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.