Road Law – Aug./Sept. 2022
We have had a few recent phone calls from drivers who wanted to know if they had to assist with an inspection of their vehicle or could they simply refuse to assist by telling the officer that they’re “Taking the Fifth.”
So, what does it really mean when we say “take or plead the Fifth”? To take or plead the Fifth means you have the right not to answer police questions both while in custody or in court. When someone exercises this right, we often say that they “plead the Fifth.”
In addition to the right against self-incrimination, the Fifth Amendment provides many important safeguards for Americans, including the right to remain silent while in police custody.
The Fifth Amendment states in part that, “(No person) … shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment is probably one of the better known constitutional rights because we all see it invoked in books, movies and, of course, congressional hearings.
However, we once had a client that was arrested on a criminal misdemeanor charge where he immediately gave the arresting officer a complete statement or confession to the charge. When asked why he gave a confession and didn’t he know that he had a Fifth Amendment right to remain silent, the driver replied, “Oh, I knew I had the right to remain silent, but I didn’t have the ability.”
As always, we hope this information offers some real-life help to you on a daily basis, and we look forward to assisting you whenever you need help with a traffic, accident or criminal case.
Q: I pulled into a scale house and the officer asked me to exit my truck because he was going to do a Level 3 inspection. I got out of my truck and walked over to the scale house. The officer motioned for me to come back over to my truck and asked me when was the last time I had my brakes adjusted. I told the officer everything I knew about the recent maintenance/shop-repair work that was done to my truck, including a complete brake adjustment just the day before but, I still got a ticket and driver vehicle inspection report for “brakes out of adjustment.”
Did I have to tell the officer about any of the recent maintenance/shop-repairs to my vehicle?
A: The Fifth Amendment is usually invoked by defendants with criminal charges and even then only in certain situations.
- An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process.
- The communication also must be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief. For example, a nod would be considered a testimonial communication for purposes of the Fifth Amendment. So would the act of producing documents or any other piece of evidence. The act of production communicates an implied assertion that the individual possessed the evidence.
- Finally, the testimony must be self-incriminating, such that the information would provide a link in the chain of evidence needed to prosecute the individual for a crime. As such, the Fifth Amendment doesn’t really apply to your particular set of facts – i.e., the officer asked you about specific equipment issues in regard to your vehicle’s safety, resulting in you being issued a noncriminal traffic infraction and vehicle inspection report.
Because the courts have long held that commercial trucking is a “pervasively regulated” industry and that these type of safety stops are legal, refusing to cooperate with the citing officer when asked to do so at a safety stop, may result in the officer writing you a “failure to comply with lawful order” ticket and/or being placed out of service for an extended period of time.
Q: I was stopped at a port of entry in New Mexico and was arrested for “possession of marijuana.” I’m a resident of Oklahoma. I have a state of Oklahoma medical marijuana card and a doctor-ordered prescription for medical marijuana. I was arrested, booked and fingerprinted, but doesn’t being fingerprinted violate my Fifth Amendment right against self-incrimination?
A: No. The Fifth Amendment right against self-incrimination does not extend to the collection of fingerprints or DNA in connection with a criminal case. The U.S. Supreme Court has held many times that the “right against self-incrimination privilege” extends only to communicative evidence and DNA and fingerprint evidence is considered nontestimonial. LL
Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella; Road Law, 3441 W. Memorial, Suite 4; Oklahoma City, OK 73134; call 405-242-2030; fax 888-588-8983; or contact them via RoadLaw.net.