DUI License Suspension | Administrative Hearing

June 27, 2015 by

DHSMV Forms for DUI Administrative Suspension

DUI Administraitve Hearings in Florida

DUI Administrative Hearings

If you are arrested for a DUI and either 1) blow > a .08 on the Breathalyzer or 2) refuse a chemical test, your driver’s license will be automatically suspended.  The police officer will seize your license and forward it to the DHSMV.  Within 10 days, you need to decide whether to fight the suspension in an administrative hearing or consent to the suspension.

Whatever choice you make, there is paperwork that should be filed with the DHSMV notifying them of your intention.  Please note that a Public Defender’s role is limited to criminal proceedings.  Accordingly, a public defender will not assist you in the administrative suspension.  You must do it yourself or hire a private attorney.

With regard to the DHSMV paperwork, it can be substantial.  I had a difficult time finding the most up to date version of some forms last week.  At least one was not available anywhere I looked online including the DHSMV website.  The Bureau of Administrative Reviews was kind enough to fax one to me.  Despite its reputation as a “Kangaroo Court”, the employees at the Bureau of Administrative Reviews are some of the most helpful and friendly individuals you will run into in this process.  So if you have a question, ask and be nice.  Nevertheless, due to my difficulty getting all the forms quickly, I decided to post them all in one place.  Enjoy.

HSMV 78065 REQUEST FOR FORMAL REVIEW

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This form is used to request a formal or informal review of your administrative license suspension.  If you prevail, you will not receive any “hard time” suspension from the DHSMV.  Although your license may still be suspended if you are found guilty in the criminal proceeding.

HSMV 72034 REQUEST FOR ELIGIBILITY REVIEW

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This form is used to waive your right to a formal review hearing in exchange for ability to get an immediate hardship reinstatement.  This option lets you avoid any “hard time” administrative suspension.  You are only eligible for this if this is your first DUI.  You must show up at the DHSMV Office of Administrative Reviews within 10 days of your arrest with this form and proof of enrollment in the appropriate DUI course.  You will have a hearing in front of a xarelto lawsuits who will determine your eligibility.

HSMV 78066 SUBPOENA/SUBPOENA DUCES TECUM FOR ADMINISTRATIVE HEARING

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Use this document to subpoena police officers and/or other relevant witnesses to the administrative hearing.

For more information, please contact us at:

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: Bureau of Administrative Reviews, Criminal Lawyer, DUI Administrative Hearing, DUI Administrative Suspension, DUI Lawyer, Florida DHSMV Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Motion to Suppress Everything for Reasons

April 12, 2015 by

The Omnibus Motion to Suppress

Motion to Suppress Because of Reasons

Motion to Suppress Because of Reasons

I started practicing law in Florida in 2004.  I practiced law in both Florida and North Carolina from 2007 to 2011.  I exclusively practice law in Florida now and my license no longer active in North Carolina.  The District Court in North Carolina handles misdemeanor DWI charges. If you’re looking for a Long Island traffic lawyer because of a traffic ticket, call traffic lawyer suffolk county for help with your case.  A defendant did not have a right to discovery in District Court proceedings.  In 2006, the North Carolina Legislature passed NCGS 20-38.6 which required that all motions to suppress and/or dismiss in implied consent cases be made prior to trial.  Most of the time defense counsel would receive a police report, test ticket and alcohol influence report prior to the trial.    However, there was no guarantee that you would get anything since the state was not obligated to provide anything.   This put defense counsel in a position of potentially being required to file a pretrial motion to suppress without any discovery whatsoever.    Failing to file a pretrial motion to suppress was not an automatic waiver of the right to file a motion to suppress.  Any motion to suppress made during trial was required to be based on facts not previously known to the defendant.  Whether to hear the motion to suppress was in the sole discretion of the trial judge.  In my experience, concerning DWI matters, any motion that was not made prior to trial would not be heard.

Necessity is the Mother of Invention and Innovation

The defense bar quickly came up with an Omnibus Motion to Suppress knowing that our crystal ball was unable to predict the contents of the various police reports.  In order to protect your client’s rights, you would simply check all of the boxes and submit the motion prior to or at the first hearing.  You could either amend the motion or withdraw the motion after you received discovery.  The motion has undergone significant changes since I first saw/used it.  The most recent copy that I can find was written by John Fanney and posted on the North Carolina Indigent Defense Services website.  Click here to see a copy of the motion: North Carolina DWI Motion to Suppress 

Reasons for Filing an Omnibus Motion to Suppress

Typically you would want to file a motion to suppress containing a clear statement of the facts and the legal basis to suppress the evidence.  However, that is difficult to do if, for whatever reason, you do not receive discovery.  An omnibus motion to suppress simply states various legal avenues through which evidence can be suppressed.  It does not state any factual basis for applying the legal principals asserted.  A check box omnibus motion to suppress is not necessarily lazy lawyering.  It is a means of protecting your client’s rights when you are being forced into taking a legal position before you know all of the facts.

