Steve Palmer [00:00:00]:

All right, Lawyer talk off the record, on the air. Good question. Came in last week on the website lawyertalkpodcast.com and I can't remember the exact verbiage, but here was the question. Can you be arrested for speeding? If you get a normal speeding ticket, can you get arrested? This probably stems from some of the other stuff we've been doing about can the police order you out of the car, what are your rights, et cetera. And I think this is great because this shows a general interest in. And what criminal law as they teach it in law school, or criminal procedure, rather, as they teach it in law school, is what they can't do to you, or what are the rights? What are your rights? And what are the limitations of the police? So can you be arrested for speeding? And this may be state by state, but we'll just talk generally first in my head.

Troy Henricksen [00:00:43]:

Well, I'll start with law school, because I'm the law student here. They make it seem like the police have to have some reason to arrest you. But in my head and just real life experience, well, the reason would be speeding. Yeah. Okay. I think law school would say no, say no. There has to be some real reason to. A serious reason to arrest you.

Troy Henricksen [00:01:04]:

My real life experience or like, world would tell me they can arrest you for anything. You don't have to be breaking the law. I feel like they can just. I think the movies always.

Steve Palmer [00:01:12]:

So let's say lawfully arrest you for speeding.

Troy Henricksen [00:01:14]:

Lawfully arrest you. Okay, that's.

Steve Palmer [00:01:18]:

I would say and great point you made. Now, are police, some police gonna arrest you for speeding? Probably. But can they do it lawfully?

Troy Henricksen [00:01:27]:

My initial gut in law school is telling me, no, they can't do it for speeding because then you get some bad apple cops out there. They can pull over anybody, and they just want to be a dick that day.

Steve Palmer [00:01:38]:

They're like, all right, taking downtown slippery slope argument again. Somebody's gonna take advantage of the power.

Troy Henricksen [00:01:44]:

Yeah, that's my interpretation.

Steve Palmer [00:01:46]:

So let me break this down the way. I'll break it down the way it would be handled in Ohio, where we practice law routinely. In Ohio, we have degrees of misdemeanors, as do most states. And most states call these things something different. So you may have a first degree, second degree, third degree, fourth degree, fifth, sixth, who knows? Ohio happens to have a first degree misdemeanor, which is the most serious. Second, third, fourth, and then it goes to something called a minor misdemeanor in Ohio. The maximum punishment in Ohio for a minor misdemeanor is $150 fine, generally speaking, plus court costs or whatever. A speeding case in Ohio, typically you're going 5, 10 over, 15 over is going to be a minor misdemeanor speeding violation.

Steve Palmer [00:02:30]:

It's under the traffic code, but that's irrelevant for what we're talking about. In Ohio, there's a rule. Police cannot arrest you for a minor misdemeanor violation. They can only arrest you for offenses that have a possibility of some jail time. Okay, so there was a big case, I think, pretty sure it came out of Texas a while back where somebody was arrested for some offense that did not require jail, but the police made a mistake. So this has been litigated in other states, but generally speaking, this will be controlled by state level authority. But in Ohio, and I think in probably most states, I'm guessing you can't be arrested for just your average run of the mill speeding violation. Now, like anything in law, there are exceptions.

Steve Palmer [00:03:20]:

If we're not. All speeding tickets in Ohio have to be minor misdemeanors. In other words, say you're going 100 miles an hour and instead of speeding, they charge you with something called reckless operation. That's not just a minor misdemeanor, it's something more. Then you can be arrested for that because it's something more. And what does it take to get around? Well, something called probable cause. If the police have probable cause, you've committed a crime that's arrestable. You can be arrested if, you know, drag race.

Steve Palmer [00:03:50]:

These are all, by the way, traffic violations in Ohio. And you can still be arrested for. So I guess the short answer to the question is yes. No, maybe.

Troy Henricksen [00:03:58]:

It depends.

Steve Palmer [00:03:58]:

It all depends.

Troy Henricksen [00:04:00]:

That makes sense now because it basically seems like an eighth Amendment right. That's punishment. That's the one.

Steve Palmer [00:04:04]:

Cruel unusual punishment. Eighth Amendment.

Troy Henricksen [00:04:06]:

Yeah. So if you arrest somebody for a minor misdemeanor, I feel like that would be an 8th amendment violation because you're going over what has been defined as maximum punishment.

Steve Palmer [00:04:15]:

Yeah, that's probably not a bad way to link it up constitutionally. Now, logically speaking, if you can't go to jail as a possible punishment for the underlying violation. So I'm speeding, it's holiday weekend and the enforcement is out and they get me over for going 10 over or they pull me over for going 10 over and I get a speeding ticket and they want to handcuff me and charge me with minor misdemeanor speeding, they're going to take me to jail. But there's no, like, I'm not serving jail is not even on the table for that offense. And so logically speaking, you shouldn't be able to take it into custody because custody and jail and arrest typically results in custody. It doesn't have to, but you can't be arrested for it. So now what happens if they do.

Troy Henricksen [00:05:01]:

They do arrest you. I mean, you're gonna have to bail out and then go to court.

Steve Palmer [00:05:06]:

I guess in theory it's a.

Troy Henricksen [00:05:10]:

You've already done the damage, though.

Steve Palmer [00:05:11]:

It's a Fourth Amendment violation. You've been subject to an unlawful arrest and maybe a cruel unusual punishment violation, probably Fourth Amendment. And in theory, you could sue. You could file a civil rights case against the police for the arrest and try to get some redress that way. Certainly the case probably be dismissed. Underlying case be dismissed. Doesn't have to be, but it could be. Likely would be.

Steve Palmer [00:05:32]:

But yeah. Now this brings up a whole nother topic we're not going to cover today. But mark it down. Let me know your thoughts on this, folks. I'd be. That's probably a great way to do it. Can you resist an unlawful arrest? Question of the day. I want your answers.

Steve Palmer [00:05:50]:

Can you resist an unlawful arrest? So say the police are trying to arrest you unlawfully for speeding and you say, screw this, I'm going to grandma's house for Thanksgiving dinner. You can't do it. I'm going to resist it. And the police charge you with resisting arrest. Question of the day. We're not going to cover it, but we'll see what everybody else thinks and we'll circle back on it once we get some comments on it. But look, you got a great question, you got a comment, you got a question, you want us to cover it? Lawyertalkpodcast. Com.

Steve Palmer [00:06:18]:

Leave it in the comments on YouTube or TikTok or wherever you guys get your stuff. That's where we are.