Are "No Refusal" DUI checkpoints possible in Virginia?

[AndrewFlusche]

I know this is an old post, but I thought I'd chime in given my experience in this area.

These are all great questions. I'm not aware of any "no-refusal" weekends in Virginia, like are now fairly commonplace in some states.

But Virginia officers definitely do get warrants for blood in some cases. It takes a little more time and paperwork than your typical implied-consent blood draw, but it's really just a trip to the magistrate for a search warrant.

Challenging these blood draws can be difficult since the search warrant just requires probable cause that the defendant is impaired. For those who are interested, I've written more on the topic of DUI alcohol testing in VA here: http://fightvirginiadui.com/the-process/were-you-intoxicated/

 

[Kevin108]

I'm throwing this out there quickly with insufficient explanation, but time is short:

Many of you may disagree, but the presumption of guilt is a slippery slope, and one that we gun owners are faced with regularly.

The drinking and driving zealots say, "People are killed by drunks behind the wheel!"

The anti-gunners says, "People are killed by guns carried in public!"

If you are beyond some arbitrary limit and cause injury or property damage, you deserve the full force of the law coming down on you.

If you are at the same limit and are only in trouble because of finding yourself in an unconstitutional checkpoint, that's wrong.

No victim, no crime

 

[TFred]

I'm throwing this out there quickly with insufficient explanation, but time is short:

Many of you may disagree, but the presumption of guilt is a slippery slope, and one that we gun owners are faced with regularly.

The drinking and driving zealots say, "People are killed by drunks behind the wheel!"

The anti-gunners says, "People are killed by guns carried in public!"

If you are beyond some arbitrary limit and cause injury or property damage, you deserve the full force of the law coming down on you.

If you are at the same limit and are only in trouble because of finding yourself in an unconstitutional checkpoint, that's wrong.

No victim, no crime

So you would be fine with boarding the airplane of a "just barely drunk" pilot? Or going under the knife of a "just barely drunk" heart surgeon?

No plane has been crashed... yet. No artery has been severed... yet.

Sorry, that dog don't hunt.

ETA: And even if I am completely alone on this one, I find your attempt to compare drunk drivers to people who choose to legally carry firearms indescribably insulting to those in the fight to preserver and protect the right to keep and bear arms.

TFred

 

[Grapeshot]

I know this is an old post, but .........snipped--

You have 2 posts since joining, both are to necro threads, both start with the exact same phrase, and both would seem to promote your legal practice = primary purpose? Perhaps you are just taking advantage of the public accessibility of the site to advertise your practice - such would be spamming.

Those that are on OCDO and who push their business w/o having developing a solid history of open carrying, promoting and defending that right etc are looked at in less than favorable terms.

I suggest that you take a different approach and let the members/users here come to know you on some common ground.

Absenting that I may be forced to conclude that your purpose is less honorable than you might purport. Sincerely hope it does not come to that.

 

[twoskinsonemanns]

I'm throwing this out there quickly with insufficient explanation, but time is short:

Many of you may disagree, but the presumption of guilt is a slippery slope, and one that we gun owners are faced with regularly.

The drinking and driving zealots say, "People are killed by drunks behind the wheel!"

The anti-gunners says, "People are killed by guns carried in public!"

If you are beyond some arbitrary limit and cause injury or property damage, you deserve the full force of the law coming down on you.

If you are at the same limit and are only in trouble because of finding yourself in an unconstitutional checkpoint, that's wrong.

No victim, no crime

Check points are a violation of the 4th. Folks like TFred play the what-if fear card as they will, but detainment without suspicion is simply wrong. Although I imagine he wouldn't be in favor of check points to check gun serial numbers. "Rights"...mine matter yours don't. Simple.

 

[TFred]

Check points are a violation of the 4th. Folks like TFred play the what-if fear card as they will, but detainment without suspicion is simply wrong. Although I imagine he wouldn't be in favor of check points to check gun serial numbers. "Rights"...mine matter yours don't. Simple.

Please do not attribute words or thoughts to me that are not mine.

