that the suspect is coming home from a long work shift and not intoxicated at all.
Aggressive? Yes! Effective? YES! Legal In Nevada? I think so, but we won’t know until there is a test case. As Dirty Harry would say. “Well, punk… do you feel lucky?”
Mace J. Yampolsky is a Board Certified Criminal Law Specialist, 625 South Sixth St., Las Vegas, NV 89101; He can be reached at: Phone 702-385-9777 or fax 702-385-300. His website is located at: www.macelaw.com.