Question for Law Enforcement re: DUI Checkpoint

#1
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therealUT

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#1
What actions would you take if an individual handed you the following card at a DUI Checkpoint?

Assertion of Rights:

Officer, please understand:

I refuse to talk to you until I consult with my attorney. I also refuse to consent to any search of these premises or any other premises under my control, or in which I have a possessory, proprietary, or privacy interest, including my car, my body, or effects. I hereby demand to immediately be allowed the reasonable opportunity to obtain the advice of my attorney by telephone.

I desire to exercise all my rights guaranteed by the Constitution of the United States and the Constitution of this State, to be free from your interference with my person or affairs.

If you attempt to question me, I want my lawyer present. I refuse to participate in any line-up or to perform any physical acts, or to speak or display my person or property at your direction, without first conferring with my lawyer.

If I am under arrest, I wish to invoke and exercise my Miranda rights. If you ignore my exercise of these rights and attempt to procure a waiver, I want to confer with my lawyer prior to any conversations with you.

If I am to be taken into custody, removed from my present location, or separated from my property, I request a reasonable opportunity to make arrangements to secure my own property. I do not consent to any impoundment or inventory of my property. I do, hereby, waive any claim of liability for loss, theft, or damage against you, your superiors or any other authority, and agree to hold all harmless therefrom, if I am afforded the reasonable opportunity to arrange for the safekeeping of my own property. If this reasonable opportunity is denied or is unavailable, I demand that only such intrusion occur as is minimally necessary to secure such property, hereby waiving any claim of liability for your failure to scrutinize the property or its contents prior to it being secured.

If I am not under arrest, I want to leave. If I am free to leave, please tell me immediately so that I may go about my business.
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#2
#2
If they smell alcohol or you admit to drinking anything, they are going to ask you to step out of the car regardless.

You can refuse to talk, take any tests prior to arrest. If arrested, you must submit to a breath or blood test. If you refuse both of these, the cops can do a forced blood draw but must now seek a warrant per USSC case that came down last week.

Checkpoints can be challenged easily as they have to follow certain guidelines. If they don't, the arrest can be thrown out.
 
#3
#3
San Diego Vol said:
If they smell alcohol or you admit to drinking anything, they are going to ask you to step out of the car regardless.
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Seems like you only need to open your window a crack to hand that card over, though.

San Diego Vol said:
You can refuse to talk, take any tests prior to arrest. If arrested, you must submit to a breath or blood test.
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Is this prior to being Mirandized and having your lawyer present, though?

San Diego Vol said:
If you refuse both of these, the cops can do a forced blood draw but must now seek a warrant per USSC case that came down last week.
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How long does that usually take?

San Diego Vol said:
Checkpoints can be challenged easily as they have to follow certain guidelines. If they don't, the arrest can be thrown out.
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All of this hinges on not consenting to the tests, though, correct?
 
#4
#4
therealUT said:
Seems like you only need to open your window a crack to hand that card over, though.

They usually want you to roll all the way down. If you don't could be charged with delaying peace officer.

Is this prior to being Mirandized and having your lawyer present, though?

They don't have to Mirandize you until you are in a custodial setting, or under arrest. They are trained to get as much info from you before Miranda, labeling it investigative questioning. You don't ever have to talk to cops, ever.

How long does that usually take?

CA, along with about 1/2 other states will just be starting. I assume they'll have an on-call commissioner to sign and fax over warrants. 20-30 minutes guessing.

All of this hinges on not consenting to the tests, though, correct?
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Would not be challenging the tests, you would be challenging the illegality of them stopping your vehicle.
 
#5
#5
The officer need not check the amount of alcohol in my blood. Instead, check the amount of blood in my alcohol.
 
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#6
#6
Pretty sure the SC has ruled that LE can demand all occupants out of the vehicle
 
#8
#8
Interesting scenario, but life experience tells me you might as well hand him a note telling him to FO.....I don't think either situation ends well....if you are intoxicated
 
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#9
#9
tim said:
Pretty sure the SC has ruled that LE can demand all occupants out of the vehicle
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That certainly did not come out of Michigan Department of State Police v. Sitz. Did it come from another SCOTUS case?
 
#13
#13
Seems like Mimms was already guilty of a crime (expired license plate). What relevance does this case have on individuals who have been stopped merely either merely on suspicion or as part of a checkpoint (no suspicion)?
 
#14
#14
therealUT said:
Seems like Mimms was already guilty of a crime (expired license plate). What relevance does this case have on individuals who have been stopped merely either merely on suspicion or as part of a checkpoint (no suspicion)?
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They may order you out for "officer safety"

Doesn't mean you can't later challenge in court for unlawful detention
 
#15
#15
This is Tennessee law.

