Fifth Amendment during Fourth Amendment seizure

[gwhite]

The Fifth Amendment gives us the Right not to be compelled in any criminal case to be a witness against ourselves. When we are stopped at a vehicle checkpoint and are asked by a cop if we have had any alcohol to drink, does that question also initiate the criminal case against us? Or does the act of seizure initiate the criminal case against us?

Does answering "no comment", or refusing to answer, create probable cause? Would there be a way to answer, without lying (assuming we were drinking alcohol), that would not create probable cause?

If it is reasonable to assume that any answer other than "no, I did not drink alcohol" will cause a cop to determine she has probable cause, is it then reasonable to lie, knowing that any truth or any noncommittal statement would be, in essence, an admission of guilt we have the Right to not be compelled into giving?

[FlyingRon]

Originally Posted by gwhite

When we are stopped at a vehicle checkpoint and are asked by a cop if we have had any alcohol to drink, does that question also initiate the criminal case against us?

You have the right to remain silent. The cops are free to ask people if they are breaking the law. You'd be amazed how many times they get an affirmative answer.

Or does the act of seizure initiate the criminal case against us?

What SIEZURE are you talking about.

Does answering "no comment", or refusing to answer, create reasonable cause? Would there be a way to answer, without lying (assuming we were drinking alcohol), that would not create reasonable cause?

Reasonable cause for what? To arrest you for DUI, not in itself. To go ahead and ask you to submit FSTs or a chemical test. Sure, all they need to have made a valid stop already. You can refuse the FSTs in most places. You can't refuse a chemical test in most places without repercussions as you've already given implied consent when you got the license.

In a court case, the fact that you refuse to answer either to interrogations before court or to questioning on the stand is NOT an admission of guilt.

[gwhite]

Originally Posted by FlyingRon

What SIEZURE are you talking about.

The act of stopping and detaining during questioning is called seizure, right?

Originally Posted by FlyingRon

Reasonable cause for what?

Reasonable cause to pursue a dui arrest, as opposed to letting the person go on their way. I guess I should have written 'probable' cause.

Originally Posted by FlyingRon

To arrest you for DUI, not in itself. To go ahead and ask you to submit FSTs or a chemical test. Sure, all they need to have made a valid stop already. You can refuse the FSTs in most places. You can't refuse a chemical test in most places without repercussions as you've already given implied consent when you got the license.

In a court case, the fact that you refuse to answer either to interrogations before court or to questioning on the stand is NOT an admission of guilt.

Forget it. You've taken my OP totally out of context.

[tranquility]

Don't worry gwhite, you have a good sense of the law and the problem here.

The answer is very state and fact related.

There are rules allowing the seizure at a checkpoint for minimial discomfort fairly applied for important safety issues. The fourth mentions *reasonable*.

Lying to the police in this situation is illegal. Shutting up is the response the courts allow, but we all know what will happen if you do. While there may be some police who will let you go if you crack your window and hand out your license at a DUI checkpoint (Carl will say he would, and, I believe him.), in the real world such a response will have the officer make sure you have sun in the visor and gloves in the box to find any probable cause or will make up some rubbish which will give the reasonable suspicion to continue a DUI investigation.

But, no, the lack of response in this instance would not give reasonable suspicion to continue the investigation as a matter of law.

[CdwJava]

Originally Posted by gwhite

The Fifth Amendment gives us the Right not to be compelled in any criminal case to be a witness against ourselves. When we are stopped at a vehicle checkpoint and are asked by a cop if we have had any alcohol to drink, does that question also initiate the criminal case against us? Or does the act of seizure initiate the criminal case against us?

There is no "criminal case" unless a crime has been committed. It is a seizure, and you have the right not to answer their questions should you wish.

Does answering "no comment", or refusing to answer, create probable cause? Would there be a way to answer, without lying (assuming we were drinking alcohol), that would not create probable cause?

By itself, such an answer does NOT create "probable cause" for an arrest or even the reasonable suspicion to justify a prolonged detention. However, that answer combined with other observations by the officer could resul tin said reasonable suspicion, and that could, in turn, lead to the develpment of the probable cause necessary for an arrest.

If it is reasonable to assume that any answer other than "no, I did not drink alcohol" will cause a cop to determine she has probable cause, is it then reasonable to lie, knowing that any truth or any noncommittal statement would be, in essence, an admission of guilt we have the Right to not be compelled into giving?

Whether it is "reasonable" to lie is a different animal than whether it is "lawful" to lie.

Understand that the lie may be easily detected if you have had anything to drink as the aroma of alcohol is likely to be wafting from you as you speak. Even if you do not speak, the distinctive odor of alcohol being purged from your system emanates from your pores. That lie coupled with the odor will most certainly give the officer the articulable reasonable suspicion he requires for a further detention.

What you choose to do at such a checkpoint is up to you.

- Carl

[SIN EATER]

Did you drive into the checkpoint, even though there are notices of the checkpoint ahead, and the ability to turn away ?? Did the law enforcement agency notify the media of the sobriety ckpt ?


If you were charged with a DUI, you might hire a DUI lawyer to see if the checkpoint was designed and operated correctly. There are specific constitutional requirements for sobriety checkpoints & many jurisdictions do not correctly follow those procedures.
If the procedures were incorrect, the stop was invalid, & you should win a suppression motion, & the case would then be dead.

[ERAUPIKE]

Originally Posted by CdwJava

There is no "criminal case" unless a crime has been committed. It is a seizure, and you have the right not to answer their questions should you wish.


By itself, such an answer does NOT create "probable cause" for an arrest or even the reasonable suspicion to justify a prolonged detention. However, that answer combined with other observations by the officer could resul tin said reasonable suspicion, and that could, in turn, lead to the develpment of the probable cause necessary for an arrest.


Whether it is "reasonable" to lie is a different animal than whether it is "lawful" to lie.

Understand that the lie may be easily detected if you have had anything to drink as the aroma of alcohol is likely to be wafting from you as you speak. Even if you do not speak, the distinctive odor of alcohol being purged from your system emanates from your pores. That lie coupled with the odor will most certainly give the officer the articulable reasonable suspicion he requires for a further detention.

What you choose to do at such a checkpoint is up to you.

- Carl

It is possible, although not probable, that you could be charged with obstruction for lying to an officer in the course of an investigation.

[CdwJava]

Originally Posted by ERAUPIKE

It is possible, although not probable, that you could be charged with obstruction for lying to an officer in the course of an investigation.

Of course. But, first, the lie has to be detected.

Usually, if a person is arrested for DUI, the DA does not also charge for delaying obstructing or obstructing an officer, or whatever the local statute might be referred to.

- Carl