March 19, 2015 By Matthew Wallin

One DUI attorney in Florida has attracted national attention after showing that it could be well within your Constitutional rights to merely crack your window, hand the police your license and registration in a bag, along with a note saying “I Remain Silent, No Searches, I Want My Lawyer” at a DUI checkpoint.

Background on the Law

In 1990, the U.S. Supreme Court said that it was constitutional for police to briefly stop drivers and ask questions in order to find if there was reasonable suspicion of drunk driving.1

No Searches

Even if police do not find reasonable suspicion from initial questioning, police can search your car or person without reasonable suspicion if you consent to a search. Understand, consent can be implied from your actions. By saying to police, ‘No searches’ you are making it clear that you do not consent.

Right to Remain Silent

The 5th Amendment gives you the right not to say or do anything to incriminate yourself. In California, one can be convicted of a DUI even if they don’t have a BAC of .08 or higher as long as the officer notices objective signs of intoxication.2 If you roll down your window, not only can police question you to elicit incriminating responses, but it also gives police the opportunity to obtain evidence of alcoholic odors or other signs of intoxication.

Tension Between Your Fifth Amendment Rights and Non-Compliance

In California, you are required to stop and submit to police when driving through a sobriety checkpoint.3 Police should only detain you for a reasonable amount of time in order to look for signs of intoxication. They may ask questions, but there is no law that says you have to answer them. Rather, it’s your constitutional right to say nothing at all. However, as a practical matter, avoiding questions may raise suspicion by the police as a sign of intoxication. Moreover, police can use their flashlights to look for objective signs such as red or watery eyes even if you refuse to answer questions. Therefore, creating an odor barrier by keeping your windows closed may be ineffective.

Non-compliance, along with other signs, may give the police enough reasonable suspicion for further investigation. It is also possible that police may also view your non-compliance as obstructing justice—a separate crime entirely. California views driving as a privilege and by accepting that privilege, you impliedly consent to a blood or breath test upon arrest, thus waiving your constitutional rights.4

It is possible that the U.S. Supreme court will review California’s implied consent law, as there is no uniform agreement among the states as to whether or not this law is constitutional.

Possible Defenses to DUI Charges

A skilled criminal defense attorney should know the legal defenses to DUI following a checkpoint. Some defenses might include:

  • Insufficient evidence,
  • Lack of reasonable suspicion needed for a field sobriety test, or
  • Police violated your 4th or 5th Amendment rights

Call the Expert Criminal Defense Attorneys at Wallin & Klarich

If you or a loved one has been charged with  DUI, you need to contact an experienced Wallin & Klarich criminal defense attorney immediately.

At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing both state and federal charges for over 30 years. We will meet with you immediately to review the facts of your case, and plan a defense strategy that will help you get the very best outcome possible.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

1. Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444

2. Veh. Code § 23152(a)

3. Veh. Code § 2814.2(a)

4. See

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