In true lawyer-nerd fashion, I was browsing YouTube looking for humorous law related videos. My other customary YouTube browsing topic of choice is “funny cat videos.” This time, however, I came across this clip.
The video captures two Escondido men attempting to assert their constitutional rights at a DUI/License checkpoint. Specifically, the video shows driver, Angel Navarrete, videotaped by his passenger, Daniel Alfaro, pull up to the an officer with his window rolled down about 2 inches and the following conversation ensues:
Navarrete: How you doing?
Officer: Can you roll your window down?
Navarrete: I can hear you just fine.
Officer: No, no I want you to roll the window down.
Navarrete: Why is that, sir?
Officer: Because I’m going to break it if you don’t open it.
Navarrete: Go ahead.
Officer: Go ahead and break it?
Navarrete: It’s up to you.
The officer doesn’t break the window… yet.
The video goes on to show Navarrete respond to officer questions by repeatedly asking if he being detained. When the officer demands to see Navarrete’s license, Navarrete responds by asking “Why?” This went on in a similar fashion for a while. Eventually, the standoff concludes when officers break Navarrete’s window and arrest him and Alfaro. While Navarrete was sober and in possession of a valid California license, he was eventually found guilty of obstruction of justice.
The video, although about 2 years old, still begs the question, “What can you do and not do at a checkpoint?”
Do you have to roll your window down all the way? There is no California law that requires drivers to roll down their windows all the way. This doesn’t mean that officers won’t demand that you do. And when they do, it’s your prerogative to comply or stand your ground. Navarrets’s attorney argued that the purpose of the checkpoint (give officers the opportunity to check for signs of intoxication and the exchange of a person’s driver’s license) was served in having the window down a couple of inches. The judge disagreed stating that it is reasonable for law enforcement to request that a driver lower his or her window. I disagree with the judge. All this does is allow law enforcement an unobstructed peer into your car with their prying eyes and give them a chance to claim an inevitable whiff of alcohol… whether you’ve been drinking or not.
Do you have to answer the officer’s questions? Absolutely not. Whether it’s at a DUI checkpoint or after you’ve been detained, you never have to answer questions by law enforcement, ever. Remaining silent, literally silent, might be a little awkward but it’s legal. And there are videos on YouTube showing that also. More commonly, however, the “silence” is more of a response of “I don’t wish to answer any questions. Am I free to go?”
Do you have to hand over your license? I believe this is where Navarrete went wrong. California began merging DUI checkpoints with license checkpoints. Sniffing around for drunk drivers now includes sniffing around for people without licenses. And apparently this is okay. What’s next, DUI/License/and any other crime under the sun checkpoint? It hasn’t happened yet, but for now you have to give your license to law enforcement.
You have a right to deny consent to search your vehicle. Without consent, cops need probable cause and a warrant. Make them get it.
You have a right to not perform any field sobriety tests. They are notoriously inaccurate and even sober people fail them.
Under California’s implied consent rule, as a driver you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take a Preliminary Alcohol Screening (PAS) test you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.
Although Navarrete and Alfaro’s intent was admirable in my opinion, execution was lacking. I encourage you to browse other similar YouTube videos to see others who have fared better than Navarrete and Alfaro in exercising rights at checkpoints.
Thanks for your opinion. I agree on part with the driver being arrested but, what’s your opinon on why the passenger was charged. Thanks
so what IS the right way to exercise the right?
The officer insists you open the window so they can inspect your breath and the the smell inside the car. Is that not a search? Sure it is. We have gone down the road where it was illegal to stop vehicles randomly- to now its ok to stop vehicles randomly under some pretext of every 3 cars or 6 cars or whatever – to now if the driver refuses to cooperate in his further detention, by opening the window, the police can arrest you for obstruction for standing on your right to avoid self-incrimination and remain silent?
So what is the correct steps to take then?
Present the officer with your license and card that reads:
“I value my rights of privacy and my right to remain silent. I have no intention of responding to questions and will remain silent, invoking my fifth amendment right. I do not consent to searches or any further detention. Please return my license when I am free to go. Thank you for preserving my rights.”
