I’ve twice been stopped at sobriety checkpoints in the last few months, and I am now curious about what my obligations are. In both cases, the stop was very quick. The officer asked if I had been drinking that day, I said “no”, he asked to see my license, and then took only a very quick glance at it before sending me on my way.
I’m curious what would happen if I refused to answer the “have you been drinking” question with something like “I’m sorry, but I don’t answer any questions from the police without an attorney present”. Realistically, what happens in that case? I know that I’m required to identify myself, and I believe I’m required to produce a license and proof of insurance. I think I remember when I went through driver’s ed that I’m required to submit to a sobriety test (breathalyzer or blood/urine test). Do they make me take a test at that point? Do they make me cool my heels for a while to teach me a lesson, then let me go? Do they go over my car with a fine-toothed comb and find some semi-bullshit reason to give me a ticket just because I failed to respect their authority? I’m in CA, but I’m curious about other jurisdictions as well.
I personally have learned a lot from this website which is operated by a criminal defense attorney who has sort of been crusading against American drunk driving laws and procedures for a long time.
To be honest, under the 4th Amendment sobriety checkpoints should be absolutely unconstitutional. Unfortunately in Michigan v. Sitz, in one of the rare cases where I truly disagreed with the conservative justices, it was ruled 6-3 with Rehnquist writing for the majority that a DUI stop is a seizure and a violation of a fundamental right but only a “little one” so it is permissible due to “the strong value it provides to the public.”
If you read about DUI laws a lot you’ll hear people say things like “DUI exception to the constitution” because that really is what it comes down to, it’s something that under any plain or historical interpretation of the 4th would be unconstitutional, the SCOTUS recognized that, and basically said “but we’ll let it pass anyway because it’s good public policy.”
As for your specific obligations, they vary considerably from state to state. A “generic” sobriety checkpoint basically you are obliged to stop and answer one or two questions from the police officer. If the officer has reasonable suspicion that you’ve been drinking they will want you to perform a field sobriety and/or a breathalyzer test. Normally (and this is just a “generic” sobriety test, may be different state to state) they will not subject everyone to these tests, but only those who they have “reasonable suspicion” have been drinking.
In most (perhaps all) States, you are not legally obligated to take a field sobriety test or a portable breathalyzer test. In many States, if you refuse to do either you will be arrested for DUI (based on the officer’s opinion that you’ve been drinking, which carries enough weight to justify an arrest.)
If a police officer is arresting you for DUI the arrest report is always going to have things in it like “suspect had a strong odor of alcohol on breath and on person, had bloodshot eyes” and things of that nature. Basically the officer is saying that as a trained LEO with experience seeing drunk people he recognized physical signs of intoxication in you. People were arrested and convicted of drunk driving prior to the invention of breath tests, based on officer testimony. Once arrested in many states at the police station you will be asked to take a breath test at a big breathalyzer machine, a much more expensive and accurate version of the small field units. The big unit is the one that actually has evidentiary value in court, and the officer has to be certified in its use and regular maintenance records have to be maintained for the big machine. In many/all States, you may not be required to take the portable, but in many if you do not take the big breathalyzer test at the Station there are legal penalties. In some States refusal of the formal test is a crime in itself, in other states it’s an automatic civil violation and mandates a license revocation (and since DMV procedure goes through civil administrative courts they have different standards of evidence, and in many cases the fact that you refused to take the formal breath test essentially mandates by statute you lose your driving license.)
In research on this I found, as an additional note, it is illegal in a few states to see a DUI checkpoint and avoid it.
Certain checkpoints have been ruled Constitutional, DUI, Driver’s license, and one where the police set up a stop to ask passing motorists if they have any knowledge of a major felony committed in the area.
I have no problem with DUI myself, but the other 2, although I am not totally against, I lean towards abrogating them.
A CP is NOT a license to fish. Any IMPLIED consent law only gives an officer a right to conduct a breath test, etc., if there exists either probable cause or a reasonable suspicion the person is DUI, period. You can not be forced to “automatically” take one when caught in the web.
What should you say officer asks you if you’d been drinking that day and if you knew how fast you were going?
Actually, that’s an interesting question. If I’d had a glass or so of Scotch earlier (small enough and earlier enough to not be impaired), then what do I say? Say ‘no’, and risk the cop being able to tell I’m lying, and get the requisite hard time after that? What kind of hard time? If as he’s giving the test he detects that I had been drinking (though in detectable levels only–no tests or actions suggest I was impaired), am I in a different kind of trouble?