I did not say anything about checkpoints.

My statements were solely in response to the "no victim, no crime" attitude, which I interpreted to mean that the poster believes it is perfectly fine to drive while intoxicated, as long as nobody dies.

Driving while intoxicated IS A CRIME, even if the trip is uneventful.

Thank you.

TFred

 

[scouser]

Please do not attribute words or thoughts to me that are not mine.

I did not say anything about checkpoints.

My statements were solely in response to the "no victim, no crime" attitude, which I interpreted to mean that the poster believes it is perfectly fine to drive while intoxicated, as long as nobody dies.

Driving while intoxicated IS A CRIME, even if the trip is uneventful.

Thank you.

TFred

While it is wrong to get behind the wheel while intoxicated and endanger not just yourself, but also anyone else around you, is it right to stop everyone on a particular road in an attempt to discover if they are intoxicated or not.
If it is right, then where would a line be drawn for checking everyone engaged in a particular activity are not breaking a law while doing so? Would motel checkpoints be acceptable to make sure the occupants are actually with their own spouse or to make sure they're not engaged in an act that is unlawful?

 

[Citizen]

I know this is an old post, but I thought I'd chime in given my experience in this area.

These are all great questions. I'm not aware of any "no-refusal" weekends in Virginia, like are now fairly commonplace in some states.

But Virginia officers definitely do get warrants for blood in some cases. It takes a little more time and paperwork than your typical implied-consent blood draw, but it's really just a trip to the magistrate for a search warrant.

Challenging these blood draws can be difficult since the search warrant just requires probable cause that the defendant is impaired. For those who are interested, I've written more on the topic of DUI alcohol testing in VA here: http://fightvirginiadui.com/the-process/were-you-intoxicated/

Thanks for the link. And, thanks for bringing this thread around again. I have a personal interest in the subject because I have been traffic stopped by a cop who suspected me of DUI. He claimed the stop was for speed, but spent quite a bit of time fishing for DUI. I refused his request for a FST (field sobriety test). Then he ran my DL # and plates and so forth. Well, readers know where this is headed already: yep, you guessed it. The next thing I know he's at my car window again asking whether I had my defensive sidearm with me and where it was located. Just for the record--I hadn't touched a drop; it was totally a fishing expedition on the cop's part.

On a later occasion, I approached a DUI roadblock being set up in my town on weekend evening. I was literally the last car through before the police started stopping cars. I could see the cop place the last cone, and stop the car behind me in my mirror.

Knowing where and when I can refuse a breath test or FST is important to me. So, thank you for bringing it up again; its a nice refresher.

Now, as to being a spammer, I think that if you're a spammer, you're also a slacker. Your first post was in October of last year. Your next post was three weeks into February of this year. Two posts months apart. My goodness, what a tremendously unmotivated spammer you would have to be. So, no. I don't buy that you are a spammer. Besides the huge time frame between your posts, there are too many other threads you could be spamming--its not like the first two threads into which you posted are the only threads where DUI or reckless driving were discussed. On the other hand, if you are a spammer, you better get the lead out and get busy. You're way, way too slow.

 

[Citizen]

Check points are a violation of the 4th. Folks like TFred play the what-if fear card as they will, but detainment without suspicion is simply wrong. Although I imagine he wouldn't be in favor of check points to check gun serial numbers. "Rights"...mine matter yours don't. Simple.

Roadblocks, roadblocks, roadblocks.

 

[optiksguy]

... The next thing I know he's at my car window again asking whether I had my defensive sidearm with me and where it was located ...

I'd be interested how you responded to this and how the rest of the encounter played out (maybe you've discussed this in a previous post).

 

[optiksguy]

The town police will set up DUI/seatbelt/whatever roadblocks at the intersection that is the only way into/out of my little subdivision. I've never had to go through it since they usually set it up pretty late at night, but it doesn't feel right that residents of my subdivision must pass through it to access their residence.

