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16Feb, 15

Making the rounds on the internet recently was a story of a viral video featuring an attorney in Florida rolling through a DUI checkpoint in that state with a sign on his window stating he wished to remain silent, refusing to consent to any searches, and that he wanted to speak to an attorney. It has created something of a stir in the legal community about whether or not this is an instructional on how to assert your rights to the police.

In New York, the seminal case on police checkpoints is People v. Scott, 63 N.Y.2d 518, a Court of Appeals case (which is the highest court in New York) from 1984.

In People v. Scott the Court upheld the conviction of a Genesee County man, convicted of DWI after the justice court refused to throw out the evidence taken from the DWI checkpoint. The Defendant, Joseph Scott, was discovered at a routine DWI checkpoint being conducted by the Genesee County Sheriff’s office, whose written directive establishes such checkpoints for the purposes of reducing drunk driving-related offenses.

But the Court carefully limited the powers of the police in New York, stating that, thought the checkpoints themselves (which the Court conceded was a seizure under the Fourth Amendment, citing People v. Ingle, 36 N.Y.2d 413 (1975)) were constitutional, further action on the part of the police was only warranted if there is substantial cause to suggest the motorist is intoxicated. In this case, the Defendant “fumbled a bit with his wallet, … his eyes were watery and bloodshot and … there was a strong odor of alcohol” Scott at 523. Further, the Court stated that, so long as the roadblocks were being administered in a uniform and nondiscriminatory manner, they would be upheld.

There is no jurisprudence in New York which suggests that placing such a disclaimer, along with the motorist’s license, registration and insurance information for the officers to see without making verbal inquiry would be sufficient to trigger Fourth and Fifth Amendment protections during a DWI checkpoint. In fact, Courts have upheld an officer’s arrest of a suspect based on “evasive, suspicious behavior and lack of cooperation.” People v. Figueroa, 38 A.D.3d 796 (2d Dept. 2007) lv. to appeal denied 8 N.Y.3d 984 (2007).

For now, the best advice would be not to drink and drive.

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