Kane County criminal lawyer, Matthew Haiduk, publishes a blog titled “Disorderly Conduct.”  Mr. Haiduk mentions his reasoning for filing an omnibus motion to suppress stating “We’d get appointed, not even have police reports, and [the judge would] order that we would have to have any and all defense motions filed within 30 days… even if the trial was 9 months later.”  The entire post is definitely worth reading and can be found here: Setting Every Damn Case for Trial.  A copy of his omnibus motion to suppress is as follows:

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/04/omnibus-motion.pdf” save=”1″]

Disclaimer:  I am no longer licensed to practice law in the State of North Carolina and the preceding analysis was commentary only and not intended to be relied on for legal advice.

For more information, please contact us at:

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, 5th Amendment, 6th Amendment, Criminal Lawyer, Discovery, DUI Lawyer, DUI Legislation, Motion to Suppress, Omnibus, Probable Cause, Reasonable Suspicion, Search and Seizure Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

DUI Marijuana | Urinalysis Cross Examination

March 12, 2015 by
DUI Marijuana Cross Examination

Urine test positive for THC?

This last week I had the opportunity to “pinch hit” in a jury trial. My job was to cross examine the State’s 3 toxicology witnesses. If you just read the police reports, you would think that the prosecution was walking into a “slam dunk” type of a case. You had an individual who submitted to an Intoxilyzer 8000 breath test and blew a .074. While right under the legal limit of .08, the client purportedly admitted to having “just smoked a bowl of weed” when he was asked to submit to a urine test. So the State decided to take the case to trial based on the poor driving pattern, bad roadsides(defendant is physically handicapped) and low breath combined with an admission of drug use.  It was critical for the state to establish that the defendant was under the influence of marijuana at the time when he was driving the car since the breath was below a .08.  The state called 1 chemist and 2 forensic toxicologists in an effort to do just that.

Initially, I would like to thank Gary Ostrow and Melanie Batdorf for allowing me to co-counsel on this case.  They did a fantastic job handling the case and set me up for a great shot.  So I give all credit to them for the heavy lifting.

Witness I, Laboratory Chemist | Not an Expert Witness

The first witness for the State was an individual with a bachelor’s degree in Chemistry with over 30 years of forensic science laboratory experience.  The state did not offer her as an expert.  She testified that she conducted a test on the urine sample provided by the defendant which is known as an “IA” or “immune assay” test.   On while being questioned on direct examination by the State she testified that the urine sample provided by the Defendant tested “positive for THC.”  THC is the principal psychoactive compound found in marijuana.  While this answer is not an outright lie, it is certainly not the “whole truth” that witnesses are expected to provide.

On cross examination, I immediately asked the witness if the test she performed detected the presence of THC, an active metabolite of THC or an inactive metabolite of THC.  The answer to this question is crucial because if the state can prove THC or an active metabolite, the chance of a guilty verdict increases substantially.  Only THC and its active(psychoactive) metabolites are controlled substances under Florida Statute Chapter 893.  Accordingly, if the test only detect an inactive metabolite of THC, it is insufficient to prove impairment.  The chemist with over 30 years laboratory experience stated that she did not know whether the test identified THC or another substance indicative or prior exposure to THC a/k/a as a metabolite.  When I began to question her about the difference between active and inactive metabolites, she stated that I would have to ask her supervisor because she didn’t know.  However, she did state that the manufacture’s box containing the test kit said THC on the outside of it.

It is disturbing that the chemist did not know what a “positive” result indicates.

Witness II, Forensic Chemist, Expert Witness

The second witness for the state was a forensic chemist who performed the GC/MS and TLC test on the urine sample.  Again, on direct examination, the forensic chemist testified that the defendant tested positive for cannabis in the TLC test only.  The state elicited more specific testimony wherein the witness stated that cannabis is the active substance in marijuana.

This witness was qualified as an expert witness.  Accordingly, the first thing that I did was go back and determine what substance was detected by the prior IA test performed by the first witness.  She testified that the IA test could not detect THC or any active metabolites in THC.  Rather, she testified that the substance detected by the IA test was 11-nor-9-Carboxy-THC which is an inactive metabolite indicating prior exposure to THC.  She went on to state that the TLC test was also incapable of detecting THC or active metabolites of THC.  She conceded that the TLC test simply confirmed the presence of the inactive metabolite 11-nor-9-Carboxy-THC.

