What to Do if You Get Arrested

Mar 15, 2022

What should you actually do if you’re about to get arrested? Where does “movie” reality end and your real rights begin? From myths about Miranda Rights to favorite amendments and everything between, in this episode Susan and Erin break down what you can and can’t do during a police stop as well as what you should and should not do when cooperating with police.


Intro: Welcome to the Lady Lawyer League podcast. They are a league of lady lawyers in an all-female law firm in Omaha, Nebraska, called Hightower Reff Law. On this podcast, you’ll hear stories of what it’s like to be a lady lawyer and an entrepreneur. Now it’s time to talk about the law, share real-life stories about representing clients and discuss the current events of the week. It’s the Lady Lawyer League podcast with Susan Reff and Tracy Hightower.

Susan Reff: On today’s podcast, we’re going to talk about what happens if you get arrested, and it is the criminal law team at Hightower Reff Law.

Erin Wetzel: Hello.

Susan: And me, Susan. Yay. And it’s always funny when you say, like Erin and I are always really good. Like people say, “Well, what kind of law do you do?” And we say criminal defense. But people who aren’t lawyers, they say, “Do you do criminal law?” And it’s like, it’s kind of a weird way to describe it.

Erin: Technically, but specifically defense.

Susan: Yes. And cool news today that President Biden, did you hear this announcement?

Erin: I did.

Susan: His pick for the Supreme Court is a woman who was a former public defender.

Erin: Oh, and apparent on that part, yes.

Susan: And there is not a justice on the bench who has practiced as a criminal defense attorney since Thurgood Marshall. So like forever ago?

Erin: That’s amazing.

Susan: Yeah, so that’s really cool. But then, of course, the news was like, “Well, maybe some people will hold that against her because apparently she also did some activism in justice or criminal justice reforms.”

Erin: Because it’s so terrible if you support rights of a criminal defendant, right? There’s sarcasm on that, if you can’t tell.

Susan: Yeah, there are certain parts of the Constitution that are totally fine to support, right? But other parts not not good to support. So anyway, I thought that was interesting, and I hope she has a smooth confirmation and that doesn’t become a major issue because that is just a dumb issue to polarize people.

Erin: So. Pop quiz, Susan, what’s your favorite amendment?

Susan: Oh gosh. My favorite amendment. I’ve never been asked this question before. Well. I really do like the First Amendment. I do like  it because I think it’s pretty unique to the United States, too. True. What’s your favorite amendment?

Erin: My favorite amendment is the Fourth Amendment.

Susan: Fourth Amendment the right to — oh, text. Hold, please.

Erin: We’re getting interesting texts about one of our attorneys. Two of our attorneys are in a trial, and the judge had to call in a sheriff’s deputy because of the behavior of the other attorney.

Susan: Oh, and we’re, everyone in the office is like details, details and then we’re not getting details. And then we just got kind of a vague detail that she’s crazy, but she already knew that she was crazy.

Erin: We won’t disclose who it is.

Susan: Yeah, but anyhoo.

Erin: My favorite amendment is the Fourth Amendment, the right against unreasonable search and seizure. And I used to have this little metal card that I got of the Bill of Rights at a Penn and Teller show in Las Vegas, because they’re libertarians. Oh, and it had the 4th Amendment highlighted in red and the rest of the Bill of Rights was black. And so the purpose was, you put it in your pocket and you walk through a metal detector and you’re like, Oh, what’s that? My bill of Rights with the Fourth Amendment highlighted.

Susan: But go ahead and metal detector me.

Erin: Yeah, I kept it in my purse for a while. I was never bold enough to put it on my person with a metal detector.

Susan: Isn’t one of the amendments, the one that says if the president is temporarily incapacitated, yeah, that had to be an amendment.

Erin: Though I think it’s not the Bill of Rights because Bill Rights …

Susan: Is the first 10 years, though, like the original amendments that were there, like, oh, shoot, we forgot this good stuff.

Erin: Well, let’s look it up. The drinking amendments, are they 18 and 21? I think that’s how I remember the numbers that one, the prohibition was 18 and then the reinstatement was 21 because that’s the drinking age.

Susan: And then the 19th gives women the right to vote, right, which is insane that it took that long.

Erin: Yeah.

