Rocktown Weekly Home
July 31, 2010

You have the right to ...

Some very general info that might be nice to know at some point



By Andrew Jenner



Harrisonburg Master Police Officer C.T. Miller issues a citation for an expired inspection sticker. Though an officer may pull you over for a violation, such as an expired sticker or speeding, he must have probable cause of criminal activity to search you
Harrisonburg Master Police Officer C.T. Miller issues a citation for an expired inspection sticker. Though an officer may pull you over for a violation, such as an expired sticker or speeding, he must have probable cause of criminal activity to search you

File photo

Surely you’ve overheard the conversations. The ones in which a group of citizen legal scholars quibble, gossip and perpetuate ideas about various points of law that might be used to their advantage. They might say you can trick a Breathalyzer machine by sucking on a penny, or tell you that a mall rent-a-cop has no real authority to stop you from spinning donuts in the parking lot. And so on and so forth.

In the spirit of this citizen legal scholarship, Rocktown Weekly tapped some of the town’s legitimate legal expertise to talk about good things to know in a number of hypothetical situations. Though it should go without saying, none of the following is actual legal advice. It’s a general overview of handy things to know if you find yourself in a situation similar to the scenarios below, motivated by the idea that awareness of your rights and responsibilities is in itself your right, and your responsibility.

Scenario One: You’re on the way home from work, doing 38 in a 25 mph zone. You don’t even see the police car until it swings out behind you, blue lights flashing. You curse your bad luck and pull over.

A good way to begin is to make the officer feel comfortable as they approach your car. Remember, they don’t know what you’ve done and what your intentions are.

“The best thing for people to do ... is keep their hands on the steering wheel,” said Lt. Kurt Boshart, commander of the Criminal Investigations Division for the Harrisonburg Police Department.

The officer, Boshart continued, is responsible for protecting public safety, requiring him to address your speeding. If in doing this, he for some reason suspects other criminal behavior, he’ll investigate further.

That doesn’t mean, however, that pulling you over for speeding entitles a police officer to poke around in your car or your belongings.

“They have to have a particularized basis to take police action,” said John Holloran, a former Fairfax County prosecutor who’s now a Harrisonburg defense attorney.

That’s where the concept of “probable cause” comes up. Say the policeman notices a bazooka on your back seat or a bong on your dash. This would be a good example of “probable cause” that you’re up to something beyond speeding. At that point, Boshart said, the officer can do whatever they need to investigate further — including searching the car and searching or arresting you.

But absent bazookas and bongs or other probable causes, the Fourth Amendment protects you from “unreasonable searches and seizures,” and, Holloran said, you have the right to refuse all interaction with the officer beyond showing your license and registration. If you wanted, you could slip these out the window, roll it back up and ignore the officer entirely.

Practically speaking, though, Holloran said, it might be most convenient to extend common courtesy to the officer by answering questions respectfully and honestly.

This might be the most hassle-free approach if you have no reason to fear that doing so will establish probable cause for a search you’d prefer didn’t happen.

“Will bad things happen if you don’t [cooperate]? Possibly.” Holloran said. “Will you be able to talk your way out of something? Possibly.”

In other words, you have the constitutional right to general non-cooperation with law enforcement if the officer has no probable cause to justify a search or an arrest.

(“[You] have that right. That’s the beauty of America,” Boshart said.) And you also have the option to civil interaction with that officer. And depending on what you’re actually up to, either option may be your best choice.

Scenario Two: You had two beers with dinner, watched an hour of TV and headed out to meet a friend. Your Blood Alcohol Count will vary, depending on your specs, but is certainly below the state’s legal limit of .08. Your taillight is out, and you get pulled over (again). When the officer asks, “Have you been drinking tonight?” panicked thoughts about DUIs and jail start running through your head.

“Give him your license and registration and say, ‘I want a lawyer,’ ” said Bob Keefer, a Harrisonburg attorney specializing in DUI cases.

Period. Nothing more. Don’t answer questions, don’t recite parts of the alphabet, don’t stand on one leg or any of that stuff.

“The thing is rigged from the start. You don’t want to help them,” Keefer said. “All you’re doing is giving them probable cause to arrest you.”

Keefer said this refusal is prudent even if you’re confident you’ll pass these “field sobriety tests.” If you’re arrested anyway, as he said may well happen, you’ll have the right to an attorney and the court system to determine if the arrest was properly made and if you’re guilty of any crime.

And that little breath tester machine the officer might ask you to blow in? Don’t, Keefer said. You don’t have to, and it’s a sure ticket to jail, he said, because police will take you in if you register any reading at all.

The “don’t have to” part is accurate, Boshart said. The Preliminary Breath Tester police officers use in the field is not a Breathalyzer, and you’re under no obligation to blow in that little tube (different story if you’re taken down to the station and put in front of a real Breathalyzer — under the state’s implied consent law, your driver’s license will be automatically revoked if you refuse to blow in that little tube).

But if you’re not above the legal limit, and you’re able to drive safely, Boshart said, there’s no reason to refuse to cooperate with an officer giving field tests.

“The tests are there to determine if somebody’s a danger to the community or not,” he said. “If you’re not under the influence, you don’t have anything to worry about.”

Scenario Three: You broke your leg, ran up some big-time bills and can’t make your rent this month.

“Communicate,” said Steve Stein, a rental property manager and owner of Mountain Valley Management.

Landlords, he said, will usually understand that “life happens,” that things come up that can knock you off your budget. Eviction isn’t a happy outcome for a landlord, either, Stein said, because it’s expensive and causes a delay in finding a new tenant. Thus, landlords like him are generally inclined to find solutions that are as gentle as possible for both parties. But this requires good communication to figure out a plan to get back on track.

“If you don’t communicate, then we think you’re ignoring your obligations,” said Stein.

Should things come to full-blown eviction, though, be aware that there’s a several-step process a landlord has to satisfy before throwing your stuff on the sidewalk.

“They can’t just padlock you out,” said John Whitfield, the executive director of Blue Ridge Legal Services, which handles numerous landlord-tenant cases.

Before eviction, a landlord must give you a five-day “pay or quit” notice, and then take you to court, throughout which you’ll generally be able to avoid eviction if you’re able to pay the debt. And when you do pay, Whitfield said, make sure to get a receipt that proves it.

Getting everything from your landlord in writing, he said, is good general practice, and make sure to read it and keep it.

And a final piece of rent-related advice from Whitfield: your rent is your single most important payment, because homelessness causes other aspects of your life to fall apart pretty quickly.

“You should pay your rent before you pay anything else ... that’s the smart way of handling your money when you don’t have enough to go around.”


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