Q: Will we be able to get a plea bargain?

A: Usually a good lawyer can get a first-DUI charge reduced to a DWAI violation. In some counties, it is more difficult to reduce a DWI if your blood-alcohol concentration (BAC) is particularly high. The individual prosecutor may have a set number in mind. For some that means over 0.15. For others it might be 0.18 or 0.20. Others will agree to a plea bargain regardless of the BAC. Other factors also might prevent a plea bargain, such as if the charge arose out of a serious accident, if you have a criminal record, or if it is not the first DWI on your record. In such cases, a good lawyer may be able to get a reduction later if they can find any weakness in the prosecution?s case. It may be possible to get a reduction even with a high BAC if you get a substance abuse evaluation and comply with the treatment recommendations from the evaluation.

Q: Do I need a lawyer?

A: No. If you want to plead guilty to the charge, or if you want to try to negotiate for yourself, you do not need a lawyer. In many courts, a good lawyer will get you a better deal than you will get for yourself. Also, a good lawyer may be able to spot weaknesses in the prosecution case against you. A very experienced DWI lawyer knows the ins and outs of these issues better than non-lawyers, and better than most regular lawyers.

Q: Do I have to come to court?

A: Usually. Some out-of-state or out-of-area clients might not have to come to Court if a lawyer appears for you. Other than that, DUI defendants have to come to Court. You will have to surrender your license, and the judge will want to make sure you understand what you have to do. We have represented clients from other states and distant parts of New York State (such as New York City) without our clients appearing. Many judges are uncomfortable with it, but so far no one has refused to allow it. We’ve even done it with a local client, where he was out of state visiting his mother in the hospital. But generally, for local clients, you will have to appear.

Q: Will my insurance rates go up?

A: Probably for New York drivers, and maybe for out-of-state drivers. A DUI conviction is reported on your New York driving record. If your insurance company finds out, your rates will almost certainly go up. In some cases your insurance company will drop you as a customer and you may have to enter the assigned risk pool, where rates are dramatically higher. It is possible that your insurance company will not find out, and then your rates shouldn?t go up. If you are from out-of-state, a New York DUI conviction may not affect your license or insurance, except in Quebec and Ontario. In our experience, reporting of DUI matters to other states is inconsistent. They are supposed to be reported through the Drivers License Compact, but many of our clients have not been affected. On the other hand, some of them have been affected.

Q: Can we beat the charge?

A: Maybe. Most DUI charges are difficult to beat and it will cost a lot more to fight than to make a deal. The police usually do a good job and the hard truth is, most defendants are guilty. Still, the police sometimes slip up. They may not have had a good reason to stop your car. They may not have had enough evidence to require a BAC test. They may have done the tests wrong. You may have credible witnesses who can say you were not intoxicated. A good lawyer can review these issues with you and give you better answers.

It makes more sense to fight a DUI if you have a prior DUI conviction (including DWAI) in the last 5 years, as you will likely be ineligible for a conditional license.

Recent examples of DUI cases we are fighting include where our client was stopped by police for running a stop sign in a parking lot (generally not illegal), and another where our client was sleeping at home when the police came to get him (the BAC test is probably invalid).

Q: What do lawyers charge?

A: Fees vary widely for DWI cases. There are some lawyers who charge as little as $350. I know of one lawyer who starts in the $5000 neighborhood. Most good DWI lawyers charge a minimum of $1000, because of the amount of time involved in reviewing the case and making sure you get the right result, and because of the risk of having to go back muliple times.

Q: What?s the difference between DUI, DWI, and DWAI?

A: DWI stands for Driving While Intoxicated, which is either a specific numerical BAC result of 0.08 or higher (V&T Law Section 1192(2)), or a general notion that you?re intoxicated, proven by testimony and other evidence of the nature of your impairment (1192(3)). DWAI stands for Driving While Ability Impaired (1192(1)), and is generally considered to be when the BAC result is higher than 0.05.

