Episode 16: What To Do When… You’re Driving, To avoid breaking the law.
See Also: DUI Defense
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EP 16 What To Do When… You’re Driving, To avoid breaking the law with Jackie Critzer and Will Smith III Intro 0:01
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:29
Welcome back to What To Do When… A dummies guide to the legal verse.
Will Smith III 0:34
What’s on the docket for today, Jackie?
Jackie Critzer 0:35
We’re gonna talk about laws that you should avoid breaking while you’re driving. Yeah, that sounds about right?
Will Smith III 0:38
I think that’s a good way to put it. Okay. The two in particular we’re going to talk about today. One is driving with a hands free device or not driving with your cell phone in your hand, and then the second is not operating motor vehicle while I’m under the influence of marijuana. So I think those are two very important ones that I’ve started to see kind of more frequently with people who have contacted our office.
Jackie Critzer 1:09
So what’s the status of the law with regard to having your phone in your hand while the car is moving?
Will Smith III 1:17
It’s now illegal. Period. And a story can hold anything in your hand. I mean, there’s some exceptions. But they’re there. For the most part, you’re prevented from having your cell phone in hand talking on the phone, looking at directions doing anything. While you’re operating a motor vehicle. The handful of exceptions Yes, place are going to be you know, while you’re if you’re lawfully stopped, so you’re in park on the side of the road or any other place.
Jackie Critzer 1:43
Not at a stoplight?
Will Smith III 1:44
Not at a stoplight, no. Or if you are reporting an emergency. So if you’re on the highway, you’re reporting an emergency, obviously, you can drive and have your phone in your hand then to make that report.
Jackie Critzer 1:55
I don’t have to pull over to alert 911 that there’s been an accident, correct?
Will Smith III 1:59
Okay. And third, if you are, if you work for the state, or if you are there as an emergency, for emergency purposes, a firefighter or EMT something like that, yes, they can have their phones legally in their hands. So you’re not looking over at the police officer, you know, in the car next to you with the phone in his hand and trying to do a CITIZENS ARREST. That’s not really going to work that way. So, but those are the those are the main things to be aware of.
Jackie Critzer 2:27
When did that change?
Will Smith III 2:28
That changed back in 2020.
Jackie Critzer 2:32
Summer Session? Yes. And so what sort of consequence are we going to have? If I’m driving down the road, and I’m the phone up to my ear? I’ll admit freely that that is something I do on occasion, even following July of 2020. What’s the consequence?
Will Smith III 2:47
So the consequence of that, first offense is going to be $125, fine, mercy, second time around the $250. Fine. And the third time, you’re going to be subject to a class one misdemeanor. So we’re talking 12 months in jail, $2,500, fine. Potential loss of license.
Jackie Critzer 3:03
And it doesn’t matter what I’m doing on the phone. If I’m looking at the map, texting, Facebook or Instagram scrolling.
Will Smith III 3:08
It does not, you know, keep that phone out of your hands. And so I think that, you know, for us that, you know, still take Uber or Lyft you know, you see your Uber Lyft driver have the, the hands their device mounted somehow to the front of their car, so that it’s not in their hand while they’re operating.
Jackie Critzer 3:31
it you can still turn on the radio, you can still do it have all sorts of other things.
Will Smith III 3:42
Certainly other functions in the car. But yeah, that’s the one thing just keep that out of your hand. You can’t have your phone in your hand don’t want to be distracted.
Jackie Critzer 3:50
Is it? And I hate to be so nitpicky, but I suppose that’s what I get paid to do. isn’t just phones is it? all electronic devices? What does the code really pinpoint?
Will Smith III 4:02
Any device. That I mean, like really any device that could be in your hand, shouldn’t be in your hand.
Jackie Critzer 4:09
What if I have like a little CD Walkman or radio Walkman?
Will Smith III 4:12
Yeah, probably but I know that.. probably best to put that down while you’re driving.
Jackie Critzer 4:16
Put it back in the 1990s where it came from?
