Frequently Asked Questions About DUI/DWI, Drug Possession, and Illegal Firearm Charges
Do I have to take a breathalyzer test when I am pulled over? Does an officer need a reason to search my car? What is a bench trial? Whether you have been charged with a crime or not, these FAQs will give you the information you need to protect your rights in Pennsylvania and New Jersey.
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Conditional Discharge – New Jersey: Is it for you?
Similar to Pennsylvania the state of New Jersey offers first time offenders a diversion program for certain low level drug offenses. With a conditional discharge a person’s case does not proceed to trial and conclude with a guilty plea.
Since there is no trial and no plea this type of disposition is not considered a criminal conviction. While there is no conviction courts can consider it if the person commits a crime in the future. In these situations the conditional discharge of a prior offense would be considered at the sentencing phase of a subsequent act following a conviction.
It is very important to keep in mind that a conditional discharge is not the same as New Jersey’s Pre-trial Intervention Program “PTI”. Unlike PTI conditional discharges are limited to disorderly persons and petty disorderly person’s offenses under New Jersey’s Comprehensive Drug Reform Act of 1987. While a prior criminal record may disqualify a person from a conditional discharge disposition a prior juvenile record will not disqualify a person from this type of disposition.
Another important point to keep in mind is that this type of disposition does not require an admission of guilt. The conditional discharge program requires that your attorney make a formal application to the prosecutor. While the prosecutions approval is important a court may approve a person for it provided that such an approval does not violate certain sentencing guidelines (mandatory minimum sentences). If a person is accepted into this program he or she must comply with all of the terms and conditions. If the person does not comply with the terms of the program they can be removed and the criminal proceeding, which was previously suspended, would proceed to trial.
Finally, while a person can apply for a conditional discharge following a guilty plea or even a conviction in a New Jersey Municipal Court, entering the program after a plea or conviction will result in that person’s driving license being suspended for a minimum of six months to a maximum of two years. The person’s license is taken immediately in court.
Conditional discharges are reserved for very minor drug offenses and are not applicable if your case involves a large amount of drugs, drug distribution, or a related conspiracy.
What Evidence Can Your Lawyer Use to Impeach the Credibility of a Witness?
The credibility of a witness is a critical issue in any defense especially those involving allegations pertaining to illegal guns, drugs, and even DUI. In these criminal cases judges and juries will evaluate the truthfulness of police officers and civilian witnesses and their testimony pertain to the elements of each of these offenses. This is especially important in cases where the defendant can’t testify because of his prior criminal history (aka prior conviction for dishonesty) or the defendant’s testimony wouldn’t otherwise benefit the defense’s strategy.
Credibility is important because witnesses may not make inconsistent statements at trial which is another way of bringing out an issue with the prosecution’s case. Unlike witness credibility, inconsistent statements at a preliminary hearing and a trial or motion imply that the witness is either embellishing what actually happened or doesn’t recall it clearly.
At a trial, the prosecution isn’t obligated to prove its case to a scientific certainty but only beyond a reasonable doubt. This is still a high evidentiary standard and so your criminal defense lawyer should use every opportunity to create reasonable doubt. The Pennsylvania Rule of Evidence 607(b) permits an attorney to impeach a witness with any evidence “relevant to that issue”. Impeachment, therefore, may expose a witness’s partiality, motive, prior convictions, character for untruthfulness as well as his lack of perception, recollection, or prior inconsistent statements. There are actually eight (8) categories which are open for impeachment:
- Competency – a witness’s ability to communicate, understand the consequences of lying, recall and proceed;
- Partiality – a person’s bias, prejudice, or other motivations which could corrupt or coerce their testimony;
- Motive – an issue that could possible color a witness’s testimony;
- Prior inconsistent statements – inconsistencies imply a possible credibility issue;
- Prior criminal convictions – a witness’s conviction for crimes for dishonesty and false statements can help prove untruthfulness;
- Untruthful character – a witness’s reputation for untruthfulness through a reputation witness;
- Untruthful acts – when a witness offers reputation testimony as to a person’s character that same witness may be asked about acts of untruthfulness; and
- Contradictions – a witness’s testimony may be contradicted by physical evidence, other accounts, or by witness’s inconsistent conduct.
