Once again the new year has reached us. As I wish the best of health and happiness to friends, clients and colleagues within the upcoming year, in my capacity as a defense lawyer I must put on my lawyer hat and use this forum to address some legal issues to be on guard for during this new holiday season.
As stated elsewhere, both within Indiana and all states, the holiday season is looked upon by law enforcement as a fertile opportunity to produce arrests directed at motorists suspected of impaired driving through the consumption of alcohol or drugs. As a result, an end of the year primer is in order as to some brief info for those who may have occasion to be driving our roadways during this holiday time period.
As many Indiana motorists will find themselves traversing the country to spend time with friends and family, this info is meant to be generalized for all situations irrespective of state laws related to impaired driving.
The number one focal point issue to be concerned with this driving season will be the potential national implementation of sobriety checkpoints. The extent to which a driver will encounter such a traffic impediment will of course depend upon the state(s) to be traveled through. However, let there be no mistake, no matter the state jurisdiction, select counties within a particular state could very well be one for which an otherwise upstanding motorist could be at checkpoint risk if not properly prepared.
It goes without mention that the best means with which to prevent sobriety checkpoint hazards is abstaining from drinking and driving altogether. Be that as it may, let us put that obvious reality aside to recognize that the following directives are meant to inform those for whom alcohol consumption has been the bi product of mandatory social and or business functions necessitating driving activity.
First and foremost I would be very cautious to rely upon youtube videos or layman suggestions as to how to converse with law enforcement personnel during the course of a sobriety checkpoint. While many such videos may be entertaining, too many create the false impression that witty recitations as to constitutional rights will prove an effective safeguard from police questioning.
In fact, many such videos I have been referred to have not only been of little value in educating motorists but can more frequently prompt the initiation of an arrest. In my opinion, following the advice of some of the information I have observed will more often than not make the legal circumstances of the motorist far worse.
While the laws of each state will dictate the extent to which the circumstances within a sobriety checkpoint can lead to a legal dismissal, I believe there to be some lessons that can be universally followed when engaged with police during the course of such holiday roadside questioning.
Initially when approaching a checkpoint or becoming aware of one, sudden stops, acceleration or slowing of a vehicle is never recommended. Basically anything that can initially draw attention to your state of consciousness in wishing to avoid the checkpoint is never within a motorist’s best legal interests. Of course, should an alternative route of travel be discerned with sufficient time to avoid the roadblock without sudden acts of driving avoidance by all means take such evasive action.
While many apps and distribution of roadblock notices forewarning motorists of checkpoint times and locations is always best to investigate, law enforcement has been more prone to suppress such notices to the public depending upon the practices of the state traveled through.
For those drivers not fortunate enough to avoid the dreaded opportunity to converse with police searching for drunk drivers, it is important to remain calm and follow the following steps; actions that seek to minimize the opportunity for evidence to be negligently provided to a motivated officer in search of a prized arrest.
Understand that impaired driving detection is premised upon visual and sensory observation of a suspected impaired motorist. Within the context of a sobriety checkpoint there is no initial probable cause for questioning of the driver. (unless foolishly engaging in the above referenced evasive driving activity at the sight of the checkpoint in question)
Without initial probable cause at a checkpoint for police to lawfully have a motorist exit a vehicle, the inside drivers compartment of your automobile should be looked upon as your best friend. By politely submitting to potential questioning from a sitting position within your drivers seat, a police officer is limited in the means by which he or she can observe physical coordination indicative of potential impairment.
In such circumstances, an officer may wish to invite physical movement on your part in retrieving license and registration from your glove compartment. In this way the officer has this one opportunity to detect the driver’s physical capacity to retrieve the requested paperwork.
As a result, be prepared that this request may be forthcoming. Have all such documentation readily accessible and organized. Fumbling around aimlessly will unduly prolong the course of police questioning and potentially provide just the allegations necessary to lawfully command one from the vehicle to investigate potential impairment.
Whether or not the officer has the legal right to request such paperwork and to what extent will depend upon applicable state law. Nonetheless, it is important to be prepared no matter the state or circumstance.
It is the presence of alcohol on one’s breath or in one’s vehicle that will be the primary focal point of scrutiny for the roadblock checkpoint officer. Once the driver has successfully remained in the vehicle and obscured all indicators of physical movement to the greatest extent possible, the final and primary hurdle to be overcome is the dreaded “odor of alcohol on breath” language inevitably sworn to that allow for the driver to be lawfully requested to exit the vehicle for field sobriety testing.
It at this stage that the former advantages available to the seated obscured motorist have now dramatically turned in favor of the police officer in search of an impaired driving arrest. Now with body fully exposed for viewing, the driver no longer has the freedom to limit his or her physical movement to the extent one had before when seated behind the steering wheel.
However, all is not necessarily lost even at this point when knowing what legal rights may still be asserted during this stage of a roadside dui investigation.
Although I can only speak for Indiana law, I am eager to communicate that at the present time Indiana law (and potentially many other states) does not require one to submit to field sobriety testing.
As a result, unlike a minimum one year license suspension for refusal to submit to a lawfully requested breath test, there are presently no such adverse legal consequences in place in Indiana to prevent the knowledgeable driver from depriving such field sobriety test results to an investigating police officer during the course of a roadside checkpoint investigation.
Once again, let me reiterate that each circumstance is different and no one size fits all legal approach will ever be sufficient to deal with all potential fact patterns. However, by summarizing three important points for the holiday traveler to remember, it is my hope to provide you or a loved one with safe holiday travels throughout this new year and beyond:
1.) use all means in one’s power to remain within the driver’s compartment of the vehicle by limiting physical signs of visual impairment from within the vehicle;
2.)recognize that the odor of alcohol on the driver’s breath or elsewhere will be a focal point of investigation so as to compel the driver to lawfully exit the vehicle;
3.)if lawfully compelled to exit the vehicle, do not submit to field sobriety testing unless advised of any adverse lawful repercussions for doing so within the state in question.
Have a safe and happy holiday and a terrific new year!