There were two key points to this cross examination that put the nail in the state’s proverbial coffin.  First, she testified that there were no impairing substances detected by the laboratory.  Second, the witness testified that the laboratory has the ability to detect the presence of THC and the active metabolites of THC, but they did not and do not perform the test necessary to do so.

Witness III, Forensic Chemist, Supervisor, Expert Witness

The third witness was the supervisor who signed off on the toxicology report.  However, he did not perform any of the laboratory analysis.  From the laboratory perspective, he was not a very useful witness from the state.  However, having worked with him before, I knew that he was the most knowledgeable regarding the physical and mental effects of drug use.

Once again, this witness testified that the defendant tested positive for cannabis and did not differentiate between impairing substances and inactive substances.  On cross, he too admitted that there were no psychoactive substances detected in the sample.  He then went on to testify as to how to identify the impairing effects of cannabis and the proper use of a urine drug test in a DUI case.  Unfortunately for the state, none of the indications of cannabis impairment were present in the video.

Summary of the Testimony

  • All three witnesses for the state initially, on direct examination, testified that the defendant tested positive for an illegal, psychoactive chemical substance capable of causing impairment alone or in conjunction with alcohol;
  • All three state witnesses changed their testimony on cross examination.  One stated that she didn’t know what a positive result actually indicated.  The second two witnesses admitted that the defendant did not test positive for any illegal and/or psychoactive chemical substances;
  • There was nothing from the toxicology results that could indicate that the defendant was impaired by anything;
  • At the very most, the state proved that the defendant MAY have been exposed to THC within a 30 day period prior to the day he was arrested for DUI.

Every Lie Contains Some Truth

11-nor-9-Carboxy-THC. is an inactive secondary metabolite of THC.  When the inactive metabolite is detected in the urine, the is a high probability that an individual has been exposed to THC at some point prior to the test.  So did the defendant test positive for THC?  Obviously, the state’s answer is “kinda”, but my answer is no.  There is a very big difference between testing positive for THC and testing positive for an inactive secondary metabolite of THC.  One is a controlled substance under Chapter 893 Florida Statutes.  The other is not.  The controlled substance can be used as a basis for a conviction, the inactive metabolite cannot.  In this case, the urine test offered absolutely nothing indicative of impairment at the time the defendant was driving the vehicle.

Despite all of the above, state experts across the country continue to provide testimony that is misleading at best.  It is most certainly not the whole truth and nothing but the truth.  Testimony of this sort is being offered in courtrooms across the country every single day and every single day innocent individuals are being convicted based on this type of evidence.

Other sources of information:

http://www.thetruthaboutforensicscience.com/

http://www.jdsupra.com/legalnews/gcms-evidence-attacking-and-defending-68604/

For more information, please contact us 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: Criminal Lawyer, Cross Examination, DRE, DRE, Drug Recognition Expert, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, Marijuana, Metabolite DUI, Urinalysis Tagged With: , , , , , , , , , , , , ,

Drugged Driving | Why DUI Drug Impairment is Difficult to Prove

October 22, 2014 by
Drugged Driving | DUI Drug

Drugged Driving | DUI Drug

Drugged Driving | DUID

The following post, as well as the entire website, is for informational purposes only and is not intended to be relied upon for either legal or medical advice.  The author of this post has no medical training. 

Florida Statute 316.193 is Florida’s DUI statute.  An individual is only considered impaired if that individual is impaired by 1) alcohol; 2) a chemical substance under Florida Statute 877.111 or 3) a controlled substance listed in Chapter 893 Florida Statutes.  The State must prove impairment and name the specific substance in order to get a conviction for DUI under a drug impairment theory a/k/a drugged driving.  The State is required to prove the specific substance because the substance must be listed in Chapter 893.  Proving the specific substance causing impairment is becoming a more difficult task as more “designer drugs” or “legal highs” hit the market.

Drug Testing

Drug testing is a two step process.  The first step is the preliminary screening.  Positive screens are sent for a confirmatory test.

Preliminary Screen

The majority of Florida DUI drug cases will involve a urinalysis.  The preliminary drug screen typically consists of a 10 panel immunoassay test.  This is commonly known as a dipstick test.  The preliminary screen detects biological markers indicative of exposure to or use of certain drugs and/or classes of drugs.  For example, a 10 panel immunoassay test can test for cocaine, which is a specific drug, as well as benzodiazepines, which are a class of drugs.  An immunoassay test can identify the characteristics of a substance, but is typically not able to determine the exact substance.

