By Alexa Gervasi, ACLR Featured Online Contributor

Approaching a run-of-the-mill DUI checkpoint, Boca Raton attorney Warren Redlich pressed what is now known as the “DUI Flyer” against his window, informing officers that he would not be rolling down his window.1 After observing the flyer reading, “I Remain Silent/No Searches/I Want My lawyer,” the officers waved Redlich on without any questions.2 DUI Flyers are the key to the Fair DUI campaign, with the stated purpose being to “[p]rotect the innocent. Focus on education over punishment.”3 While the flyer was successful in Redlich’s case, the effectiveness of Fair DUI’s mission has come under attack by police officers and lawyers. Should the controversial flyer make its way to the courts, will police be able to demand that individuals roll down their windows? Through this post, I will argue why the answer is “probably not.”

In 1990, Chief Justice Rehnquist, writing for the majority, upheld the constitutionality of DUI checkpoints.4 To determine whether such checkpoints violate the Fourth Amendment protection against unreasonable searches, the Court asked whether checkpoints serve a “special governmental need.”5 An otherwise unconstitutional seizure falls into the “special needs exception” where “special needs, beyond the normal need for law enforcement, make the warrant and probable clause requirements impracticable.”6 In such circumstances, the court may balance the governmental and private interests to determine whether the search was reasonable.7 The Court in Sitz found that, given the seriousness of drunk driving, the ability of the checkpoints to advance the state’s interest in preventing drunk driving, and the minimal intrusion on drivers, DUI checkpoints fall within the special needs exception to the warrant requirement.8

To determine what authority police have when citizens refuse to speak with officers, the analysis must begin by looking to the test in Sitz. As previously mentioned, the Court determines whether a special needs exception is justified by weighing the process’ ability to serve the special need, the interest of police, and the intrusion placed on private citizens.9 Certainly, the request made on the flyer, to allow those subject to a DUI checkpoint to speak first with their attorney, places an extra burden on the process. However, this is not the test that the United States Supreme Court has laid out. The Court does not require that citizens make the process work for the police. The Court also does not assess the difficulty or burden placed on police. The Court is, however, concerned with the intrusion placed on citizens. In Sitz, the Court noted that individuals were stopped for roughly twenty-five seconds, illustrating that the intrusion was only minimal.10 Under the flyer system, citizens would remain pulled over until their attorneys could be reached and the officers could conduct their surface-level sobriety test.11 This system would place a more significant burden on citizens; however, that burden is self-inflicted. Therefore, the Court is not likely to consider the self-imposed intrusion as a factor in disqualifying the checkpoints.12

Those who discourage use of the DUI Flyers argue that officers will simply “require the person to talk to [them],” charging those who refuse with obstruction of justice.13 As anyone who has watched an episode of Law and Order knows, individuals have a right to remain silent when arrested. Therefore, the next inquiry is whether that right extends to administrative seizures, such as DUI checkpoints.

The D.C. Circuit has noted that “it cannot be the case that a citizen's protection against self-incrimination only attaches when officers recite a certain litany of his rights.”14 With that in mind, the Court has required that one wishing to exert his right against self-incrimination make an affirmative claim to the privilege, placing the Government on notice.15 The first statement on the DUI Flyer, “I Remain Silent,” is certainly an affirmative invocation of the right, placing the officers on notice.

The right to remain silent is not unlimited, however. For instance, witnesses are not permitted to invoke the Fifth Amendment simply because they would prefer to not give an answer.16 An individual who has been seized, however, is in a situation more similar to a post-arrest defendant than a witness in a trial. Citizens engaged in a DUI checkpoint must be wary of their breath, diction, and anything that might be in the officer’s plain view after rolling the window down. As Justice Stevens noted in his dissent in Sitz, DUI checkpoints provide officers with nearly unbridled discretion when examining drivers.17 Officers might use blood-shot eyes, an unbuttoned shirt, or even a speech impediment against a driver; a driver who has had a single glass of wine must suddenly conceal his breath or take on the burden of proving that his driving ability was not impaired.18 Where the police are granted such great deference, an individual’s interest in remaining silent to avoid self-incrimination is certainly elevated. Further, as Chief Justice Marshall noted while riding circuit, only the individual being questioned can know if his answer will be self-incriminating.19

The Government is understandably concerned with being able to receive the answers it is entitled to, such as determining whether a dangerous driver is on the roads. Under the Fair DUI platform, officers are in no way precluded from achieving this goal. Drivers who wish to have a lawyer present are simply required to remain parked at the checkpoint until they can be joined by an attorney. The threat of intoxicated drivers on the road is, therefore, in no way exacerbated by the DUI Flyer.

In most cases, officers wishing to move the line along may be inclined to wave the individual presenting the flyer through the line without further inquiry, as was the case for Mr. Redlich. As the DUI Flyer garners greater attention from both users and the officers reviewing them, the flyers’ constitutionality will undoubtedly be questioned further, and perhaps find its way to the courts. It will then be up to judges to determine whether Fifth Amendment protections extend to administrative seizures, but in the meantime, drivers should feel free to drive under the influence of the law.