What to Do at a DUI Checkpoint with Marc J. Victor, Attorney for Freedom

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Transcript

FutureMoneyTrends.com: Greetings and thank you for joining us at futuremoneytrends.com. I’m here with an Attorney from Arizona, who is the attorney for Freedom. Marc, thank you so much for joining us.

Mar J. Victor: Thanks, for having me.

FutureMoneyTrends.com: Marc, I wanted to call you and talk to you, and I think this can benefit a lot of people who are listening. I was in a DUI checkpoint the other day, and I just kind of got frustrated, and before we even get into the interaction itself, I’d like to ask you how is this legal? I have done nothing wrong.

I’m just driving. Drinking is legal. How can they legally just stop me for no reason?

Mar J. Victor: Well, to take the first, sort of pass through the wilderness here. What I would say is this. The Fourth Amendment really, and that’s what we’re talking about when we’re talking about whether we can have a stop or a search, the Fourth Amendment really only protects us against things that are unreasonable, unreasonable searches and seizures. And at the end of the day it’s the United States Supreme Court that just gives it’s opinion on whatever is reasonable or whatever is unreasonable. And to answer your question in sort of a simplistic way, the Supreme Court of United States has said that DUI checkpoints are reasonable.

So long as they follow certain guidelines and those guidelines are generally calculated so as to reduce the amount of discretion that the individual police officer could afford at the scene. So in other words, if they stop every car that’s okay. If they stop every fourth car, that’s okay. If they stop cars that they just look at and decide, “Well, I’ll stop this guy, I won’t stop that guy,” that’s not okay unless there is some objective criteria that they could put and say, “This is the reason why we stopped this person and not that person.”

FutureMoneyTrends.com: Okay, so now I’d like to be, you know, kind of somebody whose gonna have a little fight in him, a little civil disobedience. But I happen to have a 1 year old and a 3-year old sleeping in the back of my Yukon and my wife was actually sleeping as well. So, when I rolled down my window and the officer said, “Have you had anything to drink tonight?”

I said, “No.” And then he actually kind of almost sarcastic goes, “You sure you haven’t had anything to drink?” And I said, “No, I haven’t.” And he said, basically he kind of looked in my back via back of my vehicle and said, “So it’s looks like everyone’s sleeping, have a nice night.” Then I drove my wife. But what should be your reaction?

I mean, do I have to tell them? I mean it kind of bothers me. Maybe I’ve had a drink of alcohol, maybe not, but it is legal. Why do I have to answer that?

Mar J. Victor: Well, you don’t. But, you know what I tell people all the time is a couple of things. Number one, this really is an area of the law that’s very, very murky. We’ve got different varieties of these types of checkpoints here in Arizona.

What I mean by different varieties is there’s this sort of a border check points that are international borders or closing up to the international border to have sort of a separate set of rules. Frankly, on those types of checkpoints what I tell people is the Fourth Amendment really doesn’t exist. The Supreme Court has in essence said if it happens at a border checkpoint by definition, it’s reasonable.

Now there may be some due process, a the different part of the Constitution other than the Fourth Amendment, a due process type of a problem that could happen down there but for Fourth Amendment reasons if it happens at the border, it’s reasonable. So, then there’s the other variety of checkpoints, sort of what you’re talking about, these DUI checkpoints .

The courts have said, the Supreme Court has said that if it’s a general crime controlled type of a checkpoint, you can’t have those. However, if it’s a DUI checkpoint or an immigration checkpoint, you can do those under certain circumstances. And while you’re standing there talking to the person you can use a flashlight and you can look inside and if you see something that’s contraband, if you smell something, if you hear something, if something looks like there might be illegal activity then you could develop reasonable suspicion for any crime from that point. I tell people that just be aware that the law can be difficult and treacherous in these types of areas and there’s so many different activists out there who are trying different things.

Like, for example, I’m not rolling down my window, you can’t make me roll down my window, things of that nature. Then the other thing to consider when you’re having one of these interactions with the man at the checkpoint, you’ve got to think about this question to me it’s the threshold question.

