Every year, more than a million drivers in the United States are arrested and charged with driving under the influence or driving while intoxicated. In 2013, more than 10,000 people were killed in alcohol-related traffic collisions in the United States. In fact, about thirty people die in those accidents every day. In response, in 38 states including Nevada, police departments routinely conduct DUI checkpoints to deter driving under the influence and to arrest intoxicated drivers. DUI checkpoints are controversial – so controversial, in fact, that twelve states prohibit their police agencies from conducting the checkpoint operations.
THE “FAIR DUI FLYER”
For about a year, a maverick Florida attorney has offered the world what he calls a foolproof way to get through a DUI checkpoint. It consists of not saying a word and not even rolling down your window. Boca Raton attorney Warren Redlich has distributed thousands of copies of what he calls the “Fair DUI Flyer,” and his video tutorial on YouTube about getting through sobriety checkpoints has now been seen more than 3.4 million times. Attorney Redlich and his Fair DUI Flyer gained plenty of media attention – and sparked plenty of controversy as well – throughout 2015. Redlich’s creation of the flyer can be traced back to New Year’s Eve in 2014, when he was casually waved through a Florida DUI checkpoint without even being asked to roll down his window. “What the checkpoints require is that you stop, and typically that you show the police your driver’s license. You’re doing that,” Redlich told CBS News. “What you’re not doing is going beyond what is required in a checkpoint.”
Attorney Redlich also told CBS News that he’s grown weary over the years of representing so many clients who were wrongfully arrested at DUI checkpoints. Redlich has tailored different DUI flyers to the laws of several different states, and others around the country are now creating their own similar flyers and posting their own videos on YouTube. One of Redlich’s websites explains, “The idea is that you do not roll down your window but rather press the flyer up against the window so police can read it. You show them your license and other papers through the window.” The text of Redlich’s original Fair DUI Flyer in Florida reads: “I remain silent. No searches. I want my lawyer. Please put any tickets under windshield wiper. I am not required to sign – §318.14(2). I am not required to hand you my license – §322.15. Thus I am not opening my window. I will comply with clearly stated lawful orders.”
Attorney Redlich insists on the importance of keeping the window up at a DUI checkpoint. Why? “Because the second you open your window they can say they smell alcohol,” he says. Redlich’s argument and flyers, however, can’t help you in Nevada and other states where drivers must physically hand their driver’s license, registration, and insurance card to the officer. While law enforcement agencies and Mothers Against Drunk Driving (MADD) worry that an intoxicated driver might use a Fair DUI Flyer to scoot deceptively through a sobriety checkpoint without getting caught, Redlich says that’s not very likely. “Drunk people are not good at following instructions, they’re not good at remaining silent, and they’re not good at being patient. And all those things are required to make this work. So if you’re drunk, you’re probably not going to pull it off.”
How did DUI checkpoints become so controversial? A basic legal right to protection against unreasonable searches and seizures by the government is guaranteed to every person by the Fourth Amendment to the United States Constitution, which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A “TENSE RELATIONSHIP”
This fundamental right to protection against unreasonable searches and seizures has what one observer has called a “tense relationship” with DUI checkpoints. At a DUI checkpoint, drivers are stopped without any probable cause and may even be tested without probable cause. However, the requirement for a warrant or for probable cause only applies if the search is “unreasonable,” and in 1990 the U.S. Supreme Court decided that stops at DUI checkpoints are not unreasonable if conducted according to particular guidelines. The high court did not set those guidelines in 1990, but the basic guidelines for conducting a DUI checkpoint have been worked out and established by a number of courts over the last 25 years. The police must provide advance publicity specifying the locations and times that checkpoints will be operational, and they must post signs nearby indicating to drivers that they are coming up on a sobriety checkpoint.