Susan: So while they’re Googling, I will, oh, I just …

Erin: As I’m trying to Google this, I accidentally combine what we were talking about and I Googled “president’s right to vote.”

Susan: I hope the president can vote.

Erin: I mean, if the president doesn’t have the right to vote, I don’t think they could be president, right?

Susan: That could be a podcast. What about, what gives us the right to vote? Yeah, let’s have the history.

Erin: The 25th Amendment deals with presidential succession and disability.

Susan: Yeah, yeah, yeah. Yeah, woo-hoo. I knew something for once. Yes. Ok, so what? We’ve talked a little bit about the criminal process when someone gets charged with a crime, but this, we’re going to talk kind of mostly today about arrests or encounters with police. Yes. And it can happen in a lot of different ways. But we’re going to focus on if they kind of suspect you might have done something wrong, right? Not when you call the police because you need help —

Erin: Which could still lead to you getting arrested .

Susan: Yes, yes. But we will assume in this situation, the cops are approaching you because they they have suspicions. You’ve maybe done something wrong.

Erin: So do you want to hear a fun story about a time when somebody called the cops and it was not for the correct reason?

Susan: Yeah.

Erin: So I have a client who’s dealing with a former significant other who has some mental health issues, and I don’t know what was going on with her that day, but she called the cops and reported a hostage situation.

Susan: Oh, that’s pretty serious, right? Yes, that’s going to get their attention.

Erin: Oh yeah. He sent me some footage from his surveillance cameras at his house, where you can see about 20 officers storming his house with their firearms pulled. Wow. And then there was another one that he sent me where he’s standing in the driveway with his hands up and they’re all like surrounding him. And then they eventually realized that she’s got mental health issues. And so they called it off and it was on Omaha Scanner and everything. If you don’t know what Omaha Scanner is, search that on Twitter or Facebook. It’s a group of people who listen to the police scanners and they tweet and post on Facebook what they hear, and it’s sometimes very entertaining.

Susan: Yes. So if the cops think you’re a suspect, you know they can give you a citation. Right, and say we suspect that you have shoplifted or trespassed or gotten a DUI or whatever, and they’re going to cite, give you a citation, and then you walk away and you go to court on the date of the citation. Yes, or they can arrest you. Can you think of situations where there’s like discretion like, oh, should I? Am I going to arrest them or cite them?

Erin: So one that I can think of was I had a client with a protection order against a person, and after the other person that they had gotten the protection order against against had been served, she continued calling my client and leaving voicemails.

Susan: Yeah, that never happens.

Erin: So they reported it to the police and they said, “We’re going to go out and arrest her on violation of a protection order charges.” Well, when they called her, I think she was very cooperative, so they decided to cite her instead of arresting her. So some of these misdemeanor charges they have the discretion, like DUIs is similar. Yeah. If you’re cooperative through the process of the DUI with the testing and all of that, they will cite you and then release you if you have a safe ride, right? Versus if you’re very combative and you’re refusing to do things, then they will actually arrest you and take you to the jail. Yeah. So the moral of that is, even if you don’t agree with why you’re being cited or what you’re being accused of, be cooperative and nice and friendly and there’s, it can go better. Even if you do end up getting arrested, it goes better in the long run because they will tell the prosecutors that.

Susan: Yeah, and there’s these forms that the cops use when to write their report, and one of the checkboxes is about the person’s behavior. Yeah, and there’s like, it says cooperative. Yeah, it says one of them.

Erin: And if they think you’re really, really nice and appropriate and respectful, they’ll even note that in the section where they give their narrative so they’ll say, you know, this person was very cooperative and polite, or I’ve had prosecutors say to me, “Well, I spoke with the cop and they said your client was very nice and respectful. And so I’m offering this better deal because of that.”

Susan: It does matter. Manners matter. We could get on a T-shirt, Manners matter, and there are times when the police are doing an investigation and they see people walking around and they’re like, “Hmm, maybe that person knows something.” Or maybe that person is my suspect, but I don’t really have enough information yet. So I’m going to go up to that person and I’m going to ask them their name. And you have the, like you said, right from unreasonable searches and seizures. Is that, that’s not a search and seizure when the cop comes up to you and says, “Hey, ma’am, what’s your name? Can I see your ID?”