In Tennessee, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?
Implied Consent
Tennessee law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Tennessee’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The officer gets to choose which test you take and may ask you to take more than one. The test or tests must be taken as soon as possible from when you were last driving and you cannot refuse without penalty.
You can read Tennessee's implied consent law in the Tennessee Code Annotated 55-10-406.
Refusing to Take the Test
Once you are arrested, the officer should tell you that your license will be suspended for your refusal. Also, if you are driving with a license that already was suspended because you had caused an accident where someone else was seriously injured or killed, then your refusal carries heavier penalties. In addition to a longer suspension, you will have to pay a fine and go to jail or to a work house. Later, if you are also convicted of a DUI – even without evidence of a chemical test – you will not be allowed to drive without installing an ignition interlock device on your car.
The penalties for a first refusal begin with suspension of your license for one year, unless the current refusal involved an accident where someone else was seriously injured or killed. If there were serious injury, then your suspension will last for two years. If someone died, then your suspension will last for five years. For your second refusal alone, the suspension will be for two years.
You may request a hearing to challenge your suspension. If you can prove that the officer did not tell you the consequences of refusal before he or she requested a test, then a court will reinstate your license and cannot make you drive with an ignition interlock device on your car if you are later convicted of a DUI. You may be able to drive under limited terms even if you cannot convince the court to reinstate your licnese. After your license has been suspended, you could ask the court for a restricted-driving permit that would allow you to drive to work, school, or to an alcohol-safety program.
In most situations, if you refuse to take a test then the officer cannot force you to take one. If the officer finds you unconscious or dead, however, then he or she can order a test without having to ask you first.
The consequences of refusal are found in the Tennessee Code Annotated 55-10-406.
Should You Refuse to Take a Mandatory DUI Test in Tennessee?
It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in Tennessee, your license will be suspended for one year and you will have to pay a fine from $350 to $1,500. If your BAC is .20% or higher, then you have to go to jail for seven days, too. This is slightly more severe than a year-long suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.
 
#16
#16
San Diego Vol said:
They may order you out for "officer safety"

Doesn't mean you can't later challenge in court for unlawful detention
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Seems that Mimms has been successfully challenged a handful of times, though:

One case that accepted that the removal of the person from the car for the purpose of performing standardized field sobriety tests was a second stop needing separate justification in the drunk driving context was People v. Rizzo, 622 N.W.2d 319 (Mich.App. 2000). The court rejected the prosecution argument that the police were authorized to have the person exit the car under Pennsylvania v. Mimms, 434 U.S. 106 (1977), since the officer never articulated a public safety reason, as is arguably required by Mimms, for the exit from the car. Nonetheless, the court held that the strong odor of intoxicants, standing alone, was sufficient objectively reasonable suspicion of driving impaired to justify requiring a person who had been pulled over for a broken tail light to exit her vehicle to perform field sobriety tests.

Rizzo appears to be distinguishable in the case where the officer on cross-examination admits that a strong odor of an alcohol beverage may be caused by recent imbibing and is not necessarily indicative of impairment and where the officer admits that proper investigative procedures designed to determine whether to order the person out of the car were neglected. In State v. Spillers, 2000 WL 299550 (Ohio App. 2000)(unreported), the court concluded that there was insufficient articulable reasonable suspicion to order the defendant out of his car to perform standardized field sobriety tests where the stop was for de minimus lane violations and the defendant admitted a few beers and had a slight odor of an alcohol beverage.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Ka. 2002), the court held that the odor of alcohol beverage and bloodshot eyes combined with having lied to police did not constitute sufficient articulable reasonable suspicion to support a stop. The defendant was in the police station to pick up his daughter and an officer detected an odor of an alcohol beverage on his breath and observed bloodshot eyes. He did not have slurred speech or any other indicia of impairment. After an officer advised him not to drive, he indicated he would be walking home, to Wichita, quite some distance away. After waiting about five minutes by his vehicle, the defendant got in it and began to drive home. An officer followed him but did not see any erratic driving. The court said, "Alcohol on one's breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking." Id. at 535.

Field Sobriety Tests Case Law Article
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Thus, again, prompting the question as to what actions a law enforcement officer would dare to take if one handed such a card through the crack of their window. From the perspective of an LEO, does the potential benefit of ignoring what is on the card (taking what might be a drunk driver off the street) outweigh the potential risk (surely, with such a card clearly provided, one would expect follow-on legal proceedings challenging the legitimacy of the actions taken by LEOs at DUI checkpoints)?
 
#17
#17
rkw38 said:
This is Tennessee law.
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Link?

The absence of any mention of Miranda Rights and right to have an attorney present leads me to believe that this comes from an anti-drunk driving site (MADD or something to that effect). I could be wrong, though.

Nevermind, found the site. I'm not sure how reliable that site is, since it says the exact opposite of what Michigan Case Law actually says about DUIs in the state of Michigan. Thus, I am skeptical regarding what it has to say about any state.
 
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#18
#18
therealUT said:
Link?

The absence of any mention of Miranda Rights and right to have an attorney present leads me to believe that this comes from an anti-drunk driving site (MADD or something to that effect). I could be wrong, though.

Nevermind, found the site. I'm not sure how reliable that site is, since it says the exact opposite of what Michigan Case Law actually says about DUIs in the state of Michigan. Thus, I am skeptical regarding what it has to say about any state.
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Can't post a link from mobile. Found it by googling Tennessee implied consent law.
 
#19
#19
Is it a law in Tennessee that LE must publish in the newspapers when and where they will have roadblocks setup?

I read these in the newspaper a few times per year.
 
#21
#21
Gramps said:
Is it a law in Tennessee that LE must publish in the newspapers when and where they will have roadblocks setup?

I read these in the newspaper a few times per year.
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I have seen the same thing but I don't believe it's a law.

I was in NC several years back and for over twenty miles they had highway signs saying drug DUI checkpoint at exit 400 ( can't remember number). At the exit before the one on the signs, there were police all over the end of the ramp. There was no gas or food at that exit and they were checking everyone who exited there.
 
#22
#22
Gramps said:
Is it a law in Tennessee that LE must publish in the newspapers when and where they will have roadblocks setup?

I read these in the newspaper a few times per year.
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Advance publicity is one of the requirements but cannot by itself render the checkpont illegal
 
#25
#25
Gramps said:
Is it a law in Tennessee that LE must publish in the newspapers when and where they will have roadblocks setup?

I read these in the newspaper a few times per year.
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It's that way in ca. We have em all the time.
 
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