The Traffic Stop
I know you may find this surprising, but as a lawyer who defends drivers on traffic citations, one of the most frequently asked questions I receive is “what should I do during a traffic stop?” With that in mind, I thought I would do my best to answer that question today.
In my traditional style, my answers may be rambling …. but they are the truth!
The most common involvement with law enforcement is a basic traffic stop. You see the flashing lights and pull to the side of the road. Now what? How do you best handle this situation to protect yourself? Well, let’s start with the basics.
First and foremost, it is extremely important that you remain calm and professional, and you treat the officer with respect. This is critically important. I can not stress this enough. You will never win any arguments roadside, with an officer who is wearing a badge and carrying a gun. Choosing to argue will only ensure you a citation and a possible stay in the local jail. To use a sports analogy, have you ever seen an umpire or referee reverse their decision based on the protests by a player or manager. If you have, please email and let me know when and where.
Instead, what happens is the decision remains and the player or manager runs the risk of being ejected. In the trucking world, that means you are now running the risk of spending the night as a guest of the city or county. Not to mention, the officer will note on that citation not only your words but your attitude. This can have a detrimental impact on the outcome of your citation.
Also, please remember, that a traffic ticket is nothing until it becomes a conviction. It becomes a conviction when you automatically pay the fine, when you fail to show up for court on the appointed day or when the judge or jury has heard all the evidence and decides you are guilty. All have the same effect as a conviction, and all will show up on your MVR. Never, just pay a ticket and admit guilt if you believe you have done nothing wrong. Your court hearing is your opportunity to explain your side of the story and present evidence on why the citation is in error. Making these arguments roadside will only fall on deaf ears.
In addition, when talking to the officer who approaches your truck, keep your hands visible. If it’s nighttime, turn on the light in your cab. Do what you can to put the officer at ease because he’ll be uneasy and unsure of you or what he might be encountering. The more agreeable you are, the better the roadside interaction will go.
Above all else when in a traffic stop situation, do not convict yourself. Be careful of the words you choose and the information you provide. It’s best to answer any questions directly but never volunteer information lest you incriminate yourself. Remember that the officer will note all you say if you admit guilt. An example I hear all the time is: A driver gets pulled over and when asked if he knows why he was pulled over will respond, ‘I was probably going...70 mph.’ Or he’ll say he was doing just a little over the limit, say 60 mph in a 55 mph zone. Both are an admission of speeding. The cop asks a simple question, and the driver convicts himself with an answer. Instead, simply say no or ask the officer how fast he thought you were going or admit you are unsure of your speed at the time in question. Refrain from agreeing with whatever he/she says…. but do so respectfully.
In the event that the officer asks if you will consent to a search, my general advice is to say no. Of course, if you are absolutely positive there is nothing to find you can do as you wish. Remember of course, that if the officer really wants to search your vehicle, they will find a way to get it done. They may say they detect the smell of marijuana or bring out a K9 unit who may “hit” on your truck. But at the end of the day, if you do not consent to a search and one is conducted, and something discovered you can argue the legality of the search at your hearing. If you consent, any arguments you may have go out the window.
Another thing you can do is record the stop. As long as you are in a place you are legally allowed to film the stop. The officer may be doing the same through a dash or collar cam. Recognizing that this may not endear you to the office it is something you can consider doing.
After the stop is over, one of the best things you can do is record, either as a voice message on your phone or as written note, everything that happened before, during and after the stop. You will be able to use this information later if you are a witness on the stand to refresh your memory. The judicial system understands that data recorded at the time of the incident is more accurate than your memory some 3-12 months later. That makes your written or recorded information more accurate in the court’s mind than that of the officer that makes 25 traffic stops a day and has to recall you specifically at a later date.
If you are in an accident, always keep in mind your own protection. Typically, if you do not feel you are at fault, your instinct is to cooperate fully with an officer, but you still need to be careful what you volunteer. Let’s say you’re involved in an accident that results in serious injuries to another individual but no fatalities. Your immediate reaction is to cooperate fully. After all, most professionals have nothing to hide. An officer starts asking questions; you respond thinking you’re being helpful. But three days later the injured person dies, and the prosecutor decides to file a vehicular homicide charge against you. Everything you said at the scene will be brought up in court. The slightest things that you merely commented on could be turned around and used against you.
