Stopped at a DUI Checkpoint?




Hi, my name is Ivan Morse. I'm a criminal defense lawyer. I have been a criminal defense lawyer for almost thirty years and prior to that I was an Oakland policeman. Today, I am going to be talking to you about DUI checkpoints and what do you do if you get caught up at a DUI checkpoint.

The advice I give people for DUI checkpoints is very much the same as I give them for if they're stopped based upon the police suspecting that they committed a DUI or that they're driving under the influence. When you pull into a DUI checkpoint, you need to be paying attention to everything that's going on. Are they stopping every car? Was there a sign out there that says that you know that you can turn around? Every little detail is going to be important because principally DUI checkpoints are violations of the Fourth Amendment. They're per se violations and when I say a per se violation I mean this under the Fourth Amendment. People have a right to be secure in their person and in their home against unreasonable searches and seizures. A DUI checkpoint is a per se fourth amendment violation unless it's done properly. The United States Supreme Court and the California Supreme Court has carved out a few exceptions.

If you get caught in a DUI checkpoint, let's just say you have in fact been drinking, when you pull into a DUI checkpoint and the officer steps up and he asks you, "Have you been drinking?" I want you to respond this way. I want you to tell the officer that you respect his ability to stop you and you understand that he is there doing his job but that your attorney has told you that if they ask you "Have you been drinking?" you really should not answer that question. So you are just going to take the Fifth Amendment. You want to be polite about that, you don't want to be argumentative.

Then the police officer might say, "Well I'd like you to step out and do some field sobriety tests because I want to make a determination of whether or not you're underneath the influence of alcohol. I'm only going to do this during investigatory stages to make a determination---I'm basically trying to help you out." That is not true. That's false. If they ask you to step out of the car, take field sobriety tests, they've already made a determination that they believe you're under the influence of alcohol.

So, once again, you want to tell them, "You know I respect what you're doing, I respect the job that you're doing, however, my attorney has told me that I really shouldn't say anything and I shouldn't take any tests so I respectfully decline to take any field sobriety tests."

Now at some point in time they're going to ask you to take a chemical test either a blood test or a breath test, sometimes a urine test if they suspect drugs. Now, under the implied consent law in the state of California, you are required to take a blood test or a breath test. If you don't, you'll lose your license for a year based upon a refusal. So you're going to have to do that.

While you're in that DUI checkpoint, again, observe everything that's going on. Try to remember what questions the police ask you, try to observe whether or not they are stopping every car or every other car or every third car because there are specific things the police have to do in order to make this DUI checkpoint constitutional and not a per se violation of the Fourth Amendment. If you do get arrested at a DUI checkpoint, please give me a call. I offer free consultations, my telephone number is 925-452-4065 or you can visit me at my website. I wish you the best of luck. If you need any help, I can answer further questions. Please give me a call. Thank you.

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