 

[twoskinsonemanns]

Driving while intoxicated IS A CRIME, even if the trip is uneventful.
TFred

So what. There is no way to catch such a crime without violating the 4th.
There are many draconian no-victim crimes.

The whole issue is driven (heh heh heh) by propaganda. Propaganda machine stirs up righteous indignation. The sheep bleat. The government uses it to shat all over our rights in order to cash in and increase control.

How many of those hypocrites admit to driving drowsy? A condition proven to be as dangerous as dui. (http://www.sleepdr.com/blog/driving-drowsy-vs-driving-drunk)

I would agree it's irresponsible to dui or drive drowsy but I strenuously disagree with violating rights in order to catch people in the act.

 

[Citizen]

I'd be interested how you responded to this and how the rest of the encounter played out (maybe you've discussed this in a previous post).

I will answer. But, let me say this very carefully.

I fully believe in the Founder's idea of keeping a close eye on government.

Thus, not only do I carry a voice-recorder, I am willing to test police.

Now, I'm not saying everybody has to test police. Or, that everybody should test police. Etc.

All I am saying is that I believe in keeping an eye on government. And, one of the ways I do that--when the opportunity presents itself--is to give cops "rope" to see how they respond. And, in case they respond in...umm...a less than ideal way, I have a voice-recorder going.

So, when the cop asked about my defensive sidearm, I wanted to see how he would behave. So---I told him. "Yes. Belt holster, strong side, right."*

Now, readers should pay close attention. At this point, the cop had already given up on the DUI fishing expedition. I was later told by a lawyer who I respect that the reason the cop gave up on the DUI fishing expedition was because I refused consent to the FST (field sobriety test). The lawyer remarked that drunks think they can pass an FST, and by refusing his request to perform an FST, I broke the pattern and convinced the cop I was not DUI.

It was after the DUI questioning and FST refusal that the cop ran my driver's license and plates, finding the CHP (concealed handgun permit) flagged on my driver's license by the state police computer. It was after the DUI questioning and FST refusal that he asked whether I was carrying and where the gun was. That is to say, it was a totally changed situation in his mind. I was no longer a possible drunk with a gun; I was just a guy he'd mistakenly stopped for a fishing expedition who happened to also have a CHP, or somewhere in that vicinity of thinking.

So, I told him yes and where. He said that when he came back, please have my hands on the steering wheel. Note that. He did not say to keep my hands on the steering wheel. He said that when he returned again, please have my hands on the steering wheel.

So...he passed the test as far as not ordering me out of the car and seizing my gun so he could run the serial number. He failed overall by stopping me in the first place. (He made a bogus speed assertion, made bogus by the circumstances--not even his "interceptor" could have achieved the acceleration he was assigning to my decidedly underpowered car. And, while totally focused on his DUI fishing expedition, he inadvertently admitted to not operating the radar correctly--that did get recorded. )

So, from a pro-gunner point of view, he did OK by merely asking me to put my hands on the wheel when he returned.

From a no-excuses, pro-rights point of view, he totally failed by stopping me in the first place. And, by even mentioning the gun after he knew he screwed up. Also--and this is the biggest point in my mind--he made me wait while he asked a colleague to verify the posted speed limit on the stretch of road in question. If anybody wants to know, I'll explain further. But, for the moment, I'll just say the speed limit was dropping; and in his mind there was a question about the exact speed limit at the exact point I passed him. To me this is outrageous!! If he didn't know the exact speed limit signage, he couldn't possibly know for sure whether he even had authority to seize me. So, not only did he seize me without knowing for sure whether he even had the authority to seize me, he also prolonged seizure while he double-checked!!!!! That is to say, he did not say to himself, "Oops, I don't know for sure. I'd better let this guy go right now." He said, "Oh, I don't know for sure, so let me continue a seizure I don't even know is legal while I check to see whether it is legal or not."



*I might also respond, "Oh, Officer Jones. I know you're just doing your job, but I would never answer questions without an attorney." That is to say, with any given police encounter, I may decide not to test the cop. For example, if I'm already getting a bad feeling about the cop from his demeanor or tone. I reserve the right to just clam up tight and not carry a test any further or not test at all if he's already told me he's a rights-violator.

