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 a pretext of having alcohol on the breath or bloodshot eyes.
Obviously, police cannot claim to detect such things through a closed
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
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.