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What to do during a traffic stop in Virginia

(note: this article is for information and education purposes only and is NOT intended to serve as legal advice in any capacity)

So you've been pulled over in Virginia and you're about to interact with a police officer. Whether you've been through this before or not, it is vital to review your next steps. How you manage the situation from this point forward can greatly influence your outcome, for better or for worse. Police work is important and often dangerous, and we all have an obligation to ensure safety however we can. It is possible to train yourself to properly comply during a traffic stop in a manner that is respectful to law enforcement while ensuring that your own rights and safety are guarded. By running through these guidelines ahead of time, you can help keep the situation safe, protect your rights, and allow for the best resolution possible.

Step #1 - Remain calm, turn on hazard lights, and pull over at a safe location

Everyone knows the sinking feeling in your stomach after you are going about your business and you see the emergency lights in your rear view mirror. Your mind is racing and reeling, and your body is producing "fight or flight" chemicals. It's important for YOU to take control by first taking a deep breath and safely pulling out of traffic at the next safe location. If you turn on your hazard lights, it will indicate to the officer that you see them and are responding. As you choose a place to stop, do your best to pull over at a well-lit, public place at the right hand side of your lane of travel. If you must pull over on the side of the highway, pull over as far as you can so that the officer will have a safe place to interact with you.

Step #2 - Remember your right to remain silent!

Listen - we understand the important work that police officers do to keep communities safe, and we also understand that job is stressful and sometimes even dangerous. Understand that if you are stopped by an officer, that officer's job is to investigate potential violations of laws or ordinances. While you should ALWAYS be polite and cooperative, this does not mean that you have any obligation to help build a legal case against yourself. In fact, one of your most sacred Constitutional rights in the United States of America is the right to remain silent so as to refrain from serving as a witness against your own legal interests.

"No person... shall be compelled in any criminal case to be a witness against himself..." – Fifth Amendment to the US Constitution

The Constitution ensures the freedom we enjoy and is a significant part of what makes America great. Throughout our history brave people have stood up, fought, and even died to ensure these freedoms. The rights protected by our Constitution are the birthright of every citizen and extend to every resident or visitor to our great land. There nothing wrong with asserting these rights, even when it feels uncomfortable.

In practice, even though these Constitutional rights belong to us all, they can certainly be freely and independently waived, and that waiver need not be expressed. That means that if you wish to enjoy the benefit of these rights, you must ASSERT them. Otherwise you may find yourself having deemed to have waived your rights by your actions.

After you have safely pulled your vehicle over and are waiting for the officer to make his or her way to your window, it is important to reflect upon your Constitutional rights: especially your right to remain silent and your right to due process of law*.

* Read and research the Fourth and Fifth Amendments to the US Constitution for more information

Step #3 - Turn on your interior light and put your hands on the steering wheel until told to do otherwise.

Regardless of whether you think you've done anything wrong, remember that an officer might have any number of reasons for pulling you over. Recognize that while you might know that you aren't a danger, the officer does not. It is important to take a few steps to help the officer ensure his or her own safety and that of the public.

Once you've safely pulled over, put your vehicle in park and roll your window down a few inches put your hands on the steering wheel. Then, especially if it is after dark, consider turning on your interior light. Remember that the officer generally has a right to observe whatever is in plain view anywhere the officer is legally allowed to be, and this includes what is observable inside the vehicle through the windows from outside. While you should never consent to a search without a warrant, turning on your light signals to the officer that you understand their safety interests.

Step #4 - Politely ask the officer why they pulled you over

There is not much better evidence for a prosecutor in the courtroom than a defendant's own admission of guilt. Officers are trained to skillfully allow a suspect to do as much talking as they would like, including providing an admission of criminal conduct. It is possible that even the most innocuous statement you make could be put together with other evidence to YOU HAVE NO OBLIGATION TO HELP LAW ENFORCEMENT BUILD A CRIMINAL CASE AGAINST YOU. Remember that you don't know what they know, or what they have seen, or what reason they have for stopping you. You can be nearly certain that you don't know the entire story.

Consider the following example: a bank is robbed by a person wearing a mask and no other identifying features shown other than a Dallas Cowboys cap. The police get a report that the bank robber left the scene in a vehicle the same make and color as yours. An officer responding to the call spots you driving and pulls you over. Now, unless you know the reason for the stop FIRST, your answer to even the most seemingly innocent question of "What is your favorite NFL team?" could determine whether you are put in handcuffs or not!!

In order to justify an involuntary stop of a person's freedom of movement, the officer must have what is called "reasonable, articulable suspicion" of some illegal conduct. It is important to let the officer provide their justification for the stop from the beginning. It is not your job to determine whether you think that justification is sufficient - only that the officer provides it to you. Remember to be polite and cooperative!!

Step #5 - Politely assert that you will not be discussing your day

"So where are you headed today?" "Did you see me back there?" "Where are you coming from?" - Remember that even though you have Constitutional rights, you are more than free to waive them if you like. Police officers are trained to ask open-ended questions and then allow you space to fill the silence up with statements. Human psychology dictates that silence in a stressful situation is uncomfortable. Therefore, it is important that YOU assert your right against self-incrimination by calmly and politely indicating that you will not be submitting to any questioning and that you do not consent to any search.