 

[Citizen]

The town police will set up DUI/seatbelt/whatever roadblocks at the intersection that is the only way into/out of my little subdivision. I've never had to go through it since they usually set it up pretty late at night, but it doesn't feel right that residents of my subdivision must pass through it to access their residence.

Let me ask a question by making a statement. That is to say, I'm gonna make a statement, but take it as though I'm asking a question.

The reason it doesn't feel right is because there is no individualized suspicion--no specific suspicious circumstances about a particular person.

In the words of the Fourth Amendment, "...no warrants shall issue except...particularly describing...or the person or things to be seized." Particularly means in detail or specifically in this case.

Separately, the 4th Amendment requires probable cause. Meaning, not just possible but probable that the person being seized committed the offense, or that evidence will found. DUI roadblocks violate those provisions of the 4th Amendment all to he!! since there is no probable cause for any given motorist who happens into the web, and no particular person is being sought. Basically, a DUI roadblock is a fishing expedition.

Now, the US Supreme Court has made some of the most astounding rationalizations to explain why your Fourth Amendment rights don't count when it comes to DUI roadblocks or seatbelt roadblocks, etc. Thus, these roadblocks are "legal".

 

[user]

No - arrest can be made only upon probable cause - the purpose of the field test is to garner probable cause to arrest and then the legal right to demand breath test.

Why do the field test when the only thing it can do is give the officer evidence to use against you?

double-plus-one, no, make that five.

moreover, you should ALWAYS decline the offer to have you do "roadside sobriety tests" - they are all designed to create probable cause, there's really no such thing as a "sobriety test". You have to get out of the car if ordered to do so (assuming a rational basis for the stop), but you don't have to do anything else. when the cop tells you what he "needs" for you to do, that's simply an expression of his own emotional state - sounds like a personal problem to me (no, don't say that - say, "No, thank you, officer. I prefer not to.") If they jam a flashlight up in your face, be aware the flashlight has an alky-sensor in it designed to "alert" on the cloud of exhalation in front of your face - jump back, treat it as an attempt to hit you with the flashlight. Recoil in alarm and yell, "Don't hit me with that flashlight!!!" as loud as you can ( a-la PeeWee Herman in PeeWee's PlayHouse). Sue him later for assault, since you had the present apprehension of an immediate battery (all it takes is your perception that you're about to be hit).

 

[user]

...
So, when the cop asked about my defensive sidearm, I wanted to see how he would behave. So---I told him. "Yes. Belt holster, strong side, right."*

I suggest saying, "I prefer not to discuss such things, thank you."

... The lawyer remarked that drunks think they can pass an FST, and by refusing his request to perform an FST, I broke the pattern and convinced the cop I was not DUI.
...

Absolutely right - people who are drunk generally are susceptible to suggestion and have reduced inhibitions, and are more likely to try to do what the cop tells them.

I only consume alcohol at home, and then in small quantities. Good situational awareness requires a clear head. Part of being prepared. Also, being out somewhere and drinking my iced-tea, I never leave the drink alone, not even with trusted friends, when I get up to explore other regions of the restaurant.

 

[user]

Buddy of mine at work has a son who just got a DUI right after Halloween. Long story short, he blew a .13 and ended up serving 5 days in jail.

Heres the interesting thing... When they went to talk to lawyers (4) my buddy said that they all gave the same piece of advice for 'future stops'. They all said basically to keep an unopened beer in the car and if you are pulled over (while drunk) or stopped at a dui checkpoint, turn the car off, thrwo the keys on the floor, open the beer and take a drink. They all said this automatically negates the field test and they cant arrest you for DUI because you werent operating the vehicle.

Not really what i was expecting to hear about the situation but I thought it was interesting enough to write it here in response to this thread and see what you guys think.

You made that up, right? Having an open container of alcohol in the car is a separate offense, and tossing the keys on the floor when they've seen you driving doesn't negate the presumption that you're operating a motor vehicle. I can believe that a lawyer said that, but that lawyer's an idiot, in my opinion.

