Call Today - (510) 995-0000
Jun 11, 2021

Are DUI Checkpoints Legal? A Lawyer Explains

When you were driving recently, you got pulled over at a DUI checkpoint. The cops made you get out of your car and subjected you to a sobriety test. Now, you’re facing a DUI charge. You’re wondering: Was it even legal that they did this? Will your charges hold up? And could you possibly be convicted of a DUI?

You’re in a stressful situation, so it’s completely understandable that you are worried. However, before thinking about all the bad things that could potentially happen to you, it’s important to learn about DUI checkpoints and what to expect when it comes to your charges. You can also figure out whom to call for help at this time and start to hopefully feel better about your situation.

Here’s some more information on DUI checkpoints and charges that you should know.

Are DUI Checkpoints Legal?

In California, DUI checkpoints, or sobriety checkpoints, are legal. The California Supreme Court has ruled that DUI checkpoints are administrative inspections and that the police are allowed to conduct them. However, the police must give drivers sufficient warning that they are closing lanes because of DUI checkpoints. This means that if you see one coming, you may be able to go around it, as long as you don’t pull any illegal moves behind the wheel. If you don’t have enough time to circumvent the DUI checkpoint, then you need to stop and follow the cops’ directions. If you do not, you could walk away with an infraction.

There are some additional rules that officers need to follow to ensure their checkpoint is legal. Supervising officers need to make all the operational decisions, and they have to ensure they have adequate safety measures in place. Roadblocks should be advertised to the public in advance, officers should be non-discriminatory when they pull people over, and they need to display proper signage to indicate that they have a checkpoint set up. Drivers should also be detained for only a minimal period of time and they must put the checkpoint in a reasonable location.

What Happens at DUI Checkpoints

When drivers get pulled over at a DUI checkpoint, a cop will ask a driver to roll down their window and then ask to see their driver’s license and registration. The driver and the cop may chat for a bit so the cop can determine whether or not the driver is indeed under the influence of drugs and/or alcohol.

The officer will be checking for a few things when making this evaluation. They will see if the driver has any drugs and/or alcohol in their car at the time or if they smell like alcohol. The officer will also see if the driver has problems answering their questions or seems like they are impaired because they have red eyes, slurred speech, or any other obvious signs of impairment.

If the officer believes that a driver is impaired, they may proceed with asking the driver to be tested for drugs and/or alcohol. They might ask the driver to submit to a field sobriety test or to blow into a Breathalyzer. After these tests, the officer may determine the driver is drunk and/or under the influence of drugs and will formally arrest them.

In California, you could be charged with a DUI if you’re driving with a blood alcohol concentration (BAC) of .08% or higher. But if you are a commercial driver, then the limit is only .04%. If you are under 21 years old, then you cannot have any alcohol in your system while you’re on the road since California is a zero tolerance state. You also cannot have any drugs in your system when you are behind the wheel.

What to Do if You’ve Been Stopped at a DUI Checkpoint

If you’ve been pulled over at a DUI checkpoint, first, make sure you only take your hands off the wheel when the officer instructs you to. Treat the officer with respect and listen to what they say. Calmly pull out your license and registration when the officer asks you to do so. If the officer wants to perform a Breathalyzer test or do a field sobriety test, you can decline. But once you have been arrested, you should not decline, or else you will face harsh consequences: there will be a one-year automatic suspension of your driver’s license. Even if you have a high BAC or the cops determine that you were under the influence of drugs, it doesn’t mean you can’t fight these charges.

If at any point the cops ask you questions, you can refuse to answer them because of your Miranda rights. You can simply say to them, “I need to speak to my Oakland criminal defense attorney” in a polite manner.

Once you have been arrested and you’re allowed to make a phone call, ask a family member to call an Oakland criminal defense attorney for you. They will let you know what next steps you need to take. For instance, they will ask you to write down everything you remember about what happened at the checkpoint and your subsequent arrest. They may ask: When did you submit to testing? Did the cops read you your Miranda rights? Was the checkpoint properly advertised? By being thorough with their questioning, your lawyer is determining your best line of defense against these charges.

What if the DUI Checkpoint Was Illegal?

Your Oakland criminal defense attorney can figure out whether or not the checkpoint was legal. If it was not, then your charges may not hold up in a court of law. Perhaps there wasn’t proper signage for the checkpoint and you had no idea it was coming up. Or, maybe the cops were being discriminatory in who they were choosing to pull over. Since you don’t know all the facets of DUI law, your lawyer will investigate the legality of the checkpoint.

