One of our Law Clerks, Brandon Hellwig, from our Syracuse office, takes a look into the top things you need to know if you are ever pulled over.
Everyone at some point will inevitably be stopped by police while driving their vehicle. In order to pull over a moving vehicle the police must either be conducting a lawful checkpoint or must have reasonable suspicion to believe that the driver has committed, or is committing, or is about to commit a felony, misdemeanor, or traffic violation. In most cases, a police officer initially suspects the driver has committed a traffic violation, but upon actually pulling over the vehicle police officers are trained to look for evidence of more serious crimes. Often drivers or passengers unknowingly incriminate themselves and give police reasons to believe a more serious offense, such as DWI, has been committed. Whether you drive through a checkpoint, or are suspected of committing a traffic violation, a simple traffic stop can turn into a serious situation quickly and unexpectedly. Knowing your rights, what the police officers are required to do, and what the police are trained to look for may save you from being charged with a serious crime. Below is a list of the top five most important things drivers and passengers need to know when they are pulled over by police.
1. Pull Over Immediately
This may seem like obvious advice, but it is none the less extremely important. Even if you think there is no way that the police could possibly catch up to you, don’t try it. Failing to pull over can subject you to range of criminal charges. In addition, failing to pull over immediately, gives the police a reason to be suspicious of you, which in turn allows them to be even more intrusive. Basically if you do not immediately pull over the police has reason to believe you have something to hide, or are committing a crime, and they can use that to search you, your vehicle, or submit you to field sobriety tests.
2. Do Not Make Sudden Movements
From the moment the police begin to pull you over they are making observations, even before an officer approaches your window they have already begun making a determination as to whether or not you could be committing something more serious than a traffic violation. A lot of activity in the car, for example individuals moving around, is indicative of efforts to conceal drugs, weapons, alcohol, or stolen property. Thus when the officer gets to the window they are already looking to search the vehicle. To avoid any unnecessary intrusion or suspicion simply keep movements to a minimum until the officer reaches the window and asks for your license and registration.
3. Have Your License and Registration Ready to Give to the Officer
As mentioned above, most vehicle stops begin because the officer suspects the driver of committing a simple traffic violation (speeding, failure to signal, etc.). However police are trained to begin to look for evidence of more serious crimes, such as DWI, as soon as they begin interacting with the vehicle. Often, when a driver has been charged with DWI or other crime the first piece of evidence the officer points to is the fact that the driver had trouble producing, or fumbled while producing, their license and registration.
During a traffic stop the police have the right to ask the driver to produce their license and registration, failure to do so will result in an arrest. Therefore to avoid being arrested and also to avoid suspicion from the outset of an interaction with the police, simply make sure your license and registration are readily accessible and in hand when the officer approaches your vehicle.
4. Politely Assert Your Rights
Most individuals have heard the phrase “Miranda Rights” at least once. Miranda Rights come from the famous United States Supreme Court case Miranda v. Arizona. That case established that all citizens, during interactions with the police have the following rights:
- The right to remain silent in response to police questioning, this right is pursuant to the 5th Amendment to the United States Constitution.
- Once in custody, the right to speak to an attorney before answering any questions or performing any tests, regarding the offense being charged, this right is pursuant to the 5th and 6th Amendments to the United States Constitution. In New York, the right to counsel is broader, an individual has the right to counsel as soon as the police have detained the individual, not matter what the subject matter of the questions being asked.
It is also important to understand your rights in response to requests by police to perform field sobriety tests and chemical tests (blowing into a breathalyzer). When the police are investigating a driver for DWI or related driving offenses, a key component of the evidence they use are field sobriety tests. The most common field sobriety tests are the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One-Leg Stand Test. What most drivers do not understand is that just because the police ask you to take these tests does not mean that you have to comply. In fact most of the time participating in field sobriety tests will only help the police build a case against you. Furthermore unlike refusing to take a chemical breath test, you cannot be charged with a violation or have your license revoked for simply refusing to submit to the field sobriety tests like the ones listed above. Thus:
- A driver has the right to refuse to participate in field sobriety tests, and cannot be ticketed for refusal to do so.
While it is wise to assert your rights to not to answer questions outside the presence of an attorney, and to not participate in field sobriety tests, when asked to submit to a preliminary breath test or a chemical breath test the case is different.
