There are a ton of misconceptions when it comes to traffic stops in California and their applicable laws. We’ve heard it all before, “Police can do this, they can’t do that and I’m pretty sure so and so told me I have the right to this and that.” Let’s get the misconceptions out of the way and let’s look at the most common confusions that arise from your understanding of traffic stops. We’ll add links wherever possible and explain in detail what we can and in general what we must.
And, it’s super important to understand that this article is not meant to be construed as legal advice. You can read more about our disclaimer at the bottom. Do your own research if you must and read on… but always consult with an attorney when in doubt about anything (by the way, we’re pretty awesome attorneys). That being said, let’s look at the 6 common misconceptions about traffic stops and police in our state.
Table of Contents
You Have the Right to Remain Silent… Sometimes
Probably the most common misconception is that people think they have the right to be silent always and whenever. Let’s illustrate why this may not always be the case.
John is cruising down a California highway when he suddenly sees flashing lights in his rearview mirror. He pulls over as the police officer is signaling with his lights. John is pretty sure he saw a Youtube video that said that he is open to exercising his right to remain silent and not say a word to the officer. The video said, “The Fifth Amendment of the US Constitution fully protects you, don’t say a word, you got this!” Unfortunately for John, this assumption is incorrect. And “keeping it real is about to go wrong” as they say.
Why? Because in California, while the Fifth Amendment does protect him from self-incrimination, it doesn’t provide an absolute right to remain silent during a traffic stop. Under California Vehicle Code Section 12951(b), drivers are legally obligated to provide relevant and critical information such as their name, driver’s license, registration, and proof of insurance upon request from an officer. Failing to do so may result in misdemeanor charges, fines, and even the potential impounding of their vehicle. It’s imperative for California drivers to understand that, although they have certain constitutional rights, complying with these basic identification requirements during a traffic stop is mandatory under state law.
One other point before we move on, don’t always bank on being “right”. Sometimes your rights can be a basis for a dangerous situation. It may not be right but being right may put you in a difficult situation. Proving and winning a case where you were held for 3 days but suffered no injury and where your case revolves around very light parameters and arguments (the officers had probable cause to demand that you speak, get out, do this or that) may lead to nothing more than wages lost, stress and time spent on something that is not productive. Most attorneys, if any at all, will not take on a case like that.
It’s good to fight for your rights, but always keep yourself and the people around you in mind.
Can You Refuse a Breathalyzer Test?
California’s Vehicle Code can be complex, with various sections interconnected in ways that may not be immediately apparent. What may seem like a normal traffic stop by the police can quickly turn into a life-altering situation. This complexity is especially true when it comes to the rules surrounding breathalyzer tests during a traffic stop for a suspected DUI. Let’s go over a few.
Vehicle Code Section 23612, also known as the implied consent law, plays a crucial role in this process but is also what can make this idea confusing. It basically states that by operating a car in California, you are implicitly agreeing to submit to a breathalyzer test if you are lawfully arrested on suspicion of driving while intoxicated. Implicitly. This is where it first begins to get tricky.
Per the law, John (our protagonist for the day), can legally refuse a test. But, operating what California defines as a motor vehicle means also that he is expected to comply. John says no (like UFC star Tony Ferguson did recently) and is taken away. At this point it becomes your word against the officer, any evidence they collect and you still have to hope that the test at the station registers nothing in your blood. For the record, American Addiction Centers states that “alcohol detection tests can measure alcohol in the blood for up to 6 hours, on the breath for 12 to 24 hours” but there are MANY FACTORS THAT CAN AFFECT THE PRESENCE OF ALCOHOL IN YOUR SYSTEM. This includes your age, sex, food consumed and so much more. Sounds like a recipe for disaster if you try to predict all these factors. So, as always, the best advice is don’t drink and drive.
Refusing a breathalyzer test may have serious consequences for John and anyone else who thinks this is a good idea without understanding it first. Under Section 23612(a)(1)(D), drivers who refuse the test may face an automatic one-year suspension of their driver’s license, as well as additional penalties like fines and mandatory participation in a DUI program.
There may be situations where refusing a breathalyzer test could potentially be beneficial, such as when a driver believes that the test results may be inaccurate or that the officer did not have probable cause for the arrest. In these cases, refusing the test may provide a basis for challenging the DUI charge later in court. Keep in mind that in many states across the country, refusing the breathalyzer test automatically leads to a driving license suspension – even if you beat the court afterward.