At this point it is helpful to think of that officer almost as if they were any other member of the public. Would you have a fifteen minute chat about your day with your librarian if you were already running late for work? Would you let your daughter's softball coach nose through your car and strew all your belongings along the side of the road? No? Then there is no reason you should agree to the same when asked* by a police officer. If they have justification for their search they should be more than happy to present that justification to a magistrate and obtain a search warrant. You should politely welcome and insist on this important due process of law.

*There is an important distinction here between "asked" and "instructed". You have NO obligation to give permission and consent to a search. However, you should ALWAYS obey ORDERS promptly and without objection, whether you think they are lawful or proper or not. Let your attorney get to the bottom of these questions in court, and in the meantime keep yourself and your loved ones safe.

Step #6 - Politely ask if you are free to go

During a traffic stop the officer is legally permitted to detain you for as long as it reasonably takes to investigate their reasonable articulable suspicion to a conclusion. This conclusion could be either a clearance of any wrongdoing, a warning, or an arrest for a violation once probable cause has been satisfied. In lieu of an arrest, handcuffing and booking at the jail, the officer may issue a summons for certain violations. This summons is commonly known as your "ticket". Signing this summons is simply an acceptance and promise that you will appear in court as instructed without being brought down to the jail in custody.

Once the officer investigates reasonable, articulable suspicions (within a reasonable period of time), they are not permitted to detain you further against your will. However, you are more than free to waive that right as well if you would like. The law states that a person is being detained when "a reasonable person would think they were not free to leave". This can be a difficult standard to understand. It is important, then, to politely ask whether you are in fact free to go on about your business any time you are not sure.

Step #7 - If instructed that you are NOT free to go, assert your Fifth Amendment rights and USE THEM

If instructed that you are in fact being detained in police custody, it is important to understand a few things. If you are instructed that you are in custody, that means that the officer believes that they have found probable cause that a crime has been committed sufficient to place you under arrest. Whether you agree with it or not, you are HIGHLY unlikely to argue your way out of said custody. At this point, any statements you make are likely being recorded by officer body cameras and CAN and WILL be used against you in a criminal prosecution so long as they were obtained lawfully. It is not your place while in police custody to determine whether the investigation was lawful or not. Your focus should be on asserting your right to remain silent. The only person you should speak to during this time is your lawyer.

Say, "I invoke the 5th" – Then BE QUIET!!

Step #8 - Politely comply with the officer's direction throughout the process

Whether your stop concludes with being issued a summons, placed under arrest, or simply left to go on about your day, you should take care to be polite and cooperative throughout the process. As instructed above, it is acceptable to ask whether questioning, search, or any other instruction is voluntary or if it is an order. If a question is voluntary, you have no obligation to submit (and you should NOT submit). If it is an order, you should comply promptly and politely. It is understandable that you may be stressed about the idea of riding in the back of a police car or having your vehicle impounded. However, there is almost nothing you can do in that moment is going to undo that process. In fact, any other actions besides polite compliance are only likely to make the situation worse. Let your lawyer determine what legal issues or questions they might have about the process at a later date.

Step #9 - Put your court date in your calendar and look up your case online

If your stop ends with having been issued a summons, make sure that you put this date in your calendar right away and make arrangements to be present. Remember that a summons means that you have been ORDERED by a duly sworn officer of the law to appear in court before a judge at a certain date and time. If you are not present at this time you are subject to being issued another summons for the criminal charge of failure to appear. Many times, if there is proof that the person has been properly served with notice and the court hasn't heard any reason for an absence, the judge issues what is called a capias for failure to appear. Once a capias has been issued it can generally only be resolved by the subject being brought into custody at the local jail. Remember - even if you think you are innocent, that does not mean you aren't required to submit to the process of law.

With summons in hand, you may want to use the court's case information system to look up more information about your case and learn how you should proceed. For example, certain traffic violations that would be a "simple ticket" in another jurisdiction could be reckless driving in Virginia - a class one misdemeanor.

Step #10 - Set up an appointment to speak with an attorney

Even the most straightforward interaction with law enforcement may strike up a cause to speak with an attorney. Often, an individual might just think "oh, it's just a speeding ticket" or "oh, I'm guilty so there's nothing else that can be done worth getting a lawyer involved". That's wrong!! An attorney can discuss the matter with you and give you guidance as to your next steps. An experienced traffic attorney should be able to guide you and advocate for you to resolve the matter with the best possible resolution, whether there is evidence sufficient for guilt or not. Often there are considerations and options available that only an experienced lawyer can provide for you. Look for an attorney who practices regularly in the jurisdiction you were charged in with plenty of experience handling cases like yours. A good attorney should be able to provide a preliminary consultation about your charge for little or no charge. Remember - that consultation is the attorney's job interview! They should be able to clearly show why hiring them is the smart choice for whatever your motivations are.

Remember these steps to keep yourself and law enforcement safe, take control of the outcome, and protect your Constitutional rights!

As you can see, even the most "simple" traffic stop can have rather complicated considerations. The fact that police work can be dangerous and you don't know what the officer knows or thinks means you should take steps to make the interaction as safe as possible, while still asserting your rights. It is important to reflect upon these steps and even go over them with your friends and family to ensure you know what to do when you find yourself the subject of a traffic stop.

Although you should carefully consider all ten steps above, you can sum them all up by memorizing the following:

"Why did you stop me?"
"I do not consent to any searches or questioning"
"Am I being detained or am I free to go?"
If detained, say "I invoke the 5th Amendment",
Then - Don't say another word to anyone but your lawyer!!

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