Do I want to be an activist, or not? When you started out and you say, “Hey, I’ve got a couple of kids sleeping in the back of the car,” you probably don’t want to be an activist in that situation, because activists can be delayed for hours. Activists can be arrested and hauled off to jail. And even if it is a bad arrest and you make it some kind of a civil law suit and you’ve made some kind of a point for freedom.

Do you really want to do that with your kids in the car? The car may be towed and they could be stranded and you have all these sort of aggravational type things to worry about. So, to me that’s the threshold question and if the answer to that question is, “No, I don’t really want to be an activist at least not at this moment in time.”

Then the easiest thing to do is the low transaction cost thing which is kind of what you did..

FutureMoneyTrends.com: Yeah.

Mar J. Victor: The officer says, “Have you been drinking?” And you say, “No.” And he looks around, and he smells your breath, and he sees if there’s anything funny going on. And, you know, “Are you sure?” “No, I really haven’t officer. Thank you very much for asking me. You do a great job and we really appreciate you, police officers,” and you’re on your way. If you want to be an activist, well then it’s different. You’ve got to stop at the checkpoint and of course, before you even reach the checkpoint there are activism statement to be done like for example and this is sort of an open question as well, the issue of whether or not it creates reasonable suspicion to be approaching a checkpoint, and then turn around and drive away. Is that reasonable suspicion? And then, of course, you never have to answer any questions. You got to pull over like anytime a police officer even puts the lights on, you got to pull over but you don’t have to answer any questions. You know, license, registration, proof of insurance, those are generally things you have to do if they ask but you don’t have to answer the question, “Have you been drinking tonight?” And as an activist you could certainly either say nothing. I got people come into my office all the time and they just look back at the police officer and don’t say anything. And other who say, “You know I don’t have to answers those questions and I’m not going to.”

FutureMoneyTrends.com: Okay, so what would the officer have, what right does he have from that point on?

Let’s say he asks me, “Have you been drinking?” And I’m like, “Sir, I don’t want to speak to the police without an attorney present. I’m not gonna answer any question. Am I free to go about my business?” What does the officer then have the right to do at a DUI checkpoint?

Mar J. Victor: Well, the best way I can answer that question is the officer really can’t detain you unless he or she has developed enough facts that he or she could get on the stand and articulate at least something that’s sort of nebulous called reasonable suspicion. Something that they could get on the stand.

It’s more than a hunch. It’s something more than just, “Yeah, he just, something didn’t seem right to me.” Something that they could say, “For this reason and this reason and that reason I suspect it was wrong here.” If they’ve got something like that and the courts are really not holding their feet to the fire on these issues.

If they’ve got anything. If they say, “Yeah, I detected a faint odor of alcohol,” or something like or “I saw something that looked like it could be alcohol,” or “There was some other relating, there was a green leaky substance in there,” something like that. Now they’re starting to develop reasonable suspicion where they can detain you longer and of course, and this is very popular at these check points.

They walk the little pooch around the car and the doggie decides that there’s a probable cause which is yet a higher level. The dog alerts or let me say it like this, the police officer who was walking the dog says that the dog alerted. In most places this is going to be a higher level of suspicion and than reasonable suspicion something we call probable cause.

With probable cause, they can tear your car apart and look for whatever it is that made that dog alert.

FutureMoneyTrends.com: You know, part of the reason why I also, I mean, obviously I had the kids in the car, but he started off the conversation with, “You know, you don’t have a front license plate.” So, immediately I’m like, well I better comply with this guy, cause it looks like he’s not going to give me a ticket, but he’s definitely letting me know he could give me one.

Marc J. Victor: Yeah.

FutureMoneyTrends.com: As far as any kind of harassment or anything, I’m sure there’s plenty of people who have been through it, but what worries me, Marc, is that the officers are not attorneys. They’re just police officers, so they might not even know the law. Is that your experience?

Mar J. Victor: Well, you don’t really have to know much about the law.

What they need to know is, look here’s what you can do. You can stop them. You can ask them these questions. And then the next issue is, is there’s something suspicious? If there’s something suspicious you can ask him some more questions. You know and a great question at these check points and really in any interaction with a police officer or anybody who wears a shiny badge is the question, “Officer, am I being detained or am I free to leave?”

