Dear Lawyer Mark: With the holidays coming up, I know that all the cops around here are drooling at the chance to get overtime for DUI work.

I’ve been busted before at DUI checkpoints, and want to know whether they are legal. I had to plead guilty the first time, but got out of the second one because the machine broke on the guy after me. Obviously, I hate checkpoints, LOL, but do we have to do what they tell us at one? — Checkpoint Charlie

Dear Charlie: First, it appears that the checkpoint isn’t your problem. Sure, some people can make a mistake, have too much to drink at a party and drive away, only to realize later the alcohol is affecting them more than they thought.

Like the rest of life choices, they learn from their mistake, and go on. When you get busted twice, and then try to figure out how to get around it in the future, well, that’s not so much a recognition of the mistake as just trying to avoid the consequences. But, to help you out, here is the easiest, best way to avoid a DUI checkpoint: don’t drive. If you have to drive, don’t do it after drinking.

DUI checkpoints have been used in Ohio by the State Patrol since 1989. The U.S. Supreme Court ruled in the 1990 case Michigan State Police vs. Sitz that checkpoints are legal and constitutional, so long as certain procedures are followed.

The first criteria deals with where the checkpoint is located. The police cannot just set up a checkpoint anywhere: there must be a long-term history of alcohol-related crashes or incidents of impaired driving in that area.

The police must give public notice of the location in advance of conducting the checkpoint. The first notice is given approximately one week before the checkpoint, and is very general as to the location (for example, it could merely say there will be a checkpoint in Lawrence County on the night of Feb. 14). A few hours before the checkpoint is set up, the police agency must notify the public of the exact location and times of the checkpoint.

When motorists drive through a checkpoint, the officers will stop random vehicles, depending on the number of cars going through, and waive the others through. For example, they may stop every other car if traffic is light or every fifth car if traffic is heavy.

For each car that is stopped, the officer is looking for “articulable signs of impairment,” such as an odor of alcohol, bloodshot and glassy eyes or slurred speech. If the officer has a reasonable belief the driver is impaired, then he will direct the driver to a separate screening area to perform field sobriety tests.

As I stated in a previous column, if an officer orders you out of the vehicle, you must get out. However, under Ohio law, you are not required to perform the field sobriety tests. These three tests, the walk and turn, one leg stand, and horizontal gaze nystagmus (HGN) tests, are designed to require you to concentrate on multiple things at the same time, which becomes more difficult if you are intoxicated. The HGN test also looks for involuntary muscle jerking in the eyes, which could be indicative of intoxication.

Most attorneys advise people to refuse to take the field sobriety test for several reasons: the officers do not tell the motorist beforehand which parts they are being “graded” on, there are numerous legitimate reasons to have problems with a test (such as general back, knee, or balance problems) and the officer is making a subjective call at times. This is not to say that the officers are trying to trump up charges; rather, their jobs are to protect the rest of us on the road, and we hope that if they have to error, they do so on the side of protecting a family driving down the road rather than a guy they think is probably drunk.

After you are arrested, the officer will request you to take a breathalyzer test, or give a urine or blood sample to check for a violation of the “per se limits.” This is a test that Ohio law does require you to take. If you do not, your driver’s license will be suspended by the Bureau of Motor Vehicles for a period of time, even if you were not drunk.

Thought for the Day: After the US Supreme Court remanded the Sitz case back to Michigan, finding it does not conflict with the US Constitution, the state supreme court found that DUI checkpoints violate Michigan’s state constitution, and banned them within that state.

It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at lawyermark@yahoo.com. The right to condense and/or edit all questions is reserved.