Pennsylvania allows a fairly broad range of impeachment material but the attorney using it must have a good faith belief that the matters introduced are relevant and admissible. The cross examining attorney, therefore, can’t use something if it’s obviously not true. The attorney is also prohibited from asking questions in a fishing expedition type fashion (i.e. is it true that you …) The issue of witness credibility, again, is critical to your defense and this where a strong private investigator can dramatically change the outcome of a case from a defense standpoint.
For more information on this topic I encourage you to read my newsletters and check out the free resources in the download section.
Can Pennsylvania suspend my kid’s driver’s license for underage drinking at the NJ Shore?
Parents do their best to ensure that their son or daughter stays on the right path, especially during the teenage years where the motivation to go off of it is sometimes strong. Peer pressure to drink alcohol and even experiment with illegal drugs and controlled substances is often strong. Reality TV shows sometimes contribute to this pressure to commit a crime, even if the minor is normally “not the kind of kid to get into trouble.” In Pennsylvania, many of our friends, family and current clients vacation at the Jersey shore. I can remember my own family spending the annual week in Wildwood New Jersey. Some head to the same shore town every year and others try different places depending upon their children’s age and their station in life.
No matter what town you visit, ultimately, children want to explore it on their own, especially when they reach their teenage years. While some parents may let their children go out a bit earlier than others, all of these young adults will be exposed to potential peer pressure to perhaps not follow their parent’s instructions of “staying out of trouble.” It’s important to understand that regardless of whether you travel to Wildwood, Margate, Ocean City, Sea Isle or some other shore destination, like Pennsylvania, New Jersey takes underage drinking very seriously!
While most people understand that drinking and driving could result in a driver’s license suspension, they don’t realize underage drinking could also result in a license suspension. In Jersey, under 2C:33-15 (Possession, consumption of alcoholic beverages by persons under legal age), any minor (underage of 21) who knowingly possesses or who knowingly consumes any type of alcoholic beverage in any public place or motor vehicle commits a disorderly persons offense and is subject to a minimum of a $500.00. If this crime, however, is committed inside of a car or motor vehicle, there’s an addition penalty.
There’s a 6 month’s driver’s license suspension for underage drinking even if your child isn’t driving! The law is very clear that the operation of the motor vehicle is irrelevant! So even if your son or daughter is sitting in a vehicle, drinking beer with friends as means to avoid detection, they’re looking at license suspension. If the minor is a New Jersey resident, the State will take the license right after the conviction is court. If your child is an NJ resident and hasn’t received his or her license yet, the court will send a copy of the conviction to the Division of Motor Vehicles. This will result in a 6 month postponement in their ability to obtain a license. In addition to a possible criminal record, a fine and a possibly license suspension, the court may require the minor to attend alcohol education or a treatment program.
Even if your child isn’t a Jersey resident, underage drinking could still result in a license suspension. Pennsylvania’s underage drinking law is in a way even harsher than in the Garden State. There’s a 90 day license suspension in the Commonwealth for a first time offense, even if the drinking didn’t involve a car or motor vehicle. Similar to a drunk driving charge, New Jersey will send a copy of the conviction to Pennsylvania (PENNDOT).
Pennsylvania and New Jersey are members of the Driver License Compact (DLC). There are 46 member states and the goal of this agreement is the “one driver license” concept. The purpose is to ensure the accurate reporting of all traffic and license suspension/revocations of out of state drivers to the home state licensing agency. Given DLC, there’s strong possibility that Pennsylvania could suspend a minor’s PA driver license or delay the attainment of it, for a New Jersey offense at the shore.
