In WV, what are the laws against racial Profiling with a DUI?

Asked almost 2 years ago - Hurricane, WV

Family member of Hispanic origin, cited for DUI - true enough, however, when in custody in the police cruiser, the officers areon recorded videocam making guesse about his ethniciy, "mahaji ?, (not sure of the term but refers to midestern radicals, a couple of other ethnicities almost in a joking manner of speaking, until one officer says, well he sure ain't caucasian! I have heard of other case being thrown out due to "racial profiling". And in the next 30 seconds they are discussing what all they could charge him with. Does this fit racial profiling? And is there laws in WV against that? How would you suggest handling this specific

Attorney answers (3)

  1. James Kevin Hayslett

    Pro

    Contributor Level 16

    5

    Lawyers agree

    Answered . Under federal law you cannot stop a vehicle or detain a subject because of their ethnicity. Additionally almost every state in the union has laws that prevent racial profiling in order to justify the traffic stop or subsequent arrest.
    If the stop was pretextual meaning that it was based upon the ethnicity of the defendant the case would more likely be thrown out, dismissed at a motion to suppress.
    However, if the comments were made in bad taste while the subject was detained as they attempted to determine what to arrest him with that may not be the basis of a motion to suppress but may be a complaint against the arresting officer and or agency.
    Either way I would hire an experienced DUI/criminal defense lawyer in your town to assist him with his defense.

  2. Charles K. Kenyon Jr.

    Pro

    Contributor Level 19

    Answered . If the reason for the stop was race or ethnicity this could be a basis for throwing the case out. Comments, alone, are not enough.

    Contact a DUI/DWI lawyer there and get an opinion based upon all the facts as well as the local law.

    Do not file any complaints with the police department until talking with a local lawyer.

    Confidential information should not be disclosed in this Internet forum. I am a Wisconsin lawyer. The laws in... more
  3. Lawrence A. Newman

    Contributor Level 10

    Answered . What you allege and what you can prove are always two completely different things.
    As my colleagues have stated it is illegal/unconstitutional to stop a car/make an arrest based upon race. You are saying this occurred POST arrest so that is NOT profiling.

    Racial profiling refers to the use of an individual’s race or ethnicity by law enforcement personnel as a key factor in deciding whether to "engage" in enforcement (e.g. make a traffic stop or make an arrest).

    If he is stopped and arrested with PC, probable cause, and has valid charges then having the cops make jokes ain't going to do it (ie. get it all dismissed). Discussing what to specifically charge is a normal police standard of conduct.

    Does racial profiling (pre stop and arrest) happen? yes!

    Proving it in that context is generally hard, your word or the defendant's word against the police. If you have it "clearly" on video (btw snide remarks/jokes are not profiling) then it can be brought up.

    Most judges are NOT going to throw a valid case out (dismiss) because the cops joked about someone's ethnicity post (valid stop/arrest). At least not in NY, PA, NJ, or FL (all states I am licensed in), maybe in Hurricane, WV they are more sensitive to racial profiling.

    Talk to a WV DUI lawyer, I am not licensed in WV.

    Lawrence (Larry) Newman, D.C., J.D. Attorney at Law Doctor of Chiropractic Licensed in NY, PA, NJ, & FL... more

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