FAQ

We’ve all seen YouTube videos of some calm and collected person who is approached by the police during a traffic stop. That person is usually very self-confident in their knowledge of their constitutional rights – what the police can and cannot do during a traffic stop.  This usually involves some back-and-forth debate between the officer and the private citizen, where the police assert legal authority to do something, and the citizen challenges that the police actually have no such authority. Ultimately, the private citizen wins the debate, and the police walk away humiliated by the superior legal understanding of the private citizen.

Those videos are empowering and they give us courage that maybe one day we too can win a legal debate with the police by asserting our constitutional rights in the face of some imagined police abuse of power.

But let’s be practical – few of us have actual legal training, and no one wants to get arrested.  So what should you say or do when the police stop you?  The answer really depends on a number of factors and changes from situation to situation.  Let’s answer another question first: What must we do?

What must I do, when I see police lights in my rear-view mirror, or hear sirens?

Wisconsin law requires you to pull your vehicle over to the side of the road, out of the lane of traffic, when you hear police sirens or see their emergency lights.  You must stop your vehicle “as promptly as safety reasonably permits.” Wisconsin Statutes, Section 346.04(2t).  Failure to stop your vehicle can lead to serious consequences, including Misdemeanor or even Felony criminal charges.

The Wisconsin Supreme Court has also explained that an officer’s attempt to stop a vehicle is constitutionally reasonable, when the officer merely has reasonable suspicion that a traffic violation has occurred—any traffic violation, no matter how small.    

So, what should you do when you see emergency lights or hear sirens?  You should pull over “as promptly as safety reasonably permits,” because you never know when your taillight is out, or your exhaust is too loud, and you don’t want to be charged with a crime.

What must I do when an officer approaches my car and asks for my ID?  Do I have to identify myself?

Yes. There really isn’t any smart way around this. If you are the subject of a traffic stop; you are required to correctly identify yourself.  And as the driver of the vehicle, you are required to carry a valid driver’s license on your person while operating the vehicle, which you must produce upon demand to the police during the traffic stop.

I am the passenger in a car that was just stopped, do I have to provide the police with my ID?

If you are a passenger in a car that was stopped by police, the police will ask you to identify yourself.  The law considers it to be a reasonable part of every traffic stop for the police to identify everyone in the vehicle, but that does not extend to taking your driver’s license or ID card (unless you are the driver of the vehicle).  If you think about it, that just makes sense – not everyone has an official ID card or driver’s license; so not everyone has one to provide.  The police will ask you to provide your name and birthdate, but you may remain silent, if you wish.  If you choose to respond, then you must answer truthfully.  In the case of Henes v. Morrissey, the Wisconsin Supreme Court decided that “Mere silence, standing alone, is insufficient to constitute obstruction [. . . .] Here, all Henes did was remain silent. He did not affirmatively act to obstruct the deputies’ investigation: he did not give them false information, he did not flee from the deputies, nor did he act in any violent manner towards them. Without more than mere silence, there is no obstruction.”  Of course, this also means that if you do choose to provide your name, you must correctly identify yourself.  If you do not correctly identify yourself, you may be charged with a crime, like Obstructing an Officer.  See Wisconsin Statutes, Section 946.41(1).

That said, if you choose not to identify yourself, chances are the police will think that suspicious and detain you even longer.  If that extra-long detention is constitutionally unreasonable, there really isn’t anything you can do about it until you come before a Judge.  So without some good reason not to identify yourself, it is probably safest and smartest just to provide your correct name and birthdate when asked.

I think the officer has detained me for long enough. I haven’t done anything wrong. Can I just leave now?

In theory, if you haven’t done anything wrong, and the officer has completed the short job of addressing the purpose of the stop, identifying the occupants of the car and checking for warrants, the officer should let you leave.

BUT as a practical matter, it would not be wise to leave the traffic stop before the officer tells you that you can go.  

