State legislature’s and law enforcements zeal to stop as many suspected drivers for DUI has resulted in a gradual erosion of basic constitutional rights and protections.  Many client’s come to me surprised to hear that certain rights they always heard about do not apply in DUI cases. For example, when you are arrested on suspicion of DUI, handcuffed in the police car and on your away to the station for a breath or blood test you are not entitled to:

– have Miranda rights read to you;

– an attorney prior to submitting to the tests;

– refuse a blood or breath test without consequences (a.k.a. offering potentially incriminating evidence against yourself).

And there are others. As much as these rights are a staple of our criminal justice system they do not apply in a DUI arrest.

Pretty bad, you say? Well things get much worse. Some states are now training their police officers in the use of syringes to effectuate forced blood draws to those who refuse to submit to a breath test. Consider the following:

BOISE, Idaho (AP) Sept 13 — When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he’ll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver’s arms, as he tries to search for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’” Dowell said. It’s all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program’s aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

So if the thought of a cop with a flashlight scares you, wait till your approached with a needle.  Cant get much worse you may think? Well then consider this gem of police conduct…how about  forced catheterization for a urine sample:

LAWRENCEBURG, Ind. Sept. 3– An Indiana man has filed a lawsuit claiming that police forcibly withdrew blood and urine from his body during a drunken driving arrest, WLWT-TV reported.

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

Police said they obtained a warrant, but Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will. (Read the full article here).

Hardly an isolated case …see this

In California, other than providing your ID and vehicle registration you are not obligated to make any statements to the police if stopped. You are not required to answer where you were going or what you were doing. You are also not obligated to take any field sobriety tests (e.g. walk the straight line); nor are you required to take the Preliminary Alcohol Screening test “PAS” if you are over the age of 21 (a small breathalyzer machine administered at the scene of the stop). You are, however, statutorily obligated to take the actual blood or breath test at a regulated facility (usually a police station) if you are detained on suspicion of DUI.

Sobriety checkpoints are becoming all to common and are frequently used before major holidays and sporting events. I am frequently asked about the legality of these checkpoints.

In California,  police departments use sobriety checkpoints at various times and to varying degrees. While some confusion exists over their legality, checkpoints are lawful if properly conducted and follow certain procedures and guidelines.

Whether or not a checkpoint is lawful depends on many factors, some of which are:

• whether it is in a reasonable location;
• whether the police department provided advanced notice of its location;
• the reasonableness of the time and duration of said checkpoint;
• whether it is safe to motorists.

To be sure, there are many other factors too — and no one single factor is determinative of whether a checkpoint is valid or not. The court will generally look to the totality of the circumstances  to determine its validity. Moreover, some factors are more important than others. Suffice it to say, however, that anyone arrested for DUI at a checkpoint should have an experienced attorney review all the information relating not only to the arrest, but to the circumstances and validity surrounding the sobriety checkpoint itself.

Can one legally avoid a checkpoint?  Provided that he does so in a safe and legal manner (a legal turn onto another street, or a legal u-turn – prior to entering the checkpoint, etc…)  the answer is generally “yes.” If your in the “chute,” however, and/or are already waiting at the checkpoint–then you cannot legally turn off or avoid it.