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The Traffic Stop Arrest, Part 1: Roadsides, Chemical Tests and Advisements

You have been pulled over, lights are flashing behind you, your heart is pounding and people are staring. This could potentially be one of the worst moments in your life, but you do have some say and control over what happens next. The most important thing is to be informed and protect your rights.

We have talked about the importance of maintaining silence, but that is incredibly hard to do when you are nervous and being questioned by an authority figure such as a law enforcement officer. Remember that the officer has a job to do, so always be polite, but protect your rights. Do not offer up information or make assumptions when you are pulled over and questioned by a police officer, such as why you were pulled over. Let the officer do the talking. Try to keep your answers to “yes” or “no” and politely refuse to answer any questions that go beyond just identification type of information. You do not have to answer if you have been drinking or using drugs. You do not have to answer questions about where you have been or are going or what you were doing prior to the stop. It is of course very hard to do this. It is our natural inclination to answer direct questions posed to us, especially from authority figures. Politely inform the officer that you will maintain silence in order to protect your legal rights. While this may make them suspicious that you are hiding something, remember that they are already suspicious and are investigating you. Making admissions such as “I only had one drink” do nothing but incriminate you and they are usually not believable. Just remember that you have an ABSOLUTE RIGHT NOT TO INCRIMINATE YOURSELF AND MAINTAIN SILENCE. Lying, arguing or explaining do not help you, keeping silent does.

There is much confusion about the different kinds of tests and advisements that go on during a traffic stop. The officers tend to give both the Voluntary Roadside Advisement and in Colorado the Express Consent Advisement at the same time, which can cause confusion. The roadsides are VOLUNTARY and if done will provide the officer and the prosecution with evidence against you. The chemical tests that come AFTER an arrest, being either breath or blood, must be agreed to if you want to avoid implications to your driving privileges or the ability of the prosecution to use your refusal to take the chemical test against you in court.

To keep it simple, remember that the determining factor is if you are under arrest. Before an arrest, the tests are voluntary. After an arrest, you have expressly consented in Colorado to take the test if the officer has probable cause to believe that you are driving under the influence. If you protect yourself during this investigation and do not incriminate yourself by maintaining silence and refusing the voluntary roadsides, even with a chemical test above the limit you give your defense attorneys a much stronger case to defend, possibly even being able to keep the results of the chemical test from being used against you. Voluntary roadside tests can include the “Preliminary Breath Test” or PBT. The PBT’s name is misleading as it is not a scientifically reliable test and is therefore inadmissible in court, and like the two advisements commonly given during a traffic stop investigation and arrest it can cause confusion. The PBT is not the chemical test that is given after an arrest; it is merely another voluntary test like the roadsides, which is intended to gather evidence against you.

Remember, you have an absolute right not to incriminate yourself, therefore do not do anything that is voluntary and can provide evidence against you. If you protect yourself, you are helping your defense. Contact Feldmann Nagel, LLC for more information or to assist you in your defense, at 1-888-458-0991.

Categories: Criminal Defense