Take a breath
Try to relax
Prepare to remain calm and polite
You may believe the cop is completely wrong for pulling you over. Maybe she is. But fighting or arguing with a cop out on the street is dangerous and potentially lethal. Better to fight the stop in court.
Usually cops are looking for what they believe is evidence of intoxication when they pull over a vehicle. From the moment the officer approaches your vehicle, you are being observed and assessed. Every question is an attempt to evaluate your sobriety. That may seem unnerving, but keep in mind you have not been found guilty of OWI--the police have simply pulled you over to investigate an unsubstantiated assumption that you might be intoxicated.
Staying calm during a traffic stop can help you stay tuned into exactly what's happening, what's being said, and how to respond appropriately.
- Any law enforcement officer who has jurisdiction may conduct a traffic stop, including:
- Wisconsin State Trooper
- County Sherriff’s Deputy
- City Police Officer
- An officer cannot conduct random traffic stops
- Reasonable suspicion that a traffic infraction is being or has been committed is required to conduct a legal traffic stop.
- “Pre-textual” stops are not allowed – this involves an officer using a valid traffic infraction as the reason to make a stop when the officer actually suspects the driver is committing a more serious crime and wants to investigate that crime.
- DUI checkpoints are an exception to this rule. The U.S. Supreme Court has ruled that the dangers from drunk driving outweigh the “degree of intrusion” of sobriety checkpoints and they are an exception to the search and seizure provisions of the U.S. Constitution.
- Identifying information
- Although your right to remain silent applies during a traffic stop, you should provide your name, vehicle registration and proof of insurance to the officer.
- If you refuse to provide any information at all, you risk being detained so the officer can determine who you are.
- Your right to remain silent
- Both the U.S. and Wisconsin constitutions provide you with the right to remain silent during a traffic stop
- You do not have to answer questions relating to your consumption of alcohol or drugs, the presence of contraband in the vehicle or your immigration status. The police may use this as a basis to detain you however.
- Persons who are arrested for operating under the influence of alcohol are read a form call the "Alcohol Influence Report." This standard form contains the Miranda Warning (i.e. "you have the right to remain silent . . . ) YOU SHOULD NOT ANSWER THE QUESTIONS ON THE FORM.
- Searching your vehicle
- The 4th Amendment to the U.S. Constitution requires a law enforcement officer to obtain a warrant, based on probable cause, before conducting a search and seizure unless one of the many exceptions to the warrant requirement applies.
- The U.S. Supreme Court has ruled that an individual’s expectation of privacy is reduced in a motor vehicle for purposes of the warrant requirement found in the 4th Therefore, a warrant is not required.
- The police must, however, have probable cause to conduct a search of your vehicle unless you consent to a search.
- You are never required to consent to a search of your vehicle.
- If you consent, your attorney is effectively precluded from arguing that the search was illegal.
- K-9 searches
- A search of your vehicle by a K-9 unit (drug-sniffing dog) is evaluated differently.
- A law enforcement officer must have reasonable suspicion that the motorist is, or has, committed a criminal offense in order to detain the driver until a K-9 unit can arrive to have a dog sniff (which is not considered a search!!).
- Once the original purpose of the stop is over, the motorist must be allowed to leave unless the officer has the requisite reasonable suspicion necessary to prolong the stop to call in a K-9 unit.
- Search incident to arrest or impoundment
- The police may search your vehicle during a traffic stop if an arrest has been made and they have a reasonable belief that stolen or illegal goods will be found in the vehicle.
- The police may also conduct an “inventory search” of your vehicle if the vehicle has been impounded. The rationale for allowing an inventory search is twofold. First, it creates a detailed list of the owner’s personal property to ensure that nothing is missing when the vehicle is returned. Second, it protects the police in the event there is something dangerous in the vehicle.
- Field sobriety tests during a traffic stop
- If an officer suspects that a motorist is under the influence of drugs or alcohol, the officer may ask the motorist to step out of the vehicle and perform a series of field sobriety tests (FSTs).
- You have the right to refuse to perform the FSTs. While you are required by law to take the breathalyzer test after you are arrested as a condition of implied consent in Wisconsin, you are not required by law to submit to a breath test or sobriety tests in the field, unless you are a commercial driver. Know, however, refusal to perform a field sobriety test is admissible as evidence of probable cause to arrest for OWI and that admission is not considered a violation of your Fifth Amendment right against self-incrimination.
- If you have a regular driver's license and refuse a field sobriety test in Wisconsin, expect to be taken into custody as a result. You must weigh for yourself if it is worth spending time in jail to deprive the prosecution of evidence it will use to convict you.
- Police can administer on the street a “portable” or “preliminary” breath test (PBT). Prosecutors cannot refer to PBT results during OWI trials
- The officer administering the FSTs determines if you passed the tests.
- The results of a FST are admissible at trial. In Wisconsin, courts say FSTs are not scientific tests. They are merely observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication, the perception of which is necessarily subjective. The reliability or unreliability of a FST is for a jury to decide.
If you have additional questions or concerns relating to a traffic stop in the state of Wisconsin, it is in your best interest to consult with an experienced criminal defense attorney. In Wisconsin contact Paul Ksicinski Law 24 hours a day at 414-530-5214.