Knowing right from wrong
Kristen Gerber’s face looks certain, even behind dark sunglasses, as she moves her head up and down. She’s just been asked if it’s against the law for a police officer to refuse to show you proof of your speed after pulling you over.
“If they’re going to hold it against you, and give you a ticket, they should at least be able to show you the evidence against you,” she said.
Then it’s explained to her that no, in fact, police officers don’t have to take you back to their car for safety reasons. Gerber looks a bit sheepish.
“Oh. I guess that makes sense. I should have thought that through a little more.”
Lawyers, police officers and citizens seem to agree on one thing: when it comes to some laws out there, people are pretty misinformed. In some cases, everyday people don’t exercise their rights. But in other cases, like the one posed to Gerber, a citizen’s rights don’t seem to go far enough.
So the officer said he clocked you doing 85 and you swear you weren’t going a tick over 74. Can you ask to see the officer’s radar to verify the speed?
Eric Yochim, 24, asked a police officer to see proof that he was speeding after being pulled over last year.
“They told me they didn’t radar it. I guess they timed me between bridges or something.”
Steve Wright, operations commander for the Vail Police Department, said people can certainly ask, but it’s not an absolute right.
“It’s up to the officer’s discretion, and if that officer feels their safety would be in danger, they can say no,” Wright said.
“If I stop an NFL lineman and I’m a person not quite of that stature, for officer safety precautions I might not agree to that request,” he said.
Cops will typically say “I didn’t lock it in on my radar,” said Jim Fahrenholtz, a local defense attorney. “And that doesn’t mean you get your ticket thrown out. But it can be used to challenge the officer’s credibility if you want to contest the case.” A few months ago Fahrenholtz got pulled over he said, and when he asked to see the radar, the officer said he never locked it in. “I received a good plea bargain because of it,” he said.
Elizabeth Cumpton thought it was merely a courtesy to move to the left lane when passing a police officer pulled over on the right shoulder. “I don’t think the law says you have to switch lanes. Does it?”
Yes, it does, Officer Wright said.
“If I have a violator pulled to the side and I have my overhead lights on then another driver would be required to pull over into the left lane when passing me.”
It’s a matter of safety, Wright said. “Then there’s less likelihood of an officer being struck by a passing car.”
Periodically police officers receive a request from the people they stop for suspicion of driving under the influence: they want to call their lawyer from their cell phone before they take a roadside sobriety tests or a blood or breath test measuring their alcohol level.
Yochim guessed that people are not able to call their lawyers upon being pulled over.
“Cops have the right to enforce the laws,” Yochim said. “Plus you’re a sissy if you have to call your lawyer for every little thing.”
Yochim’s right on at least part of that.
“A person suspected of driving under the influence of alcohol does not have the right to counsel prior to making an election of a test of the amount of alcohol in their system,” Wright said.
By far the biggest misconception about DUI arrests is that if a person refuses a chemical test there is no evidence against them, Fahrenholtz said.
“The thing is the state doesn’t need evidence in order to find them guilty of DUI or DWI. Remember the Andy Griffith show with Otis the town drunk? He didn’t need to take a chemical test for us to know he was drunk.”
Tip: “We always tell people to take a blood test because there’s a lot more things that can go wrong in the prosecution,” Fahrenholtz said. “It could be an expired kit; the sample has to be mailed in 72 hours, and analyzed within 15 days. With more things added into the equation, there are more pieces that can go wrong and the case could get thrown out.”
Jon-Eric Johnson, an Edwards Elementary School teacher, said he was under the impression that all cars, including police cars, parked on the shoulder or median of the road at night should have park lights on. “For safety reasons,” he said. “Any car should have some sort of lights on – especially if there’s someone in the car.”
But Wright said there’s nothing in state law that requires a police officer to have their park lights on if they’re parked in either the median or the shoulder at night.
“There may be some administrative policies in place that vary from department to department, but ours does not have a policy.”
Sgt. Greg Thompson from the Eagle County Sheriff’s Department said the majority of the sheriff’s officers have their park lights on when they’re parked on the shoulder of the road or in the median at night.
“My recommendation to our officers is if you’re going to be parked there have your lights on. It’s all about safety.”
To Fahrenholtz, safety should be the No. 1 concern.
“The real concern that I would have as a lawyer is if police officers are (parked at night without lights on) it could create a dangerous condition whereby an accident could occur and there could be potential liability on the police force.”
The No. 1 misconception people have concerns Miranda rights, Fahrenholtz said.
“Anytime someone is arrested they think they’re supposed to be given their Miranda warnings. This isn’t true, though. The only time the police have to do this is if the person is already in custody and the police try to interrogate them or question them.”
Fahrenholtz said he’s had many cases where a person has been arrested for a DUI, and without being questioned, the person spills their guts to the officer while sitting in the back of the police car.
“The thing is, they didn’t have to give the person being arrested their Miranda rights because they weren’t being questioned.” But what the person says to the cop without being asked can be used against them, Fahrenholtz said.
“We hear (this same scenario) at least three or four times a week,” he said.
Just because your landlord owns your condo, doesn’t mean he can come busting in anytime he pleases.
Michele Wysocki, 22, made sure to check her lease before signing it, she said.
“We could check a box and opt for them to have permission or not to come in,” she said.
Even though the Town of Vail police department doesn’t serve actual eviction notices, they’re often called to help mediate landlord tenant disputes, Wright said.
The bottom line, according to Wright, is that the tenant has the same right to privacy as a homeowner does.
The Eagle County’s Sheriff’s Office’s website, eaglesheriff.com, addresses this very issue. According to the site, landlords may enter a rental property at a “reasonable time and manner without force or physical threat” if they’ve been given permission by the tenant. The landlord can enter without permission if there is an emergency such as a fire, flood or gas leak; if the landlord has a lien or if they enter to make repairs ordered by the health, building or fire code inspections.
If the landlord comes barging in without permission – and in a nonemergency situation – the tenant has a few options. They can send a written complaint to the landlord, they can change the locks, or they can call the local police or sheriffs department and “subject the landlord to arrest for breaking and entering.”
Can police come into your house without your consent?
Edwards resident Jon-Eric Johnson was quick to ask a question in return.
“Well do they have a warrant?” Johnson asked.
Police can only come into your house without a search warrant under a few circumstances, according to Officer Wright. That includes when someone’s life is in danger. Police also can barge in to prevent destruction of evidence – like flushing drugs down a toilet. In these cases an officer is not required to have a search warrant prior to entering a person’s home.
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