For the record, I am not an attorney…yet. However, I can read. In light of the fact that I had two friends pulled over for a “seat belt check” Friday night in the Fontainebleau/Broadway area of New Orleans, I felt it was necessary to remind NOPD of Louisiana seat belt laws.
According to Louisiana Revised Statute 32:295.1
“A.(1) Each driver of a passenger car, van, or truck having a gross weight of ten thousand pounds or less, commonly referred to as a pickup truck, in this state shall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion. The provisions of this Section shall not apply to those cars, vans, or pickups manufactured prior to January 1, 1981.” And, “(2) A person operating or riding in an autocycle shall wear seatbelts while in forward motion.”
So, we know the law says everyone (earlier this year the legislature clarified the statute to include SUVs) must be wearing seatbelts. Whether that should be a law is a matter for another day. Anyway, so what can a police offer use as probable cause to pull someone over for not wearing a seatbelt? Section F of the statute says:
“Probable cause for violation of this Section shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Section.”
That means you cannot be stopped by police to check if you’re wearing your seatbelt. It’s pretty damn clear in the statute. My question for this NOPD District 2 female officer is, how could she clearly see, in a moving car, after dark, the driver or passenger not wearing their seatbelt? It is highly unlikely. What I suspect is that NOPD is using these illegal seatbelt stops as a way to check for other potential illegal activity, such as DWI.
I can already hear the critics. “So, what?!” “What’s the big deal? You should be wearing your seatbelt anyway!” The point is that we have at least three problems with this scenario. The first, most egregious, is NOPD’s clear inability to follow a simple law. Second, they are using false probable cause (i.e. illegal) to basically say “I’m looking out for your own safety whether you like it or not,” which is not the proper role of the government. Third, the US Constitution, by way of the 4th Amendment of the Bill of Rights, protects people from unreasonable searches without probable cause.
Last, but not least, on the off-chance that this could be classified as a seatbelt checkpoint, we still have a problem. RS 32:295.4 requires that ” Provision for advance warning to the approaching motorists with signs, flares, and other indications to warn motorists of an impending stop and to provide indication of its official nature as a police checkpoint.” That clearly was not happening in this case, so cannot be used as a defense for the stop.
So, NOPD, I would like an explanation as to why this unconstitutional, illegal, and harassing stop took place this past Friday night. I sincerely hope this is not common practice.