DUI Checkpoints – Know Your Rights
Can You Legally Refuse A Breathalyzer?
By Ryan Beckler, THELAW.TV
With the 4th of July holiday coming up this week, police departments across the country will be more vigilant in keeping drunk drivers off the road. Of course, the best way to avoid a DUI altogether is to not drink and drive, but since DUI checkpoints are not targeted and are random, people need to be aware of their rights in this situation. It could mean the difference between getting into hot water or not.
So you get pulled over at a DUI checkpoint, what are my rights?
For starters, police cannot search your car at a checkpoint unless they feel they have probable cause (you look visibly intoxicated/your breath reeks of alcohol) or you grant them permission.
Under your 5th Amendment rights, you don’t have to answer any questions if you don’t want to. So if an officer asks how many drinks you’ve had, you can simply choose to reply, “I don’t wish to answer that question.” If the officer believes you have indeed been drinking, he or she may ask you to take a breathalyzer test. Which leads us to…
Police want to give you a breathalyzer? Do I have a right to refuse it?
The breathalyzer is one of the most common contraptions you’ll see at a DUI checkpoint, and yes, you have every right to refuse it. However, do understand that you can still get arrested if police feel they have a “probable cause.” If you refuse the breathalyzer, chances are police will ask you to exit the vehicle and perform field sobriety exercises.
What are field sobriety exercises? Must I do them at an officer’s request?
While the breathalyzer is perhaps the most objective form of DUI evidence, field sobriety exercises (FSEs) provide more subjective proof of a potential DUI.
According to Marc Reiner, a Florida-based attorney who routinely deals with DUI cases, three different FSEs are commonly used today. The first of which is the “walk and turn.” Here, police ask that you walk one foot in front of the other with arms spread out parallel to the ground. After a certain amount of steps, the officer will usually ask you to pivot to the left and walk back.
“A lot of people will pivot to the right, or maybe their left arm is higher than their right just because it’s an unnatural way to walk,” Reiner says. “Any little mistake like that, the officer will mark it down on a chart to show that you were too impaired to follow basic directions.”
Another FSE is the “one-legged stand,” where police will have you stand on each leg for 30 seconds. Reiner argues this exercise to be quite unfair as many people today wouldn’t be able to successfully balance on one leg for a half-minute sober.
The last FSE is the “horizontal gaze nystagmus” (HGN). In this exercise, police will shine a small flashlight in your eyes and ask you to follow the lights laterally without swiveling your head. Reiner says a sober person is believed to have a 45-degree offset when their eyes follow the light back-and-forth.
“How an officer measures that without a laser protractor, I have no idea,” Reiner joked. “Usually they’ll write down ‘this person’s left eye seemed kind of lazy because it couldn’t keep up with the light.’ It is believed that alcohol loosens the eye muscles.”
What are the possible outcomes for not complying with police?
This is where things get risky. After refusing to take a breathalyzer or performing FSEs, the officer has two options: 1) Let you go free 2) Take you into police custody. “Police will make that decision on if they have enough evidence for a DUI conviction based on that stop alone,” Reiner says. As he recalls, on many occasions, the latter occurs.
However, arrest doesn’t always equal DUI. In several cases, Reiner says that the state won’t even file DUI charges, especially if the person in question has no prior convictions. “I’ve seen people get out of jail the next morning with a plea deal saying ‘agree to this reckless driving ticket and we’ll drop your case,” he says. “Without the evidence provided from a breathalyzer or FSE it’s much tougher to convict someone of a DUI.”
However, failing to comply could also lead to more problems. While not incriminating yourself by taking a breathalyzer or participating in FSEs, in many states, refusing these can lead to an automatic suspension of your driver’s license for at least one year. But according to Reiner, many people who get their license suspended do receive a hardship license that allows them to commute to work or see family.
What if I have a prior DUI conviction?
Everything changes, according to Reiner. If you have a prior DUI conviction, refusing to take a breathalyzer or an FSE is a misdemeanor in many states, and is obviously grounds for an arrest. Basically, if you have a previous DUI, you best be ready to blow into the BAC device and walk straight lines.
Can anyone look up when and where the checkpoints are before they go into effect?
Yes. Publicizing the checkpoints was one of the conditions listed in the Supreme Court decision Michigan Department of State Police v. Sitz, the landmark case when it comes to routine DUI checkpoints. Usually you’ll be able to find the posted checkpoints on your local police department’s website. If not, call them and they’re legally required to inform you about any upcoming DUI checkpoints.
“It may only be a day’s notice, but police must notify the public far enough in advance that someone could decide to alter their route,” Reiner says. “They’ll announce where they’ll be, when they’ll be there, and what direction of traffic they’ll be stopping that way you can decide if you don’t want to interrupt your normal ride home.”
It’s 2013, and yep, that means there’s an app for people trying to avoid DUI checkpoints. Released in the spring of 2011, DUI Dodger locates checkpoints within 50 miles of your location, lists common facts and myths about drunk driving, and helps people calculate their blood alcohol content (BAC) based on age, weight, and consumption. The app, created by a 30-year old high school teacher, was downloaded over 13,000 times by the end of 2012, and faced mass amounts of scrutiny from government officials. But it still lives on today and is currently eligible to download on the Apple store for $4.99.