Walk This Way

This edition of CULTURE focuses on edibles. I strongly encourage the use of edibles, as they do not carry the smell of cannabis, which is what genuinely gets the attention of law enforcement. You have read in this column on multiple occasions that when stopped for Driving Under the Influence of Alcohol or Drugs to not submit to the Standardized Field Sobriety Tests (roadsides). When you refuse the roadsides, you are withholding from law enforcement valuable evidence they needed to justify them arresting you. The officer must now make up for that loss of evidence and gather it another way.

You recall from this column that you have the right to ask law enforcement, “Officer, am I under arrest?” and “Officer am I free to leave?” Well, these questions are also needed when you refuse roadsides. The officer stops your car and comes to the window and talks with you. The officer asks you to step out of the car. You do. Then he or she either asks you to do roadside maneuvers or tells you to do them. You state that you decline roadsides, as they are voluntary. There is nothing the officer can do to make you do roadsides other than threaten to arrest you but you already know they are going to arrest you even if you do roadsides.

What happens next is key. Now that you are out of the car and have refused to do roadsides, the officer says to you, “Step to the rear of your vehicle please.” That is it. “Step to the rear of your vehicle” or step anywhere else where you need to walk. What they are going to do is make observations of you walking, which are similar to the roadside observations, they would have documented had you done the roadsides. They need to get these observations in prior to arresting you because under the Fourth Amendment, the officer has to have enough Probable Cause present when they arrest you, and they do not have enough yet.

You must practice saying, “Officer, am I free to leave?” and, “Officer, am I under arrest?” Because at the point they say you are under arrest, they will have to show later in court that they had enough Probable Cause to arrest you at that specific time. You can simply say, officer I will stand right here, thank you, until you decide whether you are going to arrest me or not. Do not be defiant and tell the officer that you won’t walk to the back of the car; make it more about what your legal status is at that point in time. Prior to walking to the back of the car, or wherever you are being asked to walk, you need to know whether you are under arrest as you are wanting to leave unless you are under arrest. You could also tactfully ask why they are requesting you to walk to the back of the car.