If your son or daughter is charged with underage drinking at the Jersey shore, don’t simply plead guilty and mail in the fine! Even if the fine is minor, don’t overlook. In addition to the criminal penalties, this crime could dramatically affect your car insurance rates. For more information, contact our office. I also encourage you to visit my free download section and subscribe to my monthly newsletter.
DUI – Understanding “Actual Physical Control” of the Vehicle
Pennsylvania, similar to every other state, maintains a driving under the influence statue (DUI-75Pa. C. S. A. section 3802). In Pennsylvania a person may not drive, operate, or be in actual physical control of the movement of a vehicle after consuming a sufficient amount of alcohol or controlled substance to render the individual incapable of safely driving, operating, or being in actual physical control of the movement of the vehicle. The criminal consequences associated with DUI are dependent on the level of intoxication, prior offenses, and whether accident resulted from the incident. The prosecution can establish intoxication through the observation of the arresting officer or through chemical analysis of bodily fluids.
The successful defense of a DUI charge requires that the attorney review the basis for the initial traffic stop, the administration of possible field sobriety tests, and the chemical analysis of the defendant’s blood or urine. In addition to these issues, it is also important to question if the prosecution can meet the elements of the offense.
While many attorneys may over look the actual physical control element of a DUI there is a long history of cases which continue to debate this issue. In many cases an individual is stopped under the suspicion of DUI when the car is parked on the side of the road, in a parking lot, or in some way not actually moving. It is important to understand that the prosecution need not establish that the car was moving at the time of the offense but only that the driver was in actual physical control of the movement of the vehicle.
In Pennsylvania our Supreme Court has found that actual physical control is based on the totality of the circumstances including the location of the vehicle, whether the engine was running, and whether there was other evidence indicating that the defendant had driven the vehicle at some point prior to the arrival of police. See Commonwealth v. Wolen, 546 Pa. 448 (1996). Examples of these findings include cases where police found vehicles protruding into traffic lanes, drivers sleeping in their cars on the side of the road with the engines on, and drivers asleep in a parking lot with the engine running.
While our Supreme Court has issued several rulings on the meaning of actual control, it is important to keep in mind that actual physical control is still an issue of fact which the defense attorney can argue to a judge or jury depending upon the circumstances surrounding the case. A DUI conviction subjects an individual to substantial fines, possible incarceration, and loss of his or her driver’s license. If you are charged with a DUI it is important that your attorney consider all possible pre-trial motions and whether the prosecution can meet necessary elements of the offense. An aggressive defense is critical to success when faced with a DUI.
Who can’t get a gun in Pennsylvania and what about the 2nd Amendment?
While Second Amendment to the United States Constitution gives us the “right to bear arms” Pennsylvania, New Jersey and every other state can put restrictions on that right. Unlike other amendment, the 2nd Amendment isn’t totally binding on individual states through the 14th Amendment’s Due Process Clause.
Despite this Constitutional right, Pennsylvania and other states like New Jersey can prohibit a person from possessing a weapon if he or she is convicted of certain offenses either in that state or outside of it. If a person is convicted of one of these offenses he or she may not possess, use, control, sell, transfer, or obtain a firearm. Pennsylvania, under Section 6105 of its Uniform Firearms Act, provides a person with 60 days from the date of conviction to sell or transfer their weapons. A person who violates Section 6105 (VUFA) commits a felony of the second degree and may be charged with other felonies such as violating Section 6106 (VUFA) (carrying a firearm without a license, except if it’s in your home or place of business), 6110.2 (VUFA) (possession of firearm with altered or obliterated serial numbers), and 6108 (VUFA) (carrying a firearm on the city streets of Philadelphia) which is a misdemeanor charge. A person violates section 6105 if they possess a weapon and have been convicted of any of the following types crimes:
- Member of a Corrupt organization
- Involuntary manslaughter
- Aggravated assault
- Unlawful restraint
- Involuntary deviant sexual intercourse
- Receiving stolen property if charged as a felony
- Making false reports to law enforcement if it involved the theft of a firearm
- Witness intimidation
In addition to these offenses a person who has been convicted under the Controlled Substance Drug, Device, and a Cosmetic Act (aka – Possession with the Intent to Deliver – PWID) with the equivalent federal statute or a statute of a different state is also prohibited from carrying a firearm if the maximum punishment exceeds two years. A person is also prohibited under section 6105 if they have been adjudicated incompetent or involuntarily committed. While Pennsylvania can prohibit convicted felons along with other potentially violent people from possessing a firearm it can also prohibit drunk drivers with three or more DUI convictions.
