One spring evening, 61 year old, Michael Wilhelm found himself in a DUI Checkpoint Line-up operated by Cape Coral Police. He was not driving impaired or under the influence of any alcohol or drugs. He asked to take a breath or blood test because instead of Field Sobriety Roadside tests (FSTs), because he was recovering from opened heart surgery. But the officers instead administered the field sobriety tests. Michael Wilhelm was arrested following the FST roadside test even before a breath test was taken. Police finally decided to do a breath test, while Wilhelm was still placed under arrest. Then while the police were preparing for the breath tests, Wilhelm began complaining of severe chest pains. He was taken to the hospital. There he requested the blood test to prove that he was not under the influence of drugs or alcohol. The hospital complied with his request. The DUI blood tests were all negative. The criminal charges were finally dismissed. He filed suit against the city and police and spent the next two years of his life in civil litigation. The case was finally settled for a meager $18,750.00 in Wilhelm’s favor. This was one of two DUI checkpoint cases for false arrests that ran concurrently against the city at that time over false arrests that took place at DUI Checkpoints.

Overview

There’s no hiding the fact that checkpoints exist to seek out impaired drivers and criminal activity that may be in progress. Yet, even though you may not be driving impaired, or engaging in a crime, being stopped at a roadblock can be not only inconvenient, but uncomfortable, and stressful. It’s natural and common for even unimpaired drivers to become anxious while in a DUI roadblock line-up. Some drivers experience a heightened sense of anxiety, and nervousness, in absence of severe medical conditions. They may fumble, or unknowingly do or say things that can often incriminate themselves. This can sometimes lead to false arrests of unimpaired drivers.

The best way to handle yourself at a DUI checkpoint, and to avoid a false arrest is to be prepared. One part of preparation is knowing your rights, both state laws and your Constitutional Rights. For example, according to guidelines by the National HIghway Traffic and Safety Administration (NHTSA) not everyone is a candidate for roadside field sobriety testing, including those medically or physically unable due to a serious medical condition or recovery from surgery. It’s uncertain as to why the police officers did not recognize that the driver in the case illustration was not a candidate. In any event, the driver tried and was arrested unjustly, due to his performance of the FST as judged by the police. States may vary with regard to field sobriety testing. In Arizona, the suspect has the right to refuse, which we will discuss in more detail below. It is unknown if they were optional but the driver was not aware of his right to refuse.

In this article we will outline some important rights you have at a DUI checkpoint; 7 Tips to avoiding false arrest; and what to do and what to expect if you find yourself in a check-point line-up.

Arizona DUI Checkpoints – Constitutionality and Guidelines

The US Supreme Court has held that DUI Sobriety Checkpoints are Constitutional. Despite this, at least 11 states prohibit them under their State Constitutions, impose limitations, or lack authority to conduct them. But in Arizona they are legal and the state recognizes their Constitutionality. In a Checkpoint stop the police can make a lawful stop in absence of having “reasonable suspicion” that a crime is in progress or has occurred, in order to pull you over.

Arizona has also, adopted many of the National Highway Traffic and Safety Administration (NHTSA) Guidelines. One of the guidelines calls for the selected stops to be made in some sort of mathematical sequence such as every car, every other car, 3rd car and so on. The NHTSA guidelines also require that the formal checkpoint be decided in advanced by city or county officials in coordination with law enforcement agencies; take place in a designated location, and be widely announced to the public using a variety of media resources, and signs visible to the public as they approach.

A DUI Checkpoint stop is different than a routine pullover stop by police due to one important element. In a routine stop, constitutional law requires that the police officer have a “reasonable suspicion” that a crime has occurred or is in progress. In other words, the officer can’t just pull you over because they have a “hunch” that someone is a red sports car, playing loud music must be driving drunk. Such a stop as described would be unconstitutional or unlawful. If an arrest ensues as a result of such a stop, the driver would have a defense for suppression of any evidence that was gathered after the stop occurred by police. The driver’s attorney would file a motion to suppress the evidence. If the presiding judge agrees to the unconstitutionality of the stop, any breath or blood tests or other evidence would be prohibited from being used against the driver in court. This usually leads to dismissal of charges.

Your Constitutional Rights at a DUI Sobriety Checkpoint

If you are stopped at a roadblock, you will be asked to produce your driver’s license and registration. This is a lawful request at a checkpoint. You are required to provide it this information as well as any other routine ID and residential information.

