Know your rights: Behind the driver’s wheel

When an officer pulls over a car, drivers have rights of which they should be aware. (WYDaily/File photo)
When an officer pulls over a car, drivers have rights of which they should be aware. (Southside Daily/File photo)

When the flashing lights appear in your rear-view mirror, it can be easy to freeze up. But next time that happens, make sure you’re aware of what your rights are on the road.

“Your rights are always your rights,” said Sgt. Brandon Williams from the York-Poquoson Sheriff’s Office. “Regardless of situation.”

When an officer pulls you over, Anthony Montagna III, an attorney in Norfolk warns drivers not to give any other information besides identification and registration. As a driver have the right to deny certain requests from officers, such as field tests for sobriety or vehicle searches.

“You need to be mindful that if you do or say anything, you may incriminate yourself and put yourself in a bad position,” Montagna said.

If an officer pulls over a driver suspected of driving under the influence, there are a few steps the officer might first take to determine cause for arrest, said officer Aundrea Holiday, of the Williamsburg Police Department.

Typically, the officer is first going to approach the car with an eye and nose for signs of alcohol or other forms of impairment.

“We actually go look and smell and watch to see what your reactions are,” Holiday said. “We’re using all of our senses to see what is going on with that driver.”

If the officer suspects intoxication, the officer might ask the driver to step out of the car. When that happens, there are a few rights that drivers should know.

The first is that every driver in Virginia is operating under implied consent, Williams said. Even though a driver has the right to refuse the preliminary breathalyzer test, as a person operating a vehicle on a Virginia road, a driver has already consented to eventually have samples of blood or breath taken for chemical tests to determine blood alcohol content  after they are arrested.

This means that if a driver denies the preliminary test and the officer finds enough probable cause for arrest, such as slurred speech or unstable stances, the driver will eventually have to take a form of chemical tests for BAC, Williams said.

If a person first denies the test and eventually found they were over the limit (the legal limit in Virginia is .08 BAC), then they can also be charged with refusal to submit. On the first offense refusal to submit is a civil charge and might result in the forfeiture of a driver’s license for 12 months, Montagna said.

On the second offense, the charge could mean jail time.

So, both officers Holiday and Williams suggest that drivers submit to the preliminary testing.

“Our job in law enforcement is to prove people guilty just as much as it is to prove someone innocent,” Williams said. “But if you take the test you’re proving yourself sober just as much as we might be trying to prove you intoxicated.”

In a different situation, an officer might ask to search a vehicle. Since a car is movable, Holiday said, by law an officer can search a driver’s vehicle without a search warrant if they have probable cause.

But the key to remember is that they need a reason, Montagna said.

“If he is just fishing for info and asks to search and you consent and they recover something then you could be charged,” Montagna said. “You don’t have to consent if he doesn’t have probable cause.”

Probable cause could mean a number of situations from an officer seeing marijuana in between a seat or if a car matches the description of a vehicle involved in another crime. But an officer doesn’t have to specify what the reason for the search is, Williams said. They just have to make the driver aware they have the right to deny the search.

Ultimately, Holiday said it is important for drivers to know when they can deny consent and upon which rights they can act.

“We want you to be safe,” she said. “We want to keep you safe and for us to be safe as well.”

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John Mangalonzo (john@localvoicemedia.com) is the managing editor of Local Voice Media’s Virginia papers – WYDaily (Williamsburg), Southside Daily (Virginia Beach) and HNNDaily (Hampton-Newport News). Before coming to Local Voice, John was the senior content editor of The Bellingham Herald, a McClatchy newspaper in Washington state. Previously, he served as city editor/content strategist for USA Today Network newsrooms in St. George and Cedar City, Utah. John started his professional journalism career shortly after graduating from Lyceum of The Philippines University in 1990. As a rookie reporter for a national newspaper in Manila that year, John was assigned to cover four of the most dangerous cities in Metro Manila. Later that year, John was transferred to cover the Philippine National Police and Armed Forces of the Philippines. He spent the latter part of 1990 to early 1992 embedded with troopers in the southern Philippines as they fought with communist rebels and Muslim extremists. His U.S. journalism career includes reporting and editing stints for newspapers and other media outlets in New York City, California, Texas, Iowa, Utah, Colorado and Washington state.