DUI stands for Driving Under the Influence, and is a general term in the US for the subject. The term DUI is not commonly used in the legal system in New York State.

Under V&T Law 1193, first and second convictions for DWAI are violations – they are not crimes and you cannot get a criminal record for a violation. A third DWAI is a misdemeanor. A first DWI is a misdemeanor. Later DWI charges can be felonies.

Albany Lawyer Warren Redlich practices in Albany, New York. He is a graduate of Albany Law School, Stanford University (Masters) and Rice University. He handles DUI cases, along with other criminal matters and personal injury cases.

According to the the Law Offices of Lawrence Taylor, Inc., in San Diego, California, most breathalyzers used in DUI cases by law enforcement today use infrared spectroscopy. This technology involves detection of the methyl group in the molecular structure of alcohol. The problem is that there are thousands of chemical compounds containing the methyl group — some of them found on the human breath. In one study involving 28 subjects, for example, researchers found that the combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin (Characterization of Human Expired Air, 15 Journal of Chromatographic Sciences 240).

If a person has any of these other compounds on his breath, called interferents by the engineers, he will get a falsely high blood-alcohol test result. And if there are two or more such compounds on his breath, the machine will add them up and falsely report the total as the blood- alcohol level.

So what compounds can be found on your breath? According to the San Diego DUI attorneys, diabetics with low blood sugar can have high levels of acetone — which is seen as alcohol by Breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals (Frank and Flores, The Likelihood of Acetone Interference in Breath Alcohol Measurements, 3 Alcohol, Drugs and Driving 1). And there are many other so-called interferents affecting breathalyzer results

If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde — containing the methyl group and so reported by the Breathalyzer as alcohol — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

The San Diego DUI lawyers report that common household products, such as paint, glue, gasoline, and thinners also contain the methyl group. No, you don?t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half- life of the compound. So if you?ve painted a room or breathed in fumes at a gas station in the last day or two, don’t take a breathalyzer test.

If you are stopped by the police and suspected of drunk driving, say the San Diego DUI lawyers, you might consider a blood test rather than submitting to a breathalyzer.

The Law Offices of Lawrence Taylor http://www.san-diego-dui.com/

ILLEGAL STOP OF PERSON OR VEHICLE ? a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.

WEAVING INSIDE THE LANES IS NOT ILLEGAL ? weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

ANONYMOUS REPORT OF DRUNK DRIVING ? a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

STANDARD FIELD SOBRIETY TESTING IS INACCURATE ? in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

NON-STANDARDIZED FIELD TESTS ARE INVALID ? neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

BREATH TESTING IS INACCURATE ? virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s /- 12.5%, non-specificity for ethanol, etc.

BOOKING ROOM VIDEOS ? Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.

IN-SQUAD VIDEOS ? more and more often, the suspect?s driving and performance on field tests is being recorded; often contradicting police testimony.

FAILURE TO PROVIDE SPEEDY TRIAL ? If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.

POLICE BLOOD TEST INACCURATE ? Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.

HOSPITAL BLOOD TEST INACCURATE ? Hospital blood tests overestimate a person?s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

BREATH TEST OPERATOR UNLICENSED ? Most states require a Breath Test Operator to possess a valid, unexpired operator?s license, or the breath test result is inadmissible.

BREATHALYZER MACHINE MALFUNCTIONS ? Most states specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect?s breath test, the results of the suspect?s test are presumed invalid.

BREATH TEST OPERATOR LICENSE EXPIRED ? Most states require that a Breath Test Operator must possess an unexpired operator?s license, or the breath test result is inadmissible.

BREATH TEST DEVICE NOT APPROVED ? A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.

FAILURE TO PROVE DRIVING UNDER THE INFLUENCE ? A defendant?s admission to driving, without more, does not prove a charge of driving under the influence.

INDEPENDENT WITNESSES ? Often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant?s sobriety.