Or do I say ‘yes’, and then go through the side-of-the-road test for him to determine if I really drank as little or as long ago as I said I did?
For these questions, assume I really did have little to drink–say a singly typical bar pour as a cocktail before dinner with an hour between the drink and getting in the car.
The second one I was at, the officer waved me on before I managed to get my license out of my wallet with “I can see it from here. Have a good night”. He was clearly just looking to see if I was calm and appeared to be producing a license on demand.
There are two questions lurking here (and both you would have to check state by state). Your potential liability for DUI, and your civil/administrative liability for refusing to cooperate with field sobriety tests.
Let me address the latter. On the (probably well-founded) theory that driving is a privilege, many states have provisions on the form where you sign up for a license that say “by applying for a license you prospectively consent to [some broader or narrower subset of field sobriety tests, perhaps singling out breathalyzer and blood tests] and waive any objection that a lawful request for you to take said field sobriety test improperly impinges on your legal or constitutional rights. Having hereby agreed, you further agree that any refusal to take a lawfully requested field sobriety test shall be grounds for immediate suspension of your driver’s license.”
So while they cannot compel you to blow or even do the backwards-alphabet thing, they can yank your license for nothing other than the refusal to do so. In the (unlikely) event the cop (now pretty P.O.'d) ultimately decides not to write up the DUI, or the prosecutor decides not to go forward with the case, or pleads it down to reckless driving or something, your license is still revoked and there’s a whole separate (and depending on the jurisdiction) expensive DMV proceeding you have to go through to get your license back. Acquittal or dismissal on the DUI charge is relevant but by no means dispositive in the license reinstatement administrative process.
Yeah, it’s that Draconian. (I’ve been trying to talk a friend off the ledge from staging some grandiose Constitutional fight against a somewhat-shaky DUI, just on the grounds it ain’t going to get very far in Village court and no one really has the time to fight this to the appellate level (where as MH notes, you may well lose even if you’re right on the merits)).
I’m not asking about refusing to take a sobriety test. I already know that I’m required to do so (at the risk losing my license). I’m not at all worried about such a test because I don’t drive while intoxicated. I’m asking about refusing to answer questions, and the likely outcome of that.
I’m glad you get the distinction, I didn’t till I started studying for my driver’s test.
I should have been more explicit that the officer/prosecution could plausibly (if bogusly) claim that the questions and your response to them are part of the field sobriety test and that by refusing to answer, you were effectively refusing/obstructing the FST so as to trigger license revocation.
Some – and I tend to agree with them – view the super-aggressive approach to DUI as an attempt by the anti-alcohol crowd to achieve by criminal/administrative means what they can’t at the ballot box, viz., Prohibition 2.0:
NO, you are only required to do so if the cop has reason to give one, whether in a DUI checkpoint or stopped for some other reason, you do NOT have to submit to one when asked without reason, as my earlier post stated.
Really? Wouldn’t such an argument give them license to ask any question at all?
When you’re sitting in the driver’s seat of a car and an officer asks you if you’ve been drinking, that seems like it falls very clearly under the 5th amendment protection against self-incrimination.
Yes, and you CAN insist on that right and won’t be prosecuted for that specifically, but that’s one of the rights you waived <for purposes of keeping your license> when you signed the license.
IRL they often don’t use the FSTs as such in evidence (defense lawyers started, e.g., demanding source code for the breathalyzers, which the manufacturers fought against releasing, or putting up experts who would testify of examples they knew where a definitely-sober person tested positive for intoxication). The cop’s testimony will be the main part of the prosecution, and the cop most likely will show up (they get OT for testifying, a huge potential source of abuse in its own right) and will recite from memory (as someone listed upthread) a laundry list of symptoms (bloodshot eyes, odor of alcohol, disorientation), whether strictly true or not. Even absent any FST, that might be enough for a conviction, depending on how plausible the cop is and how tough-on-DUI the Judge wants to be.
I thought the rights that I signed away were objecting to a sobriety test. You’re saying that any question asked by a cop is a de facto sobriety test? That’s really disturbing.
Well, I don’t agree with it and think DUI has become both backdoor prohibition and also a corrupt source of PD OT and municipal revenue generation. But I can certainly see a cop or prosecutor arguing that you thwarted, and thus effectively denied, the FST by refusing to answer the cop’s questions, which they would argue limited his ability to evaluate your sobriety.
Should have ETA that it would depend on the precise language of the waiver that you sign in your particular state, and on case-law in that state construing which kind of FSTs or officer requests could not be denied without triggering forfeiture.