Safety and Sobriety Check-Points -What You Should Know
'Tis the season for celebrating - and sobriety check-points. Our member attorney Ed Folsom offered some temperate comments in response to a timely question.
Q. A friend of mine with connections to local law enforcement is warning me that there will be roadblocks up around New Years, probably to check for drunk drivers. I’m smart enough not to drive drunk, but I am also offended by the idea that an officer can stop me and ask me questions and maybe even search my car, for no reason. I want to know what my rights are if I drive into one of these set-ups
A. Your rights at a police roadblock are the same as at any other time. You have the constitutional right to be free from "unreasonable searches and seizures." Unfortunately, individuals who are subjected to a roadblock don't get to decide what is unreasonable – the courts do – and the courts have decided that roadblocks may be constitutionally reasonable if they are directed at detection of OUIs or other motor vehicle violations or safety issues (like compliance with the seatbelt laws, driver licensing laws, etc.). There are restrictions placed on the way a roadblock may be conducted, so there must be a policy for the roadblock that limits the discretion of the officers as to which vehicles get stopped, what the grounds are for diverting a vehicle to the side for further investigation, etc. Basically, if an officer dealing with an individual driver develops reasonable articulable suspicion that the person is violating the law in some way, the officer can investigate further to pursue the suspicion. Otherwise, the officer must let the person proceed through the roadblock in short order.
Why you might be pulled out of line and over to the curb:
- If you smell like an alcoholic beverage or admit you've been drinking, you will be diverted to the side for further questioning.
- Maine's Supreme Court (also called the Law Court) has decided that it is always reasonable for an officer to request license, registration and insurance information once a vehicle has been legitimately stopped. If you are asked for license, registration and insurance and don't produce them, the officer will suspect you aren't licensed, registered or insured and will divert you for further investigation.
- You are never required to answer questions for a police officer, but if you refuse to answer questions at the threshold of a roadblock, depending on the overall circumstances, this might be grounds for reasonable suspicion that you are violating the law and are withholding information to avoid detection. This would cause you to be diverted to the roadside.
If you are diverted to the roadside, the officer suspects you are violating the law in some way. You asked what your rights are.
- You have the right to remain silent.
- You have the right not provide evidence against yourself by performing roadside field sobriety tests.
- You have the right not to consent to a search of your person or your vehicle. However, if an officer has probable cause to search you or your vehicle, the officer may do so without your consent and you do not have the right to resist or obstruct a search.
- If you are told that you have a duty to take a test to determine your alcohol level, you must take a test or your license will be suspended for a long time solely because you refused.
- If you are told you have a duty to submit a urine or blood sample for drug detection, the same applies.
- You must provide a urine or blood sample to avoid a refusal suspension, but you have a right not to perform any physical or mental acuity tasks that an officer requests of you.
The Law Court decided in one case that the bare fact a person turned around on approach to a roadblock did not create grounds for reasonable articulable suspicion that the person was committing a violation of law. However, if a person turns around before reaching a roadblock and an officer pursues the person with blue lights engaged, the Law Court has decided the person must pull over for the officer or the person will be guilty of failing to stop for an officer. So anyone who is pursued by an officer for avoiding a roadblock must pull over to preserve any argument that the officer wasn't justified in seeking to stop the person in the first place.
This information is presented as a public service by the Lawyer Referral Service of the Maine State Bar Association. Contact LRS at 800-860-1460 for referral to an appropriate attorney in private practice, or for information regarding other resources.
LEGAL DISCLAIMER: The information contained in this article is a general response to the question and does not constitute legal advice. If you require legal assessment of a situation, advice, or representation, consult an attorney who practices in the area of law involved. For more legal information, go to www.lawyer4me.org.
© 2012 Maine State Bar Association