What to do During a Traffic Stop

First and foremost, stay calm, lower your driver side window and stay put while the police officer approaches you.  Do not be surprised if the officer approaches on the passenger side of the vehicle.  They often do this to avoid being hit by passing traffic.  Keep your hands on the steering wheel in plain view.  Turn off your engine and put the ignition key on the dash.  This will allow the officer to feel safe and not worry that you might accidentally back over them or take off.  If it is dark outside, turn on your inside light so that the officer will be able to see inside your vehicle.  Doing this allows the officer to be assured that there is no danger to him or her.  In the minds of most officers, any traffic stop carries the potential for a life threatening attack and the driver must avoid misunderstandings.

Do not get out of your car unless the officer asks you to do so.  Exiting your vehicle without being asked will be taken as a threat.  Do not root around in the car for anything, as this is cause for suspicion and will place undue stress on the officer. Never reach under your seat for anything.  The officer may think you are reaching for a weapon and take offensive measures.

How to Pull Over

There is a correct way to pull over during a traffic stop.  Don’t slam on your brakes when you see the flashing lights.  You should immediately slow your vehicle down and put your turn signal on.  Pull off the road completely to a shoulder or side street as quickly as possible.  The goal is to park your car so it’s out of the way of traffic.  If it is not a safe place to stop, drive slowly to a safer place.  Stay in your car with you seatbelt fastened and turn off the radio.  If you have any passengers in your vehicle, request that they remain silent at all times with their hands in plain sight. 

Dealing with the officer

The first rule is to always be polite to the officer.  Great the officer with a warm and friendly smile as this will lower his or her fears.  If you appear rude, angry, annoyed or treat the officer in a condescending manner, your situation will likely be much worse.  Always follow instructions and give the officer your license, registration and insurance information when they ask for it.  Treat the officer with respect and courtesy.  Keep your answers short and simple by replying, “Yes sir” or “No ma’am”.  This will go a long way in helping your case and the officer may decide not to issue you a citation if the infraction was minor in nature.  Always remove your sunglasses and maintain eye contact with the officer.  Most law enforcement officials view this as a sign that you are being truthful.

Remain as inconspicuous as possible.  If the officer doesn’t remember certain aspects of the incident, this can work to your advantage in court.  It is equally important to keep a record of the events for yourself.  Note exactly when and where you were stopped and how fast you were really going.  Record the weather and road conditions.  Document the flow of traffic around you as well as the overall traffic conditions before you were stopped.  These details will help if you decide to fight the citation in court.

If the officer issues you a citation, take the ticket, even if you believe that you did nothing wrong.  Signing the ticket is not an admission of guilt, and only acts as proof that you received a copy of the ticket.  In some states, not signing a ticket can be regarded as a criminal infraction.

What not to say

Every question asked by the officer has a purpose.  His job is to collect evidence against you to include in his report.  The cop is not your friend and is trained to ask leading or entrapping questions.  Never make any admissions regarding how you were driving, nor admit that you were speeding or committed any traffic violation.  If you decide to fight or contest your ticket at a later date, admitting guilt will lessen your chances for a successful outcome.

When the officer asks you “Do you know why I stopped you”, your best defense is to politely answer by saying, “No I don’t know officer.”  Another question they may use to trap you is by asking, “Do you know how fast you were going?”  A simple reply is best such as; “I am always a safe driver and believe that I was going with the flow of traffic”. 

What if the officer wants to search your vehicle?

The United States Constitution protects all individuals from unreasonable search and seizure.  A search warrant is usually necessary before a police officer is allowed to search your person or property.  However, there are a few exceptions to this rule.

If a law enforcement official makes a request to search you or your vehicle, and you consent, then a warrant is not needed.    Another exception is known as “probably cause”.  If the officer has a reason to suspect that there is an illegal activity going on in the vehicle or has concluded that a search of your car or person will lead to evidence of contraband, then your consent is not needed.

Driving Under the Influence (DUI)

Introduction:  What is Driving Under the Influence?

All 50 states and the District of Columbia define it as a crime to drive with blood alcohol concentration (BAC) at or above .08 percent.  License suspension or revocation traditionally follows a conviction for alcohol-related driving.  Your driver’s license can be taken before conviction when a driver fails or refuses to take a chemical test.

More than 17, 000 people are the victims of drunk driving accidents every year.  Approximately 40% of all motor-vehicle fatalities are alcohol-related.  In the United States, drunk driving is the leading criminal cause of death.

Drunk driving is considered a serious case in regards to driving violations.  It may be referred to as Driving Under the Influence (DUI), or Driving While Intoxicated (DWI) or Operating While Intoxicated (OWI) in certain states.  It is defined as the individual operating the motor vehicle has consumed enough alcohol to impair their driving ability.  This is determined either by a blood-alcohol test (BAC) or by some other sobriety test conducted by the officer.

