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Recently, a video has been making the rounds online regarding a novel way that a man in Florida has come up with to minimize the risk of arrest at DUI checkpoints in that state. Several states, including California, allow DUI checkpoints as an exception to the general Fourth Amendment requirement that officers must need particularized probable cause before they can stop a vehicle. With checkpoints, the theory is that the operation is intended as an enforcement exercise applicable to all drivers and thus is legally valid as long as the checkpoint adheres to strict guidelines regarding how it is conducted.
In the typical DUI checkpoint, law enforcement officers will be placed in a carefully marked area on a main road, usually late at night when DUI incidents are most common. Officers will ask drivers passing through the checkpoint to roll down their windows and show their license and registration. The officer will usually engage the driver in a brief conversation. If the officer observes any telltale signs of intoxication, such as an odor of alcohol, red or watery eyes or lack of coordination, the officer may have the driver pull off the road. At this point a more extensive DUI investigation will be conducted and the driver could ultimately be arrested for driving under the influence.
In order to avoid physically interacting with law enforcement officers, the Florida man passing through a DUI checkpoint has a Ziploc bag protruding from his rolled up driver’s side window. Inside the bag is his driver’s license, registration and proof of insurance as well as a note that states “I remain silent. No searches. I want my lawyer.” The note also indicates that he has complied with the law by showing the necessary documents and that he will not roll down his window. The note further states that he will comply with any clearly stated lawful order.
While the video of the man in Florida purportedly shows him successfully passing through checkpoint using this “method,” it is not certain that this would be effective when it comes to California DUI. This Ziploc Bag strategy would be novel in California and theoretically a person could still be detained even after showing such a note. Certainly, displaying a note would increase any attention paid to the driver by all officers manning the checkpoint. In California, anyone receiving a ticket must sign the ticket, otherwise they can be arrested. Theoretically, a person would have to open his or her window and interact with an officer in order to sign a citation. At this point, the officer may “observe” signs of intoxication and could then expand the investigation.
This is similar to drivers who attempt to drive around a DUI checkpoint to avoid passing through it. While it is legal to take such an evasive action, these checkpoints are often set up in such a way that evading the checkpoint would require violating some other traffic law, which would subsequently provide officers the necessary probable cause to justify a vehicle stop. A person showing a note in a Ziploc bag may be followed and stopped for any minor vehicle code violation by one of the many officers manning the checkpoint.
In addition, officers are allowed to briefly detain motorists as part of their law enforcement duties. A prosecutor may be able to argue that conversing with a driver is required as part of the minimal contact that is allowed. A judge may ultimately agree with the prosecution and find that officers may require more “contact” then simply what is provided in the contents of a Ziploc bag.