Erin: They can ask you that you are required to identify yourself. Yes, but you don’t have to stand there forever for no reason. So you have to answer that question because if you refuse to answer that question, you try to walk away. They can then do a resisting arrest charge or obstruction or whatever they want to call it. Those piddly little catch-all misdemeanors. Yes. So just be nice and polite and answer their question. And then at some point you can say, “Can I leave?” And then that makes it clear to them that you don’t want to talk to them anymore. And if they don’t have probable cause to continue to detain you, they have to let you leave. But don’t just walk away because I’ve had that case to where I don’t have to answer your questions, I don’t have to talk to you. And it’s like, Well, you do have to identify who you are if they ask you that.

Susan: Yeah, it’s called a Terry stop, and it’s called a Terry stop from a United States Supreme Court case, Terry v. Ohio, I think, or Ohio v. Terry.

Erin: Yeah, one of those. It’s backwards. I always get confused with how they flip flopped the names and the appeals, because we don’t do that in Nebraska. When we appeal stuff, it doesn’t flip. I mean, it becomes appellant versus, but the original case name is retained.

Susan: Right? So in Terry v. Ohio, the defendant was just walking down the street and the cops wanted to identify him. And then there was whatever happened after that, and it was the first time, I think this was in the ’60s, maybe ’60s or ’70s.

Erin: Oh, we’re Googling now. I’m going to Google because I’m impressed that you remember this, because I should probably remember this.

Susan: Oh yeah, this is the case that will help you win a case.

Erin: 1968.

Susan: Yes! Woo.

Erin: This is this is Wikipedia’s description, a landmark decision. I would agree that it’s a landmark decision. Yeah, in which the court ruled that it’s not unconstitutional for American police to stop and frisk a person they reasonably suspect to be armed and involved in a crime, which that right there has led to a lot of issues in some bigger cities, but stop and frisk, maybe another podcast time?

Susan: Yeah, we’re not going to go into that today. So, yeah, the cops have a right to briefly detain you to get some basic information. And then, yeah, it’s probably good to say, can I leave now? I always, whenever I’m interacting with cops, I always tell them I’m a lawyer.

Erin: Do you interact with cops outside of court cases?

Susan: I do drive fast, so that’s when it tends to happen outside. I have been pulled over for speeding, rolling red lights or I mean, stop signs outside. It’s like what? Not red lights. Stop signs. There is a red light in my neighborhood. I run all the time. It’s like one of those neighborhood red lights that never changes. Yes, we run it all the time. It should just be a stop sign. It should. But another thing that people say a lot. So let’s assume at this point, the person, the cop’s like, “I’m going to arrest you.” A lot of people get arrested and then they’re booked at the jail and they say to us, “Well, Erin, they couldn’t have arrested me because they didn’t read me my Miranda rights.”

Erin: Thank you, Law and Order.

Susan: Eyes are rolling in the room. They don’t have to text. Update: Erin and I both have our phones and they’re like, going bright. So Erin’s looking that up.

Erin: So it’s people with their iPhones reacting to these texts. Susan and I don’t have iPhones, so any time people with iPhones in our group texts react to somebody’s previous texts, it shows up as a new separate text to us. So it says, laughed at. Blah blah blah emphasized. Blah blah blah. It’s very annoying for us Samsung users.

Susan: Erin and I are going to meet today and we’re going to set some ground rules for this group text because when there’s 20 people on a group text and the majority have iPhones …

Erin: There literally is. We have whole office group texts. We have office attorney group texts. We have office attorneys and law clerk group texts. It’s very intense. It gets a little wild, sometimes in the weekends. Yeah.

Susan: So Miranda, segue.

Erin: So it’s famous. Well, so that is also from a Supreme Court case that it’s called that because that was the name of the defendant of the case that was appealed up to the Supreme Court. That one’s Miranda v. Arizona, right? Yes. And so you hear it all the time in these cop shows, which it reminds me. Recently, Cody and I watched an older movie, 21 Jump Street, the remake with Channing Tatum and Jonah Hill.

Susan: You call that an older movie.

Erin: It’s older in terms of not in the last few years. It’s like 2012 or something, I think, Oh, well, now I need to know. So anyway, they’re caught. They’re two cops in the movie and they are. It shows in

Susan: 2012, 10 years.

