NO! The right to remain silent exists whether or not you are under arrest. The only difference is, when you are under arrest, law enforcement is required to advise you of that right. In a regular traffic stop or any other encounter when you are not – at the moment – under arrest, they are not required to tell you that you can [and should] remain silent.
When the officer approaches the window after a traffic stop, be prepared with your driver license, registration, and proof of insurance. Hand all three to the officer.
Keep your hands in clear sight. The steering wheel is the best place for your hands. Don’t fidget with them, and don’t dig around in bags or pockets or compartments – basically, don’t put your hands in a place the officer cannot see them.
If he or she asks you if you why you were stopped, the answer is: “No” – and that is true. You don’t know what the officer is thinking or his or her rationale for the stop. You might THINK you know, but you don’t KNOW, so the true and correct answer is “no.”
When the officer attempts to engage in small talk, remember this: THERE’S NO SUCH THING AS SMALL TALK! Every question the officer asks has a purpose.
The most common way the officer will start with the strategic small talk is: “Where are you coming from?” or “Where are you headed?” …and they seem harmless enough; they are not. These questions are designed to 1) put you at ease; make you feel like it’s just a couple of pals talking, and 2) open you up to answering more questions.
While it may feel weird – and it will not please the officer – the only answer to the small talk questions is this: “I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
Be prepared, the officer is not going to be amused. He or she will immediately assume an indignant posture and tone and, either aggressively or condescendingly, the officer will suggest that you are making more of the situation than necessary. No matter what the officer says or how he or she says it, remain calm, polite, professional, and respectful.
The officer may go so far as to say that you are required to answer questions; you are not. The only answer to any question from that or any other law enforcement officer is: “I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
If the officer suspects DUI, he or she will ask a question akin to: “Have you been drinking tonight?” Your response: “I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
The officer will have you step out of the car. Some might say that you should ask whether you are being detained and on suspicion of what crime. I have mixed feelings about that, because one way or another, you are most likely going to end up out of the car, so why escalate the situation? Maybe you could ask one time and comply anyway. If the officer is wearing a digital audio recorder (DAR), the question and answer will be recorded.
The officer might say something to make you think you are making things more difficult. You are not. The officer might say something to get you to think that if you just answer some questions, he or she will send you on your way. They won’t. If they can arrest you, they will.
“I don’t mean any disrespect officer, but on the advice of counsel, I am invoking my right to remain silent and I am not going to answer any questions without my lawyer present.”
