First I’m going to tell you when police are allowed to pull you over, then I’m going to take you through a typical traffic stop and tell you how to protect your rights.

(Sobriety checkpoints (aka "roadblocks") are a little different than an ordinary traffic stop. Click here to learn about sobriety checkpoints.)

When can a police officer stop my car?

If you are driving your car, police are only allowed to stop you if they have “reasonable suspicion to believe that criminal activity is afoot.” What in God's name does that mean?

It means that before police can stop your car, they must have a real reason to believe that a violation of the law has been committed. They can’t just have a hunch that there is something illegal happening, nor can they pull you over because they think you look suspicious.

For example, police cannot pull you over just because you are driving through a high-crime neighborhood late at night in an Escalade with custom paint and rims. But police can stop you if you are driving through that neighborhood with too much window tint or a tail lamp out.

If you have a valid license and are operating a vehicle with a valid registration and insurance, and if you are obeying all the applicable laws of the road, and if there are no problems with your vehicle, there should be no reason for police to stop you. But police are good at finding reasons to pull over vehicles.

A large number of the cases I see start with police stopping a car because a tail light is out. Or, believe it or not, because the license plate lamp is out. Or because the window tint looks too dark. Is it ridiculous to pull over a car because the license plate lamp is out? Yes. But it happens.

If you want to avoid interacting with police, don’t give them a reason to stop you. Make sure your car is in good working order with no obvious problems such as a loud muffler or broken lights. Make sure your license and registration are valid.

What happens when police pull me over?

If police stop your car, the first thing they do is “run your plates.” This happens before they even approach your car. By looking up your license plate number, the police can determine:

1) whether the vehicle's registration is valid;
2) whether the vehicle's inspection is valid;
3) whether the owner of the vehicle has a valid license;
4) whether the owner of the vehicle has any active warrants;
5) whether the owner of the vehicle is on probation or has any criminal history.

Armed with that information, as well as a Smith & Wesson, the officer will approach your vehicle.

By the time the police officer is at the side of your vehicle, you should have all your windows down with your hands on your steering wheel, and you should be holding three documents:

1) your driver’s license;
2) your vehicle registration; and
3) proof of insurance.

Note: Some lawyer reading this page is going to have a fit because I've told you to roll your windows down, and that gives police a chance to smell for alcohol or marijuana. Here is the problem with not rolling down your window during a traffic stop: it escalates the situation so quickly that most drivers are not prepared to respond. If you have been stopped for a violation such as speeding, refusing to communicate with the officer or to roll down a window will very quickly result in you being forcibly removed from the car, handcuffed, and placed under arrest for speeding. When that happens, there will be plenty of time for them to smell the inside of your car. So, roll down the window. All the windows. Let some fresh air flow through the car. Get it over with.

What happens when the police ask me questions?

This is how a typical initial conversation will go:

Police: Do you know why I stopped you?

Driver: No.

Police: You were speeding. What were you drinking tonight?

Driver: Nothing.

Police: License and registration, please.

Police: (After running your license and coming back to your car, possibly while you are still seated) Before I let you go I just want to make sure you are okay to drive. Blow into this tube.

Driver: No, thank you. Am I free to go? If not, I would like a lawyer.

Police: Really? Please step out of the car.

Police: (Once you have stepped out of your car) I need to make sure you are okay to drive, so I am going to check your eyes. Keep your head still and follow my pen with your eyes only; don't move your head. Do you understand the instructions?

Driver: I understand, but I decline to perform the test. Am I free to go? If not, I would like a lawyer.

Police: Look, I'm just trying to make sure you're okay to drive. You smell like alcohol and I need to make sure you are safe before I let you go.

Driver: Am I free to go? If not, I would like a lawyer.

Police: Come stand over here, place your hands behind your back.

Wait - I'm under arrest?! I thought you were going to tell me how to protect myself!

That's right. You are under arrest. If you smell like alcohol you will be under arrest no matter what you say to the police. But by following the script above - by requesting a lawyer immediately and declining to take the horribly flawed and inaccurate field tests administered by police - you have just protected your rights and dramatically reduced the possibility that you will be convicted based on the subjective, unreliable evidence that juries and judges are fed by prosecutors and believe every single day. The case may very possibly be dismissed for a lack of probable cause to arrest you. The lesson here is that while you may not be able to avoid an arrest, you can protect your rights and avoid a conviction.

But I only had two drinks!

That's right. And if that's true, the police might arrest you for Driving While Ability Impaired. Police regularly arrest people for having a BAC of .06% and .07%. (Even then they often charge the driver with DWI.) A BAC of .07% is below the legal limit. But they don't care. And there are plenty of judges who don't care that you were making a careful, measured decision about how much to drink before you drove home. Instead of recognizing that you were being responsible, they will convict you of Driving While Ability Impaired without thinking twice.

So what do I do now?

If you have been arrested for a DWI or DWAI, contact me at (585) 286-1329. You will need an attorney to guide you through a complex court system and a prosecution that is absolutely stacked against you. Luckily, these charges can be beaten.

I've handled hundreds of DWI cases and undergone countless hours of training. I have excellent client reviews and a track record of winning at trial. Call me for a free phone consultation and let me help.

Militello Law Firm, PLLC

1 University Drive

Geneseo, NY 14454


Geneseo Office Phone:

(585) 286-3128

Click here to visit our firm website and contact our Rochester office.