In Pennsylvania, if you are convicted of DUI on three or more separate occasions within a five (5) year period the Commonwealth can deny you a weapons permit. In addition to denying you a permit if you were to carry a firearm with three (3) or more convictions for a DUI you can be found guilty of section 6105, 6106, and 6108 of the Uniform Firearms Act. Pennsylvania can pose these restrictions despite the 2nd Amendment and the Due Process Clause of the Fourteenth Amendment. These restrictions are permissible under Pennsylvania law and don’t violate United States Constitution. The United States Supreme Court in the case of McDonald v. Chicago ruled that the 2nd Amendment applies to state and local governments. The court, however, didn’t explicitly state that the “privileges or immunities” Clause of the Fourteenth Amendment applies to the state.
The Privileges or Immunities Clause states that “no state should make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. Since the Supreme Court did not explicitly say that this clause applies to individual states, Pennsylvania along with other jurisdictions, like New Jersey, may make laws restricting the possession and/or use of firearms. This Supreme Court decision, however, does allow the person to keep a firearm in their home without any restrictions. In the McDonald case, the City of Chicago attempted to impose a city wide band on handguns which the Supreme Court found unconstitutional.
While the State of Illinois and can pass laws or ordinances restricting the use of handguns it cannot eliminate them. The McDonald case dealt with a 76 year old man who wanted to keep firearms in his home. The City of Chicago however, since 1982, had prohibited handgun ownership without registrations. Chicago had not approved a gun registration since 1982 and therefore to own a gun, even in your home, was illegal. If you have questions about your constitutional rights or criminal defense, call our office at (215) 240-7377. You may also want to read my book, Commonwealth v. You; it’s over 100 pages to commonly asked questions about criminal defense and its FREE.
Understanding Blood (BAC-DUI) Testing Procedures: Who Can Take Your Blood
Blood evidence is far superior to a breath sample for DUI prosecutions. As stated in previous articles, breath testing is based on various assumptions and constants. Breath samples are converted into BAC results to determine a person’s level of impairment. More and more law enforcement agencies are not, however, using breath tests because of the questions surrounding the reliability of those scientific assumptions.
While a blood test provides stronger scientific evidence of impairment it is much less convenient then a breath test. Blood tests obviously require a medically trained individual unlike breath tests which simply require a police officer to use a device in an appropriate manner. While someone should have some type of qualification to administer blood tests the law does not require this individual to be a doctor, nurse, or any type of licensed person. There is no general rule for qualifications and the law only requires that the person taking this sample be acting in accordance with his or her job description.
Further, the law in Pennsylvania does not even require that blood be taken at an approved medical facility such as a hospital or clinic but it only requires that an approved clinical laboratory perform the chemical analysis of the sample taken. While some may argue that a blood test is a medical procedure you should understand that Pennsylvania does not require either a doctor or a nurse to order its administration. The law only requires that a police officer make the request and the police officer doesn’t even need to be present while the sample is taken.
