Bad DUI Checkpoint Advice, or a Good Idea?

Should you keep your window rolled up and place your ID, registration and a brief statement in a zip-lock bag outside of your window for officers when going through a DUI checkpoint or safety roadblock? No, no you shouldn't. 

While placing a baggie with your ID and registration outside your window can keep you from having to roll the window down, it can also stir up a host of other troubles and draw extra scrutiny from the officers. Some Law Enforcement Agencies have gone as far as saying they will arrest people on charges of obstruction of justice for the practice. While this may not hold up later in court, it may cause you to spend a night in jail regardless. I wouldn't recommend this tactic to any of my clients. 

A recently published article by the American Bar Association titled "Lawyer's controversial DUI-checkpoint advice: Put license in baggie outside car and roll up window" details how one Florida attorney is spreading tips to protect the rights of the American people. 

"Attorney Warren Redlich suggests that motorists put their license, registration, proof of insurance and a flyer in a plastic baggie attached to the exterior of their vehicle and then roll up the driver’s window as they approach the checkpoint, according to Tampa’s Fox 13 News and PINAC News.

One example of the flyer states in large-font capital letters “I remain silent,” “no searches” and “I want my lawyer.” It cites statutory law to support the driver’s claimed right not to roll down the window, explaining that any ticket can be placed under the windshield wiper and advising that the driver will obey “clearly stated lawful orders.”

Critics say the approach shields motorists from the consequences of driving under the influence by preventing officers from smelling any odor of alcohol and hearing whether their speech is slurred. Redlich disagrees, explaining that his approach protects motorists from overzealous enforcement and dubious subjective claims, as he sees it."  - POSTED JAN 08, 2015 08:20 AM CST BY MARTHA NEIL - ABA Criminal Justice Section 

Driving Under the Influence of alcohol or drugs is a serious criminal offense and carries many life changing consequences. 

When approaching a DUI Checkpoint the best thing to do is remain calm, follow the officers instructions as well as the flow of traffic. Asking for proof of ID and registration is not in violation of your civil rights and the practice of traffic stops has been upheld by the Supreme Court to help protect the safety and well being of all drivers on the road. 

That being said, if you have been stopped and selected out of the group for suspicion of Driving Under the Influence, you need to be on your best behavior and follow the advice of some of my other blog posts. Keeping your window up and not listening to officers directions as well as weaving, having difficulty stopping or driving erratically may end you in this same boat. The best way to stay out of trouble and stay safe is to have a sober driver, or take a cab. If you find yourself in trouble, please call The Law Offices of Thomas A. Smith immediately following your arrest so that I can help provide the best defense available. 

 

I handle matters including Criminal Defense, DUI Defense, Drug Related Defense, Violent Crimes, Personal Injury Claims, Auto Accident Claims, Family Law Matters, and many more in the extended Charleston, SC Lowcountry region which includes: James Island, Mt. Pleasant, Folly Beach, Johns Island, Daniel Island, West Ashley, Summerville, North Charleston, Hanahan, Goose Creek, Sullivan’s Island, Isle of Palms, Seabrook Island, Kiawah Island, Edisto Island, Edisto Beach, Moncks Corner, Dorchester, Ladson, Wadmalaw Island, Mc Clellanville, Awendaw, Huger, Ridgeville, Jacksonboro, Ravenel, Hollywood, Pinopolis, Adams Run & Cottageville. Includes Charleston County, Berkeley County, Dorchester County, and Colleton County.

am a lawyer, I am not your lawyer until you have come to my office and we have discussed the terms of your representation. This article is my opinion and is not stated as fact or legal advice. 

To Plead Guilty or Not to Plead Guilty (Shouldn't I have an attorney on my side?)

When being investigated for or charged with a crime, many people in the criminal justice system will often offer you a plea deal that in many instances they will scare you into accepting. When this happens, who is protecting your rights, and is accepting the best solution to a tough situation?

According to the Innocence Project’s estimates, between 2.3 percent and 5 percent of all US prisoners are innocent. The American prison population numbers about 2.4 million. Using those numbers, as many as 120,000 innocent people could currently be in prison.
— Why are There Up to 120,000 Innocent People in US Prisons? Vice News by Justin Rohrlich


Why Are There Up to 120,000 Innocent People in US Prisons? / Vice News by Justin Rohrlich

The article from Vice News sums up the controversy behind getting people to accept plea deals because the alternative is extreme punishment if found guilty. A trial is a great risk, but when one is innocent, should they ever plead guilty? No is the simple answer, but in criminal law, nothing is simple. 

