DUI Checkpoints | What is the Law? | What are Your Rights?

September 24, 2014 by
DUI Checkpoints Constitutional

DUI Checkpoint Ahead

DUI Checkpoints, Your Rights and The Law

I have seen a lot of articles and videos recently regarding DUI checkpoints.  I have been asked a lot of questions regarding checkpoints.  People want to know their rights.  What do they have to provide to the police?  Do they have to roll down their window?  I will get to the answer right away and then the analyze the issues.

The Answer under Florida Law:

“Moreover, as the state points out, a driver who is lawfully stopped for a DUI checkpoint is under a legal obligation to respond to an officer’s requests for certain information and documents, and the driver’s refusal to respond to these requests may constitute the misdemeanor offense of obstructing or opposing an officer. See § 843.02, Fla. Stat. (1991). See also Burkes v. State, 719 So.2d 29 (Fla. 2d DCA 1998); K.A.C. v. State, 707 So.2d 1175 (Fla. 3d DCA 1998); In the Interest of J.H., 559 So.2d 702 (Fla. 4th DCA 1990); M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984). If a driver engages in obstructive conduct, in violation of section 843.02, then standard police detention and arrest procedures, rather than checkpoint guidelines, would govern the officer’s handling of the situation.”  Rinaldo v. State, 787 So.2d 208 (Fla. App., 2001)

Issue 1: Cop Baiting | Don’t be Stupid

The vast majority of the checkpoint videos that I have recently seen on Youtube involve what I call “cop baiting.”  “Cop baiting” is when an individual does something stupid with the intent on getting under the cops skin and then turning around and acting like a victim when the officer gets upset.  Cop baiting is not the simple act of being disrespectful towards a police officer.  Cop baiting is going out of your way to intentionally provoke a response from a police officer.  I have no sympathy for anybody who intentionally provokes a response from a police officer whether it be foul language or a smack upside the head.

Most of the videos that I have seen involve individuals refusing to roll down their windows, refusing to provide their license and refusing to answer questions claiming that the checkpoint is somehow unconstitutional under the United States Constitution.  I won’t post any of those videos here because I don’t want to spread their idiocy.  Many people have been arrested and convicted of resisting an officer in the performance of his official duties, or similar statutes, by refusing to cooperate with officers at a DUI checkpoint.  If you choose to resist or obstruct an officer at a checkpoint you will probably get arrested.  When you do get arrested, you will have to post bail and hire an attorney.  So your 1 minute of looking like an idiot on Youtube just cost you $5,000.  It will cost you $5,000 even in the unlikely event that you beat the charge.

Issue 2: Checkpoints Are Permissible Under the United States Constitution

The United States Supreme Court case ruled that checkpoints are permissible under the 4th Amendment in Michigan Dept. State Police vs. Sitz in 1990.  The Supreme Court, in a 6-3 vote, ruled that a state has a “substantial government interest” to stop drunk driving, and that checkpoints are rationally related to achieving the goal of stopping drunk driving. The Court also ruled that the impact on drivers from being stopped at a checkpoint was de minimus, that the time a motorist is delayed from reaching his or her destination is negligible, and that brief questioning  in order to determine if there is “reasonable suspicion” that a driver is impaired also is not a significant impairment of the drivers’ Fourth Amendment right. The court balanced the interest of the state in combating drunk driving with the individuals Fourth Amendment rights and held that checkpoints were permissible.

There have been further cases which restrict how checkpoints can be conducted.  In Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 361(1979). The Supreme Court stated that the trial court must look to “(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.”   Other cases that significantly modified how a checkpoint can be conducted are:

  • Indianapolis v. Edmond, 531 U.S. 32, 40-42, 121 S. Ct 447, 148 L.Ed.2d 333, 343(2000);
  • Ferguson v. City of Charleston, 532 U.S. 67, 81, 121 S.Ct. 1281, 1290, 149 L.Ed.2d 205, 218(2001);
  • Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 890, 157 L.Ed.2d 843, 852(2004).

However, all of the foregoing cases involve how the checkpoints were setup and operated.  This is information that your attorney will get after you are arrested.

