DUI Checkpoint Protocol

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    If you happen to find yourself approaching a checkpoint, realize that if they smell alcohol coming from the car, they will likely ask you to step out of the car. They do this to determine whether the alcohol is coming from you, or from something spilled in the car, or from a passenger.

    One day I will tell you what Thomas Jefferson would do at a DUI checkpoint (it wouldn’t be pretty), but for now, you need practical advice and I’ll give it to you.


    One of the requirements the U.S. Supreme Court has established for checkpoints in our “free” society is an “escape route.” There must be adequate signage alerting the motoring public that a checkpoint is ahead, and there must be a reasonable opportunity to avoid entering the checkpoint. In reality, if there is a practical escape route, the police make it as difficult as possible. That said, when you see the first indication of a checkpoint, look for the escape route—and take it. That’s my advice whether or not you’ve had anything to drink. We all need to protest this abomination rather than submit to the paper-demanding leviathan. Also follow my twitter feed; I try to get the word out on checkpoints as soon as I know.


    Second, if you are stopped—and mints won’t cut it, by the way (they’re trained to smell for “secondary masking odors”)—be polite, but do not cooperate in your own demise. If the officer asks you to step out of the car, ask “Am I under arrest?” If the answer is “No,” or “Not yet,” then ask to be allowed to go on your way. When the officer then says, “Well, I’m detaining you for investigation,” just sit there, politely. When the encounter just gets too ridiculous, or the officer seems like he or she is about to Taser you, explain: My attorney has advised me to not make any statements, and to decline any field coordination tests, however, if you feel you have probable cause to arrest me, I will submit to an implied consent test. If you do not have probable cause, please let me go.”


    When they arrest you, you have a choice of a breath test or a blood test. The officer cannot make that choice for you, unless the breath machine is broken, or you are somehow incapable of giving a breath test. If you choose a breath test, then you have the right to also leave a blood or urine sample. If you take a breath test, I advise you to always ask for a urine sample. A urine sample used to be the third option for an implied consent test, however, the difficulties of getting accurate results due to poor police procedures prompted the legislature to remove that option from the implied consent, or “evidentiary” test menu. It is still available by law as an option to preserve a sample if you elect a breath test. Most officers are unaware of your right to leave a urine sample after a breath test—even though it’s written right on their forms. So ask.


    One you are out of your car, they will try to get you to follow their pen or finger with your eyes—DO NOT DO THIS. This is a neurological test called the “horizontal gaze nystagmus test.” Only one out of seventy-five police officer actually know how to do this test correctly. No matter what actually happens, most officers will claim to have seen the three “clues” in each of your eyes. It’s often cut and pasted from one report to another. Nonetheless, it’s not uncommon for officers to try to get you to do this test without even telling you you’re being tested—sometimes even before you get out of the car.


    The other test they try to sneak out of you is the Preliminary Alcohol Screening Test (PAS Test). That’s the hand-held breath test that is designed only to see if alcohol may be present in your breath, it is not an accurate measure of the amount of alcohol in your body. However, it does produce a numeric result, so prosecutors love to have two tests instead of the one that they are entitled to under the Constitution. Police are required by law to explain your rights before you take a PAS test. California Vehicle Code § 23612 (i) requires the following:

    If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.


    Your refusal of the PAS test can’t be held against you in court (unless your lawyer is an idiot [or the judge is a total idiot]). Typically, officers don’t bother to explain your rights—even though they violate the law by failing to do so. Refuse the test whether they explain your rights or not. But make it clear that you will submit to an implied consent test of your blood or breath. If you refuse the implied consent test, then you will lose your license for a year (if they can prove the refusal).

    Good luck. I realize it’s difficult to say “no” to an officer when you’re in the moment, but saying “no” to them, is saying “yes” to freedom, and “yes” to the constitutional birthright for which greater men and women have given that “last full measure of devotion.” It’s the least we can do in return.