Searching passengers at DUI checkpoints?
Hi, I was just wondering, does anyone know if it is legal for passengers to be searched or breathalyzed at a DUI checkpoint if the driver blows a .00? ...
Hi, I was just wondering, does anyone know if it is legal for passengers to be searched or breathalyzed at a DUI checkpoint if the driver blows a .00?
Is it illegal? No. Can the passenger decline? Yes. During a traffic stop (Dui or otherwise) only the driver is technically detained. A passenger does not have to submit to any test or provide his personal information unless the Officer has reason to believe that the passenger has committed a crime. Even if the Officer believes that the passenger is under the influence of alcohol they cannot force you to take a breathalyzer. Nor can they conduct a search of his person without consent or probable cause.
If the Officer believes that the passenger has committed a crime (say..under the influence of a narcotic) then it would be a different issue. This is not to say that the passenger could not get arrested for public intoxication at which time they would have to provide their information.
-Tyris
No
Being legal I can’t really say, except after the patriot act pasted, it seems they can do anything they want, due to probable cause.
Theirs not enough information to answer this, but remember this phrase "probable cause".
The only way you can be searched is if the cop has probable cause. If you aren’t drinking and blow a .00 and there is no other reason for them to search you then legally, no they cannot search you. You said searched or breathalyzed, but the only way to know if you blow a .00 is to give you a breathalyzer.
The American Civil Liberties Union applauded today’s decision by the United States Supreme Court in Brendlin v. California, recognizing that passengers in a car that is stopped by the police are seized as well as the driver, and therefore have the same right under the Fourth Amendment to protest an unconstitutional stop that is based on the police officer’s whim rather than evidence of wrongdoing.
Generally speaking, no.
First question: Was the passenger lawfully detained? If they are detained (check your state law on this on) the question is whether or not this was lawful. If the passenger was held up from leaving after driver blew a 0.0, then probably not. If the passenger was searched prior to the blow, then the detention was lawful.
Second question: Was this a valid Terry Frisk? Under the Terry v. Ohio case, a person can only be subject to a search of a person when an officer has reasonable suspicion to believe that the passenger was armed or engaged in some type of criminal activity or had contraband. So, if the cops smell weed on you, then probably. If you are sitting quietly, then probably not.
Overall, we need more facts to really answer this question. And the Patriot Act has nothing to do with this.
Not without probable cause. Unless your drunk passengers voluntarily consented to the Officer’s request.
Do you live in an area where alcohol consumption or possession is illegal? Or more commonly known as a DRY city or county?
If you are then most likely "yes" to the breath test IF there was the odor of an alcoholic beverage emitting from the vehicle that the officer smelled. This particular odor, was or is the officers PC to perform such checks.
The searches are another can o worms.
No it is not illegal. Good cops ask for permission. I can walk up to anyone and ask to search anything. If they say no then well at least you tried. Its not something I do but it is something I could. Also if the officer can articulate why he searched the subject without consent. Exp. The smell of marijuana was present in the vehicle, the passenger was reaching in pockets or under seat, the passenger was unusually nervous. Its all about articulation. But unless I was sure I wouldn’t want to go to court on a charge cause a good attorney will eat you up.
Like many things in life it depends.
I can search anyone if they consent or if I have probable cause, or if I can articulate an officer safety reason.
As for a breath test. At my dept we don’t have the portable BT’s so won’t be an issue.