FREE LEGAL ADVICE, from 38 years experience in criminal defense. I am NOT explaining how to defeat any laws and advise you that you should follow the laws of your state and country and of any other state in which you find yourself.
THE ADVICE
TOPICS:
1. How to avoid a driving-related stop and possible arrest
2. How to avoid making your case worse if you are arrested, charged, investigated, or involved in the criminal justice system
DETAILS:
1. How to avoid a driving-related stop and possible arrest
a. The car
i. Make sure all lights and other mechanical and visual issues are working properly and completely, including all lights working, no cracked or broken windows or windshield, no dark tinting on windows. You do not want to argue, after charged and in the court system, that your windows are not too dark, that the crack does not obstruct your vision, or anything else. Although we have won cases on these issues, our cases would have been stronger if the issues were not present. We want the cop to have NO reason to have stopped you at all.
ii. NO ODOR of pot, burned or unburned can be in the car. Zero. This is easily done with a carry box with an “O” ring seal to be carried only in the trunk. I suggest a locking box (even a tiny lock is enough) with the key IN the trunk with the box. Pelican boxes are expensive and wonderfully made. The inexpensive ($15 Amazon) “Dry Box” works fine. In the trunk, on a hot day, NO odor escapes. There are no situations in which marijuana odor should be in the car. Of course, the worst situations cover the extremes of the smell spectrum. A large quantity or a car that smells because a joint was just smoked in the car both will result in a search. In spite of the common thinking that consent or a warrant is required for a car search, there are many situations in which an officer can search a car, thoroughly, without consent or a warrant.
b. ANY reasonable police suspicion that you have violated ANY traffic law can provide a possibly legal reason for a cop to stop you, leading to further investigation, discussion, and the rest of what you want to avoid.
c. Everyone thinks they are great drivers. Most still fail to use turn signals at every turn, turned on sufficiently in advance. Lane-change turn signals are just as critical. Do not speed. Always come to full stops either at stop signs, legal right turns on red, etc.
d. Do not drive aggressively, or in any way that attracts attention.
2. How to avoid making your case worse if you are arrested, charged, investigated, or involved in the criminal justice system
a. Do not pull over too quickly OR too slowly. Because you are being stopped, do not make it worse by having the officer be forced to follow you for blocks while you look for a safer place to pull over. Remember that the cop is behind you, with all kinds of lighting options, and if the cop does not like where you’re stopping, they have PA systems so that they can announce “don’t stop here, keep going to the next block.”
b. do not get out of the car or open the door unless directed by the “stop cop.”
c. make sure that your hands are visible. They can be on the top of the steering wheel or even both showing outside the driver’s window. Remember that you know you did not do anything, but the cop might be investigating an armed robbery with a shooting in which the vague description of the car or suspects matches you. You have no way of knowing what the stop cop thinks they are getting into. You want them to be calm, and you never want to behave in a way that makes them nervous or suspicious.
d. The cop knows her lines. You don’t know yours. Let them do the talking. If asked “do you know why I pulled you over?” the answer is generally and frequently “no officer.”
e. Even if you normally carry a firearm in your car or on your person, you simply cannot have a firearm and marijuana in the same place at the same time. Your “glove box” or holstered pistol mixes poorly with a single joint in the trunk. Only bad things including making a bad situation a LOT worse can result.
f. Knowing the law can work against you. If the cop wants to see your paperwork, license, etc., it makes NO difference whether or not that is a legal request. The cop thinks it is legal, and you cannot argue law on the side of the road. You will lose the legal argument 100% of the time. Save it for court. Save it to tell your lawyer.
g. No consent, no confession. You need not and should probably NEVER give consent to search your car. If the officer says “I’ll get a dog, I’ll get a warrant, you’ll be arrested, you’ll spend days in jail instead of me letting you go now,” or anything else that they might say to try to obtain consent to search, the proper answer is “I understand officer. I am NOT giving consent.” Once consent is given, many legal arguments are destroyed. Many winning legal arguments become the things that lose the case for you. Consent legally must be voluntary. In real life, that is not of much help in most cases.
h. shut up
i. shut up
j. you guessed it: shut up. When people are pulled over, they are nervous. When people are nervous, many become chatty. Shut up. You can say NOTHING that will help you, and anything you say will be used against you. You will not talk your way out of your situation often enough to use that as a viable useful option Do not try to guess what the officer is thinking, do not guess why the officer is asking, just shut up. Volunteer NOTHING.