The U.S. Supreme Court has ruled that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”

“Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’ [. . . .] Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”  

Therefore, the Constitution does not permit the police to detain you longer than that. But as a practical matter, you just have to wait until the police have finished. If they’ve detained you unreasonably, then you can raise that objection later to the Judge in Court. But it won’t do you any good—and could get you into further trouble—if you try to enforce that right for yourself during the encounter.

Do I have to consent to a search of my car or my belongings inside of my car?

No!  You do not ever have to consent for police to search your vehicle, your purse, your phone, your backpack, or any of your belongings.  Of course, if you’re in handcuffs in the back of a squad car, there is not much you can do about it.  But you certainly do NOT have to consent, even if the police threaten to get a warrant.  If police feel there is sufficient probable cause to believe that evidence of a crime is contained inside of the vehicle or inside of your belongings, then let them get a warrant. That’s exactly what the U.S. Constitution requires them to do.  And you won’t get into trouble for saying, “I do not consent to that search.”  Of course, you may get in trouble for trying to fight the police or for yelling obnoxiously at them about it, but there is nothing wrong with simply saying, “I do not consent to that search.” 

Do I have to consent to perform Field Sobriety Tests for alcohol or drugs, when police want to see if I am “safe to drive”?

No; you don’t.  But if you refuse to do those tests, the law allows the police (and the Court) to interpret your refusal to perform Field Sobriety Tests as evidence of your consciousness of guilt – your refusal to perform Field Sobriety Tests can be used against you in the police officer’s consideration of whether there is probable cause to arrest you for an impaired driving incident.  So, yes; you can refuse to perform Field Sobriety Tests.  However, that refusal is likely to get you arrested and lead to OWI charges.

Do I have to consent to the police taking a sample of my breath, blood or urine to use as evidence against me in an OWI (Operating Motor Vehicle while under the Influence of an Intoxicant) investigation?

There is a legal answer to this question, and a practical answer; and they are different.  Legally, police can only request or demand a sample of your breath, blood or urine under certain circumstances.  See Wisconsin Statutes, Section 343.305(3).  And you can say “no”.  But in our opinion, it is smarter and safer just to consent.  There are several reasons why.

First, if the police have taken the investigation all the way to the point of requesting a sample of your breath, blood or urine, that means they have already decided to give you some kind of a citation or criminal charge related to operating a motor vehicle while under the influence of a drug or an intoxicant.  And in that context, the effect of refusing to give a sample of your breath, blood or urine will be used against you in Court and at trial as evidence that you were conscious of being impaired by drugs or alcohol or both.  

Second, refusing to give a sample of your breath, blood or urine can actually have worse consequences for your driving privileges than an OWI conviction!  For example, in Wisconsin, if it is your first time being cited with Operating a Motor Vehicle while under the Influence of an Intoxicant, the maximum period of driver’s license revocation by the Court is 9 months.  (This is true in Wisconsin. Other States have different laws.)  But the penalty for unreasonable refusal to give a sample of breath, blood or urine is driver’s license revocation for a full 12 months!  AND if you unreasonably refuse to give a sample, you will be required to install a costly Ignition Interlock Device in every vehicle that is registered to you or that you operate.  Whereas in the case of an OWI citation, you will only be required to install the Ignition Interlock Device, if your blood / breath alcohol level is 0.15g or greater.  So, Refusal to give a sample can actually turn out worse for you than simply consenting to give a sample!

Third, if you are actually not guilty of impaired driving, then providing a sample of your breath, blood or urine will actually serve to demonstrate your innocence!  Field Sobriety Tests are not easy to perform, even when completely sober.  And without the evidence of the blood / breath / urine test, the Judge or Jury will be left with only the evidence of your driving and your Field Sobriety Tests.  Sometimes we all drive poorly, and sometimes we all have trouble with balance, but it is not always attributable to consumption of alcohol or drugs, and the blood / breath / urine test results may help you to prove that in court.  Besides, if you do refuse, the police may just get a warrant and take your blood anyway.