PDA

View Full Version : General Politics How/Why are checkpoints legal?


notorious
03-25-2011, 02:22 PM
How/Why are checkpoints legal?






I have never had a problem at one, and when I do get selected the police usually take one look at me and send me on my way. Although they are not very intrusive, what gives them the right?

Cave Johnson
03-25-2011, 02:28 PM
How/Why are checkpoints legal?

I have never had a problem at one, and when I do get selected the police usually take one look at me and send me on my way. Although they are not very intrusive, what gives them the right?

Per the Rehnquist court, the stops are minimally intrusive and serve a strong public interest.

http://www.nytimes.com/1990/06/15/us/excerpts-from-supreme-court-s-decision-upholding-sobriety-checkpoints.html

notorious
03-25-2011, 02:30 PM
Per the Rehnquist court, the stops are minimally intrusive and serve a strong public interest.

http://www.nytimes.com/1990/06/15/us/excerpts-from-supreme-court-s-decision-upholding-sobriety-checkpoints.html


Short and sweet.


Thanks.


We basically forfeit a very small amount of freedom for safety.

notorious
03-25-2011, 02:32 PM
No, they are not legal. It's just that in the 20+ years that police have been using them, and in the resulting thousands of DUI cases, no defense attorney has ever thought to challenge the use of DUI checkpoints.

That is a LOT of $$$ going to the city and state, not to mention $$$ going to lawyers.


There is no reason to challenge it.

CrazyPhuD
03-25-2011, 02:43 PM
Well sure they probably aren't legal, but the other truth is that realistically no one should ever be convicted of a DUI as a result of them(unless obviously they are grossly drunk). Why? They can stop you but they can't force you to take a field sobriety test. In absence of a field sobriety test how can they convict you of a DUI at a checkpoint? There is no reasonable suspicion that you are drunk. You weren't pulled over for weaving and unless you have obvious signs of impairment, merely detecting the presence of alcohol on your person isn't probable cause for a DUI arrest.

You can't be compelled to take a breath/blood test unless you are arrested(in most states I believe). People forget that they have the right to refuse a field sobriety test, you do not have to provide evidence against yourself. The major exception is if you are arrested. THEN you are either compelled to blood/breath or lose your license.

But if you don't take the field sobriety test then how is a probably cause arrest justified? If it isn't it doesn't matter if you blew over the limit at the station, no legal arrest means no legal evidence.

notorious
03-25-2011, 02:47 PM
Banyon has probably nailed a few of our local drunks to the wall.


It would be nice if he could weigh in on checkpoints.

vailpass
03-25-2011, 02:55 PM
DUI checkpoint, Human Smuggling checkpoint, or drug/Illegal produce checkpoint?
We have all 3 here in the lovely state of Arizona/CA border.

chiefsnorth
03-25-2011, 03:07 PM
I once had a police officer tell me that in Illinois you actually did not have a right to decline a search of a motor vehicle when you were operating that vehicle. No idea if that is correct or not. I suppose they could always make something up, like "I thought I smelled marijuana" anyway if they really wanted to snoop.

BIG_DADDY
03-25-2011, 03:46 PM
I once had a police officer tell me that in Illinois you actually did not have a right to decline a search of a motor vehicle when you were operating that vehicle. No idea if that is correct or not. I suppose they could always make something up, like "I thought I smelled marijuana" anyway if they really wanted to snoop.

Just words. If you don't give them permission to search they may search anyway but that can also make what they find inadmissible. Often times they will just take the contraband and let you go because they know it is a legal nightmare.

BIG_DADDY
03-25-2011, 03:50 PM
Short and sweet.


Thanks.


We basically forfeit a very small amount of freedom for safety.

Those who would give up Essential Liberty
to purchase a little Temporary Safety,
deserve neither Liberty nor Safety.


Benjamin Franklin

ClevelandBronco
03-25-2011, 04:14 PM
Those who would confuse Essential Liberty with convenience
should tie kite strings around their dicks
in a lightning storm.

KC native
03-25-2011, 04:30 PM
I once had a police officer tell me that in Illinois you actually did not have a right to decline a search of a motor vehicle when you were operating that vehicle. No idea if that is correct or not. I suppose they could always make something up, like "I thought I smelled marijuana" anyway if they really wanted to snoop.

Completely incorrect but cops are allowed to lie to you to get you to confess things that you would otherwise not tell them.

Stewie
03-25-2011, 04:41 PM
DUI checkpoints (place and time) are made public days before they happen.

orange
03-25-2011, 06:46 PM
Well sure they probably aren't legal, but the other truth is that realistically no one should ever be convicted of a DUI as a result of them(unless obviously they are grossly drunk). Why? They can stop you but they can't force you to take a field sobriety test. In absence of a field sobriety test how can they convict you of a DUI at a checkpoint? There is no reasonable suspicion that you are drunk. You weren't pulled over for weaving and unless you have obvious signs of impairment, merely detecting the presence of alcohol on your person isn't probable cause for a DUI arrest.

