Law Fri Mar 27 2015

Loophole for DUI Checkpoints?

By Tesia Galvan

In an effort allegedly intended to protect innocent citizens from driving under the influence tickets, a Florida attorney has developed the Fair DUI Flyer.

The flyer, created in September 2013 by Warren Redlich, reads, "I remain silent; no searches; I want my lawyer," and varies state-to-state. Eleven state versions can be found on Redlich's website, fairdui.org.

Redlich, a New York attorney now based in Florida, said the flyer was inspired by Fair DUI: Stay Safe and Sane in a World Gone MADD, a book he published because of the experiences he had with clients in drunk driving cases and his desire for a better encounter with police.

"A lot of people are rude when they encounter police [at DUI checkpoints] and this is a non-rude way of handling it that is better in court," Redlich said.

Though the Fourth Amendment protects citizens from unreasonable searches and seizures by the government, a 1990 Supreme Court ruled DUI searches as lawful.

But Redlich spotted a loophole: the driver's actions at a police checkpoint are not clearly defined.

The law states, "All vehicles passing through the checkpoint would be stopped and their drivers briefly examined for signs of intoxication," but doesn't say the driver has to roll down his or her window to speak to officers.

Therefore, the Fair DUI Flyer is a lawful response, Redlich asserts.

In states like Illinois where drivers are required to surrender a valid driver's license, registration and proof of insurance at DUI checkpoints, drivers can hang the required information out the window in a plastic bag.

"Primarily, the flyer is used by activists who want to challenge the checkpoint," Redlich said. "It's a civil rights demonstration." Meaning, this is not a defense for drunk drivers.

Though Redlich is confident that the DUI flyer should work in any checkpoint, he recommends talking with a lawyer in your home state to confirm its validity.

Harold Wallin, an Illinois attorney for 20 years, said he doesn't think police officers will be too happy about it, despite its increasing popularity on social media sites.

"Generally [police] tend to think asking someone to roll down their window for a brief conversation and handing over a license is probably something the courts will think is reasonable and unintrusive," Wallin said.

Wallin added that it depends on the officer and how much the driver is willing to fight it, because police like to smell for alcohol or cannabis and he doesn't see them giving up too easy.

Not surprisingly, organizations like MADD, Mothers Against Drunk Driving, do not support the flyer.

Trisha Clegg, project manager at MADD in Springfield, said MADD supports sobriety checkpoints because they get drunk drivers off our roadways and protect the people driving on the roadways.

"Why would we not want to do anything that would prevent people from driving drunk and keeping our roadways safe?" Clegg said. "I think people forget a drivers license is a privilege. It's not something they have to have."

Clegg said MADD's mission is to work to end drunken driving, help fight drunk driving, support the victims of these crimes and prevent underage drinking.

A way MADD is currently fighting drunk driving is their Campaign to Eliminate Drunk Driving. The campaign is working with law enforcement to have all [DUI] offenders use ignition interlock and use advanced vehicle technology to keep the roadways safe, Clegg said.

"MADD has never been opposed to someone drinking, who is over 21, we just ask that you make a plan and don't drink and drive," Clegg said.

In a flyer [PDF] obtained from the Chicago Police Department Office of News Affairs, a list of responsibilities is listed if you are pulled over at a traffic stop or other violation: slow down, stay with your hands in sight, comply with officers request and cooperate even if you haven't committed a crime.

"Law enforcement is a difficult and dangerous profession. Sometimes the safety procedures that officers use may appear unnecessary, but they are designed to ensure both your safety and the officer's safety," the CPD flyer reads.