A 1969 Supreme Court ruling made it legal for cops to lie to suspects in pursuit of confessions”,

”Guilty pleas and false confessions by the innocent are counterintuitive phenomena, says Rebecca Brown, director of state policy at the non-profit Innocence Project. But of the 321 DNA exonerations that have occurred in the United States, 30 have involved people who originally pled guilty to crimes they didn’t commit. It’s hard to accept that people who are innocent would knowingly incriminate themselves, but it happens frequently.”,

”Overwhelmingly, minimizing harm means taking a deal instead of taking your chances at trial. And just as false confessions lead to false convictions, coercive plea bargains are also responsible for sending thousands of innocent people to prison.
— Why are There Up to 120,000 Innocent People in US Prisons? Vice News by Justin Rohrlich

Essentially, a person should never plead guilty to any crime without adequate representation from a criminal defense attorney. Whether the charge is very serious and violent in nature like murder or rape, or just a misdemeanor charge for crimes such as drunk in public, simple possession or driving under the influence, the best plan of action is to have a criminal defense attorney represent you. 

A criminal defense attorney such as myself can not only help you reach an adequate and fair deal with a prosecutor, but will know when the time is right to fight a charge because either you are innocent or the evidence against you was obtained improperly. Not only do you need years of education and experience on your side, but someone who is willing to fight the system designed to put you behind bars is in your best interest. What works at getting you the best possible outcome when facing a criminal charge? Hard work by someone on your side fighting for your rights. 

 

Boating While Impaired (BWI) and Boating Under the Influence of Alcohol (BUI)

Boating is an activity that is enjoyed by many in the greater Charleston area in the harbor, the rivers and the lakes in the surrounding areas. Many people enjoy boating and include drinking alcoholic beverages as a routine practice on their boat. Please be careful out there while having a good time. Read below to gain a better understanding of the current law regarding boating and alcohol.

Enjoying a beer on the water can be a fun time with friends, but can have some drastic legal consequences. Know the law and know your rights. And, when anything happens please contact the Law Offices of Thomas A. Smith to protect your rights. 

Enjoying a beer on the water can be a fun time with friends, but can have some drastic legal consequences. Know the law and know your rights. And, when anything happens please contact the Law Offices of Thomas A. Smith to protect your rights. 

Generally speaking the penalties for Boating While Intoxicated or Drunk Boating is 48 hours to 30 days in jail, a revocation of the right to drive a boat for 6 months and a $200 fine for a first offense. A boater safety class will also have to be taken and paid for before a person can return to driving a boat. The penalties continue to increase in severity with each BUI charge. BWI is considered a misdemeanor until there is an injury to persons or property resulting from Driving While Impaired. 

According to the "South Carolina Boating and Safety Act of 1999" it is unlawful for a person to operate a moving motorized water device or water device under sail upon the waters of this State while under the:

  1. influence of alcohol to the extent that the person's faculties to operate are materially and appreciable impaired;
  2. influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to operate are materially and appreciable impaired; or
  3. combined influence of alcohol and any other drug or drugs, or substances which cause impairment to the extent that the person's faculties to operate are materially and appreciably impaired.

 

 

The law goes on to state that In any criminal prosecution where a test or tests were administered pursuant to this chapter, the amount of alcohol in the person's blood at the time of the alleged violation, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following inferences:

  1. If there was at that time .05% or less by weight of alcohol in the person's blood, it is presumed conclusively that the person was not under the influence of alcohol.
  2. If there was at that time in excess of .05% but less than .08% by weight of alcohol in the person's blood, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the person. 
  3. If there was at that time .08% or more by weight of alcohol in the person's blood, it may be inferred that the person was under the influence of alcohol.

Essentially BWI or BUI (Boating Under the Influence) uses the same standard used on the roadways of this state. If you blow a .08 BAC on the DataMaster you will be presumed to be under the influence of alcohol. If you refuse to blow the prosecution will have less evidence against you, but you will also automatically lose your right to drive a boat for 6 months. 

Operation of a Boat while under the influence of alcohol or drugs resulting in property damage, great bodily injury or death is considered a felony and carries much stiffer penalties. For a first offense a person is looking at a $5000 - $10,000 fine, and 30 days to 15 years in prison. 15 years in prison is a long time for a good day gone bad on a boat. Please be careful on the waterways surrounding the Charleston Area. If you have any questions, or have been charged with a crime including Drunk Boating, please contact the Law Offices of Thomas A. Smith immediately.