I have no idea why the passenger was arrested too. He did not commit any crime nor obstructing justice in this case.
Quote from article: “Do you have to hand over your license? I believe this is where Navarrete went wrong. California began merging DUI checkpoints with license checkpoints. Sniffing around for drunk drivers now includes sniffing around for people without licenses. And apparently this is okay. What’s next, DUI/License/and any other crime under the sun checkpoint? It hasn’t happened yet, but for now you have to give your license to law enforcement.”
This is completely wrong according to Michigan vs Sitz (the Supreme Court case that allows DUI checkpoints). Police officers are not authorized to ask for an ID at a DUI checkpoint absent the suspicion that a crime has been committed. License checkpoints are directly illegal per Delaware vs Prouse. Here is the proof:
Direct quote from Michigan vs Sitz Supreme Court decision:
“In Delaware v. Prouse, supra, we disapproved random stops made by Delaware Highway Patrol officers in an effort to apprehend unlicensed drivers and unsafe vehicles. We observed that no empirical evidence indicated that such stops would be an effective means of promoting roadway safety and said that
[i]t seems common sense that the percentage of all drivers on the road who are driving without a license is very small, and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed.”
Jim,the Delaware case involved a single vehicle street stop by a patrol officer, not a DUI checkpoint. Requesting to see a license while already stopped at a checkpoint was not part of the Delaware decision.
Several years ago I was leaving a popular night club at last call when two San Diego Sheriffs Deputies waiting outside stopped me without any probable cause. They put me through the DUI drill, lied on the police report and then falsely arrested me for DUI. Fortunately I hadn’t been drinking that night but I still spent the night in jail, had my car impounded and drivers license taken away pending trial. My case was dismissed when the blood test came back negative but the experience taught me how dishonest police officers can be.
I recently watched a YT video where a civil rights activist refused to give up his license at a DUI check point and in response the police officer cited CVC Sec. 2814.2.(a) which states: A driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop.
Then the police officer in the video did the same thing that happened to me. He lied and claimed that he smelled alcohol on the drivers breath to establish his “probable cause” then arrested him for DUI even though he was clearly not under the influence. So citizens should keep in mind that if a police officer decides to teach you a lesson all he has to do is lie and there’s nothing a citizen can do about it. Even after the blood test comes back negative all the police officer has to say is oh well guess I was wrong.
My question is after a driver stops and provides their license, registration and insurance documents but refuses to answer any questions, at what point has the driver met their legal obligation to “submit to a sobriety inspection” under CVC? How exactly does the CVC define a sobriety checkpoint inspection?
A CHECKPOINT IS NOT A TRAFFIC STOP…NOR IS IT A “RANDOM STOP” EVERY CHECKPOINT IN AMERICA HAS TO ALLOW FOR DRIVERS TO TURN OFF AND SAFELY CHANGE DIRECTION BEFORE ENTERING………….SO IN ESSENCE…IF YOU DO DRIVE INTO ONE.(set up with proper signage and alerts)..YOU ARE WILLFULLY ENTERING A CONTROLLED OPERATION. #wakeup
Curiously, I realize the way officers circumvent the 4th amendment at checkpoints is by the fact that California courts have redefined these checkpoints as “administrative actions,” but doesn’t the officer’s breaking of the window (destruction of private property), seizure of cell phone, and arrest remove the administrative portion of this now? This video shows an “administrative action,” become a civil legal fiasco when the officers opt to seize and damage personal property, which, if I am not mistaken, is against the California and United States constitutions. Or am I wrong. I understand the circumventing action, i.e. double jeopardy, the DMV will take by ruling their actions as “administrative,” because they, while being a governmental body, are not law enforcement officials. Correct me if I am wrong but didn’t their, the officers’, actions negate the aforementioned administrative action?
No, once the driver refused to comply with the officer’s order, he was subject to arrest per 148 of the Penal Code or 2800 of the Vehicle Code. Officers’ actions were lawful and appropriate. Cooperate with the police and if you feel you were wronged, take it up with the legal system later. Roll your window down and provide your license, and the average detention at a DUI checkpoint is 6 seconds. Act like an idiot and bad things happen.