Issue 3: State Laws can be More Restrictive

Ironically, when Michigan Dept. State Police vs. Sitz was remanded to the Michigan Supreme Court, the Michigan Supreme Court ruled that the Constitution for the State of Michigan provided additional protections for drivers than the United States Constitution.  Consequently, the Michigan Supreme Court ruled that checkpoints were not permitted pursuant to the State Constitution rather than the United States Constitution.

The states are also free to implement legislation regarding checkpoints as long as the legislation more restrictive towards the state as opposed to attempting to overturn the Supreme Court by state legislation.  In my opinion, a perfect example of this prohibited legislation is found in North Carolina Statute 20-16.3A(d).  The statute states, “The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity. This subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.”

This legislation is designed to avoid motions to suppress based on an allegation that the checkpoint was not narrowly tailored to meet its objectives.  I no longer practice law in North Carolina and can not give any legal advice regarding North Carolina law.  However, it appears that one Judge agreed with me that the law was unconstitutional.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/09/Order-Granting-Motion-to-Suppress-DUI-Checkpoint.pdf” save=”1″]

So What Are My Rights?   What do I do if I am Stopped at a Checkpoint?

Assuming that checkpoints are legal in your state, you must comply with the officer’s requests.  For example, providing drivers license, registration and proof of insurance.  The Sitz case makes it very clear that the officer’s have the right to ask you limited questions.  As I wrote above “brief questioning  in order to determine if there is ‘reasonable suspicion’ that a driver is impaired also is not a significant impairment of the drivers’ Fourth Amendment right.”

So they can ask, but you do not have to answer if your answer may incriminate yourself.  You still have your 5th Amendment rights.  If you haven’t been drinking or you aren’t coming back from a bar, simply tell them you are coming back from grocery shopping(tell the truth) and be on your way.  If you feel that your answer may incriminate you, don’t answer.  In some circumstances, they may let you go and in some they may arrest you on an obstruction charge or maybe a DUI.  There is nothing you can do to help yourself at that point.  Let your attorney handle it.

Most importantly, ROLL DOWN THE WINDOW!  This seems to be all the trend on the cop baiting videos.  The police officer cannot ask you questions with your window rolled up.  If it is cracked the officer will claim he couldn’t hear you.  Maybe you interfered with the states right to determine reasonable suspicion because he couldn’t tell if there was an odor of alcohol.  Who knows what the police officer will say, but if you obstructed, you get arrested.

So do as follows:

  • ROLL DOWN YOUR WINDOW so the officer can communicate with you;
  • Be polite;
  • Provide the police officer with your license, registration and insurance;
  • If the answers won’t lead towards incriminating yourself, answer the questions and be on your way;

DO NOT DO AS FOLLOWS:

  • Enter into a debate with the police officer over the constitutionality of checkpoints;
  • Make any incriminating statements.  If where you were or what you were doing had to do with anything that could be perceived as illegal, simply state “I am not going to answer any questions without a lawyer present.”  You may get arrested anyways, but that is what attorneys are for.
  • Do not take the roadside sobriety exercises.  You are under no obligation to do so.  Simply say “No thank you officer.  I am not going to take any tests.”
  • I don’t think that I am allowed to advise anybody NOT TO TAKE THE BREATHALYZER, if it is a second refusal or more, refusing to take the breath test is a criminal offense.
  • If you are going to shut up, then shut up.  The more you talk the more evidence the police will have;
  • DO NOT GO ON COP BAITING EXPEDITIONS!

Fort Lauderdale DUI Attorney, Michael Dye, represents individuals charged with all types of felonies and misdemeanors including, but not limited to contempt of court.  For more information, please contact Mr. Dye at his Fort Lauderdale or Miami office:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

 

 

 

Filed Under: 4th Amendment, Criminal Lawyer, DUI Checkpoints, DUI Lawyer, Search and Seizure Tagged With: , , , , , , , , , , , , , , , ,

DUI Investigations Phase II | Face-to-Face Contact

August 30, 2014 by
DUI Investigation

DUI Investigation Phase II

Fort Lauderdale DUI Attorney | Miami DUI Attorney

Phase II DUI Investigations | Personal Contact

At the beginning of Phase II, the police officer has already seen how the driver was operating the vehicle and noted “cues” of impairment if any.  There are many times when an Officer does not detect any cues during Phase I.  It is important to illicit the fact that the officer did not witness any Phase I cues and therefore did not have reason to believe that this was a DUI stop.  Checkpoints and accidents are common scenarios when a police officer does not witness any Phase I cues that’s why lawyers in these situations are common and you can find the best online at sites like https://www.harrybrownlaw.com/atlanta-motorcycle-accident-injury-attorney.  It is not abnormal for an officer to see a car driving and pull the car over for an infraction without witnessing a Phase I cues.