FAILURE TO MIRANDIZE ? Prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.

FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED ? According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

OFFICER?S PRIOR DISCIPLINARY RECORD ? A police officer?s previous disciplinary record can be used to attack the officer?s credibility.

PORTABLE BREATH TEST INADMISSIBLE ? Most states prohibit the use of portable breath testing results as evidence at trial in a DUI case.

PORTABLE BREATH TEST IMPROPERLY ADMINISTERED ? The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

FAILURE TO CONDUCT OBSERVATION PERIOD ? Most states require that a driver be observed continuously for a minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible and valid.

EXPERT WITNESSES ? Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.

MEDICAL AND HEALTH PROBLEMS ? Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.

BAD WEATHER ? Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.

LACK OF PROBABLE CAUSE TO ARREST ? A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.

ILLEGAL SEARCH ? The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver?s consent or probable cause. Any evidence illegally obtained is not admissible in court.

PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS ? Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer?s credibility.

POST-DRIVING ABSORPTION OF ALCOHOL ? The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

INTERFERING SUBSTANCES ? Many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

BREATH MACHINE NOT PROPERLY OPERATED ? The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.

FAILURES TO PRODUCE DISPATCH TAPES ? Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.

MISLEADING STATEMENTS BY POLICE OFFICERS ? Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver?s record.

STATUTES OF LIMITATIONS ? A misdemeanor charge of DUI must be filed within a certain period of time (which varies between states) of the date of offense, or the charges will be dismissed outright.

PRIVATE PROPERTY ? A person who has not driven the car on a public highway cannot be suspended for drunk driving.

FAILURE TO DISCLOSE EXPERTS ? The failure of the prosecutor to disclose the state?s expert(s) will cause those witnesses to be barred from testifying against the defendant.

LACTATE RINGERS ? When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

FAILURE TO RECORD CERTIFICATION TESTS ? the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.

FORCED BLOOD DRAWS ? In some states, the police may not take a blood test against the driver?s consent where there has not been an injury involved, or the result is inadmissible.

About the Author:

Donald J. Ramsell is the only Illinois DUI defense attorney to appear and argue on a DUI case before the United States Supreme Court in its entire 213 years of existence. http://www.1800dialdui.com

Ramsell also appears on ‘America’s Top DUI DWI Attorneys’, located at http://www.Americas-Top-DUI-Attorneys.com.

Donald J. Ramsell is the only Illinois DUI Attorney to become Certified in DUI Defense under the American Bar Association standards. The Illinois Supreme Court does not recognize certification in DUI Defense at the present time.

In 2004, the Chicago Sun Times identified Mr. Ramsell as one of the top 5 DUI Defense Attorneys in the State of Illinois.

In 2005, Ramsell was named by Chicago Magazine as an ‘Illinois Super Lawyer’, and was the only Illinois DUI Attorney to receivie this distinction.

In 2004, Ramsell was recognized by his peers as an Illinois Leading Lawyer in Criminal-DUI Defense by Crain Magazine. In 2006, Crain Magazine will also recognize Ramsell as an Illinois Leading Lawyer in Illinois Criminal Appeals.

Driving while intoxicated (DWI), driving under the influence of intoxicants (DUII), operating motor vehicle intoxicated (OMVI) and operation under the influence (OUI) is the other legal terms for driving under the influence of alcohol. A person is generally accused of DUI, when DUI (driving under the influence) laws are violated in one of two ways — driving under the influence of alcohol or drugs and driving with a 0.08 or higher blood alcohol level.

DUI laws are quite complex and vary from state to state. The DUI statutes of a particular state, determines the punishment for the DUI charge. Each state has set a legal limit for blood alcohol content. If it is proved that the offender?s blood alcohol content is above the fixed limit, an arrest and penalty will usually follow.