Will Smith III 4:20
I had a client once who had was watching YouTube while she was driving down the street. And the officer spotted her. Saw that she had YouTube open, watching videos as she’s driving. It sounds like one of the most unsafe things that you could possibly do.
Will Smith III 4:22
Did she have a child in the car?
Will Smith III 4:40
She was young herself, she was an adult but I think she’s about 19 or 20 years old. But, but she got pulled over strictly for that reason. And then once they pull you over I mean they can cite you for other you know,
Jackie Critzer 4:50
Lots of other – anything really. Aything they want to. Well, so let me ask you this. She got pulled over. He saw it He saw the screen he saw that she was on YouTube. Yep. What What would you tell a client to say to a police officer in that situation?
Will Smith III 5:08
Well – I mean, as we discuss, you know, on this podcast, you don’t have any duty whatsoever to incriminate yourself when you’re talking to the police. So if they’re asking you about the law that they’re accusing you of breaking, you don’t have to make any statements.
Jackie Critzer 5:19
I mean, it usually goes, you know why I pulled you over? Right, right. I mean, I’ve been pulled over a few times in my life, not for a while knock on wood. And do you know, I’m pulling you over? And I would always say, yes. Inevitably, I knew the reason.
Will Smith III 5:35
Right, right. But I mean, you don’t? I would not advise anyone to say that.
Jackie Critzer 5:39
Maybe we shouldn’t say yes, I do know why.
Will Smith III 5:41
Maybe that you should let them tell you why they pulled you over instead of them telling you well, actually, you left your drink on the top of your car. It’s like, Oh, I’m sorry, I was just changing lanes without without signaling. That’s where I thought you pulled me over.
Jackie Critzer 5:52
So “I was going 102″…
Will Smith III 5:55
Yeah, “didn’t you see that there?” No, but I mean, you know, you’re not trying to you don’t want to put yourself in a position to give the police any more reason to write you up for something else. So if they ask you, you just tell them, you know, respectfully, I choose not to answer that question.
Jackie Critzer 6:10
Why, that’s hard, even for me. Because I think we always even in something as simple as a traffic stop, we want to tell them. And I think we also tell our young people, I mean, I have a son who just turned 16, and another one who’s just turned 15. And ah, driving and and they’re both very respectful. But I’m not sure how I can even tell these respectful young men to just politely declined to answer the police officer. That’s just a difficult as a parent, forget about being a lawyer, as a parent, you want your children to be respectful. You want them to get out of the ticket if they can, and it’s almost never gonna happen. If they just say, Well, I’m not going to answer your questions.
Will Smith III 6:50
Well, it’s not going to happen right then in there. Right. But I mean, later on with the anticipation that you’re gonna get a ticket written for you, especially if you make a statement. But if you’re gonna get a ticket written that day, it’s best not to say anything that’s going to hurt you once you go to court. So I know that it’s a tough thing, especially because people think they can talk their way out of situations don’t think they always think they can. But that ultimately provides, you know, those statements or would provide the information to the police officer ultimately find you guilty. find you guilty of whatever it is they’re you’re charging.
Jackie Critzer 7:19
And let’s be clear, right, you there are people who can talk their way out that you there, there are those who can. But…
Will Smith III 7:19
I’d say a large majority of us can’t.
Jackie Critzer 7:20
Is that the risk you’re willing to take? Right? And is that the risk you want your children to take in the process?
Will Smith III 7:35
I think when people get pulled over all the time to I mean, they’re they’re thinking of it, like this is an inconvenience, an inconvenience for me right now, I’m sure. And for that reason, you don’t want to go to court. Right? Yeah. And so I’ll go ahead and explain everything, maybe I get let off, you’re probably not going to get let off. I mean, maybe you will, you know, they might cut you a break that day and just say slow down or put the phone down next time. But you know, people are, are easily trying to solve their problems in the moment instead of thinking of the longer picture. And that’s the one that we really focus on the most.
Jackie Critzer 8:04
All right, well, well, good point and fair point well made. So what are the reasons why might you be in trouble while you’re driving? Or?
