So, over the past few weeks I have been asked by several people about what actions they or others took during a traffic stop and whether they were correct or not. There is a lot of confusion on what a driver can and cannot do during a traffic stop. As a Raleigh Criminal Defense Attorney, I try and make sure my clients are aware of their rights, but if they are hiring me, it is often too late to preserve their rights for the present charges. Therefore, I’m going to write this blog about what a driver should do during a traffic stop.
First, let me be clear that this post is for all traffic stops in North Carolina, not just DWI (even though it is on a DWI blog page). Second, at no time do I recommend a driver to be short and/or rude with a Police Officer. Regardless of what you may think of their conduct or whether you deserved to be stopped or not, these are people just like you that are doing their job; it’s never personal. Additionally, being rude is almost a guaranteed way to make matters worse for you.
Okay, first thing everyone needs to know is YOU DO NOT HAVE TO ANSWER ANY QUESTIONS! Some people think that if they have not been read their Miranda Rights, their statements cannot be used against them. Miranda Rights only come into play once a Defendant is in custody AND they are being questioned by police (i.e. ‘spontaneous statements,’ even if made while in custody, are still admissible). When a Police Officer approaches you and asks you a question, there is NO obligation that you answer it. My recommendation to my clients is to politely tell the Officer “I respect what you do, but I refuse to answer any questions.”
Second, YOU DO NOT HAVE TO CONSENT TO A SEARCH! Whether the Police Officer asks for your consent to search your person or your vehicle, you are under no obligation to consent. Now, it’s important to remember that consenting to a search and prohibiting a search are two entirely different things. Under many circumstances, a Police Officer may be able to search you, your vehicle, your home, etc. whether you consented or not. However, if they lack any of the permissible reasons to search, then your consent is the only way they may be able to forward their investigation. Now, I often hear people say, “I have nothing to hide, so what’s the harm?” Unless you are the only person in constant possession of your vehicle 24 hours a day, 7 days a week, is it really worth the risk? That valet, mechanic, friend, family member, etc. may have left something in your car that you were unaware of but you may be responsible for if it is found. Also, it’s worth noting that I have had clients share with me that Police Officers have tried to persuade them to consent by using statements like “I’m going to search your vehicle, okay?” or “If you provide me with the (contraband) I’ll only cite you, if I have to get a search warrant, I’m going to arrest you if I find anything.” Ultimately it up to you whether you want to comply, but in many cases, the State may have not have had a case against the Defendant had they not consented to the search.
Third, YOU DO NOT HAVE TO PERFORM ANY FIELD SOBRIETY TESTS! Obviously this deals with Driving While Impaired more then any other traffic matter, but it also very important. The tests the Police Officer asks you to perform after the traffic stop, but before the arrest, are referred to as the Field Sobriety Tests. This can involve what is known as ‘Pre-Exit Tests’ which may include counting or the alphabet. Also included are the better known ‘Standardized Field Sobriety Tests’ which includes the Walk and Turn, the One-Legged Stand and the Horizontal Gaze Nystagmus tests (eye test). Additionally, the hand-held breathalyzer (commonly referred to as the ‘Alcosensor) is included in the list of things you are not required to perform. Each one of these tests is used by the State to try and build evidence against the driver in order to convict them. Unless you are stone sober and have not had anything to drink, it’s not recommended that you perform any of these tests. As mentioned before, I have received reports of some pretty tricky ways Police go about trying to convince drivers to go along with the tests. Statements like “I’m going to have you perform some tests for me, okay?” Or my favorite was “I’m probably just going to let you go, but do this one test for me so I can be sure.”
I want to put in an important exception here: I am not recommending either way whether you should blow in the Intoxilyzer. The Intoxilyzer is the machine the Police ask you to blow in AFTER you have been arrested. It is a big machine on a table top and takes place at a Police Station. The reason I do not make a recommendation is, unlike everything else I have mentioned, there are consequences that come with refusing to blow in this machine. A refusal will lead to 12 months of license suspension. Additionally, the fact that you refused is admissible in court as a ‘guilty conscious’ and the State may end up drawing your blood anyways, so the refusal may not have done anything to assist you.
Now that we have discussed what you don’t have to do during a traffic stop, let’s talk about what you MUST DO. First, you must provide the Police Officer with your license and registration. By driving on a North Carolina street or highway, you consent to present these documents whenever requested by the Police. Second, if the Police ask you to exit your vehicle, you are required to do so. This request is being made for the safety of the Police Officer and refusal to exit will likely lead to a forced removal and a charge of Resist, Delay or Obstruct a Police Officer. Third, if the Officer tells you they are going to search your person, car, or ask you to stand or sit in a certain location, you are required to comply, even if you haven’t consented. Again, there are many circumstances where a Police Officer may have the right to search you or your vehicle and refusing to consent won’t change that, however refusing to comply will likely lead to an Obstruction charge.
So, these are the basics of how best to handle traffic stops. Certainly there are many other things that can affect the likelihood of a Driver being convicted beyond what actions they took after the stop. If you are facing a Wake County Traffic Ticket, DWI Charge or Criminal Charge, contact the Matheson Law Office for your free consultation.