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DUI: Everything You Need to Know About Sobriety Checkpoints

DUI SOBRIETY CHECKPOINTS

Maryland-DUI-Checkpoints

Are Sobriety Checkpoints Legal?

The Supreme Court has held that sobriety checkpoints, like border checkpoints, are legal under certain circumstances.[i]  However, sobriety or DUI checkpoints are seizures, and thus must comport with Fourth Amendment strictures.  Dragnets, or police roadblocks set up to find anything that “looks suspicious” are illegal.  In contrast, a sobriety checkpoint is set up specifically to deter motorists from impaired driving.  The California Supreme Court has developed an 8-factor test to determine whether a sobriety checkpoint is legal:[ii]

-Did the police command personnel decide the location and procedures for the DUI checkpoint?

-Was there a neutral formula for determining which cars were stopped at the sobriety checkpoint? (every 4th car, for example)

-Was the DUI checkpoint maintained safely, with adequate road signs, signals, and lighting?

-Was the sobriety checkpoint located “on roads having a high incidence of alcohol related accidents and/or arrests?”

-Was the time and duration of the DUI checkpoint reasonable?

-Was it apparent to drivers that the DUI checkpoint was official and authorized, and did they have an opportunity to turn off from the DUI checkpoint?

-Did the sobriety checkpoint minimize the average time each motorist was detained?

-Was there advance notice to the public of the time and location of the checkpoint?

In a misdemeanor or felony DUI involving a sobriety checkpoint, the prosecutor must provide some evidence that supports each of the eight factors above. As a practical matter, police checkpoints have been used for financial gain and racial profiling.[iii][iv] The state and federal government funds many Los Angeles DUI checkpoints.[v]  A police agency receiving traffic safety grants must conduct “high-visibility enforcement efforts,” which include sobriety checkpoints and saturation patrols.[vi]

What Are Your Rights at a DUI Checkpoint?

Most Los Angeles DUI checkpoints will be visible to drivers, giving you an opportunity to take a route that avoids the checkpoint.  However, if you enter the checkpoint, you must stop[vii] and submit to inspection.  Your rights during a sobriety checkpoint are like those during any other traffic stop.  If the police ask for your license or registration, you must provide those documents.  You may refuse to answer police questions during the sobriety checkpoint.  While the police may have a right to stop you, they do not have the right to forcibly interrogate you.  It is unlawful for the officers to question motorists about things that are not related to the purpose of the checkpoint.[viii]  You also have the right to refuse to perform field sobriety tests.  You do not have to give officers permission to a search at a DUI checkpoint.  You have the right to refuse to blow into the roadside handheld PAS (Preliminary Alcohol Screening) Device.  However, under the California implied consent law[ix], if you are arrested for a DUI, you must consent to blood-alcohol chemical testing.  You also have the right to ask the arresting officer to give you a chemical test of your blood or breath if you are arrested for a DUI.[x]

Where Are Police Checkpoints Tonight?

Most California police departments send out press releases in advance of their DUI checkpoint.  Local newspapers, neighborhood websites (patch, nextdoor for e.g.), and services like nixle will provide advance notice of sobriety checkpoint locations.  You can also go to each police department’s website under “news” or “press releases” to find DUI checkpoint locations.  For example, the LAPD publicizes Los Angeles sobriety checkpoints at lapdonline.org/newsrooms

If you have been arrested at a DUI checkpoint, or if you are facing criminal charges arising from police conduct at or near a sobriety checkpoint, contact the Los Angeles and Pasadena DUI lawyers at THE LEVENTHAL FIRM. Our experienced criminal defense lawyers have represented many clients detained at Los Angeles and Pasadena DUI checkpoints, and we know how to analyze the actions of police at a Los Angeles sobriety checkpoint.  Our lawyers will challenge the prosecution to prove that the sobriety checkpoint was legal; if they cannot, we fight for your misdemeanor or felony DUI to be dismissed.

