Getting pulled over for a traffic offense
It’s incredibly easy for a cannabis user to get in trouble in Utah. The most popular way is after being pulled over for a traffic stop. That’s just because traffic stops are where people usually interact with police the most, and because of an exception to the warrant requirement that makes it (relatively) easy for the police to search a car and its occupants.
A policeman can pull you over for any of the traffic violations on the books. The most common I see are:
Speeding (yes, it’s illegal to go even 1 MPH over the speed limit, even if everyone else is doing it).
Failing to signal for long enough (before you turn or change lanes, you have to turn on your signal for a full 2 seconds beforehand--count it out, it’s longer than you think).
Following too close (you are supposed to leave at least two seconds of space between you and the car ahead. That means if you choose a fixed point along the road, like a sign, you should not pass it sooner than two seconds after the car in front of you passed it).
Failing to move over for emergency vehicles (if there’s an emergency vehicle parked along the highway, you’re supposed to slow down and, if you can do so safely, move to a farther lane before you pass).
Swerving in your lane (this one isn’t technically a crime itself, unless your tires leave your lane--but the police will often pull people over for swerving back and forth within their lane under the theory that it might mean they are impaired).
+FAQ: The policeman said he pulled me over because I was speeding, but I was only going like 2 miles above the limit. I’m sure it’s just because I had out-of-state plates [or because I’m black or brown, or young, or have long hair]. Can he do that?
Answer: It is very possible that the policeman wanted to pull you over for some other reason besides a very minor traffic offense, but, mostly, they are allowed to do it. It’s called a “pretextual stop,” and it is legal in Utah, and under the United States Supreme Court. But note: if you weren’t breaking any traffic laws, your attorney could be able to challenge the stop in court.
It is also illegal to distinguish amongst races when the police are deciding who to pull over, because (unlike which state you’re from, or how long your hair is) race is a “protected classification”. However, it can be very hard to prove what was in the policeman’s mind when he pulled you over
Smelling Like Marijuana:
Once you’re pulled over, the cop will approach your car, and he will speak to you while you’re in your car or ask you to get out.
+FAQ: Is the cop allowed to make the me step outside of the car?
Answer: Yes, and your passangers too.
While speaking with you the officer may smell marijuana. Under current law, smell of marijuana is good enough probable cause to search the car, the occupants, and their belongings. This is, by far, how most marijuana charges get started.
Sometimes, the officer might not smell marijuana herself, but might still suspect there are drugs in the car, so she might call in a K9 unit. It is legal for the K9 unit to do a “sniff” on the outside of the car, even without your consent. However, if the cop extends the duration of the stop to allow the K9 unit to arrive and do the sniff, and she didn’t have good enough reason to extend it, your attorney can later use that to fight the case. A “hit” by the K9 unit also gives the cop probable cause to search your car, even without consent.
+FAQ: The cop says that she smells marijuana (or says that her K9 hit on the car), so why is she asking me if I can search the car if she has probable cause?
Answer: She’s probably just trying to cover her bases. If she has your consent as well as probable cause, that makes it even harder to challenge the case later on.
+ FAQ: Do I have to consent to a search of the car?
Answer: No, you don’t. You should never try to physically stop a police officer from doing something, but you never have to consent to it either.
Getting Questioned
After asking for your driver’s license and insurance documents, the cop will often ask the you some variation of the question: “You don’t have any contraband in the car, do you?” If you answer “yes,” this most likely gives the officer probable cause to search you and your car, without your consent.
+FAQ: Is the cop allowed to ask this question?
Answer: Probably. When the cop has made a valid traffic stop, most Courts agree that the cop can ask a few extra questions that do not significantly extend the length of the stop. Note: This area of law is progressing, and I think there is an argument to be made that the cop should not ask any questions not directly related to the traffic stop, however most Courts still think that they can
+ Follow up Question: Do I have to say whether or not I have controband?
Answer: No. You should not lie to the police, but you do not have to answer any questions.
+Follow-up Question: If I refuse to ansewr, doesn't that give the cop more reason to investigate and serach me?
Answer: Yes, it probably will provoke the cop to investigate you more thoroughly. Whether or not this is a “valid” reason for further investigation is a complicated question of law which would probably have to be fought out in the court case.
If you answer “No, I don’t have any contraband” the cop will often follow-up with the question: “Well, you don’t mind if I have a look then?” If the you say, “ok,” then, obviously, your stuff gets searched.
+FAQ: Do I have to let the cop search my car when he says “do you mind if I take a look"?
Answer: No, you never have to consent to a search. (But you should never give the impression that you will physically resist a search or pat-down, as this will quickly turn bad).
+Follow-up Question: If I don't consent to a search, will I get searched anyway?
Answer: Possibly, but not necessarily. It depends on whether the cop has other reasons to suspect you and how badly he wants to search you. There are many reasons for a cop to think he has justification to search. For example, he can pat-down your body and the “reachable” area of the car if he has a reasonable suspicion that you’re armed and dangerous. Or he can arrest you for the traffic infraction and search your car during an “inventory” search.