And the reason that’s such an important question is because if you’re free to leave, then this is just a voluntary interaction. The reason that’s important is because if it’s a voluntary interaction, we’re not even analyzing it under the Fourth Amendment. There’s no seizure. There’s not a stop. An officer can come up and walk right up to you and say, “Hi, how are you?”

And start having a conversation. And as long as you want to stand there and talk to the officer, the officer could say all kinds of things. “Would you mind very much if I searched your trunk and I searched you?” And I did this and that. As long as you keep saying, “No problem, officer. Do whatever you like.” There’s really is no Fourth Amendment analysis at all.

But if you say to the officer, “Am I being detained or am I free to leave?” And the officer says, “No, you’re not free to leave.” Okay, great. Now you have established clearly that you are being detained and this is a Fourth Amendment issue. So they got to putting up some kind of reasonable suspicion at this point. Especially at these checkpoints if you’re being detained for more than just this brief, “How’s everything tonight?” and they’re sort of looking in the car and seeing if they can smell alcohol.

And that’s very important if you understand from where I stand, having litigated these issues now for almost twenty years as a criminal defense lawyer, many times these cases, entire cases, will turn on the question of whether or not it was a voluntary interaction because what the prosecutor will say is, “Mr. Victor is wrong about this, we don’t need any reasonable suspicion because this was just a voluntary interaction.

They were just standing there talking and the officer noticed some things.” And then what I would say is, “Oh, no. They were detained and because they were detained there needs to be some kind of a showing of reasonable suspicion. And because there wasn’t, whatever was found or learned at that point, that needs to be suppressed and can’t be used.”

FutureMoneyTrends.com: One last question, as far as my window. Do I need to roll down the window? ‘Cause, I have seen those YouTube videos where people keep their window up and it actually didn’t end too do well for them. But do you have to roll down your window?

11:26:

Mar J. Victor: I’m not aware of anything that says you have to roll down the window, but keep in mind, what actually constitutes reasonable suspicion is sort of up in the air. And so that might be one of the things that an officer points to to say, “Hey, I started suspecting that this guy was trying to hide something because he didn’t roll down his window.”

That by itself, is that going to be enough to justify a search? Probably not, but you know, if you start adding some what would normally be sort of innocent type things, and police officers are very good at putting together these sort of laundry lists of other innocent things that they will argue, when taken together, amount to reasonable suspicion.

And that’s the battle, you know. So if you’re in that situation, and you’re not rolling down your window at a check point, you have already made the decision that you want to be an activist.

FutureMoneyTrends.com: If you don’t mind me asking, when you find yourself in these DUI checkpoints, do you answer, “Have you drink, had you been drinking tonight?”

Mar J. Victor: You know, it really depends on my situation. If I’m in a big hurry and I’ve got kids in the car and I don’t want to play around with this stuff, I always remind myself that look, my value as an activist really is best served as a lawyer representing people, because we don’t really have a lot of pro-freedom or libertarian minded lawyers out there that are doing criminal defense. And so I always remind myself that is sort of my mission in this fight for freedom.

But I got to say on other times, if I’m ahead of schedule, and I don’t have anywhere to be and maybe it’s just me in the car or me and some people I want to entertain in the car, I may mess with them a little bit. I may say, “Look, I don’t answer questions that you guys have to ask. Am I free to go?

Am I being detained for some reason? What’s the problem here?” You know I’ll start getting a little cranky. You know, this is just a good kid on cases like that. You might want to be running a video camera, because what happened is always an issue, but what people say happened can be completely different than what actually happened.

FutureMoneyTrends.com: Yes, Marc J. Victor, where can we, where can people find you on the internet and what kind of law do you practice if they’re interested in using your services?

Mar J. Victor: I’m the easiest guy on the planet to find. You just go to Google, put “Marc J. Victor” and you’re going to find all kinds of pro-freedom stuff.

But my website is attorneyforfreedom.com. So if you ever, just remember I’m the attorney for freedom and if you just go to attorneyforfreedom.com you will get more information about videos, and how to interact with the police and lots of things written about for example the drug war and guns and things of that nature.

FutureMoneyTrends.com: Marc, thank you so much for your time. You have a great day

Mar J. Victor: Thanks for having me.

 

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