Navigating DUI Checkpoints: What You Should Know
This is part eight of what you need to know about law enforcement stops in the Muscogee Creek Nation. My name is Ted Hasse. I’m an attorney practicing in federal and tribal courts in Indian country in eastern Oklahoma.
So where we’ve been, we’ve talked through a lot of the process of traffic stops, what you need to know about your rights, and where we left off was we were talking about the DUI stop. And I just want to remind everybody, most important things to remember about your rights is don’t answer questions. You don’t have to. Don’t consent to searches. Don’t agree to stick around waiting for a canine unit to come around. If you’re not being detained, you should go. And then finally, with regard to the DUI stop, if law enforcement asks you to do a field sobriety test, the answer is no thank you. They’re just trying to build a case against you.
This seems like a good spot for me to detour briefly to talk about the DUI checkpoints. And this is sort of a special issue. And what I’ll do in this video is I’ll talk about both the law as it applies to non-Native Americans and Native Americans outside of the Muscogee Creek Nation and other tribal reservations. But I’ll also talk about what the law looks like within Muscogee Creek Nation and other tribal reservations. So my hope is it’ll be helpful to everybody.
With regard to DUI checkpoints, let’s talk about what those are. Law enforcement will sometimes, oftentimes on weekends, set up checkpoints where they’re stopping everybody. They’re not stopping people for some alleged infraction. They’re not, you know, claiming they have probable cause to believe that there’s some crime being committed or some crime has been committed. They’re just stopping everybody and they’re asking questions to check out, you know, whether they’re intoxicated or impaired or whatever.
Some people have some confusion about this and think that these are unlawful. Now, generally speaking, nationally, one can imagine another universe, another timeline where these would be illegal. And they should be. But in 1990, the U.S. Supreme Court ruled in Michigan v. Stitts that there was a compelling public interest that needed to be weighed against the intrusion on rights such that they ruled that DUI checkpoints can be lawfully done within the United States without violating the constitutional rights of the people being stopped with three conditions. One, it has to happen in a neutral location. You know, they can’t be doing this in the parking lot of a liquor store or a bar. It’s got to minimize the intrusion on driver, which is pretty subjective, but it gives us some room to litigate in these cases. And then finally, DUI checkpoints have to be clearly marked.
Understanding DUI Checkpoint Tactics
What you’ll notice when you’re approaching a DUI checkpoint is there’ll be a sign. Well, just practically speaking, law aside, the way that this has evolved, police now, law enforcement in a lot of jurisdictions, use the clear marking as a sort of trap for people they believe are intoxicated. They’ll mark even farther forward, you know, they’ll mark way ahead of the checkpoint before an exit. And then they will watch and have law enforcement there waiting at the exit to see all the people pulling off who don’t want to go through the checkpoint. And then I’ve seen case law that astonishingly has allowed law enforcement to use at least as a factor, you know, for probable cause on a stop, you know, suspicion over people, you know, pulling off of on an exit after passing a sign indicating a DUI checkpoint. So just understand you see that DUI checkpoint. And if you try to exit there, there is a significant chance that there’s going to be law enforcement waiting for you at that exit, or at least will be, you know, there watching to see if you violate the law, act in a suspicious manner, you may end up in a stop anyway.
But, you know, turning back to what your rights are once you go to that DUI checkpoint, when you arrive at that DUI checkpoint, you are required by law as the driver to provide license registration, proof of insurance, pass that through the window. They are going to want to ask you a lot of questions because that’s what they’re stopping you for. You know, the first question would be, you know, have you been drinking, you know, and maybe, you know, where are you coming from, where are you going? And then, you know, certainly going back to what we talked about in the previous video, the passengers in the vehicle do not have to identify themselves. If they ask you to identify yourself, just say no thank you.
At the DUI checkpoint, you know, just as with any other traffic stop, you know, once you comply with the lawful order, there’s nothing else you have to do. You don’t have to answer any questions. If they want you to, you know, roll your window way down so they can sniff in there, you don’t got to do that. If they want you to answer questions about where you’ve been, where you’re going, there’s, you know, three things to say to officers at the DUI checkpoint. You know, one is, I know my rights and I don’t want to answer any questions. And then, am I being detained? Am I free to go? That’s it. That’s all you say to these these officers.
Take Action Now and Protect Your Rights
I tell you what, these DUI checkpoints are awful. If you are, if you see a sign for a DUI checkpoint and you haven’t had anything to drink, do us all a favor, add some pressure on them by going through that checkpoint and offering those same answers. I don’t want to talk to you. I know my rights. Am I being detained and am I free to go? Because, you know, we don’t want to make this easy on them to violate our rights.
If you or a loved one has been charged with a criminal offense in Muscogee Creek Nation or any other tribal nation, you’re going to want expert counsel. That’s me. You’re going to need somebody who’s an expert in tribal law. That’s me. Give us a call at the number below. We’d be happy to talk to you again. My name is Ted Hasse.
Let me just add one thing with regard to Muscogee Creek Nation law. Now, with the Supreme Court case outside of eastern Oklahoma, outside of Indian country and these Indian reservations, it’s well-settled law that DUI checkpoints are lawful. These have not been tested in Muscogee Creek Nation Supreme Court or Cherokee Nation Supreme Court. So if, you know, at some point in the future, it’s possible if we were to have a defendant, you know, face conviction off a stop from a DUI checkpoint, we could appeal that and, you know, see if the Muscogee Creek Nation comes out the same way as the U.S. Supreme Court. As it stands right now, I think what we can anticipate is that at the trial court level, although they’re not bound by U.S. Supreme Court precedent, in some cases they are, some cases they aren’t. This is a situation where they probably would not be. It would be persuasive to the judge and it’s likely that the judge would, you know, maybe point to Michigan v. Sitts, the U.S. Supreme Court case in 1990 that says, you know, DUI checkpoints are okay to do. So, you know, it’s most likely that DUI checkpoints for Native Americans within the Muscogee Creek Nation and other tribal nations, you know, could pass muster at the trial court level. However, you know, it’s possible there would be an opportunity for an appeal that we could take to one of the tribal Supreme Courts to test that.
Again, my name is Ted Hasse. You can reach me at (918) 947-6552. I look forward to hearing from you.