Erin: That’s a long time in the grand scheme of things. It’s almost a third of my life.

Susan: TV show was really good.

Erin: But Johnny Depp, he’s he makes a cameo at the end of the movie. And another another actor from the original. The movie is very funny. If you haven’t seen it, I recommend you watch.

Susan: It’s funny.

Erin: It’s, oh, it’s a comedy. It’s hilarious. I love it. So there’s there’s a scene where they’re all hyped up, when they’re going through the academy and they think this is so huge. We’re going to be these big police officers and then they’re like celebrating when they pass all their tests. And then the next scene is them riding the little cop bikes through the park in their little cop outfits. And they actually end up seeing like this big like drug exchange going on with this like motorcycle gang and they chase them down and they end up arresting them. But they don’t read them the Miranda rights correctly, and their boss is like, How do you not know the Miranda rights, Channing Tatum character? He goes, You have the right to be an attorney. He goes, Did you just say you have a right to be an attorney and pretty? And Jonah Hill goes, Well, you do have the right to be an attorney if you want to. And I’m like, That’s technically not true. You have to pass the bar in most states.

Susan: But this sounds like the plot to Paul Blart Mall Cop just twisted a little bit.

Erin: No, it’s OK. I also like Paul Blart Mall Cop, which also has the sequel. There’s also 22 Jump Street.

Susan: Oh my gosh.

Erin: But you need to do the podcast. It’s a very funny movie.

Susan: Go movies. Let’s do it. Ok. Ok, so. To just be frank, the cops only have to read you your Miranda rights when they’re going to interrogate you, and that doesn’t happen when you have a trespass or something really minor. They’re not going to interrogate you because normally they have enough evidence without your own confession. So they have the witnesses, they have video, they’ve seen you do it with their own eyes. Like, they don’t need to have you confess to it, which is the purpose of a custodial interrogation.

Erin: I’d say it’s actually a less than 50% of my cases that when I’m getting video that’s related to their case, that it includes any discussion with them, right? Other than if they’re voluntarily making statements while they’re in the back of the of the cop car, it’s usually the dash cam video or the body cam video of the stop and the arrest. And if you say things during that time period to the cops and you haven’t been advised, it still usually can be used against you. Yeah.

Susan: So the police don’t have to read you your Miranda rights just because you’ve been arrested.

Erin: I had somebody say to me, “How was I supposed to know I was being arrested?” I’m like, “You weren’t aware as they were putting the handcuffs on you?”

Susan: If there’s handcuffs involved, there’s an arrest. If there’s no handcuffs involved, it could be a brief detention. Yes, it could be. Ok. So do you have a right to have a lawyer with you when you’re being arrested? No, no. That’s another common misnomer. You don’t have the right to have, you have a right to an attorney when you’re in court. That’s it.

Erin: And you have a right to an attorney while you’re being questioned if you ask that. But that doesn’t mean if you say to them at that moment, if they do want to question you and they advise you of your Miranda rights at that point in time and you say, “I want an attorney, “that doesn’t mean they’re going to go out and find an attorney for you or let you call an attorney. That usually just means they’re going to end the questioning right then and there, and then just proceed with putting you in the jail.

Susan: Yeah, yeah. And also when you are told at the end of your Miranda warnings, you have the right to an attorney, do you want an attorney, you know, appointed to represent you right now? That doesn’t mean like, “Oh, and we might not arrest you now.”

Erin: So this is, so I love Law and Order SVU, even though it has a lot of inaccuracies as far as the timeline of things. But in that show, they constantly show a suspect sitting with an attorney in a room being questioned by the cops and sometimes the prosecutor. Hmm. Mm hmm. And that never happened. That would never happen. Occasionally, after the case has been going on for a long time, you might have a conversation with your attorney and the prosecutor about the case if you’re going to be a cooperating witness or something like that, or very rarely, if you’re an individual who can afford to hire their own attorney, you might be told, “I’m a cop. I’m investigating this thing. I want to talk to you,” and then you would have the opportunity to call an attorney and have them with you during questioning. But it’s very rare that happens, right? At least here. It does not happen here, but also in law and order world. They have a crime. They solve the case. They go to trial and convict the person all in the span of an hour, and they make it seem like the span of the show is a week. Yeah, that clearly is not how that happens, either.