Will Smith III 8:12
Well, I think that the other one that we’re still seeing, and there’s still a lot of gray area on it is are people being pulled over for something and being under the influence of marijuana, or at least there’s a suspicion that they’re under the influence of marijuana.
Jackie Critzer 8:25
So have you, okay, you defended clients who have been accused of being intoxicated to some degree on marijuana while they’re driving? And so what is the what are the officers saying for the reason they’re pulling them over? What are they seeing? Right? Because they have, they have to have a reasonable articulable suspicion to pull them over. What are they saying?
Will Smith III 8:44
Well, I’ll just say before the law changed, if they smelled marijuana, that gave them probable cause to make a stop, okay? No lawyer can do that. Even if they stop you and your card smells like burnt marijuana or oil marijuana, they can’t then you know, say, Well, I have probable cause to do a search, I have probable cause to arrest you for a DUI for something like that.
Jackie Critzer 9:04
Nevermind the 40 pounds of weed in the back.
Will Smith III 9:07
But the the other part of somebody get…what’s the question?
Jackie Critzer 9:11
The question, what are the police saying as far as what’s the reason for the pull?
Will Smith III 9:16
So I mean, normally is going to be a normal traffic stop where they are erratic driving or signaling without genuinely without signaling or running a stop sign or something like that. It’s gonna be a traffic infraction, more than likely.
Will Smith III 9:28
Are you hearing similar things to DUI from alcohol? In other words, this swerving, crossing the dotted lines…
Will Smith III 9:35
That’s normally what they’re looking for, and that’s usually the reason they pull you over because they have some suspicion that you’re driving under the influence based on the movement you’re making out on the road.
Jackie Critzer 9:42
And so there are a lot of people who drink and then drive or get buzzed and then drive or whatever, to whatever degree they ingest alcohol and the drive think that they can stay between the lines and that maybe if they hold one eye closed, they can get to where they’re going. Is that sort of the same mentality that you’re seeing in your your defendants in In this process.
Will Smith III 10:00
It really is. But there are studies and there’s a lot that shows that I mean, marijuana is going to affect your ability to perceive what’s on the road a lot differently than than alcohol. A lot of the people who are getting pulled over and tested, getting the field tested a field sobriety test done… who were under the influence of marijuana are not going to show the same signs of impairment that somebody who’s under the influence of alcohol would.
Jackie Critzer 10:29
Well now when someone gets pulled over for potentially drinking and driving, there’s often the breathalyzer and we can get into that in another podcast, and maybe we already have, but what do they do? What does a police officer do if they suspect someone is is high on marijuana?
Will Smith III 10:43
They’re gonna ask you. First off, they’re gonna ask you, they’re gonna say, you know, it looks like you have glassy eyes are bloodshot eyes. And they can it not just the way you’ve looked also say your car smells like marijuana, it smells, you know, something else to indicate that they think that you’re under the influence. And based on you know, what they what they see, they’ll ask you, you know, they’ll ask you this question. They might have you had anything to drink tonight? They’re asking now, I mean, have you had anything to smoke tonight? And so the worst thing you can do, and we talked about this all the time, we just talked about it. But the worst thing you can do is say Yes, officer, I did. I just left my friend’s house. And before I left, you know, took a bunch of Bong grips and then came out on the road.
Jackie Critzer 11:22
Nevermind the plume of smoke that came out when I put my window down.
Will Smith III 11:27
Just acknowledging your impairment is going to be their first step to then it puts you through a field sobriety test and tests, you know, your level intoxication.
Jackie Critzer 11:34
So they’re doing the same field sobriety tests, if they suspect that you have been smoking marijuana as they will, if they suspect you’ve been drinking and driving.
Will Smith III 11:43
Right now, they haven’t changed protocol with any local police. No local police officers have have changed. Police departments have changed any of their their standards, when it comes to field sobriety tests are right now everything is still geared towards alcohol. But unfortunately, the signs of impairment are different under the influence of alcohol than the and then they are under the influence of marijuana.