If you are suspected of driving under the influence of intoxicants, your blood and urine are first tested. A breathalyzer test is made to measure blood alcohol concentration ? the quantity of alcohol found in your blood. Driving under the influence of alcohol leads to loss of license, time in jail, hefty fines, probation and vehicle impoundments.

Depending upon the situations, DUI laws can charge a wrongdoer with either a felony or a misdemeanor. If a defendant has violated any traffic rule or injured another person, DUI conviction becomes felonies, and in the event of any property damage, it becomes a misdemeanor. In such instances, most offenders seek the assistance of a competent and qualified attorney.

DUI provides detailed information on DUI, DUI Lawyers, DUI Laws, DUI Defense and more. DUI is affiliated with California DUI Laws.

So, how do you hire a DUI attorney in Connecticut?

Get the names of the attorneys practicing DUI law only. Some criminal attorneys also have large DUI practices. There are not many of them. Ask friends, family and other associates if they know any of them and garner their opinions. Do some homework. Go on the web for DUI attorneys in your area. Many of these attorneys advertise in many ways.

Some attorneys claim to have a heavy emphasis of DUI cases. What does that mean? What is the attorney’s DUI caseload like? Is he busy? Does he handle 200 or more DUI cases a year? How many DMV cases does he handle? Being a busy practitioner insures familiarity with the process and a greater knowledge of the law. If he’s busy, that means clients think highly of his expertise. It’s like anything else, the more you do, the more you learn and the more varied the cases usually are. All of this translates into knowledge in the area of DUI law. The more the attorney knows, the better off you are!

Make an appointment with the DUI attorney. They usually offer a free initial consultation. Feel the attorney out. Ask yourself Do I feel comfortable with the attorney? Ask him if he is trained in the operation of a breath test machine and certified with regard to the Standard Field Sobriety Tests.

You need to know what the attorney charges. Is it a flat fee or does he charge by the hour? You want the fixed, flat fee. It makes sense. If expert witnesses are needed, who pays for them? Is the cost of a trial extra? How much extra? Ask yourself if you can afford this guy? Understand that fees for a DUI specialist are high, but those fees pale in comparison to what it could cost if you hire someone that’s inexperienced. Fees are high for a reason and you should ask what those reasons are. Does the DUI lawyer offer a payment plan?

You may ask Why do you need a DUI lawyer at all? The answer is there are many things a conviction affects such as your job, various licenses, i.e. securities licenses, nursing license, license to practice law, commercial driver’s license, a medical license and life in general. Also, the penalties are different if you are under 21 or under 18. Abe Lincoln said it best that A person who represents himself has a fool for a client. Remember, you will have a corresponding DMV case and only the DUI attorney will know how to practice in this maze of confusion.

You should look for an attorney who will fight to protect your rights. Walk out of the office of any attorney that tells you to just plead guilty or apply for the program that gets the case dismissed. You are not in his office to have him tell you what you can do for yourself. Doing nothing gets you nothing and it oftentimes lands you in jail along with a license suspension and higher insurance rates.

Even if you find a good attorney, there are no guarantees. However, a good Connecticut DWI attorney should promise to represent you to the best of his ability and do everything he can to minimize fines and stop you from going to jail or losing your license.

Connecticut DUI attorney Steven A. Tomeo has been practicing law since 1969. His offices are located throughout Connecticut and he limits his practice to drunk driving defense exclusively. You can visit http://www.ctduiattorney.com/ for more information.

According to constitutional law, some stops are not considered seizures of a person. This is the case with a so called stop and frisk in which an officer detains a person for a very brief period of time and quickly checks their outer clothing for contraband. Sometimes, if a person is detained for less than 48 hours, it is not considered a seizure. However, this is not true for DUI roadblocks. The U.S. Supreme Court has held that stopping someone at such a roadblock does constitute a seizure of that person under the Fourth Amendment.

