The driver in the silver minivan approaches slowly, coming to a stop beside a group of police officers manning a DUI checkpoint in Chiefland, Fla., a small town 40 miles west of Gainesville.
Instead of rolling down his window to chat with police, the man behind the wheel remains silent and hints at a plastic bag dangling from the vehicle door, which the officer illuminates using a flashlight.
Inside the bag is a copy of the man’s driver’s license, insurance, registration and a slip of paper known as the “fair DUI flier,” which states in bold letters: “I remain silent. No searches. I want my lawyer.”
The officers examine the packet carefully for a few seconds before glaring at the driver and sending the man on his way.
“Have a nice day,” one officer says.
A video of the New Year’s Eve exchange — captured using multiple cameras from inside the minivan — has been viewed more than 2.2 million times on YouTube and inspired countless more motorists to follow suit, according to the Associated Press.
Warren Redlich, the flier’s creator and an associate of the man who shot the YouTube video, argues that DUI checkpoints violate a motorist’s constitutional rights. The Boca Raton defense lawyer maintains that his Web site, which includes detailed explanations of his legal argument, protects sober motorists from being falsely arrested.
“People don’t realize that innocent people get arrested for drunk driving; it happens a lot,” Redlich said.
Law enforcement agencies strongly disagree with Redlich’s position.
Officials point to a U.S. Supreme Court ruling in 1990 that upheld the use of random DUI checkpoints and concluded that “they don’t violate constitutional protections against unreasonable search and seizure,” according to the AP.
“They wouldn’t be allowed out of that checkpoint until they talk to us,” St. Johns County Sheriff David Shoar said. Shoar, president of the Florida Sheriffs Association, added: “We have a legitimate right to do it. If I was out there, I wouldn’t wave them through. I want to talk to that person more now.”
Sheriffs in Lee County and Pinellas County said that motorists who use the fair DUI flier will be arrested on the spot, according to WTVJ.
Redlich, however, maintains that Florida state law does not require drivers to sign a ticket unless it’s for specific violations, such as traveling 30 miles per hour over the speed limit, passing a stopped school bus or carrying an improper load. Drivers have to sign, too, if there’s been a death or serious injury, according to his reading of the law.
Motorists using the flier cite this loophole when they opt for a vow of silence at DUI checkpoints. The flier asks police to place tickets beneath the vehicle’s windshield wiper and declares that Florida drivers at a DUI checkpoint are required to show authorities their legal documents but don’t have to physically hand them over.
“Thus I am not opening my window,” the flier says.
“Normally, what they look for is: Do you have impaired speech? Do you have impaired motor coordination? Does he smell of alcohol?” Redlich told NBC affiliate WTVJ. “If you don’t roll down your window and don’t speak, you’ve taken away some of those.”
Redlich also encourages drivers to record their encounters with police. Here he is successfully passing through a checkpoint last month in Miami:
David Weinstein, a former local, state and federal prosecutor now in private practice, told the AP that officers might have a good reason to ask a motorist to roll down the window.
“It’s really pushing the envelope,” he said, noting that it’s “unclear” whether Redlich’s tactics would hold up in court. “They can see your bloodshot eyes through the window that’s not being rolled down.”
Garett Berman, a Florida Traffic Safety resource prosecutor, told The Post that Redlich’s tactics are based on an outdated reading of state law. Florida motorists, he said, are required to roll down the window and hand their driver’s license to law enforcement.
Last year, Berman noted, wording in the statute requiring motorists to show their license to officers changed from “display” to “submit” or “present.” By dictionary standards, he said, both words mean “to give.”
The law also requires motorists have a driver’s license that is not “faded, altered, mutilated, or defaced.” Berman said an officer cannot always determine if a license is authentic if they’re not able to inspect it by hand.
With each side wrangling over subtle semantic differences, Berman said he doesn’t expect the issue to be fully resolved until it reaches the courts.
“The purpose of DUI checkpoints is to detect possibly impaired drivers and apprehend those who are, whether that means alcohol or drugs or any other chemical substance,” he told The Post. “But there’s a compelling government interest in doing that. There are cases in the Florida district court and the Florida Supreme Court and even the U.S. Supreme Court that have found that there is a compelling government interest in keeping the roads free from impaired drivers.”
Last year there were 40,677 DUI arrests in Florida, leading to 26,291 convictions, according to Mothers Against Drunk Driving.
While critics say Redlich’s tactics are designed to subvert police, the defense attorney writes on his Web site that he’s actually a supporter of law enforcement:
We are not anti-police. Some of my best friends are cops and I’ve discussed both the flyer and the book with them. One of them read the whole book for me before I published it and offered constructive criticism.
The flyer asserts the driver’s rights for him without him having to speak, and it gives clear instructions to the officer about the law in that state. This is designed to help the officer follow the law and the Constitution while carrying out his or her duty.
Redlich told the AP that he’s created fliers for 10 different states, tailoring them to local DUI laws.
He insists that he’s not enabling drunk drivers.
“Using this card requires you to be silent, it requires you to be patient and it requires you to follow instructions,” he said. “Those are three things that drunk people are generally not good at.”