But you should know that license and auto registration is not the only thing the officer is looking for. They are also observing your attitude, behavior, response, and your ability and coordination skills in the process of providing it. That is part of their investigation at the stop, and the officers are trained to look for certain cues of impairment. The problem is that some of these cues may be mistaken for severe anxiety or nervousness, medical conditions, fatigue, and other circumstances, besides driving impaired due to alcohol or drugs. If the officer asks you to step out of your vehicle, or pulls you out of the line traffic to question you further, you must comply. Failure to comply with their instructions will result in other criminal charges, for example, disorderly conduct.

The police may decide ask you to participate in a DUI Standard Field Sobriety Tests (FST). These are not mandatory by law in Arizona. Most criminal defense attorneys will advise you to politely refuse the FSTs. This is because they are often inaccurate; may be difficult for unimpaired drivers to pass; and are often biased. The bias originates from the fact that the officer determines whether or not the driver is a candidate, and not all driver are according to the NHTSA guidelines. The police are also the instructors, administrators, and graders of the tests. If instruction, or administration was improper, or testing influenced by a variety of potential factors, the results are usually inaccurate.

Next the police may ask you to participate in a breath test. You can also refuse this test as well. But you should know there are civil consequences. Refusal of the tests results in a one year loss of driving privileges, even if you were not impaired. Also, the prosecution can use your refusal against you at trial. If the police have “probable cause” given other evidence available they can order a warrant from the judge on call, to draw your blood to test it for drugs or alcohol without your consent. Usually, you will be taken to a nearby police or command station where the blood will be drawn by trained and certified phlebotomy personnel.

7 Tips Avoid Raising “Reasonable Suspicion” or False Arrest

Of course, it goes without saying the safest way to avoid raising reasonable suspicion; probable cause; and avoiding arrest is to drive unimpaired, and not under the influence of toxic drugs or alcohol. But even that won’t guarantee you that you will not be falsely accused or arrested. Knowing your rights, and how to handle yourself during a checkpoint stop, however, will decrease your chances of a false arrest. Here are 7 important tips which include some important rights Constitutional protections:

• Try to stay as calm as possible. Keep in mind this is routine and everyone in the line is going through the same thing. You are not a suspect, just a number in the line-up.

• Do not joke around with the police, or complain about the checkpoint or being stopped. Try to remember the police officer is just doing his or her job. Be polite, courteous and respectful.

• Before you get to the checkpoint, instruct all passengers to remain quiet through the entire process. It is your future and freedom on the line. However, sometimes the police will attempt to engage in conversation with the passengers, especially if the officer suspects underage 21 drinking violations. The officer does not have the right to begin questioning them, but does have the right to interact with them. However, this is a known strategy used to prompt suspects to talk and say something that will incriminate them.

• Make sure your Driver’s License and Vehicle Registration are valid and current. Upon request by the officer, you must provide your driver’s license, vehicle registration. You must also answer routine ID and resident questions. Produce your license and registration as requested timely and without question. Always know where your Driver’s License and Registration on your person or in the vehicle, so you do not have to fumble, or become frustrated if they cannot be located.

• Often, the officer will begin to engage in cordial discussion with you as the driver. You do not have to say where you have been or where you are going. Do not offer any information about having had any alcohol or drugs or when you did last, if you did either recently, days or weeks ago. You don’t have to tell them when you last ate, drank or slept. Do not offer information about any medical conditions you may have, over-the-counter or prescription medications you may have in your possession to treat them. Remember what may seem innocent as far as questions and answers may lead to self-incrimination.

• The Fourth Amendment protects a person from unlawful search and seizures unless they voluntarily consent to the search; the police have warrant to search; or officers have “Probable Cause” to believe they will find evidence suggestive of criminal activity. You should never voluntarily consent to a search or seizure of your vehicle or anything inside of it, without a warrant for probable cause. Refuse politely, and respectfully, and explain that you are familiar with the protections provided by the Constitution related to search and seizures to vehicles. If the officer persists in the search, you must remain calm and non-combative. Never raise your voice, or physically try to stop them. To do so, may prompt them to use force if they feel they have probable cause to proceed with the search. Failure to follow this advice may result in physical harm to you by police, and additional criminal charges. These may include but are not limited to disorderly conduct, felony assault, obstructing justice, or other charges. You can always deal with the unconstitutional search after the incident through a criminal defense or civil rights attorney depending on the circumstances.