Jackie Critzer 12:06
Well, we know that there’s a level that the breathalyzer shows and so if there’s a level for alcohol, okay, is there a level for marijauna? How are they how are they determining that that much that was smoked that day? Or that hour or whatever was too much for you to drive? Do we have a measure there?
Will Smith III 12:25
There is no, they don’t have a baseline yet. And it really kind of depends on the person. I mean, the way the code section is written is under the influence of alcohol .08%. Right, we all know that what. Alchohol content above .08%. But it’s also under the influence of prescription drugs or, you know, recreational drugs or anything. But they don’t have a baseline or a figure for for marijuana the same way they do for for alcohol.
Jackie Critzer 12:55
I mean, it would be any, any measurable amount is it qualifies.
Will Smith III 12:59
Correct, at least in theory, right. But the problem is, is that the only way to test this, at least as far as I’m aware here in the state of Virginia is to do it through a urine test or through a blood test. And so when they’re looking at those two tests, something they’re gonna have to take you to a hospital and get a warrant. And, you know, have you tested that way, rather than just going down to the police station and blowing into their their breathalyzer there. So what they’re looking for is to see how much THC is in your system parts, parts per million THC in your system. And unfortunately, that it’s different for everybody. I say, unfortunate gets it is fortunate to an extent, because you can’t really pinpoint that this person who has, you know, 2000 parts per million in their system is under the influence and this other person who’s 2000 parts per million in their system isn’t. Because the way the THC metabolizes in your system.
Jackie Critzer 13:49
So it’s not is it not as similar to point 08 Your .08 is going to be different than my point 08. But we’re still both reaching point zero. In other words, it might take you four beers and might take me three glasses of wine, different amounts of alcohol, maybe it’s for someone else, a couple of shots, whatever it is. That doesn’t matter doesn’t matter how you ingested it, or even how much what matters is how your body metabolizes it and when it reaches the threshold, and we don’t have that really at all for marijuana yet.
Will Smith III 14:19
There’s no threshold. There’s nothing that’s been set by the state. There’s, you know, federal government, they haven’t figured this out yet, either. But there’s no reason there’s no way for them to, to say that you are impaired unless you are showing clear signs. I mean, if you’re falling asleep, or if you’re, you know, doing the field, alcohol field sobriety tests, and failing that, well, it’s going to show your sign of impairment. But the thing is, the way that it affects your motor skills, marijuana is affecting your motor skills is different than the way alcohol is. So if you’re, if you stay focused, it sounds like you know, at least for the most part, you’re going to be able to pass that test. The worst thing you can do though, is just acknowledge that you did smoke or take an edible or do something like that.
Jackie Critzer 14:58
And so we really can’t even tell people that there’s a period of time they should wait, or a measure of time they should wait between smoking and driving. That’s that’s yet to be determined. We don’t know the answer to that.
Will Smith III 15:09
No, we don’t. And until they come up with until the same day until the you know, the authorities come up with a test that determines that this is impairment and this isn’t impairment, we still can’t really give any advice.
Jackie Critzer 15:21
Makes perfect sense. So the three takeaways number one, hands free, you got to be hands free, no device, no Walkmans, no CD players, no phones, no iPods? Are they called iPods? I never had one. So no devices in your hand, that’s gonna be blurred as if the mp3 player? Yes. Those are going to get you in trouble. Absolutely. Okay, number two.
Will Smith III 15:43
Number two, I would say don’t smoke and drive. Right. But I think that, you know, to piggyback on that is if you are pulled over, and if you are in some way, under the influence of marijuana or anything else, for that matter, you don’t make any statements to that effect. To say yes, in fact, I have consumed because that’s just going to give them probable cause to, you know, do what they have to do and potentially arrest you that right then and there.
Jackie Critzer 16:07
And the final point being even when you’re pulled over for holding a device or doing something with a device again, the best advice from us is to politely decline to answer the questions. And, and go from there. Answering their question is almost always going to lead you with at least a ticket and maybe more than one.
Will Smith III 16:26
Jackie Critzer 16:26
Very good. Thank you so much.
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