[i] Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444

[ii] Ingersoll v. Palmer (1987) 43 Cal.3d 1321

[iii] http://californiawatch.org/public-safety/car-seizures-dui-checkpoints-prove-profitable-cities-raise-legal-questions

[iv] In an effort to prevent racial profiling, California Government Code 12525.5 requires police to report data on all traffic stops, beginning April 1, 2019 for large police agencies.  Police are to report the “perceived race or ethnicity, gender, and approximate age of the person stopped.”

[v] For a list of grant recipients, amounts, and conditions of the grant, see the OTS annual Highway Safety Plan publication.  2016 HSP can be found here: http://www.ots.ca.gov/Media_and_Research/Publications_and_Reports/hsp16/2016_HIGHWAY_SAFETY_PLAN.pdf

[vi] CFR 1300.23

[vii] VC 2814.2(a)

[viii] People v Valenzuela (1994) 28 CA4th 817, 826

[ix] VC 23612

[x] VC 23612(d)(1)

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DUI: Other Vehicles

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DUI WATER SKIS, SNOWMOBILES, HORSES AND OTHERS

Violations of VC 23152 and VC 23153 (drunk driving, driving under the influence) are committed when someone drives a vehicle[i]  while under the influence of a drug or alcohol (or while having a blood alcohol level of 0.08 percent or more).  Common sense and the law tells us that self-propelled vehicles, or motor vehicles,[ii]  may not be operated under the influence.  Some of the motor vehicles specified under California law are motor trucks (VC 410), golf carts (VC 345), motorcycles (VC 400), and snowmobiles (VC 557). But California’s DUI laws apply to all vehicles – motorized or not.

DUI Bicycle

Is it unlawful to operate a bicycle while under the influence?  YES. California Vehicle Code 670 says a vehicle is not a “device moved exclusively by human power,” but the Vehicle Code itself makes it clear that people who operate bicycles (including electric bicycles[iii], ) or pedicabs are subject to all the Rules of the Road, “including provisions concerning driving under the influence of alcoholic beverages or drugs.”[iv]  However, the punishment for DUI bicycle is only a $250 fine.[v]  Anyone convicted of DUI bicycle will suffer a driver’s license suspension of one year if they are between the ages of 13-21 at the time of the offense.[vi]

DUI Horse

DUI horse?  NO.  DUI horse-drawn carriage?  PROBABLY.  A horse by itself is not a vehicle – animals are not “devices,” and ridden animals and pedestrians are categories of traffic separate from vehicles.[vii]  While VC 21050 says that people who ride horses are subject to the rules of the road, it omits the inclusive language of the bicycle statute regarding “provisions concerning driving under the influence of alcoholic beverages or drugs.”

DUI Wheelchairs

What about wheelchairs?  NO. Pedestrians and vehicles are different types of traffic. Anyone classified as a pedestrian cannot be driving under the influence.  Pedestrians include those on foot and people who are operating wheelchairs (motorized or not), motorized tricycles, or motorized quadricycles, because they cannot get around on foot.[viii]   If you are using a Segway, hoverboard, or other “electric personal assistive mobility device” you are also considered a pedestrian.[ix]

DUI Boating

DUI Boating, or BUI – YES. California Harbors and Navigation Code section 655 outlaws the operation or manipulation of any “vessel,” waterskis, an aquaplane, or “similar device” while under the influence of alcohol or drugs, with a blood alcohol level greater than 0.08 percent.  It is also unlawful to operate any non-recreational boat with a BAC over 0.04 percent. BUI causing bodily injury can be charged as a misdemeanor or as a felony.  The boat doesn’t have to be motorized or subject to registration, so kayaks, rowboats, and sailboats all fall within the BUI statute.  A BUI case calls for a unique defense – clearly, the standing field sobriety tests given in highway DUIs do not apply (ever hear of “sea legs?”) and science does not back up the seated battery of FSTs given in these cases.  There are also significant stressors unique to the open water such as heat, spray, and boat motion, that can affect a boater’s performance on the seated FSTs.[x]

DUI Flying – YES.  It is unlawful to operate an aircraft[xi] in air, ground, or water, or to parachute “for sport” while under the influence of drugs or alcohol.[xii]  It is also unlawful to operate an aircraft in air, water, or on the ground with a blood alcohol level of above 0.04 percent.[xiii]  It is unlikely that drones or other remote-controlled flying objects will be considered “aircraft.”

