We’ve all been there - driving down the road late at night when suddenly, from nowhere, from FREAKING NOWHERE, lights. So many lights. Like enough lights that you can’t see anymore to pull over. Oh, also, sirens. What do you do? Well, the following is a completely fictionalized account of a conversation that definitely did not happen between me and my friend Kevin the other night. No names are used so you cannot identify him, or me, and I’ve also changed the formatting to make it seem like Not Kevin called a legal help hotline and Not Me answered during the traffic stop. Please enjoy this clearly fictional account that definitely didn’t happen but is nevertheless instructive.
“Ohmygodohmygodohmygodohmygod…”
Hello, Emergency Law Help Hotline, what seems to be the issue?
“There’s lights behind me!”
Wait, like… pursuing you? Are you a fugitive?
“No, I’m a normal person, are you going to HELP ME or NOT?!”
Well, first let’s get some questions out of the way - have you ever been abducted by aliens before?
“I’ve… what? No! It’s a cop car!”
Look, it’s not like you told me that. You said you weren’t a fugitive, guess someone wasn’t being quite truthful. What state are you in?
“Virginia, and I could do without the snarky commentary!”
That’s part of the service, unfortunately. So you’re being pulled over. What for?
“I don’t know! Oh crap, oh crap… he’s getting out of the car!”
Just be polite and respectful.
“Do you seriously think that– HEYYYYYYYY, officer! Nice.. uhh.. Nice lights!”
Smooth. You’re a natural.
“Are you mocking me?!”
I may be playfully ribbing you a bit, but I wouldn’t say mocking.
“He asked for my license and registration!”
They do that, yeah.
“What do I do?!”
…wait, seriously? Give it to him.
“OK! …….He asked if I know why he pulled me over. Why would I know that?”
How should I know? Do you have a hood-mounted harpoon gun? Maybe a trailer full of explosives? You know. Something really obvious?
“Obviously not!”
Oh, well then tell him you don’t know.
“OK OK I told him, he asked if I’ve been drinking! I’m getting scared!”
Well, have you been drinking?
“No!”
No like how you’re definitely not a fugitive?
“....two drinks. I had two drinks.”
Never heard that one before. Ok, since this has never happened to anyone and no one has ever said that before, maybe you should consider saying -
“I told him I had two drinks.”
Uh-huh.
“He’s telling me to step out of the car! Can he do that?”
Yep, he can do that. Pennsylvania v. Mimms and Maryland v. Wilson are controlling on the point and an officer can lawfully request you exit a vehicle if they suspect you’ve committed a crime.
“Ok, fine, I got out. He’s asking me if I want to take a breath test. I don’t want to.”
Then tell him that. But you should know that -
“He says I have to do it anyway! Why would he say that? He just told me I could refuse!”
You are just in a hurry to get arrested, aren’t you? Wow. The officer offered you what’s called a Preliminary Breath Test, or PBT, which is optional. I’d generally recommend you refuse those, I’ve seen them come back with results off by 0.05 in either direction. Not terribly reliable. But once you refuse that one, there’s a separate breath test that’s much more accurate that they can require you to take, but it generally requires either providing a sample that is later tested at the police station or going back to the station with them to provide a sample for testing.
“Why wouldn’t they just lead with that?!”
It’s more confusing this way.
“That’s– ohhhhhh. Oh.”
Yeah.
“Well, what if I refuse that one?!”
You legally can’t. You can be charged with refusing to submit to a breath test, your consent to the test is implied by your driving on the roads in Virginia.
“Wait, refusing to take the test is a separate crime?”
Yeah, sort of a one-two punch. Prosecutors will generally offer to drop the refusal to submit to the test if you plead to the DUI. It’s a common tactic.
“Wait, what about blood tests?”
That’s a bit murkier. You can definitely request one and submit to one, but can they force you? The US Supreme Court considered Minnesota and North Dakota laws about that pretty recently, and it’s murky. It’s clear that they can make you submit to a breath test, but not clear they can force a blood test without a warrant.
“That’s… actually sort of interesting but not helpful in the middle of a traffic stop.”
Yeah, that’s the law for you. Somewhat too confusing to deploy at a moment’s notice, but binding all the same.
“Wow, I’ve learned so much about this.”
Yeah? That’s awesome! If you could just leave me five stars on this survey, it would really help me out-
“Oh no, I’m being arrested.”
Wait, what?!
“Yeah, while you were busy explaining Supreme Court cases I blew a 0.15 so…”
Oh.
“Yeah.”
Uhh… well, this is awkward.
“It’s pretty awkward.”
So there’s this survey that would really help me-
“I’m not doing your survey.”
Ok, I get it, but I still have to read the script to close out the call…
“Please don’t.”
Thank you for calling the Emergency Law Help Hotline! We hope this was a helpful and productive experience!
“It wasn’t.”
We look forward to your continued business and please stick around for a brief two-minute survey after the call has concluded!
“I’m not doing that.”
We sincerely appreciate your business. Have a lovely evening in jail!
If you have any questions about this article, or about driving violations in general, contact Christopher Adams (cadams@setlifflaw.com) at 804-377-1273 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.
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