+Follow-up Question: If he might search the car anyway, isn't it easier if I just consent?
Answer: That depends on what you mean by “easier.” If a search is performed without a warrant and without consent, you can later make the cop and the prosecutor prove to the judge that there was a valid exception to the warrant requirement. I said above that there are many reasons a cop might think he has justification to search a car, but that doesn’t mean a judge will agree when the case gets to court. If the cop can’t show a valid reason, the results of the search may be “suppressed” by the judge. So consenting to a search will make things easier on the cop and the prosecutor, but consenting to a search won’t usually make things any easier on you.
The cop will often say something like “I see you have California plates. Do you have one of those medical marijuana cards?”
+FAQ: Do I have to answer these questions?
Answer: No.
If you say, “Yes, I do have a medical marijuana card.” The cop will then ask, “When is the last time you smoked?” If you say “last night,” or “this morning,” or “at the last rest stop,” the cop will likely ask you out of the car to perform field sobriety tests. (see below)
+FAQ: Do I have to answer these questions?
Answer: No.
(You’re probably noticing a theme here on whether or not you have to answer questions. This is fundamental 5th Amendment law. You can politely say something like, “it seems you’re investigating me for a crime, officer, so I won’t answer any questions without my attorney present.” When the cop keeps asking questions, you can just repeat yourself, or he can just stay silent.)
Field Sobriety Tests
There are lots of reasons a cop might ask you to take field sobriety tests. It might be because you admitted to using marijuana at some point. It might be because they smell, or have already found, marijuana in your car. It might be because they have noticed “signs of drug use or impairment,” such as “droopy eyes,” “blood-shot eyes,” “dilated pupils,” “slow speech,” “lack of coordination,” “blistered tongue,” or “green tongue.”
+FAQ: Wait, how did the cop see inside someone’s mouth?
Answer: the cop probably asked the person to open his mouth and then he did.
+Follow-up Question: Do I have to open my mouth if the cop asks me?
Answer: Probably not. Searching the your mouth likely requires “probable cause,” but by opening your mouth they will say you “consented.”
+Follow-up Question: What the hell is "Green Tongue"?
Answer: Good question. There is no scientific evidence that smoking pot causes a green tongue, but it’s like law enforcement folk-lore for some reason. (Of course, if the person has an actual bud in his mouth, that’s another matter.)
After the cop notices signs of impairment or drug use, he begins to seriously investigate. He does this by asking questions, such as: “Are you taking any drugs?” “No, really, I can tell you’re taking drugs. Which drugs are you taking?” or “How much pot did you smoke today?”
+FAQ: Do I have to answer these questions?
Answer: No.
After the cop interrogates you, he will often ask the you to perform Standard Field Sobriety Tests such as the One-Legged Stand, the Walk and Turn, and the Horizontal Gaze Nystagmus. He might also ask you to do non-standard sobriety tests, such as reciting portions of the alphabet, and touching your fingers to your nose. There are many ways to “fail” these tests.
+FAQ: Do you have to do these Field Sobriety Tests?
Answer: No, you do not. You can always politely say, “No, I won’t be taking any field sobriety tests, officer."
Often, following the interrogation (if you chose to answer questions), and the field sobriety tests (if you chose to take them) the cop will conclude that he has enough evidence to arrest you. That’s because it’s not only illegal to be under the influence of marijuana when driving, it’s illegal to have any THC in your body while driving. (Read more about that here). That means, even if the cop thinks you are NOT impaired, you can still be arrested. I have seen it happen.
After arrest, the cop will usually “request” that you take a chemical test of your breath or blood under Utah’s Implied Consent statute. If you don’t take the chemical test under the Implied Consent statute, you can lose your Utah Driving Privilege for 18 months, even if you are not impaired.
+FAQ: Didn’t you just say I don’t have to answer questions or take Field Sobriety Tests? Now you’re saying I’ll automatically lose my Driving Privilege if I don’t submit to a chemical test?
Answer: That’s right, the Implied Consent statutory tests are a little special. They kick in only when the cop believes he has “reasonable grounds” to arrest a driver for DUI.
+Follow-up Question: How do I tell when the special Implied Consent rules have kicked in?
Answer: the officer will read a special “admonition” (or warning) that specifically tells you that you will lose your license if you don’t agree to the test. That’s how you know. [Note: it is possible to argue at a hearing that the cop didn’t actually have reasonable grounds to arrest the driver for DUI, and so the cop shouldn’t have used the Implied Consent statute to get a chemical test. If the Driver’s License Hearing Officer agrees, the driver does not lose his license. That all comes later, though.]
+Follow-up Question: But I don't have a Utah Driver's License! How can Utah suspend my license from my home state?
Answer: Utah cannot suspend your license from another state. Utah can only suspend your “Utah Driving Privilege” (your right to drive in Utah). However, you should also know that many states are part of the Interstate Compact on Driver’s Licenses. Under that agreement, when one state suspends your Driving Privilege, your home state may suspend your actual license.