One however further and the language of the Constitution gets tangled up in the thicket of constitutional interpretation and case law. The Supreme Court could have claimed that these stops without probable cause are constitutional under the doctrine of exigent circumstances. The Court has repeatedly held that when an officer believes evidence is about to be destroyed, he can perform a search without a warrant. However, this doctrine seems only to apply to searches. Instead, it appears as though the Court used a balancing test, common in other areas of constitutional law, whereby the minimal intrusion on individual liberties was weighed against the need for and efficacy of roadblocks and found to be less important.

To some, it seems that the Court has simply carved out of the Constitution another exception, similar to the one for exigent circumstances, for sobriety checkpoints. DUI defense attorneys often refer to this as the DUI exception to the Constitution. Critics and dissenting justices have pointed out that the Fourth Amendment does not make exceptions. The only question is whether the officer has probable cause to stop the individual driver. Justice Brennan wrote, That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.

The Court’s justification for the exception rested on the assumption that DUI roadblocks are necessary and effective. However, there is some controversy as to whether this is true. The National Highway Traffic and Safety Administration (NHTSA) recently released data on alcohol-related deaths in 2003 and 2004. There was a decline in such fatalities in 2004, and most of the drop occurred in states that don’t use sobriety checkpoints. Critics already concerned about the large outlay of resources required to operate checkpoints are doubly concerned if spending the resources does not even necessarily prevent DUI offenses.

On the other hand, law enforcement agents believe that checkpoints are effective even if intoxicated drivers get around them because they spread the message that driving under the influence is not tolerated. Officers often provide informational pamphlets to motorists stopped at checkpoints, explaining the consequences of drunk driving, which may have a deterrent effect.

Copyright 2006 Lance Knowlton

Having been struck by drunk drivers twice, Lance Knowlton has a deep appreciation for this serious problem. To learn how you can help prevent drunk driving in your community and earn money at the same time, visit: http://www.alcoholalert.com.

DUI laws are complex and vary from state to state. Since the beginning of the 1970s, several rules and regulations have been implemented. If anyone is found guilty of DUI, they are arrested and penalized. Among the best DUI defenses are preparation and knowledge. The offenders can seek the assistance of a competent and experienced attorney or lawyer to get out of the legal tangles involved in driving under the influence of alcohol.

A DUI or DWI attorney can check the case for errors, have samples independently analyzed, move to suppress certain evidence, arrange for expert testimony and witnesses, contest license suspensions and negotiate reduced penalties and sentences. DUI lawyers specialize in handling DUI-related cases, and they are generally proficient in technicalities including blood analysis, breath test and drug evaluations. DUI lawyers strive to keep drivers out of jail and help them from losing their drivers’ licenses. They also prosecute and defend DUI / DWI drivers involved in accidents when a fatality and /or extensive damages occurred.

An experienced and competent DUI lawyer is aware of all kinds of loopholes and knows the right strategy to get his client out of trouble. DUI lawyers are very highly paid, but many of them arrange easy payment options.

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Driving while intoxicated (DWI), driving under the influence of intoxicants (DUII), operating motor vehicle intoxicated (OMVI) and operation under the influence (OUI) is the other legal terms for driving under the influence of alcohol. A person is generally accused of DUI, when DUI (driving under the influence) laws are violated in one of two ways — driving under the influence of alcohol or drugs and driving with a 0.08 or higher blood alcohol level.

DUI laws are quite complex and vary from state to state. The DUI statutes of a particular state, determines the punishment for the DUI charge. Each state has set a legal limit for blood alcohol content. If it is proved that the offenders blood alcohol content is above the fixed limit, an arrest and penalty will usually follow.

If you are suspected of driving under the influence of intoxicants, your blood and urine are first tested. A breathalyzer test is made to measure blood alcohol concentration the quantity of alcohol found in your blood. Driving under the influence of alcohol leads to loss of license, time in jail, hefty fines, probation and vehicle impoundments.

