A Florida attorney has been receiving some press recently because of a flyer he designed. The flyer is intended for people to hold up in their windows as they pass through DWI checkpoints. Its message states “I Remain Silent; No Searches; I Want My Lawyer” and contains specific citations to relevant state law. The Florida flyer cites a Florida statute that requires a driver to “display” his license “upon the demand of a law enforcement officer” as well as a statute that requires drivers to sign citations for certain traffic violations as evidence that there is no signature required should an officer write a ticket at the checkpoint. Therefore, the flyer states “I am not opening my window.” However, “I will comply with clearly stated lawful orders.”
The Florida attorney designed this flyer as part of a movement he created called Fair DUI. The motivation behind it was to allow people to exercise their constitutional rights and protect people wrongly arrested after going through checkpoints. The right to remain silence comes from the Fifth Amendment. The right to be protected against unreasonable searches comes from the Fourth Amendment. And the right to counsel comes from the Sixth Amendment.
When going through a checkpoint with this flyer, the Florida attorney recommends that the driver keep his hands in plain view and look straight ahead, rather than at the officer. The rights of law enforcement officers are often protected because of the concern for officer safety. A driver who keeps his hands in plain view and does not make any sudden movements prevents an officer from fearing for his safety.
In addition, the Florida attorney notes, officers at a checkpoint are required to follow guidelines, which direct them to look for evidence of impairment, such as odor of alcohol, slurred speech, red glassy eyes, or an admission to drinking. By displaying the flyer and showing your license and registration through the window, the Florida attorney argues, a police officer is unable to make these observations. Furthermore, the guidelines which the police officers must follow during a checkpoint will most likely not spell out what to do when a driver comes through the checkpoint displaying one of these flyers.
The instructions on the flyer also include recording the encounter with audio, and preferably video. A recording can be used if there is a dispute as to whether a police officer had reason to legally demand that a driver open their window or car door or step out of the car.
The Florida attorney states that, although someone could use this flyer in a normal traffic stop, it works better in a checkpoint situation. In a normal traffic stop, a police officer must have reasonable suspicion to make the stop, which usually means the police officer observed a traffic violation or other behavior that would create reasonable suspicion of impaired driving (such as weaving). At a checkpoint, however, a driver who has been stopped has not done anything wrong.
Since its initial design, the Florida attorney has designed the flyer to fit the laws of 11 other states. (North Carolina is not one of them.) People around the country have used the flyer to go through checkpoints and posted their videos online. The Florida attorney behind this movement filmed his own video recording from New Year’s Eve a year ago, when he used the flyer at a checkpoint and the police officer waved him through without asking him to roll down his window.
So far, there have not been any challenges in court regarding the use of this flyer. While the Florida attorney has created a flyer tailored to the laws of 12 different states, he has not yet created a flyer for North Carolina. Are the laws of North Carolina similar the laws of the states for which he has create flyers?
North Carolina law G.S. 20-29 requires that
Any person operating or in charge of a motor vehicle, when requested by an officer in uniform, ... who shall refuse to write his name for the purpose of identification or to give his name and address and the name and address of the owner of such vehicle, or who shall give a false name or address, or who shall refuse, on demand of such officer..., to produce his license and exhibit same to such officer ... for the purpose of examination, ... shall be guilty of a Class 2 misdemeanor.
The wording of the law is different from the Florida law which requires that a driver to “display” his license to a police officer. Other states for which flyers have been created include New Jersey, which requires a driver to “exhibit” his license, and California, which requires a driver to “present” “for examination” his license. However, the Florida attorney has also created a flyer for New York, which requires a driver to “produce for inspection” his registration and to “furnish” “all information required concerning his license to operate.”
It is arguable that the requirement of “producing” one’s license to a police officer does not actually require handing the license but merely displaying it. However, North Carolina statute contains an additional requirement of writing one’s name for “the purpose of identification” or giving one’s “name and address.”
Most North Carolina cases that have examined this requirement have involved people giving fictitious names. However, a 2011 North Carolina Court of Appeals case, State v. Sullivan, involved a defendant who was stopped at a checkpoint. The defendant had a Michigan license and an expired Michigan registration. When the trooper asked the defendant whether he was a North Carolina resident, the defendant stated that he refused to answer this question. The court of appeals held that this provided probable cause to arrest the defendant for violating G.S. 20-29.
In that case, it seems that there were questions raised because of the defendant’s expired registration. If a driver had valid license and registration, it is possible that simply “producing” these items, as required by North Carolina statute, would sufficiently answer all questions regarding a person’s name and address.
If you have been arrested for DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.