Legal Analysis of A Sobriety Test Refusal at a DUI Checkpoint
If you have not heard the recording in question, it may be beneficial to listen to it before continuing reading.
I have consulted with a lawyer, a criminal defense attorney, who specializes in DUI cases in California (where this recording was made) and it is apparent that there are numerous civil rights abuses occurring in the audio we received.
The standard procedure for a DUI investigation, based upon NHTSA standards, consists of three parts:
At a DUI checkpoint, there is no 'vehicle in motion' stage to provide probable cause for a prearrest screening, so the officer must rely entirely upon the personal contact stage to get probable cause for a prearrest screening.
Now, a citizen at this point absolutely has the right to not roll down his window all the way - the only requirement is that the two parties can communicate. Now, you can hear quite clearly in the audio recording at 0:40 that the officer clearly demands the citizen roll his window down all the way because, the officer says, he is required to. From there, the officer then extremely quickly states that he smells alcohol on the breath of the citizen, even though the citizen has a 0.0 BAC, as a breathalyzer later reveals. It seems that this officer is equating a refusal to waive rights as a partial admission of guilt.
So, the citizen heads to the secondary checkpoint. At this point, he still has the right to refuse a field sobriety test, as they are entirely voluntary without a warrant, though none of the officers giving the test ever mention this. The officer giving the test also acts extremely hostile towards the citizen and threatens arrest (3:45 in the audio), again, seemingly as a response to the citizen's completely legal refusal to waive his rights. When the citizen asks what the probable cause for the field sobriety test is, the officer replies "because [you] entered the checkpoint," a circular logic which also goes completely against the standard process and concept of probable cause.
Now, at this point, the citizen complies and allows the police to administer a breathalyzer test. He did not have to allow this, although it is likely that he would have been arrested for doing so. However, the prosecution would only be able to use his driving pattern (which was not notable, as this was a stop which everybody was required to stop at) and his personal contact with the first officer as evidence, which as you can hear was incredibly brief and essentially based on bullying and perhaps even outright lies, as the officer claims to smell alcohol which is later revealed to be non-existent.
So, the man agrees to a breathalyzer. Now, the normal procedure here is to allow for a fifteen minute waiting period due to foods and beverages (diet coke, white bread, soy sauce, etc) which can cause an artificially high registration of "mouth alcohol." The man blows immediately, blows a 0.0 and is told to leave with a touch of destain. The citizen continues to ask questions and is threatened with prolonged detainment, and eventually he leaves.
If this recording is any indication of standard DUI checkpoint procedure in California, then citizens are routinely having their civil rights violated at these checkpoints, and the citizens who do choose to assert their rights are being bullied, lied to and punished for doing so. For reference, compare this recording with this one from Mentor, Ohio, where a man asserts his rights and although the officer is perturbed, he continues to recognize the man's rights, and does it with respect. Now listen to the 4:16 mark of the DUI checkpoint recording for when the citizen asks if the brethalyzer machine has been calibrated and the officer sarcastically responds "No, we just pull this thing out when we feel like it" and compare it with the 12:40 mark of this traffic stop from Blairsville, Pennsylvania, where the officer clearly states the name, model and calibration date of the device used to clock the citizen's speed. There is a very noticeable difference in the level of professionalism heard in these recordings.
It is our opinion that the police at these DUI checkpoints in California are behaving extremely unprofessionally, illegally violating the rights of many citizens, and that, quite frankly, something ought to be done about it.
Investigation
Conclusion