• The driver is in control, and must set the rules. Never allow passengers to have or carry opened alcoholic beverage containers in your vehicle. Let them know your rules in advance of leaving for your destination. Simply explain that you do not wish to transport opened alcohol containers, drugs, or drug paraphernalia in your vehicle. It’s not easy to say to a friend, especially in light of peer pressure. But it’s your responsibility as the driver to enforce your rules.

Chandler AZ and East Valley Task Forces/Saturation Patrols Announced

The State of Arizona has continued to see impaired driving incidents rise sharply over the last 7 years. Even more alarming is the fact that average Blood Alcohol Content (BAC) level of those arrested has been to the Extreme (0.15 percent BAC). Prescription drug DUI charges have also continued to rise, as well as underage drinking. The most recent statistics reported by Mothers Against Drunk Driving (MADD) reveal that there were 227 drunk driving fatalities in 2012, which represented nearly 28 percent of all Arizona traffic fatalities. This was also a 7 percent increase from the prior year.

As a result the Arizona Governor’s Office of Highway Safety (AGOHS) along with law enforcement agencies, city and county officials throughout the state have combined efforts, and additional resource funding to increase police presence, to combat impaired driving.

The Chandler AZ Police Department announced its DUI task force for the July 4the weekend. It began on Thursday July 3rd and will run through Saturday July 5, 2014. Chandler, Mesa, and Gilbert AZ officers will also be conducting East Valley saturation patrols in all three cities during this time, in select locations. Saturation patrols are organized patrols consisting of an overwhelming number of officers, within designated locations and cities seeking out impaired drivers, under the influence of drugs or alcohol.

The DUI Command Posts for the tri-city effort will be set up at 1950 S. Country Club Drive in Mesa AZ. Expect checkpoints and saturation patrols can be expected at areas that will be holding lawful and formal firework displays; roadways to popular swimming, parks, and other water recreation such as the Salt River, and Lake Pleasant. DUI

Attorney for Defense Chandler AZ

Any violations of impaired driving laws in Arizona are serious. Convictions result in criminal penalties that include jail, loss of driving privileges, fines, fees, alcohol/substance abuse counseling, installation of Ignition Interlock Devices upon reinstatement of your driver’s license, and other penalties. To go to court unrepresented, usually leads to a swift and harsh criminal conviction. You should always consult a qualified and experienced criminal defense lawyer to represent you. They will defend your rights, make sure you are treated fairly, and in some cases may be able to apply defenses specific to your case that will lead to a favorable outcome. This may include reduction of charges and sentencing, avoidance of jail terms, and a partial or total dismissal of charges. You chances of getting any favorable outcome will increase with proper legal advocacy. If you or a loved one faces impaired driving charges, you should in the least consult a criminal attorney to discuss your options for defense. The Law Office of James Novak defends drivers who have been arrested for impaired driving in Tempe, Mesa, Chandler, Scottsdale, Gilbert, and Phoenix AZ. James Novak is a former DUI and Criminal Prosecutor for Maricopa County who has been practicing exclusively in defense. Call today to discuss your defense options and speak with James Novak directly if you face active charges.

Additional Resources

• Chandler PD Announcement DUI Checkpoints July 4th 2014

• Implied Consent Laws Arizona – Breath Test Refusals

• Mothers Against Drunk Driving – East Valley, Arizona Offices

• Arizona Governor’s Office of Highway Safety 2013 DUI Statistics Other Articles related to this topic by Law Office of James Novak

• Facts about Safety Checkpoints

• DUI Arrest without Breath, Blood, or other Chemical Testing

• Differences Between Checkpoint Stops, and Pull Over Stops

• DUI Checkpoint – False Arrests Lawsuits Settled

Recently a Mesa AZ police officer approached a vehicle and asked the driver if he had any weapons. The driver responded, affirmatively that he did in fact, have weapons in the vehicle. At that point he reached to the other side of the car and pulled a gun out of a holster from inside the vehicle. The officer apparently felt threatened, and reacted by drawing out his own sidearm. The police officer gave verbal commands for the driver to drop his weapon. The driver immediately dropped his weapon. The driver agreed to take a field sobriety test, which evidently did not go well for driver, since he was then taken to a command center to be booked for a DUI.

What went wrong that made this DUI stop potentially deadly?

