Sunday, July 25, 2010

An Arresting Experience . . . Part 2

Second in a series of satirical essays I wrote a few years ago.

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A few things to thing about to avoid what is known as "The Traffic Stop." If you read this and still get pulled over, don't blame me. You were warned!

Hello! Your friendly neighborhood public defender is back to give some more tips on how to improve your relationship with the criminal justice system. Hope you enjoy it. Pay attention. There may be a test later.

Driving. The ultimate expression of personal freedom and a necessity in our society. However, the minute you get behind the wheel, you've increased your odds of joining the criminal justice system by a factor of about a thousand. You'd think that strapping several thousand pounds of steel and flammable chemicals onto your body would activate every ounce of education and common sense a person could ever possess.

Wrong. In fact, the mere act of turning the ignition key seems to disengage the brains of a sizable percentage of the driving population. The single easiest way to avoid the criminal justice system is to avoid driving. However, since that's not an option, here are some avoidance pointers.

1. Drinking. Don't do it. Yeah, right. Consider this. The legal limit for blood alcohol content [BAC] in most states is .08. If you are under the age of twenty-one, the limit is .02. Pretty much, if you've been in the same room with beer, you could test hot when the officer says "blow here." [Free hint #1: Replying "how about you blow here . . ." will not garner the response you want.]

Therefore, if you must drink and drive, think ahead. For example, carefully inspect your car. Are all the lights working? Do the blinkers blink? Are your tags current? Is anything on your tags obscured with mud? Is anything hanging or falling off your car? Are your seatbelts in good working order? If you can answer "yes" to these questions, you may be ready to drink and drive. "No" to any of these questions means you need a ride to the party with a more safety-conscious friend. You are not ready to drink and drive and may, as a result, find yourself in contact with the criminal justice system. Many a night in jail began with a simple traffic infraction. [Free hint #2: There is no such thing as a simple traffic infraction.]

2. Marijuana. Hey, it's just weed! No big deal. Just the man trying to spoil my buzz! Let me explain a couple of things to you. First, marijuana and its "active ingredient THC" is against the law in all fifty states. In most states, it's a class 'A' misdemeanor, punishable by up to twelve months as a guest of your county sheriff. We'll talk more about the jail experience later, this is about staying out of jail.

If you must smoke and drive, the same vehicle safety rules as drinking and driving apply. If your car can't pass a visual safety inspection, leave it in the driveway. A broken taillight screams "probable cause" to the police officer or state trooper that just saw you leave the biggest party in the county. Make them earn their taxpayer dollars, fix your freaking blinkers.

If you must smoke and drive, be sure you finish your entire stash before you leave the party. If you are heading to the party, buy it there. I don't care if BYOB (bring your own baggie) is cheaper. An arrest for possession is more expensive. I say this because, it is not illegal, on its face, to carry marijuana (and its active ingredient THC) in your body. It is illegal to carry it on your body or in your car. Yeah, you could still get busted for stoned driving, but your first offense is probably a deferred sentence and drug school. Possession is a dead-bang conviction with twelve months of peeing in a cup for your Probation Officer and the prospect of county jail hanging over your head. It has always been my opinion that it is generally better to be caught stoned than to be caught carrying. (We'll talk about the phenomenon of "pedestrian under the influence" another time."

This goes for paraphernalia as well. Paraphernalia is a big word that deserves some explanation because that roach clip will sink your sorry butt as fast as a nice fat lid. Paraphernalia is "any device used to store, prepare, inject, ingest . . . or in any way introduce a controlled substance into the human body." Pipes, straws, roach clips, aluminum foil and baggies containing residue . . . you name it and most likely they can classify it as "paraphernalia." Merely having these items is a bright shiny misdemeanor in its own right.

However, it gets better. If the prosecutor sends your paraphernalia to the lab and it tests positive for any "controlled and dangerous substance" (CDS), then you get another charge for possession. So listen up! Rinse and toss those straws. For heaven's sake, get rid of that burned aluminum foil. Leave your bong at home. Toss the roaches, and never (and I mean never, ever) leave your roach clip in the ashtray or clipped to your visor.