Susan: I actually was representing a criminal defendant who was charged. It was, he was charged really strangely. But basically what it boils down to is he was charged with aiding and abetting a homicide. No. And the further we got into the case, the further removed my client kept getting from being part of the actual homicide. So they, of course, approach me and say, “Will your client testify against the main person?”And I, you know, I say, “Well, you know, let’s talk about it. What are you going to do?” And so they had way more interviews with my client, with the cops. The prosecutor was never there. The police officer and me, we were there and then the police officer or investigator would just pass that information to the prosecuting attorney.

Erin: Right. Or you even have that conversation with your client and then you tell the prosecutor because then it’s not necessarily something that can be used against your client. Like, “Hey, generally, this is my client’s knowledge. This is what you would get.” Yeah. Can we work something out? Yeah.

Susan: So it was and it’s a process. Yeah, and nothing happens fast. No, it did not happen fast at all.

Erin: Months, years.

Susan: Yeah, months for sure.

Erin: There’s a murder trial going on in Florida right now that it has been eight years.

Susan: The trial?

Erin: Yes, not the trial. It has been eight years since the guy was killed before the trial started.

Susan: Oh what? Hmm.

Erin: Because the defense attorneys, I think part of their strategy has been to delay because their client at the time was like 71 and he was out on house arrest. Oh, so he’s essentially spent now almost his entire 70s, still being with his family. So if he gets convicted, he got eight extra years. Yeah. Hmm. It’s the movie theater popcorn trial. Look it up. It’s very interesting.

Susan: True crime. Ok. So if another question that we get all the time is if I get pulled over for a DUI, can I just get out of it if I like, don’t take the breath test? And no, no, because they will just assume then that you’re over the legal limit. They will arrest you and you’ll be charged with the DUI and then you didn’t even have the chance to maybe be under the legal limit.

Erin: Well, then you get charged with the separate charge of refusal, which has the same penalties as a DUI. So even they can still prove the DUI through other means. Yeah. Other observations of the driving your behavior, your appearance, the fact that you refused.

Susan: Smell.

Erin: Yes, smell.

Susan: Maybe there’s empty bottles all over your car.

Erin: Exactly. So they can still prove the DUI through those other things. It might be a little harder, but you still now have the refusal charge, which has the same penalty. Yeah. And actually looks worse for you.

Susan: Yeah. So what you have to do if you get pulled over for a DUI is you have to blow into the little machine that the cop has in the cop car. It’s called the preliminary breath test, or PBT. It’s a little handheld alcohol sensor. It’s not 100% accurate. It gives the cops probable cause to see if they should take you to the station to do the real test. Yeah, or the hospital.

Erin: But what you don’t have to do when they stop you is what we call field sobriety tests. That’s the formal name tests. So the walk the line, say your ABCs from this letter to this letter, count backwards from this number to this number, follow the pen with your eyes. You can refuse those. That’s not a charge for that. Yeah, and I usually tell people to refuse those. Yeah, because that’s what helps them gather a lot of the information that would go towards the probable cause.

Susan: Yeah, so I call those the monkey gymnastics or the monkey circus. I’m like, you don’t have to do the monkey gymnastics. It’ll piss the cop off. Well, because very few people refuse to do them.

Erin: Because they don’t know that they can, right?

Susan: And sometimes the cops will not have someone do them because like, maybe it’s icy.

Erin: They’re supposed to ask if you have any issues that would prevent you from doing that, like a knee injury or, you know, foot injury. Yeah, things like that. And on the report, they have to note the weather, the pavement.

Susan: Is it windy.

Erin: Windy, stuff like that. And that’s all things that we take into account. Would you like to hear a personal story about watching somebody do those? Personal story?

Susan: So I think I’ve heard this story before.

Erin: Probably. When I was probably 22, this is right before I started dating my husband, who I’ve now been married to for 11 years. We went out with a bunch of friends and my best friend, a man, and I drove to this bar with a third friend who then we used her car. I drove her car because she had been drinking, but she promised, “Oh no, just drive my car.” And I left my car back at the first bar that we were at, so we went to a second bar, Ground Round. If you’ve heard of it, yeah, the girl drove. Yes. So and then Cody and his friends drove their car to the Ground Round. Well, then when we got there.

