The Law Concerning DUI Checkpoints

With the holiday season in full-swing, the presence of law enforcement on the roads looking for impaired drivers will be great.  In addition to heightened patrols on the roads, many agencies, especially municipal police departments, will be operating what they commonly refer to as sobriety checkpoints.  If you drive in the Denver Metro Area for very long, you are likely to run across one of these "checkpoints" somewhere, and the holidays are a favorite time for law enforcement to set up these operations, given the frequency of celebrations offering alcoholic beverages.  There are established procedures police must follow in conducting these checkpoints, and many videos may be found online of individuals who have recorded their encounters.  Here are some things to keep in mind should you encounter of these "sobriety checkpoints"...

First, these checkpoints ARE legal/constitutional, as long as they are conducted properly.  These roadblocks or checkpoints are considered administrative searches under the Fourth Amendment, which means that they are conducted for general maintenance of health, safety and/or welfare of the community.  The stopping of vehicles normally requires, at a minimum, reasonable suspicion of illegal activity.  However, in administrative searches, as long as every vehicle coming through the checkpoint is stopped, or if there is a random formula of selection, e.g. every third car is stopped, then the roadblock is permissible.  Colorado law requires that advance notice of the checkpoint be posted to allow persons who do not wish to be subjected to the roadblock the opportunity to take an alternate route.  Although avoiding a checkpoint is NOT in and of itself reasonable suspicion, police can and often do follow vehicles that avoid these checkpoints and, if driving violations are observed, stop these vehicles and contact the driver. 

Once stopped, police are only permitted to contact the driver and require the driver to produce standard, required documentation, such as driver's license, automobile registration and proof of insurance.  Drivers and occupants are not required to answer any questions posed by officers or engage them in conversation if they do not wish to do so.  Officers can only require the driver or occupants to exit the vehicle if the officer has reasonable suspicion of illegal activity.  However, even if you are required to exit your vehicle, you still are not required to answer any questions, make any statement, or perform any type of "roadside sobriety" tests, referred by law enforcement as Standard Field Sobriety Tests.  Should an officer believe he/she has probable cause to believe a driver is impaired or under the influence, the officer can request that a chemical test of the driver's blood or breath be completed; failure to complete such a requested test can result in loss of the driver's license.

Sobriety checkpoints are common this time of year, and although they are legal if properly conducted, your rights are still very much in play as in any police contact.  Should your encounter with a checkpoint result in criminal/traffic charges, an experienced attorney will be helpful in evaluating the validity of your contact and charges and in determining what legal defenses may be available to you.  Have a safe and enjoyable holiday season!

SCOTUS: Police Cannot Prolong Traffic Stops for Dog Sniff Without Reasonable Suspicion

This week, the U.S. Supreme Court held in Rodriguez v. U.S. that detaining a driver stopped for a traffic violation longer than necessary to issue a citation violates the driver's Fourth Amendment right against unreasonable searches/seizures.  In this case, a police officer in Nebraska detained a driver for failing to remain in his lane, and after the officer had run a review of the driver's record and determined there were no outstanding warrants/violations, issued the driver a citation.  However, and despite the admitted absence of probable cause or reasonable suspicion, the officer refused to let the driver go on his way until a canine unit arrived to conduct a dog sniff of the driver's vehicle.  The government argued that the detention of the driver was not unreasonable in that it was a minimal, temporary inconvenience to the driver and that dog sniffs were a common tool of law enforcement.

SCOTUS disagreed, and reiterated rules it had laid out in previous cases holding that the length of an investigatory detention is governed by the scope of the reasonable suspicion that justifies the detention.  While the stop of the driver's vehicle was justified, continuing the detention after the traffic matter was resolved without additional legal grounds was not. 

It is significant to note that the driver in this case did NOT consent to the extended detention or subsequent dog sniff and search of his vehicle.  Consenting to police detentions and/or searches constitutes a WAIVER of your Constitutional rights.  You should never consent to a waiver of your rights for any reason unless/until you have conferred with experienced legal counsel.

Leglislative impacts on DUI and ID

Governor Hickenlooper recently signed new legislation impacting DUI driver's license revocation hearings and criminal identification procedures.

HB15-1073 corrects a confusing and unreasonable decision handed down by the Colorado Supreme Court in Francen v. Dept. of Revenue, which held that, despite language in Colorado statutes permitting drivers to challenge the basis for police contact in appealing a driver's license revocation based on the Express Consent law mandating chemical testing of suspected impaired drivers, DMV hearing officers did not have to ignore evidence obtained from improper/unconstitutional vehicle stops.  The new law requires DMV hearing officers to suppress evidence resulting from an invalid or unconstitutional stop of an appellant driver, legislatively overruling Francen.

SB15-58 will require all state law enforcement agencies to adopt procedures relating to eyewitness identifications with the aim of improving the accuracy of suspect IDs.  Recent studies have shown that many witness ID methods employed by law enforcement are unreliable and susceptible to serious bias/error; this law will attempt to prevent past common procedures that have come to be proven problematic at best and utterly unreliable at worst.

The Rest of the Story About the Proposed Felony DUI Law

We've been hearing a WHOLE lot of misinformation coming from the media and proponents of the felony DUI bill before the Colorado General Assembly...here are the arguments, and why they aren't telling you the whole story...

1. "We need to send repeat offenders to jail!"  Newsflash...we already DO!  Minimum MANDATORY ten days for a second offense and minimum MANDATORY sixty days for a third/subsequent offense.  Most judges impose a minimum of six months on a third offense, and often max offenders out at a year.

2.  "Even if it's your tenth DUI, the most jail you can serve is one year!"  That is correct, but what they fail to mention is that repeat offenders are GUARANTEED to go to jail under current law; the new law would not guarantee felony DUI offenders would do any time at all.  In fact, the original sponsor of the initial bills offered in earlier sessions admitted that felony DUI offenders were likely to get probation rather than jail/prison.

3.  "There needs to be a deterrent so DUI offenders won't repeat!"  Available statistics from states that have passed similar felony DUI laws show that these laws have had NO deterrent effect on reducing DUI recidivism.

4. "Drunk drivers who injure/kill people should face felony charges!"  Another newsflash...CO law already makes it a felony to cause death or serious bodily injury while driving under the influence--the offenses are vehicular assault and vehicular homicide, respectively.

5.  "The projected costs of this law have been over-estimated!"  This law is projected to add nearly $20 million in new Department of Corrections costs.  The original bill's sponsor says that estimate is too high because most felony offenders won't be sent to prison but rather placed on probation.  We thought the reason for this law was to mete out greater punishment for repeat DUI offenders?  The proponents seem to be contradicting themselves.

Bottom line:  This is a bill being pushed by politicians who want to appear tough on crime.  The fact is, CO is tough on DUI offenders, mandating jail for repeat offenders, not to mention the negative consequences regarding driver's licenses.  Even the bill's proponents admit that creating a felony DUI charge will result in LESS incarceration for multiple offenders, not more.

In any case, DUI is a complicated legal charge and the assistance of an experienced attorney is no longer just preferred, it is essential!