You can't be compelled to take a breath/blood test unless you are arrested(in most states I believe). People forget that they have the right to refuse a field sobriety test, you do not have to provide evidence against yourself. The major exception is if you are arrested. THEN you are either compelled to blood/breath or lose your license.

But if you don't take the field sobriety test then how is a probably cause arrest justified? If it isn't it doesn't matter if you blew over the limit at the station, no legal arrest means no legal evidence.

Implied consent and driving while intoxicated
See also: Drunk driving (United States)

All U.S. states have driver licensing laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.[1]

http://en.wikipedia.org/wiki/Implied_consent


Sure, that's only Wikipedia, but my advice is "Don't test it."

CrazyPhuD
03-25-2011, 09:26 PM
Implied consent and driving while intoxicated
See also: Drunk driving (United States)

All U.S. states have driver licensing laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.[1]

http://en.wikipedia.org/wiki/Implied_consent


Sure, that's only Wikipedia, but my advice is "Don't test it."

Why not? You should always know the laws of your state and if you don't and get busted for it then it's your fault. For instance implied consent in CA does NOT apply to field sobriety tests and also in AZ it is 100% voluntary. I believe in oregon the law says that implied consent is valid for field sobriety tests. But I would have no problem refusing them. It's one thing to claim you sign away your rights if there is probable cause for the tests, it is quite another if the tests are done just because. Fortunately it's not something that I have to worry about because field sobriety tests here are 100% voluntary. Nor would I really worry about it in another state if I had a CA drivers license. But in most cases you have the right to ask the officer if you are required to consent to these tests. Now will the officer always tell you the truth? Of course not that's why it is your duty to understand the law.

For instance here is the CA statute for implied consent

23612. (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

In CA and in many states you must be arrest FIRST before implied consent comes in and really I have no major issue with that. But if they wish to force someone who may have done absolutely nothing wrong into a field sobriety test just because the officer's flashlight detects alcohol from something in the car then that's bullshit.

It is my belief that many states also require there to be probably cause before chemical tests(as indicated by the wiki link also), but there are some states that do appear to place field sobriety under implied consent, so it is the citizens responsibility to understand his or her state's laws.

ClevelandBronco
03-25-2011, 11:45 PM
My understanding is that, in Colorado, field testing is voluntary. If you have been drinking, you should very politely refuse to do stupid human tricks for the officer and his camera. You cannot, however, refuse without penalty the blood/breath/urine test after you've been arrested. If you are given a choice, ask for the urine test — which is the least accurate of the three — in order to give your attorney some leverage. If you are not offered a choice, ask for the urine test anyway and see whether the police will cooperate.

banyon
03-27-2011, 07:48 PM
Banyon has probably nailed a few of our local drunks to the wall.


It would be nice if he could weigh in on checkpoints.

Yeah, unlike some of the checkpoints in other towns, the checkpoints in Dodge City are extremely fruitful. We seem to have a lot of very unsophisticated drunk drivers who just roll around in their cars having a party with a thirty pack and a bottle of tequila. Then they get stopped and are surprised "I can't have a party in my car? I do this back in my home country all the time and they don't give a sh*t. What's the deal?".

We usually net like 8-12 drunk drivers per checklane, where checkpoints in Eastern Kansas are lucky to get 2-3 in a night. They're always stunned when we tell them our numbers.

Legally speaking, the concept is that it's a "compelling governmental interest" and that the intrusion on 4th amendment rights is "minimally intrusive'. this concept has been used with other constitutional protections as well.

Some people with black-or-white absolute views will claim there cannot be any incursions on the 4th amendment, but drunk driving presents a difficult test of that concept. If taken literally (and implied consent were disallowed, e.g.), then you have a real practical enforcement problem. Every drunk will know just to refuse the tests, and then will be able to continue their behavior unmitigated until they harm or killl someone. While checkpoints aren't essential to this enforcement ability, they do enhance the ability to keep the issue present in the public's mind. Overall, most people have been willing to make this tradeoff, since the value of having a few drunks able to get away with crimes repeatedly really doesn't offer much societal value were we to decide the other way on these issues.

banyon
03-27-2011, 07:50 PM
My understanding is that, in Colorado, field testing is voluntary. If you have been drinking, you should very politely refuse to do stupid human tricks for the officer and his camera. You cannot, however, refuse without penalty the blood/breath/urine test after you've been arrested. If you are given a choice, ask for the urine test — which is the least accurate of the three — in order to give your attorney some leverage. If you are not offered a choice, ask for the urine test anyway and see whether the police will cooperate.

Not bad. I would add to this just sit down on the curb and tell them you refuse everything and they can arrest you if necessary, and then shut up. If you stand and argue or give statements, I've gotten convictions based on people swaying, slurring speech, etc (combined with the refusal evidence).