Face to Face Contact

In phase II of a DUI investigation, an officer will observe and interview the driver face to face in order to determine if there is reason to continue with the DUI investigation.  Some departments mandate that any individual suspected of DUI must exit the vehicle.  Accordingly, the interview that takes place during this phase can be done with the suspect inside or outside of the vehicle.  NHTSA guidelines specifically state that Phase II can be initiated without Phase I.  Specific examples given by NHTSA include roadblocks and accident scenes.

Divided attention questions are a commonly used technique by law enforcement to assist with making a determination of impairment.  The questions are designed to determine your ability to focus on two tasks at the same time.  “May I see your license and registration?”  “What is your name and date of birth?”  As you are looking for your license and registration, the police officer is going to be watching for signs of impairment such as if you pass by your license in your wallet as well as indicators of physical impairment such as “fumbling fingers.”  and other indications that your mental and physical faculties are impaired.

NHTSA does not list the statistical correlation to impairment for Phase II cues.  Nevertheless, the following behaviors and observations are indicated as consistent with impairment:

• Bloodshot eyes;

• Soiled clothing;

• Fumbling fingers;

• Alcohol containers;

• Drugs or drug paraphernalia;

• Bruises, bumps or scratches;

• Unusual actions;

• Slurred speech;

• Admission of drinking;

• Inconsistent responses;

• Unusual statements;

• Abusive language;

• Anything else;

• Alcoholic beverages;

• Marijuana;

• Cover up odors;

• Other unusual odors;

The “typical” DUI report states a “strong odor of alcohol coming from the defendant’s breath; red bloodshot, glassy eyes and slurred speech.  As is with the cues in Phase I, it is most effective to focus on the things that the defendant did correctly.

If the officer notices one or more of these indications, the officer will inform you that he is going to begin a “DUI Investigation.”  When the police officer tells you that he is going to conduct a “DUI Investigation”, the investigation is already complete and the officer has made his arrest decision.  The standardized field sobriety exercises in Phase III are simply a means of gathering additional evidence of guilt and do not have much of an impact, if any, on the arrest decision.  You are under no legal obligation to take the roadside sobriety exercises.  It is never a good idea to take them.  You cannot prove your innocence.  You can only dig yourself a deeper hole.

DUI Attorney, Michael Dye received additional training in the administration and interpretation of the SFST’s from Doug Scott, a pioneer in the field of the Drug Recognition Expert Program, who is recognized as an expert in the administration and interpretation of the SFST’s.  Mr. Dye has the most current version of the NHTSA SFST Student Manual and actively utilizes it as reference and impeachment material in both depositions and trials.  Mr. Dye has cross examined the arresting officer regarding the SFST’s in over 20 trials and numerous depositions.  For more information, please contact Mr. Dye at his Fort Lauderdale or Miami Office:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Next: Phase III DUI Investigations – SFST’s

 

 

 

 

 

Filed Under: 4th Amendment, Criminal Lawyer, DUI Lawyer, Roadside Sobriety Tests, Search and Seizure, Standardized Field Sobriety Tests Tagged With: , , , , , , , , , , ,

DUI Investigations Phase I | Vehicle in Motion

August 27, 2014 by
DUI Attorney | DUI Investigation

DUI Investigations

Fort Lauderdale DUI Attorney | Miami DUI Attorney

Phase I DUI Investigations | Vehicle in Motion

Police officer’s are trained to follow the guidelines set forth by the National Transportation and Safety Administration(NHTSA) when conducting a DUI investigation. The guidelines set forth 3 stages to every DUI arrest. The officers are trained to identify “cues” of impairment in each stage of the investigation. The cues are used to develop probable cause to support a traffic stop and an arrest.

