You’re driving down the road when you hear the unpleasant sound of a siren. You see the flash of red lights in your rear-view mirror. A police car is behind you and you’re being pulled over.
It’s natural to feel nervous. But there are some common mistakes drivers make during roadside stops that can cause difficulties, even when they are innocent. “Do not apologize when stopped,” says criminal lawyer J.S. Vijaya. “Later on, a prosecutor . . . will use that apology as a consciousness of guilt. You knew you did a bad thing, therefore you were sorry. Why else would you be sorry if you didn’t do anything wrong?”
Many people believe when the police pull them over, they have to answer all questions the police ask. But Vijaya says apart from acknowledging your insurance, licence, and registration and providing your name, address, and date of birth, “you are under no obligation whatsoever to answer any questions as posed by the police” unless you want to.
“The whole issue is how pleasant or unpleasant do you want the interaction to be,” says criminal lawyer Patrice Band. “If you’ve got nothing to hide, you may as well listen to the question and answer it if you are absolutely innocent and law-abiding.”
And even though the police may not be polite to you, you can still be polite to the officer, says Danielle Robitaille, a criminal lawyer. “But it also doesn’t help to be unnecessarily overly effusive or to try and bargain. It’s also not helpful to engage in the ‘do you know who I am’ type of conduct or offering any sort of favours.”
When the police talk to the driver, officers can look in the car and observe what is in plain view, including things people may not want them to see. “My advice generally is [to] take your private items out of plain view because the police officers can look legally in your rear seat,” says Vijaya. “If you don’t want the state looking in your private business, don’t leave it in plain view.”
Officers may ask you if they can look into areas of your vehicle that are not in plain view, such as your glove compartment or trunk. “If you’re simply stopped on the side of the road for speeding, there’s no reason for an officer to be searching your glove compartment,” says Robitaille. “That would likely be found to be an unreasonable search.”
Vijaya points out that if you agree to let police officers search your vehicle at a roadside stop and they find something, at trial, you will be deemed to have consented to the search.
Vijaya describes police questioning to try to get consent to a search as “a very elongated cat-and-mouse game in most cases. If you do not assert your rights, you will be willingly or duped into abrogating them.”
If the driver does not consent to the search, Vijaya says unless the officer has a verifiable, objective reason to look into the glove compartment or trunk, he or she will need to get a warrant.
Many routine roadside stops involve the police checking to see if the driver has been drinking.
Vijaya says the police will usually first ask if the driver has consumed alcohol and, depending on the response, the police have to determine whether they have a reasonable suspicion the driver has been drinking. He notes courts have found a reasonable suspicion based on several indicators, including “glassy eyes, slurred speech, driving erratically, [and the] smell of alcohol obviously coming from the person’s mouth or in the car.”
Vijaya adds that if the police have a reasonable suspicion, they can demand you do a roadside breath test. If you fail that test, police can then make a second demand for you to attend at a police station to blow into an intoxilizer.
“Once the officer demands that you provide a sample into the roadside screening device, you’re legally obligated to do that,” says Band, “and if you don’t, if you refuse, the officer will undoubtedly charge you with refusing to do so. I think what a lot of people don’t know in the community is that being found guilty of refusing to provide a breath sample carries with it the same penalties as a drunk driving conviction.”
If you’re being arrested, how you deal with your arrest could also affect your case at trial.
Robitaille warns that most police cars have cameras and people are videotaped when they are in the back of the police car. “If you’re being a jackass, it will certainly colour the way the Crown looks at the case [and] the way a court looks at it.” She says that “fighting with the police at the outset of an investigation and during your arrest is fairly futile and it’s not going to help things.”
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