After the sample is taken a laboratory and a trained scientist approved by the Pennsylvania Department of Health must perform the analysis. Pennsylvania publishes a list of approved laboratories each year and also the minimum list of qualifications for scientist working in the facility. Approved laboratory equipment, approved procedures, and qualified scientists are the minimal threshold for the admissibility for the blood test. The fact that the prosecution can meet this minimal requirement does not prohibit the defense from challenging the reliability of the tests results.
What did you say …or write about me? Admissible Hearsay – Trusting evidence without verifying it?
Hearsay is a confusing concepts and even many lawyer misunderstand. Much of that misunderstand comes from “exceptions” to Hearsay.
Hearsay is an out of court statement offered for the truth of the matter that is the subject of the statement. It can be spoken words but it can also be a written document, like a chemical report of blood from a DUI or a drug test report. At trial, hearsay is inadmissible unless the attorneys stipulate (agree) that the statement is admissible. If there isn’t a stipulation, the district attorney must produce the statement’s declarant. While hearsay is generally inadmissible, courts will permit it at preliminary hearings. In Pennsylvania, there are 2 cases which are often cited by the prosecution Commonwealth v. Rick, 366 A.2d 302 (Pa. Super. 1976) and Commonwealth v. Branch, 437 A.2d 748 (Pa. Super. 1981). The district attorney will often say that he or she offering the statement or the document under “Rick and Branch.” The DA is telling the court that the document or statement is hearsay but that these 2 cases make it admissible hearsay.
In the Rick case, a Pennsylvania State Trooper was investigating an accident but was unable to interview Defendant Rick, who was being treated for injuries at the hospital. The trooper, however, spoke with the attending physician, who provided a copy of the blood test – indicating Rick’s blood-alcohol level was .18% (more than 2 times the legal limit of .08 for a DUI in Pennsylvania). Rick was charged with driving under the influence (DUI) and the district attorney presented the report at the preliminary hearing but didn’t produce the doctor or any witness to testify about. While the defense objected to the report as hearsay, the judge allowed it into evidence.
The judge ruled that although the chemist’s report, standing by itself, would have been inadmissible at trial as hearsay, the question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt. At a preliminary hearing, this issue is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime.
In the Branch case, the defendant, Branch, was arrested for a shooting death—murder (homicide). At the preliminary hearing, the police officer testified that stated that the victim’s brother witnessed Branch shoot the victim. The victim’s brother, however, didn’t testify, although the prosecution said he would be available for trial. The judge in this case allowed the Hearsay at a preliminary hearing because the district attorney (prosecution) represented that the victim’s brother would be available as a witness at the time of trial. The judge therefore ruled that hearsay evidence, while inadmissible at trial, may be admitted at the preliminary hearing stage and may be sufficient to establish a prima facie case.
Hearsay is an important concept in any criminal trial. Your attorney must have a strong command of it to properly defend you.
Can They Get Me Twice? Pennsylvania and Double Jeopardy
Double jeopardy is often a misunderstood concept. Generally it means that you can’t be prosecuted twice for the same criminal charge arising from the same incident but there is more to this concept.
The Fifth Amendment to the United States Constitution provides us with the right against double jeopardy. This Amendment is binding on the states like Pennsylvania and New Jersey, through the due process clause of the Fourteenth Amendment to the United States Constitution. Pennsylvania’s Constitution also has a double jeopardy clause. Both Pennsylvania’s and the US Constitution’s Double Jeopardy Clause protect a person against the following:
- A second prosecution for the same offense after acquittal (not guilty);
- A prosecution for the same offense after conviction; and
- Multiple punishments of the same offense.
A key issue for double jeopardy cases is when jeopardy actually attaches to the State’s or Federal Government’s case. While a person can’t be tried twice for the same crime, the United States Supreme Court has ruled that there is nothing unconstitutional about a state and the federal government prosecuting someone for the same crime.
For example, if you committed a crime in Pennsylvania that also broke some federal law both the federal government and the Commonwealth of Pennsylvania could prosecute you. While the federal government allows this type of prosecution, Pennsylvania will only allow a person to be tried by the federal government and the state if it appears that the state and federal prosecution represents substantially different interests. The permissible prosecution by the state and federal government is known as the dual sovereign doctrine.