An officer has ABSOLUTELY no authority over a sovereign man, unless you respond to him. He always ask do you understand? Never understand. In the language of LEGALESE…understand means to stand under. Not exactly what you thought it meant. Silence is key. Say nothing at all. Or no, thank you.
In State v. Binion, 900 S.W.2d 702 (Tenn. Crim. App. 1994) in Footnote number 2, the court said:
[I]t may be that the lack of such a condition renders any roadblock conducted pursuant to the order unconstitutional.
To claim there is no case law on escape routes and checkpoint avoidance is incorrect: There are at least Twenty (20) published cases from eleven (11) other States as well as one Federal Court, and additionally one Law Review article on the very subject, nationwide (that’s almost two (2) dozen published cases from a little more than one fifth of the entire Nation, which is a very, very far cry from “no… authority has held that … checkpoint(s) must have an escape route”). Citing: 1) Murphy v. Commonwealth, 9 Va. App. 139, 384 SE 2d 125 (1989) 2) State v. Binion, 900 S.W.2d 702, 706 (Tenn. Crim. App. 1994) See Sec. 11.1.1 (“Evasion of Sobriety Check-points”) in “Drunk Driving Defense, 5th Edition”, 3) People v. Rocket, 594 N.Y.S.2d 568 (Just. Ct. 1992), 74 ALR 5th 319 at § 14; 4) Howard v. Voshell, 621 A.2d 804 (Del. Super. Ct. 1992), 5) State v. Powell, 591 A.2d 1306 (Me. 1991), 6) State v. Badessa, 373 N.J. Super. 84, 860 A.2d 962 (App. Div. 2004) Order granting suppression upheld on appeal by the people in State v. Badessa, (Badessa II) 185 N.J. (2005) 303; 885 A. 2nd 430; 7) People v. Bigger, 771 N.Y.S.2d 826 (J. Ct. 2004). 8) Com. v. Scavello, 734 A.2d 386 (Pa. 1999); 9) Com. v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); 10) Com. v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992); 11) State v. Talbot, 792 P.2d 489 (Utah Ct. App. 1990); 12) State v. McCleary, (1997) 251 Neb. 940, 560, 560 N.W. 2nd 789; 13) Bass v. Commonwealth, (2000) 259 Va. 470; 525 S.E. 2nd 921; 14) Pooler v. MVD, (1988) 306 Or. 47, 755 P.2nd 701; 15) State v. Hester, (2004) 268 Ga. App. 501; 16) People v. Banks Cal. considered the case of (17) People v. Rister, 803 P. 2nd 483 (1990); 18) Orr v. People, 803 P. 2nd 509 (1990), Rister, was also cited in 19) McDonald v. Department of Motor Vehicles, 77 Cal. App. 4th 677 (2000). See also US v. Faulkner, (9th Circ. 2006) 450 Fed. 3rd 466 at p. 468.
What is relevant is the 4th Amendment to the Constitution of the United States of America, and the right to travel, which is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment to the Constitution of the United States of America.
The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. 12 Chafee, Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. See Crandall v. Nevada, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274; Edwards v. California, 314 U.S. 160. “Our nation,” wrote Chafee, “has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” Id., at 197.
The problem with that theory is that driving is a privilege and not a right. So you are correct that if someone wants to travel by foot, a ‘pedestrian checkpoint’ could be argued as illegal per your argument. The issue here is driving a motor vehicle is not a constitutional right and is subject to DMV rules and California State Law. So, I disagree with your application of this concept to this situation. And the courts do as well.
I often hear that driving is a privilege, not a right. However, I beg to differ. Would drawing a wagon behind a team of horses be considered a privilege? Or riding a bicycle? Or a horse? When these rights were confirmed, guaranteed and enumerated, there were no automobiles and certainly no “vehicles” (as today’s LEGAL definition applies). So, then, the main way the people were traveling was via the most modern method at the time and with the available technology allowed. Most would ride in wagons, some would walk and later, some would take a train. All these were considered traveling. With the advent of the automobile, some people now believe that the most modern and common form of traveling has been transformed into a privilege, from our right we previously were guaranteed.
