Most of us are all familiar with the typical DUI detection techniques—checkpoints and saturation patrols. After all, we hear about them on the news all the time. But what about the DUI stakeout? How about when a police officer parks right next to, or in the parking lot of, a bar? Is that actually a DUI detection tactic? And is it even legal? It certainly seems to be inherently unfair somehow. But in fact it is a legitimate, legal tactic for finding drunk drivers. And, as a former police officer, I must admit I used it many times.
How the DUI Stakeout Works
When I used the DUI stakeout it went something like this: I would park my car near, and in plain view of, a bar. I hoped that drivers going into the bar would see my fully-marked police car and NOT become impaired. I would also watch, and listen to, the drivers coming out of the club. I looked for any irregularity in balance or coordination and listened for any inappropriately loud or slurring of speech. Any sign of possible impairment was enough for me to follow that driver as they pulled away.
Then, I looked for any plausible legal reason for me to stop them. Perhaps the license plate lamp was out (my personal favorite), or maybe a busted taillight or expired tags. Once I stopped them, I would look for any evidence of alcohol use by the driver. An odor of alcohol from the driver was enough. Bloodshot eyes, slurred speech or fumbling with their wallet would also do. Then, it was on to field sobriety tests and often, a DUI arrest.
Legality of the DUI Stakeout
The DUI stakeout is frequently used by DUI detection officers throughout Orange County. The DUI stakeout is responsible for many DUI arrests and has been very controversial. But the legitimacy of the DUI stakeout was affirmed years ago by the United States Supreme Court. You see, this type of stop is called a “pretext stop”. The legal reason for the stop, (e.g. broken taillight), is just a pretext for what the officer really wants—to find evidence of another crime. In Whren v. United States (1996) 517 U.S. 806, the Supreme Court held that as long as there is a legal basis to support any stop, the officer’s true reason for making it doesn’t matter. Thus, the legality of the DUI stakeout, which relies on a pretext stop, was validated.
Your Rights During a Pretext Stop
Although an officer can stop you for any legal reason, they can only detain you for as long as it takes to address the legal reason. Unless the driver consents to a longer detention. For example, a driver stopped for a burned-out license plate lamp can only be held long enough to get a fix-it ticket. But if that driver agrees to do field sobriety tests or answer questions about what they drank or ate, then they have consented to a longer detention. You see, field sobriety tests and answering questions are completely voluntary. If, however, a driver politely declines to answer any questions or take any tests, the detention must end there. The cop must either let the driver go or make an arrest with very little evidence. This lack of evidence may make all the difference to the driver’s DUI lawyer in court.