Phase I, Vehicle In Motion Phase I of a DUI investigation is broken down into three subparts.  It consists of a) the observation of the vehicle while it is being driven; b) the decision to make a traffic stop; and c) observations made during the traffic stop. The initial observation of the vehicle begins when the officer, for whatever reason, notices the vehicle. The officer may have witnessed the driver commit a traffic infraction or just thought “Hey! Nice car!” The reason why the officer notices the vehicle is not relevant.

Once the officer notices the vehicle, the officer is trained to look for 24 specific cues that NHTSA has determined to have a statistically significant correlation to impairment. The correlation of the cues range from .35 to .90. Accordingly, one indication of impairment is not going to be probable cause for a DUI stop. The probability that an individual is impaired increases with the number of cues exhibited by the driver.  Typically, officers are looking for two or more cues.  It is important to realize that any traffic infraction can be used as a basis to stop a vehicle even if the infraction is not a specifically listed cue.

NHTSA has divided the driving behaviors into four categories:

  • Problems in maintaining proper lane position | Statistical Correlation to Impairment .50- .75

Weaving Weaving across lane lines Straddling a lane line Swerving Turning with a wide radius Drifting Almost striking a vehicle or other object

  • Speed and braking problems | Statistical Correlation to Impairment .45 – .70

Stopping problems (too far, too short, or too jerky) Accelerating or decelerating for no apparent reason Varying speed Slow speed (10+ mph under limit)

  • Vigilance problems |  Statistical Correlation to Impairment .55 – .65

Driving in opposing lanes or wrong way on one way Slow response to traffic signals Slow or failure to respond to officer’s signals Stopping in lane for no apparent reason Driving without headlights at night Failure to signal or signal inconsistent with action

  • Judgment problems. Statistical Correlation to Impairment .35 – .95

Following too closely Improper or unsafe lane change Illegal or improper turn Driving on other than designated roadway Stopping inappropriately in response to officer Inappropriate or unusual behavior (throwing objects, arguing, etc.) Appearing to be impaired

It should be noted that many times an individual is stopped for excessive speed and nothing more. Excessive speed is NOT an indication of impairment. However, varying speed and slow speed are indications.  Special attention should be paid to the police report to see which cues listed by the officer are statistically correlated.  Quite often, there are no statistically significant cues.  While it will not usually not win a motion to suppress based on the stop, if the officer also witnessed a traffic violation, it is nice to be able to highlight to the jury that there were no indications of impairment based on the driving pattern.

In trial, or in a hearing, the prosecution tends to point to 2 or 3 cues of impairment to establish that a person was too impaired to drive. A good defense strategy is to focus on the 21 or 22 things that the defendant did correctly. A cross examination focusing on what the defendant did right is an extremely effective strategy when there is a “double refusal” meaning that the defendant did not take the roadside sobriety exercises and the defendant did not take a breath, blood or urine test.

When selecting a DUI attorney, ask the attorney about his or her additional training and education with regard to the NHTSA Standardized Sobriety Tests and the 3 Phases of a DUI arrest.  The NHTSA Student Manual is available to attorneys and all serious DUI attorneys should have one.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Next: DUI Investigations Phase II

Filed Under: Criminal Lawyer, DUI Lawyer Tagged With: , , , , , , ,

Drugged Driving | Urinalysis | Metabolite DUI

July 5, 2014 by

DUI Lawyer Explains the Limitations of Urinalysis in DUI Drug Cases

Blood, urine and hair are the three commonly accepted methods drug testing.  Pursuant to Florida Law, law enforcement is limited in its ability to secure a blood sample from a suspected impaired driver and hair follicle testing is not an approved test for DUI investigations.  Accordingly, when it comes to DUI under a drug impairment theory, a urinalysis is typically used to determine the presence of an impairing substance.  There are exceptions with regard to blood and the police may obtain a blood sample for testing under limited circumstances.

A DUI drug case with a urinalysis as evidence of impairment should be difficult if not impossible for a case to prove.  A urinalysis is incapable of determining when substances were ingested. It is an established fact that a urinalysis will yield a positive test result for impairing substances long after the cessation of impairing effects.