Jeopardy attaches to a prosecution when a person is put to trial before the trier of fact (judge or jury). In a jury trial jeopardy attaches only after a jury is impaneled (12 jurors and 2 alternate jurors seated and sworn. In a non-jury trial (bench trial), jeopardy attaches when the judge begins to hear evidence. Double jeopardy does not attach to preliminary hearing proceedings because there is no possibility that a person could be convicted. Double jeopardy also doesn’t attach when a judge accepts a guilty plea that is conditional. Its only when a guilty plea is unconditional and the plea is actually accepted does jeopardy attach. Finally, in juvenile proceedings jeopardy attaches if the purpose of the proceedings is to determine whether a juvenile has committed any that violated crimes code in Pennsylvania. A juvenile who is subject to an adjudication hearing may not later be retried as an adult for the same charges.
If you have more questions about criminal concepts, I encourage you to read my books, watch my videos or subscribe to my monthly newsletter. All of these resources are available right here on the website.
Understanding Criminal Conspiracy
A crime that is often misunderstood is conspiracy. Conspiracy is what the law refers to as an inchoate offense. An inchoate offense is one that pertains to the steps taken toward the commission of a crime with the step itself, conspiracy for instance, being serious enough to constitute a crime itself. There are three types of inchoate offenses: conspiracy, solicitation, and attempt.
A person is guilty of conspiracy when he acts with another person with the intent to commit a crime. To be guilty of conspiracy the prosecution must prove that the person agreed with another to engage in conduct which constituted a crime or attempted to engage in conduct. Conspiracy is also committed if a person agrees to aid another in committing or planning to commit a crime.
To prove conspiracy the prosecution must establish (1), an agreement to commit a crime or the providing of aid to commit a crime, (2), a shared criminal intent and (3), an overt act (open and observable) done in furtherance of the conspiracy. If you are charged with conspiracy your attorney should focus on the following issues: the Agreement; the number of co-conspirators; the overt act; the duration; the sufficiency of evidence; renunciation; and the merger of offenses.
With regards to the issue of Agreement the prosecution must prove beyond a reasonable doubt that there was an Agreement among the co-conspirators. To prove Agreement the Commonwealth does not need to show an explicit or formal understanding among the co-conspirators. The Commonwealth must, however, show more than a mere association. A Court (judge or jury) can find conspiracy inferentially through the defendant’s relation, conduct, or circumstances of the parties. It’s very important to keep in mind that mere association or presence at the scene of the crime is insufficient to establish conspiracy. This is a key concept.
With regards to co-conspirators it is important to understand that one defendant can be convicted of conspiracy even if his alleged co-conspirator is acquitted later at a separate trial. It is not necessary that two defendants be tried together in order to convict a person of conspiracy. Even if the defendants are tried at the same trial it is still possible to find one guilty, the other not guilty, and still convict the guilty person of conspiracy. With regards to an overt act you must understand that it doesn’t need to be crime itself but only an action that furthers completion of a crime or the attempt to complete a crime. Again, it is important that your attorney focus on the circumstances surrounding the actions of the individual accused of the conspiracy. Quite often the prosecution will erroneously ask the court to find conspiracy based on the mere presence of the person at the scene of the crime without any more evidence. You can’t be found guilty by mere association!
If you are accused as a conspirator you are subject to the same penalty as the principal actor (robbery, burglary, etc.). Much like other states, Pennsylvania does allow a person to be charged with conspiracy along with the principal act and the two charges do not merge for the purposes of sentencing. Merger is a legal concept that basically means that a person cannot be sentenced to an additional penalty (jail time or probation) for a crime that would be considered a lesser included offense of a more serious crime. For instance, robbery merges with theft because both are considered unlawful taking provided that the two crimes derived from the same incident. Because there is no merger you are subject to a double penalty. While judges can run sentences concurrently (at the same time) there is no prohibition against them running sentences for the two crimes consecutively (one after another). A conspiracy charge is serious and it’s important that your attorney properly prepare a defense if you are charged with it.