Susan: Though, Ground is a restaurant.

Erin: But it had the bar side. It has a separate bar side, so we get there. And the friend whose car we drove like 10 minutes in goes, “This sucks. I don’t want to be here.” And she calls a friend who picks her up and then takes her keys with her. So I’m like, all right.

Susan: This is pre-Uber.

Erin: This was pre-Uber because this would have been 2009. Yeah. So we then when we laughed …

Susan: Had you pre-Uber? Oh God.

Erin: We had to get a ride back with Cody and his friends to my vehicle. So we’re riding back in his pickup and one of his friends is driving. I’m sitting in the front with him, and then Cody and my friend Amanda and another friend are sitting in in the back when we get stopped at these railroad tracks and a train is going.

Susan: Oh shit.

Erin: I say, “I’m going to do a Chinese fire drill,” so I get out of the car. And for those of you who don’t know, that means you run around the car and try to get back in the car before the light turns. So I do one lap and the train’s still going, and so I’m like, I’m going to do it again and I can hear …

Susan: You can tell Erin’s really fun to party with.

Erin: I actually was the driver, so I was not drinking. Oh, text. Oh, text.

Susan: Text, text.

Erin: Is it good?

Susan: Uh, this is factual, but not about the lawyer, it’s about the case. It says, blah blah blah, we’re going forward. We’re going forward now.

Erin: Ok. So I can hear my friend Amanda, who’s

Susan: You’re sober driving?

Erin: I was sober. I was completely sober. I had not had a single drink that night because I was driving my friend’s car. And I can hear my friend Amanda sitting there laughing. And if you ask our parents like what we do when we’re together, it’s basically laugh the whole time. So I can hear her laughing. So I’m like, I’m going to do it again, and I make a second lap.

Susan: Amanda Dalrymple?

Erin: No.

Susan: Oh, that was a different person.

Erin: Yeah, OK. No, I don’t know who that is.

Susan: I don’t either. But weren’t you friends with the Dalrymples? No.

Erin: Oh, that’s like a former governor. I know Dakota. Who is that?

Susan: Yeah, that was your friend, right?

Erin: Well, family friends, OK. She was a year older than me in school. I know her. I’m Facebook and Instagram friends.

Susan: With her side cover. Yeah, OK, get back to the Chinese fire drill.

Erin: So I go for a third time and I make my round around the front of the car. And as I’m coming around the other side, I see a cop car coming towards us with the lights lit up and I was like, Oh shit. So I run and get back in the car wrong.

Susan: I mean, like, you’re stopped at a train, right?

Erin: I don’t know. Can you leave the car? Maybe? I don’t know.

Susan: So checking the tire pressure.

Erin: So the cop comes up and he’s like, “What are you doing?” And I’m like, “I was running a Chinese fire drill.”

Susan: You have the right to remain silent.

Erin: This is before law school.

Susan: I know, I know you actually.

Erin: Plus, I was doing nothing. I thought I was doing nothing wrong. So then he looks at my friend who’s driving, and he says to him, Have you been drinking tonight? And he says, yes, but he did not seem drunk. Yeah, he goes, Well, how many drinks did you have? And he does not help himself in this regard. He goes one, maybe two, OK, maybe three. But it was over like a four hour period and I had dinner and I’m just looking at him like, “Are you a total idiot? Why did you say it like that? You make it sound so bad.”

Susan: So the cop goes, “I’m going to need you to step out of the car.”

Erin: Yeah. And then this other cop car comes up and comes to check all of our IDs. And so he gets out of the car and he does the field sobriety tests. And then they have him do the PBT and he passes and he’s fine. So he comes, they come back up to the car and they’re like basically telling us to behave and they look at me and they go, and how much have you had to drink? And I said nothing, just what I said, “No, I’m not drinking. I’m going to be driving my own vehicle home, we’re going to my vehicle.” He goes, “Why are you not driving?” I’m like, “I don’t know, because it’s his car. And he didn’t ask me to drive.” It was you two switch spots now. And he made us switch spots that I had to drive to our vehicle. And he’s like, “and don’t do any more Chinese fire drills.”