A basic understanding of human physiology is required to understand why a urine test cannot prove impairment. In addition to human physiology, it is necessary to have a general understanding of the scientific principals behind the testing methods. With regard to physiology, the issue comes down to the difference between the renal system and the circulatory system. With regard to the scientific principals, it is imperative to know what constitutes a positive test result.

Regarding the systems, there are three main points to remember. Point 1: The renal system produces and eliminates urine. Point 2: The circulatory system can be looked at as a blood distribution network. Point 3: For the purposes of a DUI urinalysis, there is no correlation between the renal and circulatory systems.

For purposes of determining the impairment of an individual, the only thing that matters is what substances are in the blood. As such a urinalysis testing for impairing substances is an indirect test. In order for a urinalysis to be useful as an indirect test, there must be a correlation between what is found in the urine and what is contained in the blood. As stated above, there is no correlation between the two. Urinalysis in a DUI case will almost always be a qualitative analysis meaning that the lab only tested for the presence of a given substance. A qualitative analysis of urine gives no information as to whether a suspect is impaired. It does not tell how much or when a drug was ingested. The results are simply a “marker” indicating prior exposure to a substance. Performing a quantitative analysis is possible, but it is also pointless. Determining how much of a given substance is present in a suspects urine is irrelevant because of the lack of correlation between urine and blood.

The amount of time that it takes a drug to be undetectable in urine varies by drug. A classic example of this is marijuana. Marijuana’s effects typically last for two to three hours. However, marijuana’s metabolites are highly fat-soluble. Therefore, the THC and metabolites are stored in body fat. Individuals can show up positive on a urinalysis for a DUI up to four weeks after smoking marijuana. The actual length of time depends on the frequency of use and amount used.

While marijuana is an extreme example detection times, other drugs render the results of a urinalysis in a DUI irrelevant. For example, the metabolites of cocaine can be detected in urine for two to five days after use. Likewise, amphetamines have a short detection window, but can still be found in urine up to five days after use.

Drug metabolism is the breakdown of the parent compound into metabolites. A parent compound is the actual substance that is ingested. A metabolite is the byproduct of the parent compound when the parent compound is “broken down” through the biochemical process after ingested.

Metabolites can be divided into two categories for purposes of a DUI. A metabolite can either be active or inactive. In simple terms, an active metabolite of an impairing substance will have an impairing effect. An inactive metabolite is simply a marker of prior use and has no impairing effect on the individual.

A problem arises in DUI urine testing when an inactive metabolite yields a positive result on a urinalysis. For example, the main metabolite of marijuana is THC-COOH. THC-COOH is a nonpsychoactive substance and highly fat soluble. As such, THC-COOH has no impairing effect on an individual. However, it is detectable in urine for 3 to 4 weeks after using marijuana. The vast majority of tests currently used to determine if an individual has ingested marijuana do not test for THC and do not test for active metabolites of THC. The preliminary and confirmatory tests do not test for any substance that would cause impairment. Accordingly, if an individual tests positive for marijuana, he or she has only tested positive for the inactive metabolite of marijuana. The only thing that this would prove is that the individual smoked marijuana sometime within the last 3 to 4 weeks.

There is a four point analysis to defending a DUI urinalyses case. Issue 1: It is crucial to know exactly what substance is being tested for in the urinalysis. Issue 2: Research what exactly constitutes a positive result. Issue 3: Assuming the test is accurate, identify the time range in which the substance could have been ingested. Issue 4: Compare the known effect of the drug on an individual’s behavior. Compare the known effects against the DUI video, the officer’s report and a DRE report if any.

In order for the state to prove a DUI, the state must prove that an individual was impaired. Urinalysis alone can not prove impairment. The results of a urinalysis should be considered by an attorney defending a DUI case. However, with an effective cross examination of the State’s expert, the results of a urinalysis usually do not carry much weight.

For additional information, please contact DUI Lawyer Michael Dye at:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: DUI Drug, DUI Lawyer, Metabolite DUI, Uncategorized, Urinalysis Tagged With: , , , , , , , ,