Does a Philadelphia address create “reasonable suspicion” for a drug search?
I’ve written previous articles on warrantless searches of motor vehicles in Pennsylvania, along with motions to suppress evidence specifically for guns, drug, and firearm charges. My new book focuses on these crimes in the Commonwealth and provides some great strategies. Reasonable Suspicion and Probable cause are the evidentiary standards a criminal court will use to determine if a police officer or state trooper has violated a person’s constitutional rights against illegal search and seizure under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
In many situations, however, police officers who suspect that a car is carrying or trafficking drugs use K-9 (dogs) to help them establish probable cause for a search. Remember that while police need probable cause to search a person or his belonging, they only need reasonable suspicion to initiate a “dog sniff” of a person’s properties or belongings.
Pennsylvania courts will determine if a police officer or state trooper had sufficient reasonable suspicion based on a totality of circumstances analysis. This analysis is an objective standard based on not only what the officer observes but the officer’s training and experience in these areas. Without reasonable suspicion (a lower form of probable cause) any items found following a search are inadmissible in court under both the US and Pennsylvania Constitution.
While there isn’t one factor in a totality of the circumstances analysis, there are things which police and state troopers aren’t permitted to use in their determination of reasonable suspicion for these “warrantless” searches. Remember, that very recently the Pennsylvania Supreme Court found that Pennsylvania doesn’t provide any further protection than the US Constitution with regards to warrantless searches and so the need for search warrants in the Commonwealth has severely diminished in the case of cars and motor vehicles.
While factors such as smell and obviously the sight of drugs (plain view) will strengthen an officer’s belief that reasonable suspicion and/or probable cause exist for a vehicle search, there are factors that Pennsylvania courts will completely disregard. These factors include the following:
1. a person’s address (an address that the officer indicates is known as a “Source City” or an area known for drug activity)
2. the year, make, and model of the car
3. the debris or trash in the car (assuming that it’s not contraband)
4. out of state tags or license plate
5. high or very low mileage on a car
6. a radar detector
7. the driver’s admission that he or she had been to drug rehab (even though you shouldn’t say anything to police)
Reasonable suspicion can’t be a “hunch” or a guess that a crime is occurring or has occurred but a belief based on an objective standard combined with the officer’s training, education, and experience. If you’re stopped for a vehicle code violation (speeding, expired tags, etc.) the officer needs an independent basis to continue questioning if it becomes clear that the initial reason for this stop has ended.
When police continue to question and a person “doesn’t feel free to leave” this triggers a person’s constitutional right against an unlawful seizure under the Pennsylvania and United States Constitutions (4th Amendment). A detention is unlawful if the officer doesn’t have reasonable suspicion for the investigation and is simply fishing for an answer in the hope of uncovering something that provides him with the necessary evidence to initiate a search.
In the case of drugs, the officer has to testify about sights, smells, and even the observations of the driver himself. The officer would need a similar set of “articulable facts” in the case of a DUI assuming that he stopped the car for some nonmoving violation (tail light).
This is the reason why I always stress never to provide police with any more than your driver’s license and insurance information. The more information that you provide, the further it will help their ability to establish reasonable suspicion. Remember that police can’t use the above factors but they can use the following responses against you to establish reasonable suspicion:
1. I was coming from a bar
2. I was partying with friends
3. I had a few drinks
4. I smoke weed sometimes
5. I haven’t done drugs recently
The above isn’t an exhaustive list and less you say is always better when speaking to police—they are asking to build a case, not to be your friend. For more information on criminal defense strategies and techniques I encourage you to read my free information in the download section.