 


 If you have questions regarding your rights while on a boat or watercraft, please call the Law Offices of Thomas A. Smith as soon as possible. I handle matters including Criminal Defense, DUI Defense (including Boating), Drug Related Defense, Violent CrimesPersonal Injury Claims, Auto Accident ClaimsFamily Law Matters, and many more in the extended Charleston, SC Lowcountry region which includes: James Island, Mt. Pleasant, Folly Beach, Johns Island, Daniel Island, West Ashley, Summerville, North Charleston, Hanahan, Goose Creek, Sullivan’s Island, Isle of Palms, Seabrook Island, Kiawah Island, Edisto Island, Edisto Beach, Moncks Corner, Dorchester, Ladson, Wadmalaw Island, Mc Clellanville, Awendaw, Huger, Ridgeville, Jacksonboro, Ravenel, Hollywood, Pinopolis, Adams Run & Cottageville. Includes Charleston County, Berkeley County, Dorchester County, and Colleton County.

Supreme Court: "Get a warrant."

Supreme Court Answers Question Regarding Privacy of a Cell Phone.

To search your cell phone or electronic device incident to arrest the authorities must obtain a separate search warrant.

To search your cell phone or electronic device incident to arrest the authorities must obtain a separate search warrant.

The Supreme Court on Wednesday June 25, 2014 unanimously ruled that police may not search the cell phones of criminal suspects upon arrest without a warrant. This means that unlike many of your personal belongings like a wallet or a purse that may be searched upon arrest, your cell phone may not be searched without your consent, or a valid search warrant. 

        The Supreme Court today made a great step in the right direction affording suspected criminals the right to privacy on their electronic devices today regarding a person's 4th Amendment right against unreasonable searches and seizures. Police departments around the country will have to change their policy regarding searching suspect's cell phones and other electronic devices. Evidence obtained through the search of a defendant's cell phone without a warrant will be inadmissible in court. This can include phone numbers, text messages, pictures, video, addresses, or anything else used as evidence. Information contained on a persons electronic device must be held as private to the cell phone owner and can not be searched until a warrant is obtained. This does not mean that they can never search your cell phone, it just means they must obtain a warrant first. 

Police must get a warrant before searching a cell phone seized incident to an arrest.

Police must get a warrant before searching a cell phone seized incident to an arrest.

        ``The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought," according to the ruling. "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant."

       If you have been arrested or are under suspicion of committing a crime in South Carolina, you need to call a criminal defense attorney immediately to protect your rights. Do not consent to the authorities or police searching your cell phone until you have consulted with an attorney. In Charleston, SC the police may try to use any evidence obtained against you to prosecute you for any crime. Have your 4th Amendment rights protected and keep what is your private information private. 

       Imagine a night out on the town with friends in which you are taking pictures at the bar. On the way home, your driver gets pulled over for DUI or Driving Under the Influence of Alcohol. Before this court ruling, the police could have potentially searched everyone's cell phone in the car, keeping all pictures which may aid in the prosecution. What they may not do now, is do exactly that without a valid search warrant. Without those pictures the prosecution may not be able to prove its case for a charge of drunk driving. Same goes for drug trafficking or manufacturing, possession of marijuana/cocaine, or potential probation violations for associating with the wrong people. 

Don't let a cop go through your cell phone unless they have a warrant or you have spoken with a criminal defense attorney about your rights. 

Don't let a cop go through your cell phone unless they have a warrant or you have spoken with a criminal defense attorney about your rights. 

        If you have questions regarding your rights, please call the Law Offices of Thomas A. Smith as soon as possible. I handle matters including Criminal Defense, DUI Defense, Drug Related Defense, Violent Crimes, Personal Injury Claims, Auto Accident Claims, Family Law Matters, and many more in the extended Charleston, SC Lowcountry region which includes: James Island, Mt. Pleasant, Folly Beach, Johns Island, Daniel Island, West Ashley, Summerville, North Charleston, Hanahan, Goose Creek, Sullivan’s Island, Isle of Palms, Seabrook Island, Kiawah Island, Edisto Island, Edisto Beach, Moncks Corner, Dorchester, Ladson, Wadmalaw Island, Mc Clellanville, Awendaw, Huger, Ridgeville, Jacksonboro, Ravenel, Hollywood, Pinopolis, Adams Run & Cottageville. Includes Charleston County, Berkeley County, Dorchester County, and Colleton County.