Mark Roman | January 12, 2015 | Car Accidents

A controversy has blown up on social media in the last few weeks over DUI checkpoints. It began when a libertarian-minded Florida lawyer offered drivers some advice about how to avoid being detained at DUI checkpoints.

Basically, the lawyer’s advice was to put your driver’s license and registration in a bag and hang it on the outside of your rolled-up window. He also said one should put a piece of paper in the bag with messages such as “I remain silent” for the police to read. His idea was that one could avoid having to roll down their window and speak to police by taking these steps. The lawyer’s concern (which appears to be based on principle, whether one agrees with it or not) was that people are often detained on the pretext of having alcohol on the breath or bloodshot eyes. Obviously, police cannot claim to detect such things through a closed car window.

It initially seemed likely that this advice would run its course through the news cycle and be forgotten. However, a few Florida sheriffs have basically thrown gasoline on the fire by threatening to arrest people who try it.

This kind of law enforcement bluster is not helping matters. First, while the plastic bag technique doesn’t prevent a DUI investigation, it is not in itself illegal. Second and most importantly, it plays directly into the hands of civil libertarians. Their whole point is that the tactic is justified because police are so overbearing and confrontational in the first place.

This ill-considered overreaction will probably keep this story alive far beyond its normal news-of-the-weird life span. Someone will try this tactic again, of course, just to see if they can goad police into a retaliatory arrest. The inevitable follow-up – a civil rights lawsuit – will perpetuate the controversy.

We urge everyone to look past all this posturing and remember the old saying: if it seems too good to be true, it probably is. No one should think for a minute that they can get away with driving under the influence by dangling a plastic bag with papers as they approach a checkpoint.

There are many factors besides alcohol on the breath and bloodshot eyes which can create reasonable suspicion and allow police to detain you. Erratic steering, lurching while stopping or starting, and having empty beverage bottles are just a few of the things that police could use as a ground for detaining a driver. Those things, along with many others, can be observed by a checkpoint officer even when the driver involved doesn’t roll down the window and speak.

Another critical point is that many DUI stops don’t occur as a result of DUI checkpoints at all. DUI drivers get caught outside of checkpoints for many reasons: causing an accident, running a red light, or just driving badly in normal traffic. Hanging a bag out of a window will not protect anyone in those more common scenarios.

The other thing to remember is that innocent people don’t have much to fear from police anyway. Even if someone is arrested based on an incorrect initial suspicion, they are likely to be turned loose if their actual testing results don’t show intoxication. If the police treat people inappropriately when they’re not guilty, there are already legal remedies available for those situations.

There’s another old saying that also applies here: a little knowledge is a dangerous thing. People who hear just a snippet about their legal rights may overestimate the breadth of those rights and get themselves in trouble. Constitutional law is complex and nuanced, but it’s safe to say that it does not often give people a free pass to do illegal or dangerous things. Courts are always engaged in a balancing act between upholding legal rights and allowing for public safety, and judges generally do not tilt so far toward rights that they discard common sense. People should always remember that when they get behind the wheel.

The bottom line is that driving while intoxicated is dangerous and illegal. Hanging a plastic bag out a driver’s window won’t protect people from getting caught when they do it. In the long run, no one should be emboldened to behave badly because of this novel law enforcement issue.

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