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Know your rights: San Diego DUI Checkpoints Investigations

On Behalf of | Feb 16, 2015 | Firm News |

It seems like a good time to refresh on your rights at a San Diego DUI Checkpoint.   It is important for citizens to know their rights.  As a San Diego DUI and Criminal defense attorney, I can tell you that most people do not use their rights when being investigated by the police.  Most of the people want to be compliant and non-confrontational with the officer as possible in a San Diego DUI or San Diego criminal defense case.  They feel if they are compliant the officer will let them go, usually because the person has never been in contact with police before when they are the ones being investigated.  It may be you…a friend…or a loved one as the focus of a San Diego DUI or criminal defense investigation. You have to know and use your rights and be proud (and not scared) to use them.  

One other point to stress….people sometimes say I do not have to be afraid if I did not do anything wrong.  Well, it is not illegal to drink and drive.  You cannot be impaired or have a blood alcohol level greater than .08%. Well, when you are on I-5 and the you tell the officer about the two blue moons you had at happy hour before you headed home…trust me…you are under .08% and not likely impaired…but…you will be throughly interrogated as well as delayed getting home for at least an hour.  The officer will be eyeing you.  Every stumbled word (because you are scared).  Every delay in his instructions on an field sobriety test..the officer is chalking as you being guilty of a San Diego DUI.  If the machine gives a bad reading (for a myriad of reasons) and you are heading to jail, car towed, license suspended, and will have to fight to prove the machine was in error.

Roadblocks are legal but as discussed below it must follow a specific set of criteria.  Here is an illustration that may help you in a San Diego DUI checkpoint investigation.

The utilization of San Diego DUI checkpoints has proliferated in the last few years due in large part to huge amounts of State grant money flowing into local city coffers from San Diego DUIfines and penalty assessments from convictions in Court. While the use of these types of law enforcement tools is generally regarded as comporting with Constitutional proscriptions, their use is not always legal. In the seminal case within the context of sobriety roadblocks, Ingersoll vs. Palmer, the United States Supreme Court handed down guidelines that must be complied with in any particular law enforcement initiated checkpoint. Among the factors are:

  • The degree of discretion left to the individual officer in the field
  • The specific location chosen for the roadblock
  • The time and duration of the roadblock
  • The standards set by superior officers
  • Was advance notice given to the general public
  • Was advance warning given to approaching motorists
  • Adherence to recognized safety conditions
  • The length of time each motorist is stopped and detained.

When challenging a San Diego DUI checkpoint each of the above factors is considered by the criminal Court Judge hearing the motion. In San Diego County the police use sobriety stops very heavily. It is not uncommon on any given weekend to see local police setting up a drunk driver roadblock in such places as Pacific Beach (PB), the Gaslamp area of Downtown, Poway, post-Chargers game, etc.

As a local attorney who has defended thousands of DUI cases, Mark Deniz can help evaluate whether your individual rights were violated. 

One very common problem with DUI checkpoints in San Diego DUIs is the stopping and detaining of drivers who simply turn off and avoid going thru a police initiated roadblock. Simply making a turn to avoid the checkpoint is not in itself illegal nor does it form the basis to stop and detain a motorist. If you or someone you know was stopped by the police under this type of scenario, contact Mark Deniz immediately.

He can file the necessary legal motions to throw out the evidence collected following an illegal arrest. To allow the police to stop those persons that lawfully turn away onto a public street prior to entering a San Diego DUI checkpoint is clearly unduly invasive of the individual rights afforded to us by the U.S. and California Constitution. 

Another common problem associated with San Diego checkpoints is breath testing. The problem is that the tests are administered on a device that is carried in a trailer or mobile breath testing vehicle. In my experience these devices are routinely jolted, bounced, battered and generally abused given the their mobile environment. In many cases the device or machine was never approved to “go mobile” and challenges can sometimes be made on the reliability of the results on these grounds. Furthermore, deficiencies are often seen in the procedures utilized when administering the breath test, for example, Title 17 of the California Code of Regulations mandates that the individual being tested be continuously observed by the officer for a minimum of 15 minutes prior to the test, this is often overlooked in the DUI checkpoint context given the pandemonium that surrounds a sobriety checkpoint arrest.

One thing is true, the intrusion imposed upon the general public by the use of San Diego DUI checkpoints is very great and should be allowed, if at all, in very limited circumstances. If you or someone you love has had the unfortunate circumstance of being caught up in this type of possible illegal conduct by the police we urge you to call San Diego DUI attorney Mark Deniz for a free initial case evaluation at (858) 751-4DUI (4384). Mr. Deniz will meet with you one on one and discuss all legal options available. The Law Offices of Mark Deniz serves all San Diego County. Remember that the time to defend a San Diego DUI case is NOW, if you wait and procrastinate your rights may be lost and you may end up with a San Diego DUI on your record for the next decade.

A controversial way to avoid a sobriety checkpoint is going viral on the internet after a man is waved through without having to talk to police.

At a typical DUI checkpoint, the driver pulls up, rolls down a window and talks to a police officer while he or she determines if there’s probable cause to give the driver a field sobriety test.


But Florida lawyer Warren Redlich came up with a loophole that lawyers are calling “constitutionally legal.”

In a YouTube video posted by Redlich, he drives up to a checkpoint with his windows rolled up and puts up a form from FairDUI.org that reads, “I remain silent. No searches. I want my lawyer.” He then showed his driver’s license, and the officer appears to call another officer over.


That officer reads the form and then waves Redlich through the checkpoint without any issues.

As the video and so-called technique continues to spread, San Diego DUI attorney and former prosecutor Mark Deniz says constitutionally, it’s OK.


“Someone doesn’t have to talk to anybody if they don’t want to,” said Deniz. “Someone can be rude, that’s the right of a citizen is to be rude to anybody else. That’s our protective rights.”

But he added a caveat: it’s legal, but not practical.

He explained that using the placard and refusing to speak to police may protect you from a DUI, “but be prepared to be arrested even if you’re under .08.”

According to Sgt. Ernie Servin with San Diego Police Department’s Traffic Division, California vehicle code 2814.2 says drivers must stop and submit to a sobriety checkpoint.

Deniz said trying the technique will likely bring more attention to the driver and could cause more problems than if the driver just talked to the officer.

“When that officer sees you about two or three car lengths down, and they see that little placard hanging out there, you are going to bring bells and whistles and you are going to attract those officers,” Deniz said. “And you’re going to be attracting the sergeant who’s in charge of that, and they will be investigating you, to where a lot of times you could probably pass through a checkpoint uninterrupted.”

Servin said the police department wants to encourage people to be wise and not drink at all before driving. Everyone’s body absorbs alcohol differently, he cautioned, and it isn’t worth the risk of injury or worse, death.

The department holds an average of 57 checkpoints annually and has recently hosted My BAC programs, where the public can test their blood alcohol level on a breathalyzer.

The full article and video can be seen here.  

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego Expungement, San Diego Bench Warrant, San Diego Failure to Appear, San Diego Restraining Orders, San Diego Terminate Probation, San Diego Minor Possession of Alcohol, San Diego Probation Violation, San Diego Prop 47, Lakeside DUI, Lemon Grove DUI, National City DUI, Cardiff DUI, Racho Santa Fe San Diego DUI, Rancho Bernardo DUI, Spring Valley DUI, Solana Beach DUI, Leucadia DUI, Golden Hills DUI, North Park DUI, Torrey Pines DUI, Eastlake DUI, Paradise Valley DUI, San Diego DUI, Poway DUI, Chula Vista DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI, it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected].


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