It is ultimately up to you. No one would recommend playing math whiz with blood alcohol levels. Never drink and drive. If in doubt about anything, consult with an attorney. Speaking of which… you may feel inclined to consult with an attorney on the spot since the law says you have the right to one, right? Guess what? That’s another misconception.
Right to an Attorney During a Traffic Stop
Here’s another common misconception among drivers: you do not have a right to an attorney whenever you want and at will. The right to an attorney during questioning is often seen on TV. “I want an attorney,” says the dashing villain who bothered to read a book or two on TV law. And he’s right! The right to an attorney is protected under the Sixth Amendment of the US Constitution. But, this civil right applies to you after you have been arrested and taken into custody, not during the initial traffic stop. A traffic stop leads to a traffic citation usually – not an outright arrest.
To clarify, John is pulled over by an officer who then may ask for his name, driver’s license, registration, and proof of insurance, as well as ask questions about the reason for the stop. At this stage, the right to an attorney does not yet apply to John. However, if the officer decides to arrest him based on suspicion of a crime, such as driving under the influence or possession of illegal substances, his right to an attorney comes into play. Once arrested and taken into custody, he can then exercise his right to request an attorney and the police must cease questioning until his attorney is present.
On that note, don’t speak to anyone but your attorney if you are accused of a crime. Police can lie to you and do whatever it takes within very flexible bounds to get the “truth” out of you. Say, “I want to exercise my right to an attorney and will not speak to you any longer.” They might say, “But John, asking for an attorney is admitting guilt. Are you guilty?” Then you say, “I want to exercise my right to an attorney and will not speak to you any longer.” Do. Not. Talk. To. Police. Before. Consulting. With. An. Attorney.
Can Your Vehicle Be Searched Without a Warrant?
Contrary to popular belief, yes! Many drivers mistakenly believe that the police cannot search their vehicle without a warrant. Look at CA Penal Code 1531:
“1531. The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.”
It authorizes them to break down a door, for example, while executing a warrant. So it’s natural to think that a warrant is needed for any sort of entry into any property. But if an officer hears screams from a house pleading for help, do they need a warrant to enter? No. Obviously not.
While it’s true that, in general, the Fourth Amendment of the US Constitution protects against unreasonable searches and seizures, there are also exceptions that apply specifically to vehicles. The “automobile exception” is one such case that allows officers to search a vehicle without a warrant.
The U.S. Supreme Court decision in Carroll v. United States (1925) 267 U.S. 132 and further supported by the California Supreme Court decision in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 established what is known as the “automobile exception”. According to the automobile exception, if an officer has probable cause to believe that a vehicle contains evidence of a crime, they can legally search the vehicle without obtaining a warrant. California Penal Code Section 1531 also outlines the rules for executing search warrants and exceptions for warrantless searches, which include vehicles under certain circumstances. As we said, previously, probable cause could arise from various factors. Another known case, People vs. Murphy, sets precedence, for example, for foregoing rules for lawful searches if, as in this case, there is a risk of evidence being destroyed.
All in all, like most laws, it can be quite complex. For example, in Los Angeles, a police officer hears an APB (All Points Bulletin) about a white man in a black Nissan Sentra and John, our dear friend, matches that description. The officer may have reasonable suspicion to stop your vehicle and investigate further. Reasonable suspicion is a lower standard than probable cause, which is required for a search.
So, can the officer force you to get out and search your car? It depends. The circumstances can influence the moment but ultimately probable cause is the determining factor. Probable cause means that the officer has reason to believe that a crime has been committed and that your vehicle contains evidence of said crime.
Factors that may contribute to probable cause include visible contraband, suspicious behavior, or incriminating statements you make during the stop. Keep in mind that probable cause is kept to a legal standard based on law and precedence. A search and seizure must come after a warrant has been issued. All conditions for said warrant must come before the act, not after. While there are situations where someone’s manner or conduct may arouse suspicion, probable cause would likely be lacking in most cases. As always, there are exceptions to this. A Terry Frisk, for example, would be one of these exceptions.