There is a common misperception the without Miranda vs. Arizona warnings, the arrest is faulty and the case must be dismissed. That is simply not true. In fact, Miranda applies only once a suspect is “in custody,” and only if they are asked questions (interrogated). THEN it applies to answers you might give. Without the warnings, the answers may be kept from being used by the Deputy District Attorney in their “case in chief.” The application and practical application of the case is far more limited than is commonly thought. It is safer to assume that anything you say, under any circumstances, will be used against you from the beginning of the case to a trial should the case go to trial.
k. When the officer says “is there anything in the car that I should know about?” the answer is “No sir,” or “no officer.”
l. If you are pushed to chat, a possible response is You CAN say “officer, I’d be happy to discuss that with my lawyer present. Please arrange that with my lawyer. I know you’ll give me your card, and I’ll have an attorney contact you.” If you want to push the envelope and generally be correct, you might add “my attorney told me that if I discuss the possible case with you, my fee will double.”
m. Travel with your license, registration and proof of insurance easily accessible, and not in any location which is shared with rolling papers, pot, pistols, or anything else which will cause a cop’s eyebrows to go up.
n. Dress intelligently. If you have marijuana in the car, regardless of the laws of the state and you are wearing a shirt that says “burn one” it might as well say “Please call Lenny Frieling at (303) 666-4064.” Have your retainer ready. As an aside, fees in these cases may range from $2500 to $25, 000 depending upon many factors such as whether the case goes to trial, whether an expert is hired, and more. Only with a general knowledge of the case, sometime requiring the reports, can a fee be properly set and a retainer set fairly. Truly innocent clients generally are facing higher, not lower attorney’s fees. The system works better for guilty clients than for innocent clients. Additionally, a perfect case for the defendant, or a perfect case for the prosecutor is about an 80% case. The odds of winning a total loser case start at 20%, and with a proper, informed, experienced and adequate effort and defense, that number gets better in favor of the driver. It cannot generally get better than 80% with a perfect defense, so even a perfect case for the defendant is only an 80% case. That means do what is suggested in section 1 of these recommendations.
o. Do not put the car in “drive” until everyone in the car has their seatbelt on. That also keeps blood off your dashboard in the event of an accident.
p. You might end up dealing with police even if you do everything right. For example, I have had two clients who were doing absolutely nothing wrong, and were hit by a drunk driver. The cop arrives and talks to both drivers. If your car or you smell of pot, or your breath of alcohol, or anything else suspicious is going on, you will have a problem even with NO bad driving and NO automobile issues.
q. Always be polite. You will never win a roadside argument about the law. Being right is of no help. Remember that the applicable law is complicated enough so that many issues can only be resolved in court.
r. You CAN say “officer, I’d be happy to discuss that with my lawyer present. Please arrange that with my lawyer. I know you’ll give me your card, and I’ll have an attorney contact you.” If you want to push the envelope and generally be correct, you might add “my attorney told me that if I discuss the possible case with you, my fee will double.”
s. Perhaps of greatest importance, drive only when you are legal to drive. That varies with the state. The range of “legal” is astonishing, going from the presence of any amount of the THC COOH non-psychoactive cannabinoid which may be in your urine for weeks after intake of THC, to the general “impaired driving” laws. Should you get stopped or questioned and investigated, being “legal” is a wonderful thing.
t. You do not need to perform the SFSTs, the “Standard Field Sobriety Test.” This is the one leg stand, the heel-to-toe, and the rest. That is voluntary and can and should be refused.
u. The same applies to the PBT; the portable breath test. The PBT is a small, hand-held device, used roadside. The “real” breath testing machine is a box that sits on a table, usually at a jail or at a police station. The PBT must be voluntary, and can and should be refused in Colorado. If you are arrested, or if the officer otherwise “invokes express consent” there ARE consequences to refusing to choose blood or breath, and consequences to failing to cooperate with the chosen test. Blood is frequently drawn by an EMT.
v. An officer’s request that you perform a “DRE,” a drug recognition evaluation. The DRE repeats the roadside testing with additional things. If done according to cop training, it should take about an hour. That too must be voluntary and can and should be refused. REFUSE it. It’s purpose is not to see if you are impaired, and is not to determine if you’ll be allowed to leave immediately instead of being jailed. Instead is used to gather evidence to use against you later in a prosecution. I’m working, by invitation, on book chapter on the topic of DRE “expert” evaluation. The underlying “science” consists of some of the worst experimental design I’ve ever seen, and your case result may be determined by that testing.
GOOD LUCK, drive safely, legally, and do not confess or consent except as described. If you need help please call Lenny Frieling at (303) 666-4064.