Lawyer Connection

What should somebody do if they are stopped by the police?

It makes a big difference if you’re stopped by the police when you’re driving a motor vehicle or if you’re just walking down the street or somehow otherwise coming into contact with them, because your duties and your rights are very different if you’re the driver of a motor vehicle having contact with the police as opposed to all the other situations, so let’s deal first with the situation where you are the driver of a motor vehicle.

In Ontario, and I think virtually every province in Canada, you are required when stopped by a police officer, to provide them certain information, such as your driver’s license, your ownership, and proof of insurance. Those are mandatory, and an officer can ask you, when he stops your vehicle, to produce those items, and he doesn’t really need any reason to be suspicious of you at all. So you have to give over that information.

Now, once we’re beyond that, your rights to silence, or your right to not answer questions starts to kick in. If you’re involved in a motor vehicle accident, you have statutory obligations to report the accident, and you have certain statutory duties to remain on scene and identify yourself to another driver.

But most people who come into contact with the police are going to do so when they’re drivers of a motor vehicle, the officer’s going to say something along the lines of, “Do you know why I stopped you?” and at that point there’s not likely any great universal answer, common sense dictates that you’re always polite, that you are not going to incriminate yourself. If you know you’re going 200 in a 50 zone, that’s probably not the time to say, “I’m just testing out my new Ferrari,” but at the same time, you’re not going to lie to the officer, misrepresent who you are, because there are criminal offences that relate to giving a false name or false identification to an officer. It does happen from time to time that we’ve forgotten our driver’s license in our wallet at home, or such, in which case most officers will give you an opportunity to prove your identity through other means.

But if your problem with the police goes beyond just those first few interactions with them, say for example in an impaired driving situation, the officer may ask you to blow into a roadside screening device, or accompany them to the station. At the point at which you’re now involved in an impaired driving investigation, it is extremely important for you to a) talk as little as possible, give the officer as little information about your whereabouts and your activities as you feel comfortable, because the more you talk, the more you’re likely to give the officer suspicion that you might have been involved in a drinking and driving offense.

Generally speaking you’re required to give that little roadside sample to the police officer. It’s a little box with a straw in it. You blow, you blow, nice and hard until they say stop, and then if things go badly, you ask to speak to a lawyer, and you don’t say another word until you’re given the chance to do so.

A lot of people don’t have a criminal lawyer at their fingertips, but the police are required to give you access to a free lawyer, called a duty counsel here in Ontario, under the legal aid plan. They have access to a free lawyer, and you shut up until you have an opportunity to do exactly that. And resist the temptation to try to talk your way out of something. Resist the temptation to let your temper fly, or to beg and plead and carry on. Just be quiet. Talk to a lawyer, because we can be objective. We can get the facts. We can give you the kind of advice that you need to at least make matters not worse, and sometimes a great deal better.

So the driving scenario is one where you have a responsibility and a duty to identify yourself and provide some documents, and after that, generally speaking, less is more, and if you’re in trouble and if things are going beyond that, ask to speak to a lawyer and be quiet until you get the chance.

What if it’s not a drinking and driving type charge, and you probably don’t deal with this too much, but what if it’s a speeding, if you’re going 30 or 40 over? Should you avoid answering the questions of the police officer, or…?

Well, good question. Common sense is going to prevail most of the time. I’ve always asked police officers when we’re sitting around the courthouse waiting for our cases to get called, what’s the best answer to the question, “Do you know how fast you were going?” Because when officers ask you that question, before they give you the speeding ticket, it’s almost as if they’re looking for the right answer.

Is the right answer, “Yeah, I knew exactly how fast I was going, and can tell you it was not over the speed limit. Your machine is broken and I’m convinced I was going 40 in a 40 zone.” Is that what they’re wanting to hear? Or are they looking for you to fall on your sword and beg for forgiveness?

And the answer that I get from the officers is, “Well there really isn’t a right answer.” Of course if you’re driving someone to the hospital, and it’s an emergency, common sense dictates that you’re going to tell them that, but for the most part, for most circumstances, there’s really not any good answer. And simply saying to the officer, “I’m not really sure what you mean. Here’s my license and registration. Did I do something wrong?” is probably perfectly appropriate.

Politeness, even in the face of rudeness, is the key. Because no matter how rude, or aggressive, or abrasive an officer is, you’re not going to get very far by bumping up your temper and losing your cool. Sometimes, there’s an old adage when it comes to traffic enforcement officers, and dealings with the public. You can get the lecture, you can get the ticket, but you don’t usually get both. So if you get an officer that wants to yell at you a little bit, and tell you what a bad driver you’ve been; take it, because there’s a chance at the end of it, you might not get that ticket.

Those are the general rules of thumb that I operate under. If you’re a passenger in a motor vehicle, are you required to identify yourself, and provide identification to the officer, or any other documents? Absolutely not. As a passenger in a motor vehicle, you have no duties under the Highway Traffic Act. You can sit and smile sweetly at the officer, and not answer a single question, and that is your choice. You have a right to remain silent in the face of police investigation like that, and you don’t have to do a thing. You don’t have to open up your ID, your wallet, or answer questions if you don’t feel like it. A lot of the times, by the time you’re being asked those questions, it’s probably a good idea not to answer them.

In the case you mentioned about having to blow, which I actually have had to do a couple of times (every time I blew a zero percent), but if they ask you to blow, I guess you have to do it?

In the law they have to have reasonable suspicion that you’ve consumed alcohol within the last three hours of being stopped. Well, I can tell you that the roadside is not a good place for you to debate whether or not the officer has a reasonable suspicion. If he did not have a reasonable suspicion, and you did not provide the sample, arguably you are not guilty of the offense of failing to provide a sample. But I’m telling people, you are not in a position to debate this question. If the officer says, “Here’s the box, I want you to blow in it,” you’re going to be blowing in it.

