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Phantom Checkpoints Are Real

Phantom Checkpoints Are Real 

The police are allowed to lie to the public about their operations, but if a member of the public lies to a police officer, that person may be in for a costly and time-consuming prosecution that could end with a term behind bars. While it might be hard for some people to believe, defense attorneys know that the police lie to the public every now and then.

Take, for example, the “Phantom Checkpoints” set up by the police DUI Squads. A Phantom Checkpoint is a ruse created by the police wherein they set up DUI Checkpoint signs with no checkpoint. It is easy for them to do–they already have the signs that warn people of a real DUI roadblock, but they need only a fraction of the personnel for a real DUI roadblock. In fact, they often do not even use all of their signage. They sometimes use a few small signs that simply state “DUI Checkpoint Ahead.”

After setting up the Phantom Checkpoint, the police hide nearby and wait to see who avoids the area. The police then follow the drivers who avoid the area and either stop the drivers for legitimate reasons, or sometimes they will make up a reason for the traffic stop.

This allows the police to avoid those Constitutional Rights concerns that they must obey when working a real DUI checkpoint. There are no statistics that are required to be created for a Phantom Checkpoint. They don’t have to worry about stopping every car, or every other car at random. Without the detailed statistics required to be kept from a roadblock, no one is able to call them out on racial profiling or other issues that might be exposed via statistical analysis.

Moreover, at a real DUI roadblock, the police have to ensure that there is a legal way around it. The U.S. Supreme Court ruled that people who approach a checkpoint, must have a legal way of avoiding the checkpoint because a law-abiding, unimpaired driver should have the choice to not be stopped. Typically, police look for the most inconvenient, but legal place for a driver to turn around when they set up their roadblocks. Then, they set them up with that in-mind. With a Phantom Checkpoint, however, there is no need to leave the driver a legal way out of the trap–because there is no roadblock. Drivers are free to drive right past the signs and continue on with the rest of their journey. By setting up the Phantom Checkpoints where there is no legal method of avoidance, they can legitimately stop people for any number of civil traffic violations such as Illegal U-Turns, Illegal Left or Right Turns, Driving on the Shoulder, Wrong Way on a One-Way Street, etc.

Are Phantom Checkpoints legal? It seems that by default, they are. While there are no Arizona cases that address Phantom Checkpoints, at least one tenth circuit court found them to be legal (United States v. Flynn, 309 F.3d 736 (10th Cir. 2002)).

How can drivers tell if they are approaching a Phantom Checkpoint as opposed to a real DUI roadblock? Drivers should look for several clues:

● Typically, Phantom Checkpoints have just one or two small signs warning “DUI Checkpoint Ahead” instead of many signs.

● Phantom Checkpoints won’t have a sign warning drivers that the must “Stop” ahead.

● Phantom Checkpoints lack the large array of flashing red-and-blue police lights, floodlights and activity seen in a real DUI roadblock. Typically, as one approaches a real DUI roadblock, many lights and a lot of activity can be seen before the driver enters the area where avoidance is no longer an option.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com]. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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