Basically, the police had a reason to believe that a store was about to be robbed. When approaching them, they frisked one of the suspects and found a gun. The search came without a warrant but the context, the witnesses and other factors led to a long and drawn-out court case that resulted in what is now known as a Terry frisk. Is it wise to bring all this up when being approached by police? Probably not. But it is imperative that you know your rights so that, after the fact, you can talk to an attorney about making a case for a violation of your civil rights.
To summarize, while you have the right to refuse a search if the officer does not have probable cause, it’s essential to understand that resisting a search when there is probable cause could lead to further complications, legal or otherwise. If you believe that your vehicle has been searched unlawfully or you have questions about your rights during a traffic stop, shoot us a message. We have a history of fighting and winning against the city while representing people who have had their rights abused. But we repeat our advice once more, keep your safety as a priority always. Be smart. Be aware. Be safe.
Filming the Police During a Traffic Stop
Another popular misconception is that drivers believe they have an unrestricted right to film the police during a traffic stop. While it’s true that you generally have the right to record law enforcement officers performing their duties in public, this right is not without limitations. The First Amendment of the US Constitution protects the right to gather information about public officials, including recording police officers in public spaces. So, yes, you can film officers. And there’s precedence all over the country too (although laws vary from state to state).
Outside of the state, for example, the U.S. Court of Appeals for the Ninth Circuit’s decision in Fordyce v. City of Seattle (1995) 55 F.3d 436 and the U.S. District Court decision in Adkins v. Limtiaco (2011) 828 F. Supp. 2d 1111 both supported the right to film the police in public.
Within the state, California Penal Code Section 148(g) clarifies that photographing or recording the police in public does not, in itself, constitute interference with an officer’s duties. However, this right can be restricted if your actions interfere with an officer’s ability to perform their duties, obstruct an investigation, or pose a safety risk to officers or others.
When recording the police during a traffic stop, it’s recommended to, first, keep a safe distance. Avoid making sudden movements or loud noises, and do not interfere with the officer’s work. If an officer asks you to step back or stop filming due to concerns about safety or interference, it’s important to at least hear them out if you do not comply. We’ll say this as many times as needed, what is right may not always be right when you take into account your well-being and context.
Imagine for a second that John decides to film the police as they stop him due to suspicion or a report regarding a similar vehicle. While John is refusing to comply he pulls his cell phone out from his side pocket. Big mistake. Does he have the right to do so? Yes. Should he pull handheld objects from his side pocket while refusing to comply, right or not, with an officer? Probably not.
Another thing that could happen is that someone films with their flash on. Flashing an officer in the face is a recipe for disaster. If you must film, do so with wisdom, proper judgment and intelligence. In summary, while you generally have the right to film the police during a traffic stop, it’s essential to exercise this right responsibly and with respect for the officers’ duties.
Officers Identifying Themselves During a Traffic Stop
And finally, another common question among drivers is whether police officers are required to identify themselves during a traffic stop by providing their name, badge number, or other identifying information. While there is no specific California law that explicitly mandates officers to provide this information during a traffic stop, some police departments may have their own policies regarding officer identification.
In California, for example, the Government Code Section 3300-3313, known as the Public Safety Officers Procedural Bill of Rights Act (POBRA), outlines the rights and protections for public safety officers, including police officers. But what about your protections? The truth is that you’d be hard-pressed to find a specific law that addresses this in Los Angeles and in California. This leaves the matter to individual police department’s policies and procedures, which can vary from one jurisdiction to another. There is no federal law requiring it and it definitely varies from state to state and CITY TO CITY.
All that being said, police officers are generally expected to act professionally and in accordance with their department’s policies. This conversation could lead to a talk on entrapment or what is and isn’t ethical. But don’t be misinformed by YouTube or Google – not every officer must identify themselves to you. In fact, many have the right to LIE TO YOU.
Regardless, if you believe that an officer has acted inappropriately or failed to identify themselves when required by their department’s policy, it’s essential to document the encounter and contact the appropriate authorities. Then, you need to contact us. We’re here to help no matter what your question is regarding traffic stops and police misconduct.
Greg Kirakosian of Kirakosian Law is a Los Angeles Car Accident and Personal Injury attorney. As an attorney with years of experience, Greg Kirakosian has been featured on TV and Publications across every medium and platform of note. For appearances, please contact firstname.lastname@example.org.