By: Atty. Gregorio B. Austral, CPA
When Can a Deputized Law Enforcement Officer Flag Down Your Car?
Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic violation is not the arrest of the offender, but the confiscation of the driver’s license of the latter as provided for under Section 29 of the said law.
Similarly, the Philippine National Police (PNP) Operations Manual for the conduct of checkpoints provides that, except in hot pursuit operations, the mobile car crew shall immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation Report (TVR) if the vehicle driver committed traffic violations. They are admonished against indulging in prolonged, unnecessary conversation or argument with the driver or any of the vehicle’s occupants. In Berkemer v. McCarty, 468 U.S. 420 (1984), cited in one case by our Philippine Supreme Court, the motorist whose car is stopped should be subjected to modest questions only while still at the scene of the traffic stop. Any prolonged questioning may already amount to custodial investigation or if not, arrest of the motorist, and in that case, the motorist is entitled to his Miranda rights.
Section 12, Art. III.
1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
4. The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.
This procedure may have been changed under the Anti-Drunk and Drugged Driving Act (R.A. 10586). Under its Implementing Rules and Regulations, a Law Enforcement Officer (LEO) may flag down a motor vehicle upon his personal determination of probable cause that the motorist is driving a vehicle under the influence (DUI) of alcohol or drugs. Once flagged down, the motor vehicle driver shall be subjected to field sobriety tests (The Eye Test, The Walk-and-Turn Test, and The One-Leg Stand Test). If the driver passes the field sobriety tests, he is still not off the hook because he will still be apprehended if he committed other traffic violation. If the driver fails, the LEO shall proceed to determine his Blood Alcohol Concentration (BAC) Level. A driver who registered a BAC level higher than the prescribed limit shall be put under arrest and his motor vehicle impounded.
Probable cause shall mean that the LEO has a reasonable ground to believe that the person driving the motor vehicle is under the influence of alcohol, dangerous drugs, and/or other similar substances upon personally witnessing a traffic offense committed by means of LANE STRADDLING, MAKING SUDDEN STOPS, OVERSPEEDING, SWERVING OR WEAVING in such an apparent way as to indicate that the driver is under the influence of alcohol, dangerous drugs and/or other similar substances. There shall also be probable cause when, in the course of apprehension for another traffic offense, there is EVIDENT SMELL OF ALCOHOL IN THE DRIVER’S BREATH, GENERALLY SLURRED SPEECH IN RESPONSE TO QUESTIONING, BLOODSHOT OR REDDISH EYES, FLUSHED FACE, POOR COORDINATION, and DIFFICULTY IN UNDERSTANDING AND RESPONDING INTELLIGENTLY TO QUESTIONS.
Under the IRR, the burden of proof to establish the existence of probable cause is on the LEO. Upon personal determination of probable cause, the deputized LEO shall flag down the motor vehicle, direct the driver to step out of the vehicle and determine whether or not the driver is drunk or drugged. If the LEO has reasonable grounds to believe that the driver is drunk, the LEO shall expressly inform the driver of his assessment and the driver shall be directed to perform all of the three (3) field sobriety tests on site.
There are two stages when the LEO determines probable cause. The first is that the LEO must determine probable cause to flag down a motor vehicle and this requires that he must personally witness the commission of a traffic offense as enumerated above. The second stage is that the LEO must determine probable cause to detain the driver and this requires him to have enough evidence gathered through the field sobriety test. Before requiring the driver to take the field sobriety test, the LEO must preliminarily determine whether the driver is drunk.
It appears that the LEO possesses a lot of discretion in deciding whether to flag down and to arrest a person for DUI violation. Although the law places on the LEO’s shoulder the burden of proof in justifying the flag down and the arrest of a motorist, the Land Transportation Office must only deploy and/or deputize LEOs who have the probity and integrity to honestly implement the law. LEOs must be properly trained in handling DUI cases. The motorists shall also be vigilant against persons who extort money in the guise of implementing RA 10586.