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My personal sobriety checkpoint experience

A few years ago, my brother was moving from Albuquerque to Los Angeles.  I drove down from Denver to help him pack up his moving truck.  After a long day of work, we went out to dinner and had a couple of beers over about 90 minutes.  I’m 6’1” and I’ve got a few extra pounds on my frame.  Under no circumstances would this quantity of alcohol put me over any DUI per se limit.  After dinner, my brother left to say goodbye to his girlfriend and I headed back to my hotel room.  Along the way, I encountered a sobriety checkpoint operated by the local police department.

Generally speaking, DUI checkpoints are a violation of your Fourth Amendment right to be free from unreasonable searches and seizures.  However, both the United States and Colorado Supreme Courts have ruled that in an effort to combat driving under the influence cases, DUI officers can conduct these sobriety checkpoints as long as certain conditions are followed.  This checkpoint was not one of them.  One of the underlying principles of a constitutionally valid DUI checkpoint is that there be enough notice to the motorists that they can ‘opt out’ of the checkpoint by either turning around completely to head in the opposite direction or otherwise turning onto a side street.  Unless the motorist commits some type of traffic infraction by turning away from the DUI checkpoint, police cannot stop the vehicle.  In my case, the only notice was a sign in Spanish.  My high school Spanish class was many years behind me but I thought that the word “sobriedad” might refer to sobriety.  Regardless, the sign was past the opportunity to make a legal U-turn and I was compelled to go through the DUI checkpoint.  I was curious about how many other errors I would encounter. I wouldn’t have to wait long.

Once into the checkpoint, the DUI officer said she immediately smelled alcohol on my breath and wanted me to submit to a horizontal gaze nystagmus (HGN) test while seated in my car and my head turned to face her.  I politely declined.  First, none of the DUI field sobriety tests are mandatory and failure to do them has ZERO consequences to the motorist.  Second, under the best of circumstances, this test is often wrong.  Finally, the test was never ‘validated’ under the circumstances under which this officer was attempting to administer it.  She was not happy with my answer.  Mind you, she never alleged that I had demonstrated any signs of impairment such as slurred speech or motor control issues (I hadn’t).  Next she ordered me to pull over into a secondary area or face arrest.  Once there, I was ordered out of my car and she again demanded that I submit to the HGN test.  I again politely declined.  She then demanded that I submit to the walk and turn (WAT) test.  I again declined.  Her frustration with me was rising.  She asked why I wouldn’t do these tests.  I told her that I didn’t have to and explained that after helping pack a moving truck all day, any physical tests would not be a fair test of any perceived physical impairment.  I never told her that I was a Denver DUI attorney but by this point, she knew that I knew my rights and probably suspected that I was a lawyer of some kind.

I did agree to recite a portion of the alphabet and touch my fingers to my thumb while counting aloud.  To be clear, I didn’t have to do this and could’ve continued to decline but this officer was getting really close to arresting me without probable cause and I was quite certain that I could do this to her satisfaction.  While my performance was perfect, she still wasn’t satisfied.  Again, she insisted that I do the WAT test.  Yet again, I politely declined.  Finally, she insisted that I blow into a portable breath test (PBT) device – also known as a preliminary screening device.  Again, I politely declined.  Why?  Because these PBT’s are not calibrated and maintained to the same degree as the official breathalyzer at a police station.  They can read high or low depending on a number of factors.

After all of this back and forth, we came to a crucial decision point.  The officer threatened to arrest me if I didn’t cooperate with the PBT.  Again, I knew that I was well under the limit.  If the PBT was properly maintained, I should be fine. However, that was a pretty big ‘IF’ and I was worried.  I was also worried that I wouldn’t be able to reach my brother.  Remember, he was saying goodbye to his girlfriend for the last time before moving away.  If they arrested me, I would spend the night in the Albuquerque jail – not a pleasant prospect.  Mind you, I was not at all worried about being convicted of DUI.  First, the breathalyzer test would’ve shown that I was under the limit.  Second, there were SO MANY things wrong with this encounter that I was sure that even if I had been over the 0.08 alcohol limit, the case would’ve been dismissed for these violations of my constitutional rights. 
So what did I do?  I ignored the advice that I had given so many people and I took the PBT test.  The look of anger and disappointment on the officer’s face was almost comical.  She then started yelling at me for wasting her time.  I politely said “Ma’am, I’m very sorry if the exercising of my rights was a waste of your time.”  She threw my keys back at me and told me to leave.

What should you, the reader, take away from this?  Stick to your guns.  Do not give in regardless of how intimidating the officer becomes.  I did and I shouldn’t have.  Fortunately, things worked out for me.  They may not for you.