If you have been charged with one of these more unusual misdemeanor DUI offenses, contact the Los Angeles and Pasadena attorneys at THE LEVENTHAL FIRM.  From beer & boating to peyote & ponyrides, we’ve got you covered.  Know your rights, ride safe, and call our expert DUI and BUI lawyers for help.

[i] VC 670: A “vehicle” is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

[ii] VC 415(a)

[iii] VC 312.5

[iv] VC 21200

[v] VC 21200

[vi] VC 21200.5, 13202.5

[vii] VC 620

[viii] VC 467 (b)

[ix] VC 467(a)(2)

[x] Punishment for BUI is found in California Harbors & Navigation Code section 668

[xi] Cal Public Utilities Code Section 21012: “Aircraft” means any manned contrivance used or designed for navigation of, or flight in, the air requiring certification and registration as prescribed by federal statute or regulation.

[xii] Cal Public Utilities Code Section 21407.1(a)

[xiii] Cal Public Utilities Code Section 21407.1(b)

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I’ve Been Pulled Over for DUI: What Should I Do?

I’ve handled hundreds of DUI cases and tried many. These lawyer experiences shaped my DUI paradigm from a practical standpoint – I now have a consistent opinion (other lawyers may disagree) on what a person should do and/or say, if anything, when pulled over for DUI.

Phase One – The Point of Contact


Here, you are pulled over; the police officer approaches your driver side window and asks you inculpatory questions. The officer will try and lock down a drinking (or use if drug suspicion) pattern (e.g., how much have you had to drink or use, when, and where etc). Although our Miranda rights are generally not ripe at this point (Berkemer v. McCarty, 468 U.S. 420 (1984)), we don’t have to offer up any information. In short, please be kind and respectful to the police officer and say something like this, “Sir, I understand you are doing your job, and I very much appreciate your efforts to keep our roads safe. Respectfully, Sir, I would prefer not to answer any of these questions. I am more than happy to assist you with other parts of your investigation.” Of couse, we are not more than happy to assist and we will not, but we must be cognizant of the underlying psychology here with a hungry DUI officer.

Phase Two – The Field Sobreity Excercises (FSTs)


After the officer tries to lock down a drinking pattern, he or she will direct you to perform a series of field sobriety excercises and blow into a small breath test machine called a “PAS” or “PBT” (preliminary alcohol screening or preliminary breath test). Vehicle code section 23612(h) and (i) give us the right to refuse the FSTs and PAS (unless on probation or under 21); the investigating officer is supposed to advise us of this right and they routinely do not. Therefore, when the police officer makes it seem as if you have no choice but to do these tests, please respond with something like, “Sir,respectfully, I appreciate your diligence in this investigation, but kindly, Sir, I’m going to choose not to do the FSTs and PAS. Thank you.” After this, the officer may arrest you and take you down to the station.

Phase Three – The Station House or Hospital (Breath or Blood?)

At the station, a police officer will offer you a choice to give another or different breath test and/or a blood test. The station house (or hospital) tests are mandatory in the sense that we suffer administrative penalties if we refuse them; I don’t think it is wise to refuse, especially if you know you haven’t had much to drink. So, do we take breath or blood then? I think that if we are unsure about our blood alcohol content, then choose breath. If you know without a doubt that you will be under the limit, take the blood test. See, the breath test is generally not as accurate as the blood test for a number of reasons. The law proscribes “blood” alchol content at or above .08, not “breath” alcohol content – the breath test uses a standard ratio to convert the breath alcohol reading into an equivalent and corresponding pulmonary blood concentration. This ratio is known as the “breath to blood partition ratio”. The problem with this conversion is that every human being has different breath to blood ratios at any given point in time; thus, the standard ratio may not be the same ratio we would actually have in effect at the time of the breath test. Consequently, the breath result is often times an overstated blood result. The blood test by contrast, analyzes our blood alcohol content directly. Direct (as opposed to indirect ) analysis does not use a conversion ratio, so the result should be on point more often than breath. At the end of the day, the police officer should have zero drinking (or use) pattern evidence, zero FSTs snd zero PBTs.