When you are involved in an accident one of the first things you should do is call your company to report the accident and ask them what they want you to do. You may want to check out the situation for yourself and to collect information that could be helpful for your own cause, but in all cases follow their instructions on what to do. Remember, you may be excited or scared but the company has written steps they want you to follow. The safety department’s job is to handle accidents, and this may be the only time in your life you are involved in an accident, so follow their instructions.
Snap some pictures of the surroundings--the vehicles, the people present who were witnesses. You want a picture of every car tag and person at the scene if you can get it because you never know what they saw. Next, collect potential witnesses’ names and phone numbers. I must caution you do not try to talk to these people about the accident. Professional drivers are not trained in interviewing people and you don’t want to take the chance of actually hurting your own case. You simply want names and numbers so that your company and the defense lawyer can talk to them if necessary. But remember; always follow your safety department’s directions.
While some of this may seem extreme, you simply never know when a basic traffic stop or an accident, major or minor, will land you in court defending yourself and your future livelihood. Collecting certain pieces of information when in these situations will help to protect you if that ever happens.
Importance of Roadside Interactions
In the course of defending drivers, I see a lot of violations noted on a citation that could probably be avoided. What do I mean? Well, I am glad you asked.
Now understand, my opinion is based solely on what I have seen in my practice but in my opinion, the reason we are seeing “additional” violations noted on a citation is because of poor roadside interactions with enforcement. I can see it in the way the citations are written.
Ok, I can hear it now…. how do you know that smarty pants? Well, here is my answer, I have been contesting citations and inspections for quite some time and as a result, I generally know how the officer can write a citation. For example, if you bypass a port of entry in New Mexico you can receive a citation for bypassing a port of entry, failure to obey a traffic control device, or other violations. If the officer wrote you a citation but only listed one violation I know he cut you a break in the field and you had a good interaction. Two violations maybe not quite as good an interaction but probably still ok. More than that and I know it did not go well.
The same can be said for inspections. Assuming you are driving a reasonably maintained vehicle, a couple of violations can be normal. More than five I begin to take notice. More than ten and I am concerned. More than thirty (yes, I have seen that) and I know somebody said something about someone’s momma. Don’t do that.
Don’t Be Memorable
In addition to reading citations like tea leaves….I also talk to enforcement and prosecutors on pretty much a daily basis. My conversations with them confirm that I am not making this up.
In fact, do you know what the best thing is an officer can say to me when we are discussing a case? It is easy… “I don’t recall your client.” If I hear that I know that everyone acted professionally and our chances of getting a positive outcome go up. In contrast, when I hear “yes, I remember your client. Let me tell you what happened……” I know I am in for a long day.
So, the next time you have an interaction with enforcement please remember, the officer is just doing his job. He is not targeting you specifically, though I know it can feel this way. He is out to keep the roads safe for you to do your job and for everyone else to do theirs.
I am sure that if you took a survey of enforcement, writing tickets and doing roadside inspections is not at the top of the list. But it has to be done. Why? Because there are people out there on the highways that are truly unsafe and need to be taken off the road. Unfortunately, no one labels the side of their truck with a logo that says, “Unsafe Trucking LLC” or “Unsafe Driver.” Stops have to be made, inspections have to be performed and citations have to be written.
This is where the professional part of being a professional driver comes into play. Do not take it personally. Do not make it personal. Do not bring anybody’s momma into the conversation! Be prepared. Be courteous. Be polite. And most importantly, be professional. Understand that this is where we begin defending your citation.
Also, understand that everyone is entitled to have a bad day. Even law enforcement. You know how you feel when a 4-wheeler cuts you off? Or when you are trying to solve a problem at home from 1,000 miles away. My point is that the officer is person just like you. Trying to do their job, provide for their family, and deal with all the complications that life brings. Extend them the same courtesy that you want to be extended to you. I promise this will make everything go better and get you back on the road quicker.
At the end of the day, you cannot always control the circumstance of a stop. You cannot control the mood of the officer stopping you. You cannot always control the violations that may be discovered. What you can control is your attitude and demeanor when dealing with the officer. So, please remember that sometimes it is best not to be remembered!
Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.
800-333-DRIVE (3748) or www.interstatetrucker.com