The Orange County Sheriff’s Department announced today that they will be conducting a DUI Checkpoint in the city of Lake Forest on Friday, February 11, 2011 from 6:30 p.m. to 2:30 a.m.
I’ve written many times about these DUI checkpoints. Obviously, the best bet is to not drink and drive. Should you find yourself facing a DUI checkpoint, keep some things in mind:
Although not absolutely required to be a valid checkpoint, the presence of an escape route for drivers that do not wish to go through may be provided. If you see warning signs of an upcoming checkpoint and don’t want to be involved, look for a way to avoid it. The police cannot lawfully stop you for opting out of a checkpoint as long as you don’t break any traffic laws to do so. You can’t just decide to do a U-turn mid-block over double yellow lines to avoid the checkpoint, but if there is a street that will take you around or past the checkpoint that you can legally and safely take, do it.
Do you have to cooperate?
These checkpoints have been ruled as “regulatory” by the court system, so they don’t need to have the ordinary “reasonable suspicion” to detain you and make you stop at their checkpoint. Just because they can stop you though, doesn’t mean you have to give up all your rights. Obviously, a routine question in a DUI checkpoint is going to be, “Have you had any alcoholic beverages tonight?” If you say yes, you’ve just incriminated yourself. While it’s not illegal to have had a drink and then drive, it is against the law to have had too much to drink to the point of being unsafe or if you’re over 0.08%. By admitting to drinking, you’ve given them evidence against you. There’s nothing that says they can compel you to answer. If you’re asked, you can politely, but firmly decline to answer their questions until you talk to a lawyer. I’m sure that will lead them to want to investigate further, but you haven’t incriminated yourself.
What about Field Sobriety Tests? (FSTs)
If they pull you out of the line for further investigation, they’re going to want a full DUI investigation. While you cannot actively resist, delay or obstruct the officers in the performance of their duties, that doesn’t mean you have to help them gather evidence against you. They’re going to want you to do field sobriety tests. What they won’t tell you is that they’re not mandatory. Field Sobriety Tests (FSTs) are highly subjective agility and coordination tests – ones that will be used against you in a DUI prosecution. Why would you voluntarily submit to these tests, knowing that any perceived “failure” by the officer will be used as “evidence” of your guilt? You can respectfully decline if you choose.
Do you have to do the roadside breath test? (PAS device)
What about the roadside breath test? The Preliminary Alcohol Screening (PAS) device is also not required unless you’re under 21 or are on probation for DUI. Assuming you’re over 21 and not on probation, you can also decline to blow into the roadside breath machine. I know the officer will try to convince you to blow with the “Let’s just see where you are. If you’re under 0.08%, you’ve got nothing to worry about, right?” WRONG. Remember, over 0.08% = an arrest for 23152(b) DUI and even under 0.08%, you can still face 23152(a) DUI charges.
You are required to do the “official” test.
You must submit to the official chemical test however. If you are lawfully arrested for DUI, you are required by California’s implied consent law to submit to a chemical test to determine your blood alcohol level. That one you must submit to or face an automatic suspension of your license by the DMV and potential increased punishment in court. If you refuse chemical tests, they can force a blood test from you, use those results against you and you’d still face the allegation that you refused.
And finally, should you be arrested for DUI, you only have 10 days to schedule a hearing with the DMV or they will automatically suspend your license.
To discuss your situation, give me a call.