What Happens if I’m Charged With a DUI?

Your DUI will likely be charged as a misdemeanor, which is more serious than an infraction but not as serious as a felony. You could be charged with a felony, however, if this is your fourth DUI in 10 years or you injured someone while driving under the influence.

If this is your first DUI charge, you could go to jail for 48 hours to six months and pay $390 to $1,000 in fines, along with penalty assessments. You’ll also need to go to DUI school for three months.

If this is your second DUI charge, you could go to jail for 96 hours to one year, as well as pay $390 to $1,000 in fines, along with penalty assessments. Your DUI schooling will take 18 or 30 months.

If this is your third DUI charge, you could go to jail for 120 days to one year and you’ll have to attend DUI school for 30 months. You’ll also need to pay the $390 to $1,000 in fines, along with penalty assessments.

If this is your fourth DUI charge, you could be sent to jail for 16 months to four years and pay $390 to $1,000 in fines, along with penalty assessments.

All of these charges also carry with them the possibility of going on probation for a certain period of time, having an ignition interlock device put in your car, and having your license suspended. Additionally, your insurance rates could go up, making your financial situation much harder.

Can You Expunge a DUI?

When you are convicted of a DUI, it will permanently stay on your criminal record. It will go on your driving record for 10 years as well. Anyone who needs to see your criminal record, like an employer, will be able to view these DUI charges. This could make it harder to find a job, and maybe impossible to get a new job if it involves driving.

While you are unable to expunge a DUI from your driving record, you could potentially expunge it from your criminal record with the help of an Oakland criminal defense attorney. Essentially, you need to be completely finished with your sentence and you cannot have gone to state prison to be eligible for expungement. You also can’t be up against other criminal charges.

Why Hire an Oakland Criminal Defense Attorney?

By hiring an Oakland criminal defense attorney, you’ll have the best chance possible of beating your criminal charges. While you may think it’s a good idea to use the court-appointed attorney instead of hiring help, it could hurt your case and end up being very detrimental to your future.

Court-appointed attorneys are certainly capable of helping you, however, they are typically overwhelmed with cases. This means they won’t be able to set aside the proper time to review your case, ask you questions, and figure out how to fight your charges. Instead, you may end up getting a raw deal because they simply don’t have the energy to help you out like you deserve. Saving money on a lawyer may seem like a great solution in the short run, but you have to think about your future. Is it worth it to take the risk?

On the other hand, when you hire an Oakland criminal defense attorney, they will dedicate their all to your case. They will ask you a number of questions to determine how they will fight your charges. For instance, perhaps you were at a party and you were of the legal drinking age and only had one beer, which would not raise your BAC to .08%. But when you went to the bathroom, someone spiked your drink. When you got behind the wheel, you began to feel the effects but didn’t know what was going on.

Additionally, you might not have been drunk while you were driving, but because of a rising BAC, you were drunk when the cops tested you. A rising BAC occurs because it takes time for alcohol to become fully absorbed in the body.

DUI tests may also reveal false positives when someone has gastroesophageal reflux disease (GERD), heartburn, a hiatal hernia, and acid reflux. Another possibility is that you appeared drunk while you were doing a field sobriety test, but in actuality you just have bad balance or you were tired.

They will have specific experience defending against DUI charges and will be familiar with the local judges and how to approach them. In a time when you may feel alone and scared, your attorney will make you feel supported and like you have someone to turn to. Typically, they will be available to you many hours out of the day, and even in an emergency.

If you’re ready to get in touch with a legal representative, then contact Oakland criminal defense attorney Elliot Silver.

Working With Oakland Criminal Defense Attorney Elliot Silver

Elliot Silver at Silver Law Firm has defended a number of clients against DUI charges, and he’s ready to help you, too. For instance, one client received an underage DUI in Alameda County. This 18-year-old was pulled over and found to have a BAC of .02%. The young person’s future was in jeopardy and they did not know what to do. Once they retained Silver Law Firm, Elliot worked hard to get the case dismissed and ensured there was a complete reinstatement of his client’s license, which wasn’t easy.

In another case, Elliott represented a nurse anesthetist who was charged with a DUI. They could have had their professional license taken away and faced a number of legal consequences. In the end, Elliot obtained a total dismissal of the DUI, ensuring that the nurse had a bright future ahead and didn’t have to worry anymore.

If you got pulled over at a DUI checkpoint and charged with a DUI, then reach out to Oakland DUI defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at He is standing by and ready to help you with your DUI case.

    100% Confidential