A number of prosecutors and DUI defense attorneys around the country have been interviewed in the media regarding the Fair DUI Flyer, and many of them agree with former federal prosecutor David. “I think you always have people trying to beat the system and push the envelope,” Weinstein told CBS News. He said that while the flyers might hold up in some courts, it’s never a good idea to challenge the police at a sobriety checkpoint.
DIFFERENT STATES – DIFFERENT LAWS
The law is different in Nevada, where drivers stopped at DUI checkpoints must lower the window at least partially – enough to hand over physically to the officer your license, registration, and insurance card. You do not have to speak. In fact, the wisest strategy at that moment is to be cooperative without speaking. You can roll your window down a third or halfway and hand the officer your documents with a note explaining that you always exercise your constitutional right to remain silent. You should try not to look at or speak with the officer when handing over this information. Sit with your hands on the steering wheel and look straight ahead until the officer returns with your documents.
At that time, in every state, if the police officer has probable cause to believe that you may be intoxicated, he or she may ask you to submit to field sobriety tests and/or breath or blood tests. Different states have different penalties for refusal to test, but if you refuse to test in Nevada, the officer has authority, through the Nevada Department of Motor Vehicles, to suspend your driver’s license on the spot, and then the officer can obtain a warrant electronically that allows the police to take a blood sample from you – by force if necessary. If a Nevada law enforcement officer tells you to exit your vehicle to conduct field sobriety or other tests, exit silently and politely, and follow the officer’s instructions if you want to keep your driver’s license from being suspended.
The police especially like to conduct DUI checkpoints on weekends and on occasions like New Year’s Eve and the Fourth of July. What’s really the best way to get through a DUI checkpoint without any trouble? Be polite and respectful, not argumentative or contentious. You shouldn’t give up your rights, but in almost all cases if you are cooperative, you should slide past a DUI checkpoint trouble-free. The best policy, of course, is not to drink and drive – no exceptions. If you plan on driving, abstaining entirely from alcohol is always the smart choice.
There is never any reason or justification for driving under the influence. Even if you have to hire a five-star limousine, it’s going to cost you a lot less than the jail and the courts, the hospital, or the morgue. Las Vegas and most large and mid-sized cities have a variety of transportation options available 24 hours a day every day of the year: buses, subways, trolleys, and taxicabs, as well as limos and ride-sharing services like Lyft and Uber. If you know and trust someone who can be a designated driver, let that person drive. Even getting a room or sleeping on a friend’s sofa beats getting arrested for driving under the influence or injuring yourself or someone else.
PENALTIES CAN BE SEVERE
Whether you are stopped by the police at a DUI checkpoint or pulled over in traffic by a law enforcement officer, if you are arrested for driving under the influence, speak at once with a DUI attorney, and in the Las Vegas area, with an experienced Las Vegas DUI lawyer. In every state, even a first-offense DUI conviction will almost always be punished with a stiff fine and probation. Most states also require community service and/or attendance at DUI education classes, and in some states you will serve time in jail for a first conviction.
In the state of Nevada, you can serve six months in jail and be fined up to $1,000 for a misdemeanor first-offense DUI conviction. You’ll probably be ordered by the court to attend DUI classes, and your Nevada driver’s license can be suspended for ninety days. Most other states impose comparable penalties for first-offense DUI convictions. However, if you cause an injury or death while driving under the influence, it’s a felony in most states, and a conviction will almost inevitably mean a prison sentence. DUI causing injury or death is a felony in Nevada, and a conviction is punishable by a sentence of two-to-twenty years in a state prison.
Warren Redlich told CBS News that he hopes someone challenges the use of his Fair DUI Flyers and paves the way for the Supreme Court to re-examine its ruling on the legality of sobriety checkpoints. For now and the foreseeable future, however, sobriety checkpoints remain legal. If you have any questions or need to learn more about sobriety checkpoints or DUI laws, or if you need representation regarding a DUI charge in the Las Vegas area, promptly contact an experienced Las Vegas DUI lawyer at the Fletcher Firm by calling 702-333-6339.