 

[user]

Interesting this was mentioned. I have seen a DUI case dropped because someone crashed their car into a building, walked into a bar, and drank shots until they were found by police. They were still arrested for DWI, however the Commonwealth Attorney decided against prosecution. I think the biggest issue would be how much alcohol you drink when the car is off.
...

Just take a cab.

Lack of probable cause - the cops didn't see the driver operating a motor vehicle at the time he was intoxicated. They probably should have charged him with "drunk in public" instead of DUI. I've won a good many cases just because the cops got too enthusiatic and optimistic in their charges, and got the wrong thing. The prosecutors don't have time to look at each case carefully, except in the most rural counties, and don't correct the problem by amending the charge when they could. So the Commonwealth gets halfway through the trial and rests, whereupon I move the court to strike the C's evidence and dismiss, because the facts adduced in evidence don't support the charge stated in the summons/warrant.

And don't be carrying while intoxicated.

 

[optiksguy]

Let me ask a question by making a statement. That is to say, I'm gonna make a statement, but take it as though I'm asking a question.

The reason it doesn't feel right is because there is no individualized suspicion--no specific suspicious circumstances about a particular person.

In the words of the Fourth Amendment, "...no warrants shall issue except...particularly describing...or the person or things to be seized." Particularly means in detail or specifically in this case.

Separately, the 4th Amendment requires probable cause. Meaning, not just possible but probable that the person being seized committed the offense, or that evidence will found. DUI roadblocks violate those provisions of the 4th Amendment all to he!! since there is no probable cause for any given motorist who happens into the web, and no particular person is being sought. Basically, a DUI roadblock is a fishing expedition.

Now, the US Supreme Court has made some of the most astounding rationalizations to explain why your Fourth Amendment rights don't count when it comes to DUI roadblocks or seatbelt roadblocks, etc. Thus, these roadblocks are "legal".

Oh, sure, I agree with all that, I was just thinking that in even if one accepts this bizarro world where roadblocks are "legal", it's not right that residents of my subdivision have to choice but to pass through the roadblock if they wish to travel to/from their homes. I thought I read once that one of the requirements for a roadblock to be legal was that it must be possible for someone to avoid it (which would be impossible for residents of my subdivision). Can't find a cite for that at the moment though, maybe I was misinterpreting something I read about posting/signage for roadblocks.

 

[Citizen]

[Regarding how to respond when a traffic-stop cop who has seen you have a CHP on his DMV returns asks whether you've got your gun with you ] I suggest saying, "I prefer not to discuss such things, thank you."

Thanks for mentioning this. I am reminded I have had a question on this point for quite some time.

You see, there is a convergence of several factors that lead me to my policy of telling the traffic-stop cop I am armed after he sees the CHP on his computer search returns. One of the factors is that I am guessing that if I invoke my rights and refuse to answer the question, then the cop has wide latitude to remove me from the car, and search both the car and me until he either finds the gun, or confirms it is absent.

Is there any case law directly on point? By directly, I mean excruciatingly precisely on point?

I vaguely recall evaluating this point. We have Michigan v Long which allows the cop to search the wing-span of the driver of the car interior when he reasonably suspects a weapon. And, we have PA vs Mimms which allows a cop to order the occupants out of the car and search them when he reasonably suspects a weapon (if I recall).

My guess was (is) that declining to answer the question has a distinct chance of getting me ordered out of the car, and me or the car or both searched under the "officer protection" doctrine. And--very important--the last thing I want is my voice-recorder discovered.

I estimated there was likely no case of a CHP holder searched during a traffic stop for refusing to answer where the gun was, some illegality discovered during the search, convicted, and appealed. Leaving me with guessing how a court might rule, even assuming I had the money to bring a Title 42 lawsuit, could find a lawyer, and could win some paltry sum that would barely reimburse my legal costs.

But, I would love to hear about it if there is a winning legal rationale. Tell me more.