Natty Shafer Law

Utah lawyer for criminal and immigration cases


It’s Uncomfortable to Exercise Your Rights

Yesterday, a law school friend of mine sparked a facebook discussion about talking to the police. He linked to a Maine case where the defendant got herself into trouble by admitting to the officer that she had had a martini several hours previously. (It’s not necessary to read the case to understand this post, but you can reference the case here.)

The defendant was stopped at a routine DUI checkpoint, and the only evidence that she could be intoxicated was her statement and the officer’s estimation that she was speeding upon her approach to the checkpoint. Her speech was normal and she didn’t smell like alcohol, but the officer decided to put her through additional screenings to check for intoxication. It’s important to note, she said that she had engaged in a completely legal activity—drinking a single martini several hours before driving.

On the facebook discussion, the consensus among the non-lawyers was that it would be impossible not to talk to an officer in that situation. Telling the officer you aren’t going to answer him would raise his suspicions, or it would be socially awkward as you quietly ignore the questions. It’s unfortunate, but the courts haven’t left us many options for dealing with police. Lying to police can lead to new criminal charges, and telling the truth has its own problems. Answering questions gives officers information to further conduct their investigations, and once you start start answering questions, as far as courts are concerned, you are engaging in a “voluntary” conversation, which prolongs the traffic stop just a bit longer. The law has left us with this bizarre situation where we either quietly ignore officers’ questions or tell them point-blank that we are not going to answer. Counter-intuitively, officers cannot use our silence as evidence of anything.

Even though it happened in Maine, I have little doubt that a Utah court would also rule that an officer has probable cause to conduct a DUI screening based an admission that the driver had a drink several hours before. It’s uncomfortable and socially awkward, but when you encounter police officers, it’s best not to answer their questions.

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Do DUI Roadblocks Work for Their Intended Purpose?

Last week I mentioned that Utah may ban DUI checkpoints. Lawrence Taylor, an attorney in California, picked up on that development and blogged about it on his blog. He argues that the real reason that police use DUI checkpoints is to raise revenue. Most DUI checkpoints catch very few drunk drivers, but they do make a lot of money for the local government. Although the police are supposedly looking for intoxication, they end up issuing citations to drivers for not having their license, registration, insurance or for equipment violations—citations that likely would not be issued otherwise.

Let’s hope Utah joins the ranks of other states who have banned this invasive practice.

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Utah May Ban DUI Checkpoints

Today, the Utah House of Representatives passed a bill to prohibit the police from conducting DUI checkpoints. The Utah State Senate must also pass HB140, and then the governor would need to sign it for it to become law.

Police use DUI checkpoints by placing roadblocks on a public roadway and then they stop every vehicle or random cars and look for signs of alcohol or other impairment. The Utah bill would not affect law enforcement’s ability to look for fugitives, such as during an Amber Alert, nor would affect their ability to look for “invasive species.”

The United States Supreme Court deemed random DUI checkpoints as constitutional in the case Michigan Dept. of State Police v. Sitz. Michigan’s high court then found such checkpoints to be illegal under Michigan’s Constitution. Several other states have banned them as well.

UPDATE: HB140 never made it out of the Utah State Senate, so as of the close of the 2012 legislative session, Utah remains one of the states that allow DUI checkpoints.