Aggressively Defending My Clients Since 1990


On Behalf of | Jan 6, 2022 | Firm News

​Once stopped can police order passengers out of the car and pat them down?Yes.   An officer making a traffic stop may order passengers out of car pending completion of the routine traffic stop.  Maryland v. Wilson, 519 U.S. 408, 413-15(1997).  Once ordered out, driver and passengers can be patted down (and under certain circumstances, cops can draw weapons, handcuff and order them to lie on the ground without stop becoming an arrest!) Pennsylvania v. Mimms, 434 U.S. 106, 111-12(1977); Houston v. Clark County Sheriff Deputy John Does, 174 F.3d 809, 814-15 (6th Cir. 199); Rohde v. City of Roseburg, 137 F.3d 1142, 1144(9th Cir. 1998); U.S. v. Tilmon, 19 F.3d 1221, 1227-28(7th Cir.1994).  Under certain circumstances, a passenger can be questioned.  State v. Donavan W. Malone, 2004 WI 108.  Compare, United States v. Gregory, 302 F.3d 805, 809 (8th Cir. 2002) (“The Fourth Amendment grants an officer conducting a routine traffic stop latitude to check the driver’s identification and vehicle registration, ask the driver to step out of his vehicle and over to the patrol car, inquire into the driver’s destination and purpose for the trip, and `undertake similar questioning of the vehicle’s occupants to verify the information provided by the driver'”)

Can police ask a passenger in a car to do a breath test?
Yes, but the passenger should refuse the request.  Police will often ask passengers to take a breath test even though they know none of the passengers were driving.  DUI/OWI laws only apply to the person who is driving, and if you were not in control of the vehicle then police should not even ask you for a breath test. If they do, and you have not been arrested for DUI, you have the right to refuse.

Requesting a breath test of a passenger allows police to look for other infractions and misdemeanors to charge a passenger. If you take the test and it reveals you were drinking, police could charge you with:·

1.    Underage drinking (if under 21).  If you are under 21. Anyone under the legal drinking age is required to submit to a breath test if suspected of any alcohol-related offense, which includes underage drinking as well as DUI.

2,    Public intoxication in some cases.  If you are really drunk, the officer could arrest you for being drunk in public.  While no crime exists for public intoxication, the police can pick you up and take you into custody for the things you do while you’re drunk in public using the disorderly conduct statute. Or the police can hold on to you until they can transfer you to a treatment facility (either for medical treatment or rehabilitation). The state an also commit you to emergency treatment if you’ve threatened harm to yourself or others, or if you’re too incapacitated to enter voluntary treatment.  Some municipalities have ordinances that relate to public intoxication.

3.  DUI, if they claim that you had control of the vehicle  Passengers are requested to do a breath test in one of three circumstances:

  • Police aren’t sure who was really driving
  • Your friend was driving, but you are the owner of the vehicle
  • Police have some reason to suspect that you were driving and “switched seats” with the other person.

In the context of a DUI arrest, you could be considered a “driver” even if you simply had your hand on the wheel. If you briefly steadied the wheel for the driver or took control of the vehicle in any way, and you are intoxicated, you could be arrested for DUI.

Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood, or urine” to determine the presence of drugs or alcohol.  So long as a passenger is not or was not touching the steering wheel the passenger is not operating the vehicle to give implied consent.  Under Wisconsin law, “operate” “means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”Also, in State v. Prado, 2021 WI 64 (June 18, 2021), the Wisconsin Supreme Court majority ruled that Wisconsin’s implied consent law, as applied to incapacitated drivers, is “unconstitutional beyond a reasonable doubt”.

Is it illegal to ride with a drunk driver?
No. There is nothing in Wisconsin’s statutes that makes it illegal to be a passenger in a vehicle with a drunk driver, although it is unsafe. But that doesn’t mean officers will look kindly on you if caught in this situation. If you are also intoxicated, they may seek some other grounds on which to issue you a citation. If you are sober, they may ask why you didn’t volunteer to drive, given that your friend is intoxicated. In many cases these questions are designed to trick you into incriminating the driver. Remember that you can politely decline to answer questions.