Susan: So if your friend would have actually been over the legal limit and he would have gotten a DUI, it would have been your fault because you drew the cop’s attention to the car.

Erin: I know, he was not very happy about it. Afterwards, I was like, “Well, you didn’t get a DUI.” He’s like, “Yeah, no thanks to you.” I’m like, “Well, maybe you should have had me driving from the start.”

Susan: What was his level? Do you remember? Or did you know?

Erin: It was probable? I think it was like a .05 or .06, so not like super close, but OK, enough that, you know, had he had another drink or some time had passed, it might have been high enough. But now it’s a fun story. Yeah, but also during that whole debacle, while his friend is out there doing the field sobriety tests. And this is like right before I started dating Cody, so I had a crush. But he was clueless and not aware, he says, “Should I get out of the vehicle and run away?” I was like, “Are you a total idiot?”

Susan: You’re like, I don’t know, what have you done lately?

Erin: And he’s like, “I’m just joking.” And so I whenever this gets brought up now, I say to him, “I thought you were a total idiot.”

Susan: So my husband has had his fair share of some issues long ago, but whenever he sees the cops, when we’re driving around, he’s like, “Oh, I’m going to scrunch down” and I’m like, and at first I was like, “What? Why?” And he goes, “I don’t want him to see me.” I’m like, “What did you do?” And then, like, in the summer, he’s like, “Oh, I’m in trouble. I have flip flops on. I can’t run fast away from the cops with my flip flops.”

Erin: He has to always be prepared to run.

Susan: He’s like, “Oh, I’m going to head for the trees over there,” or he’s like, “Where’s a like a sewer culvert?” Like a drain thing. Those are the best places to hide.

Erin: Well, rookie mistake, you just run out of the flip flops and keep running barefoot.

Susan: Well, he’s a tenderfoot. No, he can’t be barefoot. He’d have to just surrender at that. No, I think he would run in the flip flops, yeah. So the funny part is now our son is like, “Oh, there’s the cops.” I’m like “Stop! You’ve taught him now” like that, you have to like, kind of hide from cops.

Erin: He’s going to say that some time and the cop’s going to hear him and be like, “What?”

Susan: Why are you running planning your run away from me? Yeah. So we are now at the point where you’re arrested and you’re sitting in jail. You’ve gotten yourself into big enough trouble that you’re sitting in the jail.

Erin: Well, I think we missed one important thing we did. Never, ever, ever let the cops search your vehicle.

Susan: Oh yes.

Erin: I don’t care if you’re innocent.

Susan: Back up. Back up. Yeah.

Erin: Don’t let them search your vehicle. But especially don’t let them search your vehicle if you’re driving somebody else’s vehicle. Oh yeah, because you do not know what’s in there.

Susan: And there is, the law does allow you to be charged if there’s contraband, meaning drugs, alcohol, signs of crime, blah blah blah in the car and you’re driving it or firearms. Yeah, if there’s something bad and you’re the driver, even though it’s not your car, you can still be charged. Yes. So the cops will come up and they’ll be like, “Hmm, can we just take a look around in the car?”

Erin: No, no. And then they might even try to push you a little bit and say, ‘Well, if you don’t have anything to hide.” No, you say, “I listened to a podcast and these attorneys told me to say no,” just like I tell my clients all the time. Blame it on me. I don’t care what people think about me. I can be the meanie. Just say “I’m sorry. My attorney said I can’t.”

Susan: Do this, and sometimes they will then say, “Well, OK, then I’m going to have to probably call the drug sniffing dog. And that’s probably going to take like a couple of hours. Whereas you could just let me search the car now.”

Erin: And then you say, “the Supreme Court said it can’t take a couple of hours. You have to let me go.” Yeah.

Susan: So don’t let them search your car. The other reason to not let them search your car is it destroys your car. Yes. They like pull the carpet up sometimes and pulls stuff apart,

Erin: And they don’t put it back. They don’t care what it looks like at the end. So you’re cleaning up a mess.

Susan: Have you ever driven by when they’re searching someone’s car and there’s a pile of crap on the side of the highway? Yes, that’s the stuff from inside that person’s car.

