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Asserting Your Rights with Police, Including This Memorial Day Weekend

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Northern Virginia criminal lawyer/ Fairfax DWI attorney on dealing with police encounters

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Like bear feasting on salmon swimming upstream, police often troll for arrestees in such easy picking areas as bar neighborhoods and at such times as Memorial Day weekend. If that were not so, why are Arlington County, Virginia, police out in force on Friday and Saturday nights in Arlington’s bar neighborhoods, and why did I see so many Clarke County law enforcement vehicles late last Saturday afternoon on Route 7 near the beautiful wine country area straddling Loudoun and Clarke counties?

We live in an overly-policed state that says have fun, but not too much fun nor the “wrong” kind of fun; enjoy wine festivals but know the risk of being arrested if you drive home from there; have beer at the bar but risk an intoxicated in public charge even inside a bar, even when more buzzed (if even that) than intoxicated.

Nobody is holding a gun to people’s heads to live where they live, rather than to seek a less policed area. Because I have not touched alcohol in a dozen years nor marijuana in over thirty years — because pot never did anything for me, moderate drinking was enjoyable, and I enjoy life much more without either — anytime a police officer might choose to stop me for a possible DWI or pot bust is doing a favor to those who actually are driving DWI or with marijuana or other contraband, as they divert their attention to leaving me with nothing worse than one of my rare moving violation tickets.

If police make a pretextual traffic stop for an alleged minor moving violation and find no evidence of anything else, they might issue a warning in order quickly to get back on the road to look for more serious offenses. If they write a ticket or summons for a traffic infraction, not only does that take their time to do so, but also means their appearing in court for the matter, when they can be focusing their time on more serious law violations

No matter how many times people are reminded of their rights to remain silent with police, to to decline police searches, and to decline field sobriety tests and handheld breath tests in DWI investigations, too many people submit to talking with police, consenting to searches, and proceeding with DWI field tests. For that reason, I remind you of your rights during this weekend when police will be out in force:

  • Nobody has an obligation to speak with the police (and a driver can provide his or her license and registration without saying a word), other than identifying oneself in jurisdictions making it a crime not to identify oneself when police have reasonable suspicion of criminal activity. Yes, I know how to talk my way out of a police encounter (as I ultimately did — after first declining to answer police questions — when confronted by an airport police officer after a complaint about my quietly doing taijiquan calisthenics in an empty airport section), but do non-criminal defense lawyers know how to do the same? Most non-criminal defense lawyers who try to talk themselves out of a hole with the police can dig a deeper hole.

It may be scary to risk an arrest and tempting to talk to the police to try to avoid an arrest, but an arrestee can always hire a lawyer to work to undo the situation. It can be preferable to risk arrest (and then deal with the bail review process) with better prospects of beating a prosecution, than to speak with the police or consent to a search and then face an arrest and more likely conviction.

  • Nobody has an obligation to consent to a police search. Common reasons arrestees have given me for speaking with police and consenting to searches is to avoid making the police angry. Do you prefer angry (whether feigned or real) police or a greater risk of being arrested AND convicted?

Beware consenting to a search when thinking you have nothing to hide. What if — unknown to you — a current or prior passenger of your car (or sick practical joker) left illegal drugs or other contraband there? What if you have borrowed someone’s jacket or sleeping bag that turns out to have contraband therein (like the time I saw someone had left Bambu rolling papers in the sleeping bag I borrowed when in summer camp)? What if police find a lawful substance there but conclude it is illegal and arrest you? What if your computer or phone that the police wish to search has been used by someone else (without your knowledge, whether directly or by a computer virus) to access child pornography or obscenity? Why risk it by consenting to a search?

  • Nobody has an obligation to submit to field sobriety tests, which plenty of stone sober people cannot successfully complete. Yes, refusal to do such tests, in Virginia, is admissible in evidence, but Virginia caselaw says such tests are not mandatory, so the argument goes that refusing a voluntary option is of little to no probative value.
  • In Virginia, nobody has an obligation to blow into the handheld preliminary breath test machine. These machines are so inaccurate that even a little alcohol consumption might yield an unfavorable reading on these machines.
  • Virginia law mandates that those arrested for probable cause of committing DWI submit to the police officer’s choice of a breath test, blood test or both. Nevertheless, for some without prior DWI nor refusal convictions, they might prefer the risk of a civil refusal conviction (which carries a one-year license suspension without restricted driving if without a prior DWI nor refusal conviction) rather than helping police and prosecutors prove their case by submitting to such breath and blood alcohol testing, particularly where police breath testing machine results are so inaccurate in the first place.

To help members of the public, I have tried various gradations myself in dealing with police when stopped by them, which only happens for alleged moving violations, around once a year or two, other than my above-described brief airport t’ai chi police stop. When I simply respond to police questions by politely saying “I am not answering any questions, officer” they have rarely complained — other than the time a police officer let me go only after telling me my eyes were bloodshot (actually, a few short red hairline marks from being close to bedtime) and lamenting my not answering his questions — and have ordinarily sped along my processing, whether letting me go with an oral or written warning, or giving me a moving violation ticket (where I have avoided any points off my license for over twenty years, in part because I always go to court to challenge any of these tickets).

I recommend that you view and internalize my top ten list for dealing with police, and my videotaped simple alternative phrases for refusing discussions and searches with the police. Know your rights with the police, and enjoy the long weekend.