Let’s take a closer look at reported events; application of the law; and tips on how to avoid criminal charges that are unrelated to driving impairment. First, there is no legal duty to voluntarily tell an officer you are carrying a gun if you are pulled over while driving in Arizona. However, you should respond affirmatively to an officer who asks. You should never pull a firearm out or at the officer or cause those to feel threatened in anyway. The driver was fortunate that the officer responded apparently with levelheadedness.

Although most attorneys discourage suspects from volunteering any information to the officer in a stop, there are others who feel there are safety benefits for the driver to volunteer to an officer that they are carrying a weapon so long as they are prohibited possessor and it is a prohibited weapon. This will avoid the police officer being taken by surprise, it in the event a search is conducted of your vehicle. Some feel too, that volunteering this information will alert a law enforcement officer that you are not doing anything wrong.

With every widely observed holiday, you’re likely you will see heightened police presence, enforcement and DUI Sobriety Checkpoints. DUI Roadblocks are set up with the intent to seek drivers for signs of intoxication or impairment, and make DUI arrests. The goal is to prevent motorists from driving impaired under the influenced of alcohol or drugs. DUI checkpoints can be considered “double edged sword” of sorts. Everyone wants impaired drivers off of the road. But if you’ve ever found yourself in a line-up waiting your turn through the checkpoint, you know it’s no fun. Whether you are driving impaired or not, it’s completely normal to feel a little nervous or anxious.

Most people sort of look around to make sure there is nothing in their vehicle that would give rise to the suspicion that they are under the influence of alcohol or drugs. In Arizona, you should know that when the officer stops you at a DUI checkpoint, arrests can be made for violations of other crimes too, not just impaired driving. In absence of a formal DUI safety checkpoint, a police officer needs a “reasonable suspicion” that a violation of the law or crime has occurred or is in progress to stop a driver and conduct a DUI investigation. However, DUI checkpoints bypass this usual step. Not all states have laws authorizing use of DUI checkpoints, but in Arizona their use is becoming more prevalent.

Always, (one more time) “always”, keep both hands on the wheel while you are talking to the officer. The exception to this, is if he instructs you to show him your license which requires you to take your hands on the wheel; or otherwise. Talk to the officer as calmly as possible, and when you must take your hands off the wheel to reach for your driver’s license and registration, do so calmly as well.

Like the situation in Mesa described above, an officer who sees you reach into an area of the car he can’t see may think that you are about to shoot. You do not have to reach for anything to extend a verbal affirmative or negative response. If an officer who pulls you over for suspected DUI asks for your driver’s license, you need to show your driver’s license to him. Otherwise you may give the officer probable cause to conduct a further search and seizure. If the officer asks to search your car, you should say that you do not consent to a search. However, if the officer searches anyway, you must cooperate and you cannot put up any sort of resistance.

Field Sobriety Tests are not mandatory in Arizona. They are simply tools for Police to conduct roadside DUI screening and due to their unreliability may result in false conclusions. You can politely and lawfully refuse to participate in a field sobriety test. You should let the officer know that your reason for refusal is that you understand it is not mandatory by law, and it is your understanding that field sobriety tests are often unreliable and could give false impressions that a person is impaired when in fact they are not. You should be aware that refusing to submit to a field sobriety test may be cause for arrest or further detainment. You can and should refuse to answer questions based on your rights under the Constitution and request to speak with an attorney.

Arizona is an implied consent state. What does this mean to drivers? It means that there are civil penalties through the Motor Vehicle Division (MVD) for refusal. If a driver refuses to take a breath or blood test to determine your BAC, your license may be revoked or suspended, whether they are were driving impaired or not; or convicted of the charges or not. All a refusal of a DUI breath or blood test costs you is a suspension of your driver’s license for one year. But the choice of course is ultimately yours. If you have been arrested or cited for any kind of DUI, Contact the Law Office of James Novak to receive a free consultation. He provides a strong and experienced defense for DUI and criminal charges. a href=”http://www.arizonacriminaldefenselawyer.com/lawyer-attorney-1580468.html”>criminal defense attorney.

Additional Resources:

• Arizona Gun Laws
• Arizona sentencing for serious, violent or aggravated offenses
• Phoenix Superior Court

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• Aggravated Assault: The High Cost of Harming a Police Officer, Arizona Criminal Defense Attorney Blog, August 3, 2012
• Assault Convictions Require “Intent” and “Knowledge” or “Recklessness”, Arizona Criminal Defense Attorney Blog, June 1, 2012