Ray Hrdlicka – Host – Attorneys.Media
“Sobriety checkpoints. New Years just occurred, and they were all over the place. So is that a different…is there a different strategy for law enforcement? And the, as a criminal defense attorney, do you have a different strategy when an arrest occurs in that situation?”
Stuart Kirchick – Criminal Defense Attorney – Santa Clara County, CA
“A little bit. You know, they’re legal. Sobriety checkpoints are legal. They do give notice…that’s, you know, the law’s really clear that those are legal, legal procedures, investigative tools that the police have.
It changes things for the defense. From the perspective of that there’s been no bad driving that the officer observed. Because when you’re in a sobriety checkpoint, you’re just pulling up, and they’re doing, basically, they’re getting to the point of sniffing out whether or not it smells like alcohol. That’s really the first move, right? And then they ask…’so, have you been drinking tonight’?
‘Well’, you say, ‘half a beer’.
‘Oh, please step out of the car. We’re going to do some field sobriety tests’.
You know. So, at least what you have in mitigation, if ultimately it turns out that there’s some probable cause developed based on that encounter at the checkpoint, it leads to your arrest. It allows a little bit of mitigation for the defense attorney, with the DA, to say…well, there was no bad driving, there’s no accident, there’s no weaving. It was just a sobriety checkpoint situation and his test came back. And then it also leads to a, better perhaps, motion to suppress because there really was not probable cause to make a stop. And then, you have less…you could argue just the filed sobriety tests at being insufficient enough to make an arrest, you know, if there’re those facts present. So, you have a few strategies there.”
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