Murdock v. Penn., 319 US 105
“No state shall convert a liberty into a privilege, license it, and attach a fee to it.”
Believing this non-sense, that “driving” is a privilege, not a right is the same liberal suggestion that because when the founders guaranteed our right to keep and bear arms only muskets were available then that is all we have the right to keep and bear today. Such suggestions are a complete backward thinking it should not even need to be mentioned, except that we have some that intend to strip us of all rights in order that their power may be ever increased.
A sobriety checkpoint operated by state or local law enforcement is a “seizure” within the meaning of the Fourth Amendment to the United States Constitution. (Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444.) Stops made at a sobriety checkpoint are, by definition, seizures without arrest warrants. A defendant may move to suppress evidence if such a “seizure without a warrant was unreasonable.” (Pen. Code § 1538.5, subd. (a)(1)(A).)
If police conduct in performing a warrantless seizure is unreasonable, then it violates the Fourth Amendment to the United States Constitution. (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329.) The exclusionary rule requires that all evidence obtained as a result of such an unreasonable seizure be suppressed. (People v. Michael Allen Williams (1988) 45 Cal.3d 1268, 1299, citing Mapp v. Ohio (1961) 367 U.S. 643, 646-660.)
Evidence that must be suppressed includes not only that which was seized in the course of the unlawful conduct itself (so-called “primary” evidence) but also what was subsequently obtained through the use of that evidence (so-called “derivative” or “secondary” evidence). (Alderman v. United States (1969) 394 U.S. 165, 171; Wong Sun v. United States (1963) 371 U.S. 471, 484-487.) The “fruit of the poisonous tree,” as well as the tree itself, must be excluded. (Nardone v. United States (1939) 308 U.S. 338, 340-341.)
Ok so I’m in the Commonwealth of Kentucky on a beautiful afternoon taking pictures and I am approached by an officer who demands to see my ID. I have committed no crime and I am not trespassing. Am I required to show him my ID? He tells me that I will be arrested for disobeying a lawful order if I do not comply. And also for obstructing his investigation. At what point does this become a lawful order if he has no reasonable suspicion that I have committed a crime?
You are not required to show him I.D. Ask him if you are being detained and if so what crime he suspects you of committing. If he can’t tell you what crime you’re suspected of committing then he can’t legally detain you. At that point ask him if you are free to go.
you ARE being detained if you enter a checkpoint. the fact that you WILLINGLY drive into a check point and THEN decide that you want to change your IMPLIED consent is NOT a legal defense. I dont know where most of you attended LAW SCHOOL….but youtube university is NOT accredited.
If an officer approaches you and demands your ID, in some states you may have to produce it, but I know of NO case where a person is legally required to carry some form of government-issued identification, upon risk of arrest because his ‘papers are NOT IN ORDER.”
Though you may well be correct in balking at giving the officer your ID, and ask the reason why he’s requesting it and detaining you, I can guarantee in most situations the officer will take it as a personal affront, and go ‘ballistic’ on your ass. Cops have largely forgotten the notion that they ‘serve’ the public, and instead see you as a ‘subject’, who MUST ‘submit’ to their demands, which by virtue of their badge are by default ‘lawful’.
Hence why you record, Record, RECORD ALL encounters with Law Enforcement, and ensure that the video is being uploaded in real time, in event of seizure and/or destruction of your cell phone, which, if you’re arrested for insisting upon your civil rights being observed, is VERY likely.
Am I required to show ID in the state of California at a DUI checkpoint?
If you are the driver, you are required to show your driver license if a cops asks (demands) to see it. Yes, you are identifying yourself when you do that, but it is required by 12951(b) CVC. You are *licensed* to drive, and complying with the vehicle code is a condition of the license.
Passengers are NOT required to show ID simply for being in the car at a DUI checkpoint.
If you are the driver, “Yes.” If you don’t, you are subject to being arrested under 40302(b) VC.
You want to know why there are so many cop killings? Now you know ! The cops are all extortionist