3. Minor In Possession: A special subset of the law, reserved for those under twenty-one. I'll make it simple. If you are under the age of twenty-one, it is against the law for you to possess, attempt to possess, consume, or be under the influence of alcohol. It is one of the few times that being intoxicated, on its face, is illegal. There's no defense, unless you find a time warp and age real quick between the time of your arrest and your court date. Probation, a fine, community service, pee-in-the-cup, and a suspended driver's license awaits you. If you are under sixteen, they wait until you turn sixteen and get your license. Then they suspend it! This awaits you if you decided to indulge in underage drinking. It ain't worth it . . .

4. Insurance: Every state in the country requires that a motorist carry some form of liability insurance. In some state, the requirement is as low as $15,000 (barely enough to cover the front quarter-panel of a Hummer.)

This is what the state calls a "strict liability" offense. That means you either have it or you don't. There are no excuses and no defenses. No "I just bought the car and was driving it home." No "I have applications in with three agents and none have called me back yet." No "I had it, but lost my job and missed a payment." This is one of the few black and white, right and wrong offenses on the books. Also, word for word, one of the most serious. First offense is a fine, probation, and up to twelve months suspension of your license. Screw it up twice or more and you are looking at mandatory jail time in many states.

Of course, the easiest way to get and keep insurance is never to need it. I pay sixty-seven dollars a month on a car, two vans, and a work truck. My husband and I are over forty and have boring half-page driving records. Our insurance is cheap. If it's too late for you to have a boring driving record, you have to be more creative.

5. Driver's License: You know, that little card they gave you when you were sixteen after the examiner managed to pry his hands from over his eyes. Your ticket to the open road. Yours to keep. Yours to lose. The state does not take your license away. You give it to them by doing dumb ass things and getting caught. You notice I say "and getting caught." It is theoretically possible to be a dumb ass and get away with it for many years. However, since you are most likely an idiot for getting your license suspended, you will most likely get caught. Living under the radar and off the grid takes cunning and discipline. Face it, if you had those qualities, you wouldn't be sitting in jail after the cops found you sitting in your car using your suspended license as a scraper to get the seeds out of your stash.

A suspended license is a snowball rolling downhill that is not easy to stop. I don't touch license defense cases with a ten-foot pole. They suck. Find a lawyer that specializes in this particular subset of the criminal justice system, because you're probably not smart enough to do it on your own.

All right! It's Saturday night and you've had a few beers and tokes and it's time to get in your ride and head on home. You burn rubber out of your buddy's driveway with a rebel yell, do a U-turn in the middle of the block and head on back to the crib. A stop sign roll-through and unsignaled left turn later, you see flashing red and blue lights in the rearview mirror duct-taped to your windshield. You pull over and park, only one wheel on the sidewalk, and wait.

This is it. This is the traffic stop. More nights in jail and trips to court start this way than any other. A few tips to make this encounter more enjoyable and hopefully productive.

1. From the time you bring the car to a complete stop until the officer speaks to you, keep your hands quiet and in plain sight. At all costs, avoid "furtive movements." In the county where I started, this was the number one instance of "probable cause" listed on police reports.

Keep those hands in plain sight. If you are an innocent driver getting stopped for a bit of speeding or an expired tag, don't open your glove compartment to get your registration. If you're a dumb ass, it's too late to hide your pipe and the beer between your legs.

2. This is not the time to get chatty. A hearty "Howdy Ossifer!" or "What the hell you doing in that monkey suit, Delbert!" is not going to help at this point. The officer will tell you what he wants. There is no need to do anything other than truthfully answer his questions.

Guess what? You have some civil rights in this situation and this is a good time to know a bit about them. Typically, the officer will tell you why he stopped you. He'll say something like "Didn't you see that stop sign?" or "The speed limit in this neighborhood is thirty-five miles per hour."

If he doesn't tell you, feel free to ask. He has to answer. Now, be aware, if he stopped you for "DWB" (Driving While Black or Brown, depending on the area), the officer will have to think up something quick. If you are sober enough to pay attention, watch his body language when you ask the question. He may twitch or get a bit nervous and give some lame answer like "you failed to signal your right turn at the last stop light" or "one of your blinkers is dim." Tell your lawyer about this type of behavior. It might be relevant down the road.