Field sobriety tests and chemical tests

Field Sobriety Testing

During a DUI stop, an officer may ask a driver to submit to field sobriety testing.  This can include performing any number of tasks to assess impairment of a person’s physical ability.  Most people don’t realize that these tests are optional.  You are well within your legal right to politely refuse to take the Field Sobriety Tests in their entirety.  These non-chemical tests are subjective and designed to provide probable cause for the officer to arrest you.  Individuals that are perfectly sober could fail these tests due to a disability, illness, poor coordination, tiredness or poor testing conditions, such as bad weather.

One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test.  This is a portable breath test to determine the presence of alcohol.  The officer is supposed to advise the suspect that the test is voluntary, but often, they do not.

The National Highway Transportation Safety Administration (NHTSA) created a standardized model for field sobriety testing in 1981.  The Standardized Field Sobriety Test (SFST) uses three tests in combination to obtain valid indicators of impairment and establish probably cause for arrest. 

HGN Testing

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side.  Under normal circumstances, this occurs when the eyes are rotated at high peripheral angles.  When an individual is under the influence, Nystagmus is exaggerated and may occur at lesser angles.  The officer may use a small penlight or flashlight to observe the suspects eyes as it follows a slowly moving object.  The examiner looks for three indicators of impairment in each eye.  If the eye cannot follow a moving object smoothly, this may indicate impairment.  However, this test alone is not enough to secure an arrest.

Walking and Turning

These tests typically consist of walking a straight line and turning around and repeating the procedure.  They require the suspect to following instructions while performing simple physical movements.  An impaired person may have difficulty with tasks requiring their full attention. 

One Leg Stand

Sometimes, the officer will request the suspect to stand on one leg with one foot approximately six inches off the ground and count aloud by thousands until they are instructed to put their foot down.  The officer usually times the suspect for 30 seconds.

When all of the field sobriety tests are completed, officers are accurate in only 91% of their overall cases. 

Submitting to Chemical Testing

The penalties for refusing to take a Breathalyzer test or a blood test vary in each state.  However, most of them will suspend or revoke your driving privilege for a year.  Once a DUI suspect has been asked to submit to chemical testing, any decision on whether or not to submit can have both civil and criminal ramifications.  Some states may seize your vehicle if it’s registered to you, which may be impounded with fines imposed.  At least 15 states have introduced bills to increase penalties for refusal of a BAC test.  Nebraska, for instance, penalizes individuals who refuse with 60 days in jail.

When prosecuting DUI cases, the state frequently relies on chemical test results to prove the defendant’s guilt.  If the defendant refused to submit to chemical testing, the prosecutor may attempt to introduce evidence of the refusal and try to sway the court by inferring that the defendant’s refusal was an acknowledgement that he or she would fail the test and therefore is guilty.  Most good defense attorneys can successfully argue this point.

Some states have “implied consent law” that comes into effect.  This means that by applying for a driver’s license in that state, you agreed to comply with requests by law enforcement officers to take chemical testing to determine your BAC.  The laws you are subjected to are those of the state in which the violation occurred and not where you obtained your driver’s license.  If given the choice of breath test or blood test, you may be better off choosing the Breathalyzer, as the machines are capable of error.  Defenses may include radio frequency interference, certification of the machine, and certification of the police officer administering the test.  If you have certain medical conditions such as diabetes or acid reflux can make the test inaccurate or if you had recently used an alcohol based mouthwash.

Before making any decisions regarding tests requested by law enforcement, research the laws in your own state to see what the penalties are for refusing or submitting to the tests.  Also, a legal professional who specializes in DUI cases may be the best person to obtain advice from.

Penalties of a DUI

Being charged with a DUI offense is extremely serious.  You risk losing your driver’s license, paying substantial fines, being placed in jail, the loss of your job, friends and family in some cases.  In addition, if convicted, you will have a criminal conviction that stays on your record for several years.

The state of Arizona has some of the toughest DUI laws in the country.  All DUI offenders, including first-time offenders are required to install Ignition Interlock Devices (IID) in vehicles that they operate.  These are breathalyzers, which are attached directly to the vehicle.  The driver is required to breathe into the IID prior to starting the vehicle.  If any alcohol is detected on the driver’s breath, the vehicle will not operate.  As the individual drives, they are periodically required to provide breath samples to ensure the continued absence of alcohol in your system.  They can cost up to $300 to install and require a monthly maintenance fee of $100 or more.

The State of Illinois has instituted a “zero tolerance” campaign to address the problem of DUI offenses.  The first time a person under age 21 is convicted of a DUI, he or she automatically loses their driving privileges for two years and may also face imprisonment and a fine as well.

The average cost of a DUI conviction is around $11,220.  This figure includes the cost of high-risk insurance needed for three years, fines and court costs, a hardship driving permit, loss of four weeks income due to jail or community service, court-ordered evaluations and remedial education classes.

