2015.23: Hacking the DWI Checkpoint

 Posted on January 19, 2015 in Uncategorized

If law is the operating system for society, then good lawyers are hackers. In the criminal justice system, there are white-hat hackers and black-hat hackers; which are which depends on your point of view. If you favor safety over freedom, prosecutors wear white hats and people like me wear black. If you prefer freedom to safety, it's the other way around.

Whichever way it is, there are people getting paid to use the rules of the system, or to change them if possible, to their clients' advantage. If a good criminal-defense lawyer can find a way to get her client out of trouble, she'll do so.

Those who think they've found a magical way to get or stay out of trouble that lawyers aren't using often believe that the lawyers aren't using it because they are part of a conspiracy to keep the truth from the public. But there is no British Accreditation Registry, no secret agreement among lawyers to conceal from the public the source code of the system. In fact, that source code is open-source. Interpreting it requires training and experience, though, and the Uniform Commercial Code is not foundational.

Matt Brown (in Tempe next to the Olive Garden) and Scott Greenfield both wrote recently about a video that has been circulating purporting to show how to get through a DWI checkpoint unscathed. Per Brown:

An interesting DUI checkpoint video has been circulating lately. In it, the driver gets through without even rolling down his window, passing by with ease thanks to a plastic bag attached to his car with a string. The bag contained his license, registration, insurance information, and a note saying "I remain silent," "No searches," and "I want my lawyer." As clever as it may be, it's also dangerous to think it will always be that easy.

Greenfield notes that there is a lawyer, Warren Redlich, behind the video:

But that there have been more than 2.2 million views of this video, as of this writing, based on Warren Redlich's legal incisiveness suggests that there will be a whole lot of stupid happening on the roads. While this may comport with Warren's libertarian politics, it's just truly bad and deeply disturbing lawyering.If you try this and things don't work nearly as well as the video, give Warren a call. I'm sure he will be there to defend you pro bono. And maybe he'll win, if the cop doesn't show up again.

He apparently doesn't think it's a good idea. Neither does Brown, who writes:

I'd only recommend doing what the guy in the video did to people who are not breaking any laws.... If you try the stunt in the video and it turns out you have a high blood alcohol concentration, drugs in the car, or are doing something else illegal, it will probably never work.

I have to disagree with Brown. I'd only recommend doing what the guy in the video did if you are breaking the law, and if the cops are going to detect that you are-for example, if you have a high blood alcohol content or a car full of weed smoke. There are a thousand ways the police can get you out of the car (they are more experienced at legal hacking than you are, and they lie with impunity), and if they go to that trouble they are going to make your life more difficult even if you weren't really doing anything wrong (in Texas, checkpoints are illegal, but almost everything is an arrestable offense). You may beat that rap, but you won't beat the ride. (Section 1983 suit? Ha. Good luck with that.)

If, however, you were doing something wrong, then by throwing up lawful obstacles to the detection of your crime you increase your chances of eventually beating the rap. The more legal puzzles the police have to solve to gather evidence against you, the more likely it is that they will screw something up and make the evidence suppressible.

Of course, if you were doing something wrong you probably would have avoided the checkpoint in the first place, and if you were intoxicated and didn't avoid the checkpoint you probably wouldn't have the presence of mind to dangle your documents out the window.

Have no fear, though. You can always fall back on this: