WHAT HAPPENS TO YOUR RIGHTS WHEN YOU DRIVE THROUGH A DUI CHECKPOINT?

Jul 10, 2014 @ 02:01 PM — by Myles L. Berman

According to the Bill of Rights, everyone in the US is protected from unreasonable searches and seizures; and no one can be arrested unless there is a warrant or probable cause. But what happens in the case of a DUI checkpoint where a person is seemingly obeying the law but still is stopped, searched, and sometimes arrested without a warrant or probable cause? Here’s a hint, whenever it is argued that public safety must be protected constitutional rights are restricted.

In a nutshell, for public safety against impaired drivers California allows DUI checkpoints. Checkpoints were originally set up to be run similar to security screening at the airport. Later, courts determined them legal so long as the checkpoints:  are publicized in advance, the decision making and discretion is on a supervisory level, and are reasonable in time, location, and duration, there is signage indicating that a law enforcement agency is managing the checkpoint, and that the car not be detained to long for investigation.

There is no requirement for probable cause or a warrant. Here are two examples to illustrate my point. First example, Johnny is driving down the 101 Freeway. His registration is current, and he is not violating any speed laws whatsoever. CHP Officer Fred pulls Johnny over and sees a partially eaten brownie with a cellophane wrapper that has a picture of a marijuana leaf on it. Fred also notices that Johnny has red, glassy eyes and smells like marijuana. Fred arrests Johnny for DUI marijuana and marijuana possession. In a California court, Johnny’s case should be dismissed because there was no legal basis or probable cause to stop (seize) Johnny’s car.

Now in the second example, let’s say Johnny was driving through a DUI checkpoint. There are flashing lights and signs that show that the CHP is operating the checkpoint from 8p.m. to 2a.m. Officer Fred’s Supervisor Sargent Bob is on location to supervise the checkpoint and answer any questions that his subordinate officers may have of him. The CHP website announced this check point for 10 days prior to the checkpoint. Officer Fred approached Johnny to ask him if he had anything to drink that night. While near Johnny’s car, the officer smells marijuana and notices that Johnny has red, glassy eyes. Officer Fred then sees Johnny has a half-eaten marijuana brownie in the car. He investigates and arrests Johnny for DUI marijuana and possession of marijuana. A California court likely would not dismiss Johnny’s case merely because it’s a checkpoint. However, an attorney may assert legal issues when looking at the compliance of checkpoint requirements.

So the lesson of today’s blog is this: DUI checkpoints, if legally administered, allow police agencies to search and seize individuals, whether the individual is violating the law or not, on the basis of protecting the public welfare.

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