Police are allowed to set up sobriety checkpoints in New York as long as they follow specific rules about how to do it. I'm going to take you through the way people are stopped at sobriety checkpoints, and tell you how to protect your rights.
(Traffic stops are different from roadblocks / sobriety checkpoints. Click here to learn about traffic stops.)
One big difference between a traffic stop and a sobriety checkpoint? "Your window."
When you pull up to a sobriety checkpoint, a police officer is allowed to ask you to roll down your window and show your license and registration.
police will have no reason to detain you further and cannot lawfully force you to roll down your window if you:
- have a valid license and registration (and you show them through your window); and
- there is nothing mechanically wrong with your vehicle that the police officer can observe; and
- you obeyed all the applicable traffic laws and pulled up safely to the sobriety checkpoint.
In other words, beyond that brief initial stop, police cannot hold you without having a reasonable suspicion to believe that criminal activity is afoot.
The lesson here is that you should not give police any reason to believe that criminal activity is taking place. Make sure your registration is valid, that your license plate lamps work (yes- your car has little lamps that light up your license plate), that your headlights and tail lights are functioning properly, that your muffler is quiet, and that you have no visibility obstructions (including window tint).
What will police do when I get to the checkpoint?
This is how a typical initial contact with police will go:
Police: Hello, ma'am, my name is Deputy Smith with the Monroe County Sheriff's Office, and we are performing a sobriety checkpoint tonight - just making sure everyone is safe to drive. Please roll down your window and show me your license and registration.
Driver: Keeps the windows rolled up, shows both her license and registration through the untinted window.
Police: Ma'am, please roll down your window.
Driver: Am I under arrest or am I free to go?
Police: Walks around your car to look for a problem that will allow him to pull you over for further questioning.
Police: Finding nothing wrong with your car, "You're free to go."
Police: Noticing that you have a rear running light out, "Please follow the cones and park in the designated area to your right."
At this point, you must roll down all your windows and treat this like it is a traffic stop.
Police: Please step out of the car.
Police: (Once you have stepped out of your car) I need to make sure you are okay to drive, so I am going to check your eyes. Keep your head still and follow my pen with your eyes only; don't move your head. Do you understand the instructions?
Driver: I understand, but I decline to perform the test. Am I free to go? If not, I would like a lawyer.
Police: Look, I'm just trying to make sure you're okay to drive. You smell like alcohol and I need to make sure you are safe before I let you go.
Driver: Am I free to go? If not, I would like a lawyer.
Police: Come stand over here, place your hands behind your back.
Wait - I'm under arrest?! I thought you were going to tell me how to protect myself!
That's right. You are under arrest. If you smell like alcohol you will be under arrest no matter what you say to the police. But by following the script above - by requesting a lawyer immediately and declining to take the horribly flawed and inaccurate field tests administered by police - you have just protected your rights and dramatically reduced the possibility that you will be convicted based on the subjective, unreliable field sobriety test results that juries and judges are fed by prosecutors and believe every single day. Your case may very possibly be dismissed for a lack of probable cause to arrest you. The lesson here is that while you may not be able to avoid an arrest, you can protect your rights and avoid a conviction.
But I only had two drinks!
That's right. And if that's true, the police might arrest you for Driving While Ability Impaired. Police regularly arrest people for having a BAC of .06% and .07%. (Even then they often charge the driver with DWI.) A BAC of .07% is below the legal limit. But they don't care. And there are plenty of judges who don't care that you were making a careful, measured decision about how much to drink before you drove home. Instead of recognizing that you were being responsible, they will convict you of Driving While Ability Impaired without thinking twice.
So what do I do now?
If you have been arrested for a DWI or DWAI, contact me at (585) 286-1329. You will need an attorney to guide you through a complex court system and a prosecution that is absolutely stacked against you. Luckily, these charges can be beaten.
I've handled hundreds of DWI cases and undergone countless hours of training. I have excellent client reviews, a track record of winning at trial, and free phone consultations. Don't blow it. Give me a call and let me help.
Militello Law Firm, PLLC
1 University Drive
Geneseo, NY 14454
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