The preliminary breath test is given roadside and simply tests for the presence of alcohol in someone’s blood. Although the preliminary breath test result is not admissible at a trial, it is used to form the probable cause needed to subject a driver to a chemical breath test. Thus by refusing the field sobriety tests and the preliminary breath test, there exists less of a legal justification to arrest an individual, and less of a legal justification to submit an individual to a chemical breath test. However unlike refusing the field sobriety tests, if an individual refuses a preliminary breath test they can be issued a traffic ticket for violating Vehicle and Traffic Law (VTL) § 1194(1)(b). A VTL § 1194(1)(b) ticket will result in a fine and two points on your driver’s license. The advantage to refusing the preliminary breath test is it deprives the officer of some of the reasonable grounds of suspicion needed in order to subject you to the chemical breath test which happens at the police station. Therefore:
- A driver may refuse to take a preliminary breath test, but will be issued a traffic ticket as a result.
Next we will address your rights when it comes to the chemical breath test. The chemical breath test is the breathalyzer located at the police station, which is used to measure an individual’s blood alcohol content (BAC). The police need either probable cause to believe an individual has operated a vehicle while impaired or intoxicated by alcohol or a positive screening from the preliminary breath test in order to subject an individual to a chemical breath test. As mentioned above, when asked to submit to any test, the first thing you should do is demand to speak to an attorney. Afterwards, if you are not able to speak to an attorney you will need to evaluate whether or not it is a good decision to submit to a chemical breath test. There are pro’s and con’s to refusing. The pro’s being that by refusing you are depriving the police of evidence that can be used against you at trial. The con’s being that by refusing to submit to the chemical breath test you will be issued a traffic ticket, and your license will be revoked for twelve (12) months regardless of whether you are ultimately convicted of a crime. In addition, if a person has prior DWI related offenses on their record from within 10 years they should refuse the chemical breath test because it makes it more difficult to be later convicted at trial. With prior convictions from within ten years an individual would be facing a felony, and will most likely have to fight their case at trial, so the less evidence the police have the better. Lastly, if an individual believes their BAC is likely to be very high, then they should not submit to the chemical breath test. The reason for this being that with a higher BAC you can be charged with an aggravated DWI, which results in higher fines, and longer license revocation. Thus:
- A driver may refuse to take a chemical breath test, but will face a twelve month license revocation as a result.
Lastly it is important to note that you have the right, under the 4th Amendment to the United States Constitution to be free from unreasonable searches and seizures. Therefore, in order to search a driver’s vehicle in connection with a traffic stop the police need a warrant, or probable cause to believe evidence in connection with the reason for the stop is inside the car, or reason to believe an immediate threat to officer safety exists in the car. When the police stop a vehicle, very rarely do they have a search warrant, thus the driver should expressly not consent to any searches or seizures. By doing this the officer will either refrain from searching the vehicle or if the officer does search any evidence found will most likely be inadmissible. Thus:
- An individual has the right to be free from unreasonable searches and seizures, and as a result does not need to consent to any search of a vehicle.
Be sure to review all the rights listed above in the event you are stopped by police. Should you be stopped politely assert the rights listed above to ensure that you do not help the police gather evidence against you. For an example of a police encounter with a driver who asserted their rights, as listed above please click here.
5. If Possible Record The Interaction
Ultimately, if your rights are violated as the result of a traffic stop it is usually your word against the police officers, and not all police departments maintain dash cams. Even in situations where there was a dash cam recording, often times the recording fails to catch crucial details of the interaction. That is why it is important to record the stop yourself if possible. In today’s society most of us have video recording capabilities on your mobile phones, so use that technology to your benefit. Although it is not strictly legal to record audio and video of police in all states, it is in New York. In New York only one party to a conversation has to consent to being recorded, the other party can be completely unaware. As a result you may record the conversations and encounter you have with police as a result of a traffic stop. The only limit is that the recording cannot interfere with legitimate law enforcement. Therefore as long as the officer is able to conduct the stop, they cannot order you to stop recording, nor can they take your phone or recording device. Recording a police encounter could mean the difference of being wrongfully convicted of a crime or having the charges dismissed.
The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.
 See People v. DeBour, 386 N.Y.S.2d 375 (1976); People v. Robinson, 741 N.Y.S.2d 147 (2001)
 See People v. Ellis, 477 N.Y.S.2d 106 (1984)
 See People v. Sheridan, 596 N.Y.S.2d 245 (4th Dept. 1993)
 Vehicle and Traffic Law Section 1194(2)(a)
 Vehicle and Traffic Law Section 1194