You Should Have a Plan for Interacting with Police
Anytime you drive, you risk a police interaction, and if you are unfortunate enough to encounter the police, you should have a plan. Encountering police is always very stressful. Even attorneys find police interactions stressful, and we are generally more knowledgeable about the laws and our rights than most people (including cops!). You should give some thought and consideration to what you will do if pulled over by police so that you can get through the interaction as quickly and smoothly as possible and without bodily harm. You do not want to be thinking about what to do for the first time as you come face to face with possibly irate and always armed police. Have a plan for interacting with police. Here are some things to think about in advance of your next interaction with police:
What do I say when police ask, “Do you know why I pulled you over?”
Take a moment to consider this question, now, while you are reading this post, and not by the side of the road, blue and red lights flashing behind you, a spotlight blinding you, and the adrenaline rush that is making your heart race. After calm reflection upon the situation and this inevitable question (or its cousins, “Do you know the speed limit?” or “Didn’t you see that sign?” or “Do you know how fast you were going?”), you should agree that this question is ludicrous. Police obviously know why you were pulled over, so the inquiry is not seeking an answer to the question posed, but is designed to invite admissions that will later be used against you in court.
While it might be tempting to give a smart-alecky response (“If you don’t remember, then can I drive away?”), this will generally only antagonize police and heighten the tension of the encounter.
So, how could you respond without antagonizing police, while also avoiding potentially incriminating yourself? The answer often depends on what, if anything, you have just done. If you are certain you were stopped only for some minor traffic violation, you might answer “Oh, did I miss a sign?” In most circumstances though, the safest response could be something along the lines of “I cannot think of a reason, could you explain?” If you have any concerns, fears, or doubts about what may be next, even that response is not ideal.
The ideal answer is described in my previous post entitled “Invoke Your Rights and Secure Counsel Part 2”. In short, I advise responding by offering police my business card and saying: “Do I have to answer? You see, my attorney insists that I invoke my right to counsel and to remain silent and not consent to any search. I’d love to chat and explain more, but my attorney is adamant I invoke immediately. You seem nice, but my attorney is a real pain, so I’d rather take the risk that you might be mad than my attorney chewing me out and dropping me. Please take this card. I’m sorry, but I just can’t answer your questions.” You should also review our very detailed explanation about how to conduct yourself (and why) in any encounter that amounts to an interrogation.
What do I say when police ask to search my vehicle?
You always say “I do not consent to a search of any kind.” If police decide to search your vehicle anyway, do not block or interfere in any way, as that could endanger your life, and this is not a dispute you can win by the side of the road. Merely repeat, “I do not consent to a search of any kind.”
What do I say when police ask if I’ve been drinking or doing drugs?
Admit to nothing! Admitting to drinking or doing drugs will NEVER improve your situation. If police think you are impaired, they will pursue the issue regardless of your answers, and any incriminating answers will only make defending against any charges in court more difficult. Just repeat the earlier response, “Do I have to answer? You see, my attorney insists that I invoke my right to counsel and to remain silent and not consent to any search. I’d love to chat and explain more, but my attorney is adamant I invoke immediately. You seem nice, but my attorney is a real pain, so I’d rather take the risk that you might be mad than my attorney chewing me out and dropping me. Please take this card. I’m sorry, but I just can’t answer your questions.”
What do I do when police ask me to perform a field sobriety test?
Simply, politely, and firmly say “No thank you.” You are not required to perform a field sobriety test, and you never should. Field sobriety tests are subjective, with large margins of error, and are often failed by perfectly sober drivers (or perfectly sober police, attorneys, and judges), but police will use the “failed” tests to justify an arrest. Then police use your failure to complete these tests with perfection as justification for a subsequent chemical test to establish your blood alcohol or presence of drug metabolites.
What am I required to do when interacting with police?
If you are driving, you are required to provide your license, registration and proof of insurance. If police order you and/or your passengers out of your vehicle, you are required to exit your vehicle. If you have a weapon, and police ask if you have a weapon, you are required to answer truthfully (and may be required to surrender the weapon temporarily). You are not required to answer any other questions, and you should not.
What about questions that are perfectly harmless?
You are not required to answer these questions, and you should not. Police may ask about where you were coming from, or where you were going, they may offer some statement inviting a response regarding the weather, a sporting event, or something in the news – remember, police are trying to engage you in a conversation where everything you say can and will be used against you – decline their invitation, and explain again that you won’t answer any questions without your attorney with you.
Why would I want to talk to police in the first place?
You wouldn’t. There are always exceptions, for example you have been or are about to be the victim of a crime, but otherwise speaking with police offers little upside to you. They are constantly looking for reasons to issue a ticket and take your money. Even if you have been the victim of a crime, it is not at all unusual that police will also charge you with a crime. For example, someone assaults you, you fight off the assailant, then call police. They show up and your assailant is in worse physical condition than you are. Police apply cop logic and decide that you must have started the fight, because your attacker appears more injured than you, and arrest you for assault. Similarly, following auto accidents, police show up after-the-fact, having observed nothing, and just start writing tickets. So many harmless activities have been criminalized that it is very easy to inadvertently admit to criminal conduct without even knowing it, especially in a stressful situation, so your best policy is to keep your mouth shut.
The best practice is avoidance.
We advocate doing everything reasonable to avoid police interactions. We also strongly advise never driving after you have had anything to drink or after doing any drugs. You may not be impaired after one beer, but that does not mean a police officer will not charge you with a DUI for driving while impaired to the slightest degree. Consider being stopped after having had a beer, and police asking if you have had anything to drink – it would be much better to truthfully say, “No, I’ve had nothing to drink today” rather than “I have nothing to say”. We are big fans of cabs and services like Uber and Lyft. $30 for a ride is significantly less expensive than dealing with a DUI, and much, much safer than dealing with police on the side of a dark road.
Never give police a reason to pull you over in the first place. Keep your vehicle in good repair. Keep your registration current. Deal with any traffic tickets (photo enforcement included) promptly by first consulting us and then following our advice, to avoid a license suspension. Try not to drive in front of police – they will be looking for any reason to stop you, every moment they are behind you. Don’t speed. The vast majority of cases we handle originated with a traffic stop for speeding, and snowball from there.
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In summary, do everything reasonable to avoid interacting with police in the first place, and have a plan about what you will do and say in the event you cannot avoid police. Think through some scenarios, perhaps role-play them with friends, and, remember, the less you say, the better. For another take on the issue, see our infographic, with a twist:
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Have A Plan for Interacting with Police, or any other criminal defense matters, please feel free to contact Criminal Defense Attorney, Michael Kielsky at 480.461.5309, log on to www.udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.