January 18th, 2015 | 2 Comments
An interesting DUI checkpoint video has been circulating lately. In it, the driver gets through without even rolling down his window, passing by with ease thanks to a plastic bag attached to his car with a string. The bag contained his license, registration, insurance information, and a note saying “I remain silent,” “No searches,” and “I want my lawyer.” As clever as it may be, it’s also dangerous to think it will always be that easy.
The most important thing any driver or rider can keep in mind when dealing with police is that the law does not exist in a vacuum. It only matters as applied to the facts, and except in the most unusual circumstances, courts are going to adopt whatever “facts” the officer provides. It is going to be your word versus his. The cop, a government employee and professional witness who most people believe has no reason to lie about anything, will tell a government-employee and probably-former-prosecutor-or-cop judge in a government-owned courtroom what happened. It will almost invariably be a version of events that fits within the law as he or she understands it, and if it isn’t, the cop may well change his or her story after consulting with a prosecutor, or the courts may ultimately change decades or centuries of legal precedent to allow whatever it was the cop did. You probably have to have some pretty amazing evidence to overcome that.
Honestly, I’d only recommend doing what the guy in the video did to people who are not breaking any laws, have upstanding-citizen eyewitnesses in the backseat, HD cameras recording the action from every angle and being backed up to the cloud in real time, and are going through a checkpoint where every cop is a good cop. With any one of those things lacking, it could go very badly.
If you try the stunt in the video and it turns out you have a high blood alcohol concentration, drugs in the car, or are doing something else illegal, it will probably never work. In one article, the driver explains his setup was “meant to keep a driver from having to roll down their window at a DUI checkpoint and . . . put themselves in danger of having police ‘lie’ and say their speech is slurred or that the smell of alcohol or drugs is wafting from the vehicle.” That’s little consolation considering the officer will just say he could see from your body language through the window that you were wasted. Or he saw you cross a marked line or do something else indicative of impairment. Or maybe there was such a strong odor of marijuana that he could smell it through the window. If he eventually “catches” you with whatever he later claims he detected using his magical cop powers, you’re probably screwed. If you didn’t do anything wrong and nothing ever comes of it, you have no real damages, and no one in the government will ever be held accountable. At best, you can put up your video on the internet and impress people.
Similarly, all of the eyewitnesses in the world won’t help you if they’re all charged with crimes based on the same incident. That’s ready-made motive to lie to most judges and jurors. Even if they’re as pure as the driven snow, most people will just wonder the following:
Why would a cop lie? They’re just doing their job, right? Why should the jury ignore a professional observer in favor of some friends of a criminal? Even if they aren’t criminals themselves, they liked one enough to get in the car with him. Wouldn’t they lie for him? At the very least, can you really trust their judgment getting in the car with an accused criminal?
Anything short of video is all too easily discredited, and incomplete or unclear video gives the police the ability to fabricate a damning version of events that matches it. The worst cops might even destroy what you have if you do not have a backup. Then, what they say might as well be what happened for all practical purposes. I’ve met more people than I can count who’ve said they recorded the officer violating their rights and that the cop stole the equipment from them, but without a shred of proof. The same dirty cop who destroyed it would probably have to fill out a log saying he took if they’re ever going to prove anything. How likely do you think that is? I’ve believed a number of people who’ve told such horror stories, and they’ve almost never won.
Finally, if the cop you encounter at the checkpoint is as bad as the worst cops I’ve seen, nothing may be able to help you. If there aren’t a lot of you and plenty of cameras, he may shoot you and every other witness to death just for disrespecting his authority. Then who’s going to dispute what happened? Who knows that there’s video stored someplace? Who knows that what the cops did was as bad as it really was? Is death-by-cop really worth the infinitesimal odds of your kids or grandkids getting a few dollars at some point years in the future?
If you’re using the technique in the video to audit local law enforcement on video and you follow all of my suggestions, then go ahead. I’m still not terribly supportive, as you may not be as lucky as others have been.
If you aren’t doing everything I suggest, expect the worst-case scenario. The State of Arizona allows checkpoints, and officers will almost certainly order you out of the car claiming they wanted to make sure the documents in your little baggy actually belong to you and not someone else. What if you or someone you loved was just killed and the murderer got away by stealing their car and hanging the victim’s information out of the victim’s driver’s side window on a string to avoid getting caught? With that in the back of their minds, the cops will get the driver out of the car some way or another. If anything, your little plan will only irritate them and strengthen their resolve to mess with you more than they otherwise might have.
Like with anything else on the internet, beware of things like this that seem too good to be true. For every story I hear about someone doing something creative to successfully exercise their rights, I see fifty criminal defendants in my office facing criminal charges for little more than trying to exercise their rights. It feels good each and every time I vindicate a client’s rights, but they’ve almost all suffered arrest, detention, and the stress and expense of a pending criminal case before they win. Is it worth inviting that by trying out some new legal theory at a DUI checkpoint?