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The flashing red-and-blues of a police car in the rear-view mirror have the unique effect of making even the most innocent of drivers feel like Pablo Escobar with a boot packed to overflowing with white powder.
But that sinking feeling is magnified a thousand times over when it’s blended with the crushing realisation that you have, in fact, committed an offence worthy of the constabulary’s attention. Your once clear mind becomes a swirling mix of harried excuses and accidental admissions of guilt as, dreading the worst, your sweaty hands shakily hand over your licence.
And while we would never advocate committing an offence behind the wheel of a car, or make excuses for those who do, we equally realise that mistakes can happen, and it’s important to know your rights when pulled over by police, whether you’ve done something wrong or not.
The below advice is a general summary, but it’s important to be across the specific legislation in your state or territory. The police pull-over procedure, and your specific rights and obligations, can vary, and it’s always a good idea to seek professional advice, should you ever need it.
Since the introduction of the random breath test, a police officer can pull you over anytime they’d like.
“Every state has its own legislation and obligations, so it is important to investigate the specifics pertinent to where you live,” says Andrew Tiedt, a partner at Armstrong Legal in Sydney.
“But remember, there’s nothing wrong with saying to the police, “Do I have to let you do this?”. If they say, “Can I search your car?” there’s nothing wrong with asking if you can refuse their request.
“Finally, don’t answer questions you don’t have to answer. There’s nothing you can say in that moment that will improve your chances in a later court hearing. You can only harm them. So go home, think it over, seek professional advice and then figure out the best approach from there.”
The below answers some of the most common questions surrounding your rights and the police in Australia.
There was once a time when, in order to be stopped by police, there needed to be a reason - or, to use legal parlance, you’d need to have given them probable cause (be it speeding, driving erratically or doing something illegal) - for a police officer to stop you. So, if you were to scream past a police car with a radar gun, cross double white lines or were spotted not wearing a seatbelt, using a phone or looking generally suspicious, you could be stopped.
But since the introduction of the random breath test, a police officer can pull you over anytime they’d like to administer the breath alcohol exam, and that means you no longer need to have done anything wrong before being stopped.
First things first, you don’t need to answer any questions, nor provide any personal information, other than your name and address. You are also required by law to hand over your driver’s licence so police can check you’re telling them the truth. So, what happens if you get pulled over without a license? Driving without your licence can be an offence, and can cost you cash.
While you don’t have to volunteer information, it’s always a judgement call as to whether you want to aggravate the situation by not answering menial and non-incriminating questions, especially if you’ve done nothing wrong. The same goes for those wondering if they can video police in Australia during a traffic stop. While not illegal to film your interaction with police, it’s also likely to inflame the situation, so a judgement call will be required.
If you don’t pull over when asked, however, things take a far more serious turn. In NSW, for example, a new law known as Skye’s Law (named for a toddler killed by a car evading a police stop) includes stiff penalties, including up to three years in prison for the first offence, five years if you have been convicted of a major offence in the preceding five years, as well as a lengthy driving disqualification.
That nerve-wracking wait when a police officer takes your licence back to their vehicle is down to the fact that almost every traffic stop includes a check on your name and vehicle to ensure there’s no outstanding court or enforcement orders against you.
Hopefully, and mostly, there isn’t, and the officer will simply hand your licence back to you.
Once stopped, police only need to 'reasonably suspect' illegal activity to search your vehicle. And the term 'reasonable' is incredibly vague, from the driver talking quickly or even just appearing nervous, which is just about every person ever stopped by the police.
As mentioned above, the police can pull you over at absolutely at any moment - and without you having done anything to warrant the attention - to administer a random breath test.
It’s actually a two-, and sometimes three-stage process, and failing the roadside examination doesn’t always mean you’ll be charged with an offence. The mobile device used during a road stop in some states (the one in which you’re asked to count to 10, rather than blow into a straw) is actually only capable of measuring whether alcohol is present on your breath.
If a driver fails that 'screening' test, the traditional breathalyser is produced to take an official roadside reading. But if you fail, even that test won’t be produced in court, instead you’ll be arrested and taken to the closest police station (or to the command bus) where you’ll be tested a third time, the results of which will be used as evidence.
But don’t think a trip to the police station will always work in your favour. While it’s true that the only thing that can lower your blood-alcohol content is time, it’s also true that the amount of alcohol present in your blood actually increases in the period immediately after you’ve stopped drinking before it then starts to decrease, so the results of the station test could actually be worse than the roadside one.
Refuse a breath test at the side of the road, and you’ll be immediately taken to the station for an official test. Refuse that, and you’ll be charged and face heavy penalties - often worse than those for high-range drink driving.
A stop for a suspicion of speeding changes your rights exactly not at all, with you still only obligated to confirm your name and home address.
And its here where you should be particularly cautious with what bonus information you offer the police. If you’re sprung by a fixed camera or radar gun, your chances of defending it in court are minimal. But in NSW, for example, police can still book you on what’s called a speed 'estimate.' That means the police just have to think you were speeding, and don’t need to provide any proof.
It’s these speed estimates that are the most defendable in court, but your chances of clearing a ticket plummet if you are recorded confirming you were speeding when asked by the officer.
But most important of all, and with all matters of the law, if in doubt, seek professional advice.