Go Through a DUI Checkpoint Without Being Tested

Although drunk driving checkpoints have been ruled constitutional, many drivers pass through them unknowingly waiving their rights. If you're driving under the influence or suspect that you could be cited for driving under the influence, this can be problematic. Laws prohibiting drunken driving can carry severe criminal penalties, including jail time, prison time, fines, and more; outside of those risks, you may have other reasons you want to avoid the hassle of a traffic stop or a potential run-in with law officers. Any driver potentially going through a DUI checkpoint should understand their rights and how to assert them legally and appropriately.

Steps

Getting Through a Checkpoint Using the Ziploc Method

1. Get a gallon sized Ziploc freezer bag. The bag is a small but crucial detail. It will keep you from having to speak with the police, hand them anything, or open your car door or window in their presence. You’ll need something large enough to accommodate a letter sized piece of paper, your driver’s license, registration, and your insurance card.
   • Get something transparent and fairly sturdy. A zip-top freezer bag should work well.
2. Attach a string to the corner of the bag. Cut a three and a half foot long piece from a spool of twine. At the top corner of the bag, poke a hole through one side, just below the zip-top. Insert the twine through the hole and tie a knot affixing the twine to the bag.
   • Make sure the string you use isn’t too flimsy. It will be pinched by the window, so thread or dental floss won’t do.
3. Print a copy of the Fair DUI Flyer. The Fair DUI Flyer states what your rights are and how you intend to exercise them. A creation of attorney Warren Redlich, it cites each section of your state’s legal code when apprising the police of your rights. It virtually eliminates the need for any spoken communication between you and an officer.
   • Unfortunately, the state specific Fair DUI Flyer is only available for 31 states. However, you can print out a generic version. Find your state’s version at http://fairdui.org/states/.
   • All of the Fair DUI Flyers contain the following, although the state specific fliers are more detailed, citing to specific sections of each state’s criminal code:
     • I remain silent.
     • No searches.
     • I want my lawyer.
4. Assemble the bag. Put the flyer, your valid license, registration, and insurance card in the bag. Arrange them so that all of them can be seen clearly through the bag.
   • Since the appearance of checkpoints is often unpredictable, you should have the bag and the flyer in your car already, as close to fully assembled as possible.
5. Hang the bag out of the window and roll your window up. When your bag is assembled, zip it up, roll your window down and place the bag on the outside of the window. The string should be inside the car. Roll the window up, so that the window pinches the string and holds the bag in place.
6. Pass through the checkpoint. Drive slowly as you approach the checkpoint. The officers will signal to you when to stop, which you should do without question. As they approach your car, they should see the bag. Allow them to examine its contents for as long as they need to.
   • As long as you have no warrants out for your arrest or you aren’t egregiously swerving, you should be waved through without incident. However, if you are questioned in any way, say nothing.

Making it Through a Checkpoint Without a Ziploc

1. Say next to nothing. If you do not have your DUI-checkpoint-Ziploc prepared in advance, there are still some ways to get through a DUI checkpoint without getting tested. The most important principle to keep in mind is the principle of silence. While you must provide the officers with your driver’s license, registration, and proof of insurance, that is the extent of the types of communication you are compelled to engage in. If you are not free to go, then you are under arrest. If you are under arrest, then you have the right to remain silent. If you are free to go, then you can leave instead of communicating.
   • Nearly all DUI arrests begin when the officer notices or claims to notice slurred speech or the smell of alcohol on your breath—which is why you should say nothing. Don’t be the person who says something. Be the person who says nothing.
   • If you have been drinking and for some reason you must say something—although you shouldn’t—don’t speak directly into the officer’s face and do what you can to discretely shield your mouth.
   • Even if you haven't even drinking, you should still say next to nothing. Regardless of whether you have or haven't been drinking, the first piece of evidence police will typically use to justify a further search is the smell of alcohol on your breath. If you haven't opened your mouth, they can't smell your breath, and if the officer is equipped with a body camera, they won't be able to claim that you opened your mouth and that your breath smelled of alcohol.
2. Refuse any field sobriety tests. If an officer asks you to take a field sobriety test, you should refuse as a matter of course. Police don’t ask people they believe to be sober to take sobriety tests. If they ask you to take one, they already think you are drunk. They are only trying to amass evidence to support your arrest and subsequent conviction.
   • Refusing a breathalyzer and refusing a field sobriety test are not the same thing. The former usually carries with it the loss of a license. The latter provides evidence to support administering the former.
   • Police are trained to ask questions in a manner that implies you are required to answer or act without explicitly stating so. Remember you have the right to remain silent.
   • For example, they might say: "I'm going to need you to step over here and perform a field sobriety test." While it isn't a question, it isn't exactly a demand. A simple refusal is fine--"no thank you, officer," "no," "I can't do it"--as long as your statement is short, firm, and to the point, it will work.
3. Consider refusing a PAS test. In almost every state, if you refuse a Preliminary Alcohol Screening (PAS) test, also known as a Breathalyzer, you will lose your driver’s license automatically. In many jurisdictions, this still may be preferential to a DUI, but in others, it can be just as bad or worse. It is highly jurisdiction and fact specific, so it’s a good idea to research your state’s DUI laws beforehand.
   • You can get some idea about the laws in your state at: https://wallethub.com/edu/dui-penalties-by-state/13549/#key-findings.
   • Another thing to consider: roadside PAS tests are inaccurate. In most states, the results aren’t admissible in court, they only establish probable cause to make an arrest. Once you are arrested, the police give you a more accurate version of the test at the station. If you feel like you are a borderline case, you may actually be sober enough to pass the test at the station by the time it is administered.
4. Ask to be released. Unless an officer has probable cause to arrest you, they have to allow you to leave when you want to leave. Once the officer has examined your license, ask if you are free to go. If they pretend not to hear you, keep asking until they answer.
5. Ask for a lawyer. If the police do not let you leave, and instead persist in asking you questions, do not answer their questions. Instead, ask to speak with an attorney. If you are arrested, demand to speak with an attorney before you submit to a breathalyzer test at the station.

References

See also

• Act when the Police Pull You Over (USA)
• Pay a Florida Traffic Ticket Online
• Spot a Drunk Driver and Respond Appropriately
• Write a Letter to Contest a Parking Ticket
• Beat a DUI Charge in Illinois
• Hire a DUI Lawyer in California
• Deal With a DUI in Arizona
• Cross Examine a Police Officer in a DWI Trial (New York State)
• Pay a Traffic Ticket in Nevada
• Handle Police Stops

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