And don’t fuss and try to blow but not really do it. Faking a blow is a bad idea. You can be charged with a criminal offense called “failure to provide a sample”. And failure to provide a sample is as bad as being convicted of drunk driving. It has all the same penalties and all the same consequences for your driving life. So blow. Blow ‘till they’re satisfied, and then be quiet, and hope for a low reading. Hope for a green.

If the officer asks, “Have you been drinking tonight?” that is a self-incriminatory style of question, and I advise people you are under no duty whatsoever to tell the officer that you’ve consumed any alcohol. If you tell them you’ve consumed alcohol, they have the grounds to make you blow in the machine, and generally speaking you want to avoid having to blow into the machine.

But moving on, if you are not in a motor vehicle, let’s say that you are walking in the street and a police officer comes up to you and says, “Hey, how are you doing today? Can I see some ID?” you are under absolutely no duty to provide any identification to the officer. You are under no duty to answer any questions of the officer. And you have every right to be able to say, “You know what? I am on my way somewhere, sir, and I’m really quite busy. We’ll have to talk another time,” and keep going.

In Toronto right now, we have quite an interesting political debate about the police practice of carding; that is to say, stopping persons, gathering information, whether they have suspicion or not, putting that on file, and using it for future investigations. People should be aware of this, that they have every right to decline being interviewed by the police. Now, if the police have grounds to do so, they can detain you temporarily for a short period of time, to be able to make further inquiries. But again, you are under no duty whatsoever to answer any questions.

And the best practice, if I can give a uniform answer to this question, the best practice is to simply politely, but insistently, decline to give any information and ask to be let go on your way. Now, there are innumerable circumstances where people might come into contact with the police, and I can’t possibly anticipate every one of those circumstances. You might be someone in a home when a search warrant is executed. You might be going through the border, and being stopped by immigration officials or customs officers. In general though, if you’re contact with the police is on the street or in some circumstance that makes it obvious that you’re not under arrest or under a legal duty to provide information to them, it is best to just politely decline.

However, let’s imagine that things go to the next stage: the officer says, “Well, that’s not going to work for me, and I’d like you to come have a seat in the car for a second here, and I’m going to ask you some questions.” At that point you start asking for a lawyer, and you don’t answer any questions you’ve been given until you’ve had the opportunity to speak to one.

Now, a lot of people say to me, “Why is it so important to be able to speak to a lawyer? What is it that you’re going to tell somebody when they call you at 2 in the morning, and say, “Hey I’m in the back of a police car, or in a police station, and I need to speak to a lawyer.” What’s the magic that happens in that conversation?” Well let me tell you how it goes.

Firstly, I get a chance to speak to the officer and say, “What’s going on here? Why have you stopped my client?” I can gain some important information that may help direct the caller, the client, to a certain course of action. Secondly, I can help them calm down. I can find out the phone numbers of their loved ones, so that in the event that they’re detained, I can call their family. I’ll find out which station they’re in, and sometimes it’s very helpful for a person in trouble with the police to know that their location, their whereabouts, are being monitored by a third party. And, of course, I can give legal advice on how they should proceed.

Generally speaking, I’m going to tell people, “Don’t make a statement to the police,” and I’m going to give them special instructions on how to avoid being coerced, or duped, tricked, into giving a statement. Police have very specific interview techniques, and they can be defended against only if I get a chance to speak to somebody at length. Sometimes, it’s a misunderstanding that can be cleared up if the person explains themselves: “It’s not a stolen car, my uncle loaned it to me. Here’s his cellphone number, I’m sure if you call him it’ll all get straightened out.” “Yes it’s a rental car, but I did pay, here’s my receipt,” something like that.

There’s lots of problems that can be sorted out if you have an opportunity to gather your wits about you, remember what it is you need to say, and say it. People get very upset, very anxious when they’re dealing with the police, and as a consequence, sometimes they’re not thinking very straight: hands are shaking, they’re sweaty, their thoughts are racing, they’re worried, they’re not at their best for giving information. How do we know this is true? Well when police are in trouble, what’s the first thing they do? They shut up, they call their lawyers, and they don’t say a word until they’ve had a chance to speak to him. So if that’s what the police do when they get caught in some kind of trouble, that’s exactly what everyone else should do.

So that’s a brief summary of the kinds of things that I tell people about their contact with the police. Lying to the police can get you in trouble. Lying about your name, your identity is a very serious problem. Absolutely never do that. And, generally speaking, less is better than more. I hope that’s been helpful.

One final question. So if the police say that…if they’re asking questions, what is the response? You just say, “I’m sorry, I would like to speak to my lawyer first”? Is that just what you would say?

Well it depends. As I’ve tried to explain, you’re entitled to say, “I would like to be on my way.” If it’s clear that you’re being detained, it’s at that stage that I advise people. When their freedom of movement has been constrained, when they’re no longer able to go freely about their business, when the police have somehow said, “No, you’re not going anywhere,” either temporarily or until further notice, it’s at that stage that you ask for your lawyer, and you don’t say a word until you get it.

Ok, well Aaron this has been incredibly helpful, and I’m sure that our listeners are going to appreciate all this information, and I thank you so much for speaking with us. How can people get in touch with you if they’re looking for a criminal lawyer?

The best way to reach me is through my website, which is Aaronharnett.com. I have lots of information there, including emergency phone numbers that you can put in your cellphone, so that if you ever need to call a lawyer at 2 in the morning for something bad that’s happening to you, you’ll be able to get a hold of someone 24/7.