License Suspension

License suspension or revocation traditionally follows a conviction for alcohol-impaired driving.  Under a procedure called administrative license suspension, licenses are taken before conviction when a driver fails or refuses to take a chemical test.  Administrative license suspension laws are currently in place in 41 states and the District of Columbia.

In some states, the individual will be issued a temporary license valid for 30 days.  If they submit to a breath, blood or urine test that indicates a .08% blood alcohol level or more, their license will be automatically confiscated by the police (unless it is an out-of-state license).  The officer then submits the motorist’s license to the state Department of Motor Vehicles along with a report, which includes all information relevant to the arrest.

Offenders in certain states are permitted to drive only if their vehicles are equipped with ignition interlock devices.  Most states only order this device to be installed if they have a previous DUI conviction.  However, if your BAC was over .15%, or if you caused injury while driving under the influence, the court may order the device to be installed in your vehicle.

The length of the suspension varies according to the offense committed and whether it was a first or repeat offense.   In some cases, the individual has ten days in which to call the Drivers Safety Office of the DMV to contest the suspension at an administrative hearing.

Each state has a different procedure for getting your license reinstated after revocation.  In some states, you must present proof of enrollment or completion of a DUI educational program, or drug or alcohol treatment if it’s required by the court.

How to Deal With a DUI

Getting a Lawyer

Each year, states enact tougher DUI laws and more severe penalties for suspected drunk driving.  You risk losing your license, your job, being placed in jail and fined substantial fees.  Your auto insurance rates will go up and you may end up with a criminal record that lasts for years.

Being charged with a DUI is a traumatic event in anyone’s life and may have severe consequences for everyone involved, including the driver, their family and the victims.  Therefore, it is imperative to seek qualified legal counsel who specializes in representing defendants against DUI offenses.

The laws governing DUI offenders frequently change and their defense requires an attorney with experience and technical knowledge of the science involved in this specific area of law.  As soon as you are arrested, the clock begins and you will only have a short deadline to file a notice for hearing with the Department of Licensing in order to keep your driver’s license from being suspended indefinitely. 

Start by conducting your search for an attorney in the location where you were charged.  Narrow the field down by using the precise criminal charge that you were arrested for.  Select the top three or four firms and review the attorneys’ credentials.  Look for a lawyer that has held prominent positions in the bar association or one who is active in the National Association of Criminal Defense Lawyers (NACDL).  Make sure that you retain a lawyer who understands the intricacies of a drunk driving case.

You will want to be prepared with a list of questions to ask the attorney, some of which should include:

  • How long has he or she been practicing DUI defense law?
  • How many DUI cases have they defended?
  • Out of the number of cases they’ve litigated, how many were dismissed?
  • How many of their cases ended up with a plea agreement?
  • Ask if he or she will be handling your case directly or passing it off to an associate.

Some of the questions the attorney may ask you are:

  • Did the officer have a valid basis for pulling you over?
  • Was there probably cause to arrest you?
  • Did he perform the field sobriety tests in accordance with the appropriate standards?
  • Did he inform you that these tests were voluntary?
  • Were you advised of your Miranda rights?
  • Were you properly given implied consent warnings prior to taking the breath test?
  • Was the breath test conducted in accordance with State standards?
  • Are there any witnesses that can testify on your behalf?
  • There are many general practitioners who may be willing to offer you a rock bottom fee.  They often lack the experience in this area of law and will not be able to offer the experience and skills needed for a complex DUI case.  When facing serious consequences, you can’t afford not to have a lawyer with experience, knowledge, and a stellar reputation with the courts, judges and prosecutors sitting next to you in court.

    Plea Bargain

    As the criminal courts become increasingly crowded, prosecutors and judges feel increased pressure to move cases through the system quickly.  Trials can stretched out for weeks and sometime months while pleading guilty can be arranged in a matter of days.  Therefore, plea-bargaining is very common and more than 90% of convictions result from a negotiated plea arrangement.  A DUI plea bargain is where the government and the defendant make a specific arrangement where the defendant agrees to plead guilty in exchange for a reduced charge or for no further prosecution.  If the government feels that their case might be weak, they are more willing to settle for a plea bargain in order to clean the court’s calendar.  A plea bargain may be made at any time after arrest.  The timing of a plea bargain depends on the court and the jurisdiction.

    For most defendants, the principal benefit of plea bargaining is receiving a lighter sentence for a less severe charge than might result from taking the case to trial and losing.  They may be able to save money on attorney’s fees if they have retained private counsel.

    Defendants who remain in custody and cannot get released on their own recognizance or by posting bail may want to plead to a lesser offense.  They may get out of jail altogether on probation, or with some community service obligations. 

    Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offenses looks better on a defendant’s record than the convictions that might result following trial.  This can be of extreme importance if the defendant is ever convicted in the future.  A second conviction for DUI may carry mandatory jail time; whereas if the first DUI offense had been bargained down to reckless driving, there may be no jail time for the subsequent DUI.

    Some people that are in public eye, such as celebrities or politicians, may choose to avoid a scandal by quietly pleading guilty.  They often want to shield their family from further embarrassment.  While news of the plea itself may be public, it is short-lived compared to that of a sensational trial with a lot of media coverage.

    Getting a charge reduced from a felony to a misdemeanor or from a felony that constitutes a strike under a “three strikes” law to one that doesn’t can prove to be a critical benefit.  Future employers may not want to hire someone previously convicted of a felony and felons can’t own or possess a firearm and may lose their right to vote.

    Court Proceedings

    Once you’ve been arrested for a DUI offense, court proceedings will soon follow.  The key to defending yourself is to secure legal representation.  The court will offer you three choices:

    • To be represented by a court-appointed public defender if you can prove that you cannot afford an attorney on your own
    • To secure private legal counsel that you are responsible for paying for
    • To represent yourself, also known as “pro per” or “pro se” (this is never a good idea)

    Successfully navigating you way through a criminal prosecution requires a clear understanding of the DUI court process. 

    The Arraignment

    Your first court hearing is known as the “arraignment”.  At this court appearance, you will be informed as to the charges against you.  While you may be under the impression that you were arrested for a DUI, the prosecutor may have sought additional charges that you were unaware of.  The court will have a docket, which lists all of the names of the people who are scheduled for a court appearance that day.    The judge will ask you if you understand the charge(s) against you and will ask you to enter a plea of “not guilty”, “guilty” or “no contest”.   In this first court appearance, it is imperative that you plead “not guilty” no matter what the circumstances are.

    Once your plea is in place and you have dispensed how you will be defended, the court will address the status of your release.  If you don’t have a prior record, you will most likely be released on your own recognizance.  If you have a criminal record, the judge may impose a bail amount to ensure that you will return to court for further proceedings.

    Pre-Trial Conference

    The next appearance is called the “pre-trial hearing”.  During this proceeding, the judge will want to know the status of the case.  Do the parties want to enter a guilty plea to something or do they want to set a time for a “Motion Hearing” or proceed to trial?  These hearings are administrative in nature.  In most cases, the defendant is not required to say anything other than answering the questions imposed by the judge.  Most attorneys will request a continuance at this point in order to secure time to build their case against the prosecution.  Under these circumstances, the issue of your constitutional right to a speedy trail will come up.  Your case must be resolved within ninety days or sixty days if you are in custody.  If your attorney waives the speedy trail rule, it’s probably in your best interest at this point.

    Motion Hearing

    A motion hearing begins with the prosecution presenting their case through witness testimony.  The prosecution attempts to establish that all of the contested evidence is a result of a legal police investigation.  When the prosecutor is finished questioning a witness, the defense is provided an opportunity to question that same witness.  A defendant has a constitutional right to confront anyone providing testimony against the defendant.

    When the prosecution has exhausted all of their witnesses, the prosecution will rest.  The defendant now has the opportunity to call their witnesses.  When both sides are done, the court requires arguments from both parties.  The judge will then make a ruling as to each motion. 

    There are three beneficial objectives of a motion hearing.  First is to eliminate and suppress as much evidence as possible.  Secondly, the proceedings are recorded and every witness is under oath.  This allows the defense toe prepare for future trial testimony in the even there is a trial.  Lastly, the motion hearing is an opportunity to educate the prosecutor.  Prosecutors rely upon the police report when charges a defendant with a crime.  This usually gives a negative and biased viewpoint against the defendant.  The officer may fail to interview a crucial witness due to time constraints or because the witness had not come forward at the time of the incident.  During live testimony, the facts create a more favorable perception of the defendant.

    At the conclusion of the hearing, the defendant will know how strong or weak their case may be.

    Trial Confirmation Hearing

    The readiness hearing is held approximately one week before the scheduled trial.  The court will ask if both parties are ready to proceed to trial.  Occasionally, unforeseen situations can occur that may affect the availability of witnesses.  When both parties are ready, the court will assign a date and time for the trial.

    Jury Trial or Bench Trial

    Trials can either be decided by the “bench” which is where the judge makes the decision.  A jury trial will be comprised of six people (12 in the case of a felony) who decide the facts of the case.  If you waive your rights to a jury trial, you cannot get it back.  During the trial, the prosecution is required to prove each element of the crime beyond a reasonable doubt.  If you are found not guilty, you are free to talk out of the courtroom.  If you are found guilty of the charges, the judge will often sentence you on the spot.  Your sentence can include a variety of penalties such as community service, classes, fines, court costs, and in some cases, incarceration.

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