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I am frequently asked by friends and even by some passers-by (especially around Cinco de Mayo, it seems), what information do I have to give officers at a DUI Checkpoint? And do I have to do the “field sobriety tests”? As we have arrived here, on the fifth of May, celebrating the unlikely Mexican victory over French forces at the Battle of Puebla on May 5th, 1862, it is an especially timely question, given the DUI checkpoints that will be set up to ensnare unsuspecting drivers.

DUI investigation – whether it be a stop focused on your individual vehicle or getting stuck in a checkpoint simply because you are in the wrong place at the wrong time – is a scenario that is considered mere “roadside investigation” and not a custodial interrogation. As a result, Miranda warnings are not required prior to questioning by officers. However, that does not mean that you cannot protect yourself and limit the potentially damaging information that the officer may gather for use against you. Although it may look innocent enough, interaction with officers in the course of a traffic stop or at a DUI checkpoint only gives officers an opportunity to try to build their case against you.
The only thing you are obligated to do at any DUI Checkpoint is to provide the officer with your license and registration, if requested. You don’t have to say one word to officers beyond providing this information. You do not have to perform the roadside exercises called “field sobriety tests”. And you do not have to consent to the PAS, the pre-arrest breath test. I advise clients and friends that they should politely decline to engage with the officers in this interaction and questioning by informing officers that they are asserting their 5th Amendment rights. Further, you don’t have to speak at all, even to assert your 5th Amendment rights; you can actually provide the officers with written notice that you are asserting your rights, or, better yet, with the card of your criminal defense attorney with that same information.

Taking this active, preventative step in your own defense may prove to be more important than you realize because, as part of their preliminary observations in a DUI investigation, officers are trained to gather information as to your condition in three main areas: odor of alcohol, red/watery eyes, and slurred speech. Based on these observations, the officers will often decide whether to pursue further investigation. All the while they are interacting with you and you are providing information (if you do so), officers are evaluating you and your condition. Do you seem disoriented or confused? Do you know where you are coming from and where you are going? Can you recollect everything fully, from when you last slept to what you last ate – and, if not, could that signal that you are impaired? Can you understand the officer’s questions and clearly communicate with him? Can officers possibly determine your alcohol consumption or drinking pattern (some of the strongest ammunition against you)? While you can’t control whether the officers might notice your eyes, which could be red and watery for many reasons other than impairment or a blood alcohol level above the legal limit (such as being tired or having allergies), you can limit the officers’ opportunity to make other observations. You can control whether the officers will be able to notice either an odor of alcohol on your breath or your mode of speech by not speaking to them. You can prevent them from making other judgments about you, whether that be of your possible blood alcohol level or your level of orientation and awareness, by simply not engaging wtih them.

In order to gather information that ultimately will be used against you, officers rely on three main factors: the unequal power dynamic in all interactions with the public; the element of surprise, fear, and uncertainty commonly affecting you when you are stopped; and your willingness to comply with authority . If you resist the officers – and I do mean politely and very well within your rights – you could either prevent an arrest or put yourself in a much stronger position in your case. Although it may not feel like it at the time, you have the power: use it.

If you do provide information which the officer then uses against you, perform “field sobriety tests”, or give a preliminary alcohol screening (PAS) test sample, do not feel deflated; you are among the great majority of drivers who did so, when faced with similar circumstances. If that is the scenario, our defense focus would then shift to defeating the case against you – discrediting the “field sobriety tests”, exploring scientific defenses, and otherwise pulling the foundations out from under the prosecution’s case to expose all the areas of real, reasonable doubt that exist. But if you are reading this in advance and can take away some increased knowledge of your own rights in the DUI checkpoint scenario, something you can put into practice in the face of those patrol car lights – and can even share that information to empower a friend or a loved one – more power to you, to them, and really to all of us. It is a victory for the individual and for the underdog in the spirit of the unlikely victory of a poorly-equipped and untrained Mexican army of 2,000 against a 6,000 strong invading force of professional French soldiers that had not been defeated for almost 50 years. Outnumbered and seemingly outmatched in weaponry, the Mexican fighters, many of them agricultural workers armed only with antiquated rifles and machetes, never surrendered. And although the French went on to overwhelm Mexican forces and capture Mexico City one year later with 30,000 troops, their victory was short-lived in the face of on-going Mexican resistance and U.S. political and military assistance to Mexico to expel the French. As Time magazine remarked, the victory of the Mexican army on May 5th, 1862, stands as an enduring symbol of the Mexican David defeating a French Goliath. Let that be a reminder to all of us.

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