Confirmatory Test

The second step of the process is the confirmatory test.  The confirmatory test is typically a GC/MS or gas chromatography mass spectrometry test.  The GC/MS separates the molecules so the exact chemical compound can be determined. While a immunoassay test will show positive for benzodiazepines, the GC/MS is can determine whether the benzodiazepine is alprazolam a/k/a Xanax or diazepam a/k/a Valium.  For more information regarding GC/MS testing, please see Frederic Douglas’ article by clicking this link: Scientific Criminal Defense.

Chapter 893 Florida Statutes

If it is not a listed controlled substance in Chapter 893 Florida Statutes, it is not capable of causing impairment as defined by Florida Statute 316.193(1)(a).  A specific example of this is zolpidem a/k/a Ambien.  Ambien is a powerful sedative hypnotic drug.  It is a federally controlled substance.  However, an individual cannot be convicted for a DUI based on being impaired by Ambien since zolpidem is not listed in Chapter 893 Florida Statues.

Designer Drugs and Research Chemicals

Certain “designer drugs” or “research chemicals” are within a class of drug detected on the 10 panel immunoassay, but are not scheduled controlled substances under Federal or Florida Law.  Some of the more common “designer drugs” are benzodiazepines.  There are several high potency benzodiazepines that are unscheduled under Florida and Federal Law.  Impairment via an unscheduled benzodiazepine may not be impairment as defined in Florida’s DUI statute.

For example, pyrazolam is an extremely potent benzodiazepine derivative that is not a scheduled controlled substance under Florida Law.  Accordingly, even if the State is able to prove that a driver is physically impaired by pyrazolam, the individual is not legally impaired for purposes of Florida’s DUI statute.  The reason why is because pyrazolam is not listed in Chapter 893 Florida Statutes and has no metabolites that are listed in Chapter 893 Florida Statutes.

Amature Chemists Beware

One of the problems with “legal highs”, “designer drugs” and “research chemicals” is that there isn’t much information available on the specific substances.  There is little to no information available on the short and long term physical and mental effects on humans.  Additionally, there is little to no information regarding the metabolism of a specific substance.  What information we do have on research chemicals is frightening.

Diclazepam is currently being marketed as a “research chemical” which is “not intended for human consumption.”  Some of the more intellectually honest websites are marketing it as a “legal high.”  Nevertheless, it is clear that the substance is a benzodiazepine and is not a scheduled controlled substance under Florida or Federal Law.  It should be noted that an individual could be prosecuted for buying, selling or possessing diclazepam under the federal analogue act under certain circumstances.

The limited studies concerning diclazepam show that it metabolizes into three main active metabolites after ingestion.  The three metabolites are lorazepam, delorazepam and lormetazepam.  All three of the active metabolites are controlled substances listed in Chapter 893 Florida Statutes.  An involuntary intoxication defense to DUI would not be permitted if an individual ingested diclazepam, but was impaired by any of the three active metabolites.  Although the approximate detection time limit for a single dose of lorazepam is 5 days, studies show that an individual who ingests diclazepam  may still test positive for lorazepam 19 days after ingestion.

For Lawyers

Make sure that the confirmatory test states a specific substance.  If you are unfamiliar with the substance, check Chapter 893 Florida Statutes.  Do not assume that the substance is included.  Cannabinoids is not a drug, it is a class of drugs.  Benzodiazepines are not a drug, it is a class of drugs.

For Others

All that is required for you to be arrested is probable cause.  If the officer has reason to believe that you are under the influence of a scheduled controlled substance while you are operating a vehicle, you will be arrested.  There is an inherent risk with any type of criminal litigation and you might be convicted.  In the event that you are not convicted, you will still go to jail and you will still have to pay for an attorney.  An attorney who can handle this type of case will not be cheap.  Additionally, just because you are not criminally liable does not mean that you would not be subject to civil liability in the event that somebody gets hurt or killed.  In addition to the legal consequences, intentionally ingesting unstudied chemicals from an anonymous internet based drug dealer/chemist is recklessly placing your physical and mental health in harms way.  Just because it is legal doesn’t mean that it is safe.

For more information on drugged driving or other criminal defense matters, please contact us at:

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: Ambien, Benzodiazepines, Cocaine, Criminal Lawyer, Designer Drugs, DRE, Drug Recognition Expert, DUI Drug, DUI Drug, DUI Lawyer, Metabolite DUI, Research Chemicals, Urinalysis, Zolpidem Tagged With: , , , , , , , , , , , , , , ,

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: , , , , , , , , , , , , , , , ,