Depending upon the situations, DUI laws can charge a wrongdoer with either a felony or a misdemeanor. If a defendant has violated any traffic rule or injured another person, DUI conviction becomes felonies, and in the event of any property damage, it becomes a misdemeanor. In such instances, most offenders seek the assistance of a competent and qualified attorney.

More articles at database for articles

The Constitution of the United States clearly says that police cant just stop someone and conduct an investigation unless there are articulable facts indicating possible criminal activity. So how can they do exactly that with drunk driving roadblocks? Good question. And it was raised in the case of Michigan v. Sitz, in which the Michigan Supreme Court striking down DUI roadblocks as unconstitutional. In a 6-3 decision, however, the U.S. Supreme Court reversed the Michigan court, holding that they were constitutionally permissible.

Chief Justice Rehnquist began his majority opinion by admitting that DUI sobriety checkpoints do, in fact, constitute a seizure within the language of the Fourth Amendment. In other words, yes, it appears to be a blatant violation of the Constitution. However, he continued, its only a little one, and something has to be done about the carnage on the highways caused by drunk drivers. The minimal intrusion on individual liberties, Rhenquist wrote, must be weighed against the need for — and effectiveness of — DUI roadblocks. In other words, the ends justify the means.

The dissenting justices pointed out that the Constitution doesnt make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion… The most disturbing aspect of the Courts decision today is that it appears to give no weight to the citizens interest in freedom from suspicionless investigatory seizures.

Rehnquists justification for ignoring the Constitution rested on the assumption that DUI roadblocks were necessary and effective. Are they? As Justice Stevens wrote in another dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks: The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, he wrote, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.

Note: The case was sent back to the Michigan Supreme Court to change its decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, though now permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant — in effect saying to Rehnquist, If you wont protect our citizens, we will. A small number of states have since followed Michigan’s example.

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According to constitutional law, some stops are not considered seizures of a person. This is the case with a so called stop and frisk in which an officer detains a person for a very brief period of time and quickly checks their outer clothing for contraband. Sometimes, if a person is detained for less than 48 hours, it is not considered a seizure. However, this is not true for DUI roadblocks. The U.S. Supreme Court has held that stopping someone at such a roadblock does constitute a seizure of that person under the Fourth Amendment.

One however further and the language of the Constitution gets tangled up in the thicket of constitutional interpretation and case law. The Supreme Court could have claimed that these stops without probable cause are constitutional under the doctrine of exigent circumstances. The Court has repeatedly held that when an officer believes evidence is about to be destroyed, he can perform a search without a warrant. However, this doctrine seems only to apply to searches. Instead, it appears as though the Court used a balancing test, common in other areas of constitutional law, whereby the minimal intrusion on individual liberties was weighed against the need for and efficacy of roadblocks and found to be less important.

To some, it seems that the Court has simply carved out of the Constitution another exception, similar to the one for exigent circumstances, for sobriety checkpoints. DUI defense attorneys often refer to this as the DUI exception to the Constitution. Critics and dissenting justices have pointed out that the Fourth Amendment does not make exceptions. The only question is whether the officer has probable cause to stop the individual driver. Justice Brennan wrote, That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.

The Court’s justification for the exception rested on the assumption that DUI roadblocks are necessary and effective. However, there is some controversy as to whether this is true. The National Highway Traffic and Safety Administration (NHTSA) recently released data on alcohol-related deaths in 2003 and 2004. There was a decline in such fatalities in 2004, and most of the drop occurred in states that don’t use sobriety checkpoints. Critics already concerned about the large outlay of resources required to operate checkpoints are doubly concerned if spending the resources does not even necessarily prevent DUI offenses.

On the other hand, law enforcement agents believe that checkpoints are effective even if intoxicated drivers get around them because they spread the message that driving under the influence is not tolerated. Officers often provide informational pamphlets to motorists stopped at checkpoints, explaining the consequences of drunk driving, which may have a deterrent effect.

Copyright 2006 Lance Knowlton

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