Erin: Any time I see somebody pulled over with out-of-state plates, I joke that I’m going to go by and throw my cards out the window because they seem to find a reason to target out-of-state plates. Because I-80 is a big drug thoroughfare.

Susan: Drug corridor, I think they call it, right, drug corridor. L.A. to Chicago, Denver to Chicago.

Erin: Now it’s all the way to L.A. I think California at least. Yeah, it basically stretches like Sacramento, Northern California. Yeah, it’s from California to, I think, Chicago. So if they give you a citation, sign the citation, it’s not admitting guilt. It’s a promise to appear at the court date. If they ask you your identifying information, give them the correct information. Yes. If they ask you to do the breathalyzer, you do the breathalyzer. So that’s the on-the-scene breathalyzer and at the station, those are two separate charges. If you refuse both, you can be charged for refusing both. If they ask to search your vehicle, you say no. And if they continue to ask to search the vehicle, you still say no. And then you ask if you can leave? Yes. And if they say yes, you leave. If they threaten to bring the dogs, you say, OK. And then if they bring the dogs and God forbid, there is something in your vehicle, you come and hire us and we do a motion to suppress.

Susan: Yeah.

Erin: If it takes too long.

Susan: So, yeah, keep your timer going.

Erin: Maybe, yeah. Because it’s supposed to happen if they do the drug dogs and they don’t have probable cause to do it. It’s supposed to happen within the time frame of a normal stop. So essentially they should have already had the dog. They’re walking around your car while they’re ticketing you for the speeding or whatever. The reason is that they pulled you over. But if they it takes longer than that. Just keep your cool. Sit in the car, let them do it. Yeah. And then we would

Susan: Take you out of the car if they’re going to walk the dog around it. Probably. And then the dog. So how the dog works. I mean, this could be a whole ‘nother podcast, but the dog is going to like bark or indicate like near your trunk or whatever. And that’s then they’re going to search there and they don’t need your permission at that point, right? Because the dog has basically usurped your permission.

Erin: So during all of this, even if you think they’re doing something that they’re not supposed to do. Still be polite and respectful, and you let the attorneys deal with it after.

Susan: Yeah. I just want to get more charges, right?

Erin: I actually had one of those drug dog cases. This was out when I was in central Nebraska, and so it was in the middle of nowhere. So of course they have. Very few sheriff’s deputies out there that have those dogs, so they pulled them over to search the car. Client said no because he was smart and they said, OK, we’re bringing the drug dog and it took hours. And when I saw the case, it was like shortly after that case had come down, which side note that’s a case that came out in Nebraska. Yes, it was in Nebraska federal court.

Susan: Schneck Law.

Erin: Yeah, no. Not it, isn’t it? I don’t. I don’t know. Look, it’s something with an S. So I filed a motion to suppress. And when the prosecutor saw it, he was like, Oh, she’s right, because this took several hours to get the dog there. And so as a result, we ended up not doing the hearing because he said, “Well, I’ll just let your client plead to like this pitiless little misdemeanor instead of this really high felony drug charge that he had pending for time served.” And so the client took that because, you know that once again, you never know what a judge will do. So even if we thought we were right, there could be the risk that the judge doesn’t agree at the hearing.

Susan: Schneck Cloth v. Bustamante. Now was the United States Supreme Court case involving consent to search? This is not a Nebraska case, though.

Erin: So that’s not it then.

Susan: But it is a Fourth Amendment case. Hmm. See, that’s why I thought that was the California case. Anyway, I think we should probably talk about the jail issues on another podcast that we were thinking about talking about today. Since we’re yeah, we’ve told a lot of stories and had a lot of text interruptions. We have and then stay tuned for more information about what to do once you’re arrested and in jail. Erin and I will give good advice on what to do in that situation. On another podcast in the near future.

Erin: I found it. Rodriguez v. United States is the Nebraska case.

Susan: Yes. Hmm. Cool. All right. Thanks everyone for listening. Hopefully, you never need this information.

Erin: That would be fabulous. We would love that for you.

Susan: But you’re wiser if you have it.

Erin: But if you get excited or arrested, call us. Bye.

Outro: Thank you for listening to the Lady Lawyer League. Be sure to like and subscribe anywhere you get your podcasts. If you would like to learn more about our firm, visit us at hrlawomaha.com. We’ll see you next week.

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