You are required to produce identification and give your correct name when an officer has probable cause to ask. He has to have his "probable cause" (better known as PC.) That's the good news. The bad news is that just about anything you do is PC. A traffic stop is most definitely PC.

A couple of quick topics before I wrap this up. Now, entire classes have been taught, piles of books have been written, and Supreme Court cases argued about these next two points. So, don't expect to be an expert in a few paragraphs. However, there are a few things you should know.

Can a cop search me and my car because I committed some pissant traffic infraction?

Do you want the real answer or the "real world" answer?

The real answer is that the police need PC to conduct a search of your person or your vehicle. There are a couple of exceptions. If you are asked to step out of your vehicle, the officer can do a quick "pat-down" search to determine if you are carrying any weapons. The legal standards covering "officer safety" are pretty broad and usually interpreted in favor of the cops.

He can also do a "plain-view" search of your vehicle. That is whatever he can see by leaning in the windows. If it's in "plain view," you are royally screwed.

Now a bit of real world. The officer will often ask, in a very polite tone, if he can search your vehicle. You have every right in the world to say "No thank you. I'd rather you didn't." If you give this answer, be prepared for some pressure, such as "So, what do you have to hide?" and "How about we continue this talk downtown?" and the killer "Look, you have a [insert something wrong with your car or license]. I'm towing your car for safety violations." He then gets to search your car to his heart's content on the justification of inventorying your property. So, if you have nothing to hide, let him search. If you have something to hide, the choice is yours. If you decline, the officer may play legal chicken with you or just impound your sorry set of wheels. If you consent, he will find your stash and it's as good as a confession.

Bottom line, if you have to party, make sure it isn't in your car!

Do cops have the right to question my passengers if I am stopped for a traffic infraction?

Another hot topic. A traffic infraction is against the driver and the officer's PC doesn't extend beyond the driver. Unless the "plain-view" search screws the passengers as well. This includes open beer cans, paraphernalia in the ashtray, guns in the backseat . . . you get the point. However, more and more jurisdictions are allowing the police to ask passengers to step out of the vehicle and produce indentification. After all, the passengers are "witnesses" to the heinous traffic infraction that the driver committed and police are entitled to gather witness information. I know . . ., but that is where the law is headed.

If you are a passenger in a car during a traffic stop, be cool. The officer may talk to you and ask to see your identification. However, his authority stops there. If he asks to search you, ask him "why?" Don't cop an attitude or get stupid, but ask him why he needs to search you. If you are innocent, be cooperative. But, don't be pushed around. You do have rights. However, this does not include the right to be a dumb ass. Err on the side of caution and you will get through this traffic stop.

Better yet, follow all the above advice and don't get stopped!

The usual, expected and [to some] entertaining "fine print" and legal disclaimers:

1. This is satire. Do not drink and drive. The odds are against you and someone could die. It could be someone you love. It could be someone totally innocent. It could be you. If you don't care about your own sorry ass, think about the people that do.

2. This is satire. I have no use for street drugs. It makes you stupid, funds criminal organizations, and saps society as a whole. If you must use, do it at home. Keep it away from kids and keep it off the road.

3. This is satire. A traffic stop is the most dangerous part of a cop's job. It is a total crap shoot. He has no idea what to expect. The average officer would rather kick down a door to serve a warrant than to pull up behind your rolling bucket of bolts and deal with you and your crap. Be polite. Be cooperative. Take your ticket. However, you don't have to take any shit. You have the right to ask questions. Just try not to breathe directly into the officer's face. Let's be realistic - you probably reek.

4. This is satire. I am sympathetic to your plight. Okay, not very. The offenses listed in this chapter are next to impossible to defend against. The easiest way not to get caught is to: have a valid driver's license, have insurance, don't drink and drive and don't do drugs. Am I a drag or what?

1 comment:

Paprikapink said...

Brilliant. Thank you.