WHAT TO DO IF YOU ARE ARRESTED

What to do if you are Arrested – Your Legal Rights and Responsibilities Towards Police

One of the most common questions people have is: What to do if you are arrested? Here are some general guidelines that apply to all kinds of Criminal matters, not just Drink or Drug Driving offences.

Police have the right to arrest you in the following circumstances: If they reasonably believe you have broken a law; if they have a warrant for your arrest; or if they consider that you pose a risk to the community.

Police also have the right to ask for your name and address if they believe that you have committed an offence. The police also have a right to arrest you until they are satisfied that you are who you say you are (eg: if you don’t have any ID on you).

The police officer must tell you that you are under arrest, but only if they have an opportunity to tell you (eg: they cannot if you are running away).

If you are placed under arrest, you must go with the police. You can be charged by police with an offence if you “resist” arrest (eg: try to fight them off) and a police officer is allowed to use “reasonable force” (which can include physical force) to complete their arrest of you.

If you are not sure if you are under arrest, ask “am I under arrest?” If the answer is no, then you do not have to accompany the police officer.

If you are arrested, you will likely be placed in handcuffs and taken to a police station for an interview.

Most importantly, remain calm and act with respect towards the police. In many cases, such as minor thefts or drug possession, police are able to decide whether to arrest and charge you then and there, or let you leave without arrest and send a summons to your home address. If you act with respect, the police will respect you and may be more inclined to issue a summons.

Search:

After your arrest, the police may wish to search you. A police officer is allowed to search you, your clothing and your property in your possession (such as a bag or your car) if they believe it is necessary to discover evidence or find a weapon. This would usually happen by police requesting you to empty your pockets and giving you a pat down search. These searches wouldn’t ordinarily require the removal of clothing, except perhaps a jacket, hat or shoes.

Interview:

If arrested and taken back to a police station, police will want to interview you. Before this takes place, you have a right to call two people:

  • A lawyer
  • A friend or relative

Police must give you privacy when you make a phone call to a lawyer. They can stop you from making these calls only if they think these calls will be used to tell someone to dispose of evidence or help a co-offender get away.

A record of interview between you and the police will be video recorded and can be used in evidence against you. You have the right to remain silent at all times. This means that you do not have to answer any questions that the police ask you, except for providing your name and address. Remember, you are not required to answer questions put to you by police.

Police may ask you if you want to be in a line-up: Say NO.

Police may ask you if you want to give a DNA sample: Get advice from a lawyer.

Police will ask you for your fingerprints: Say YES, this is a requirement and reasonable force can be used to get them if you refuse, so you might as well co-operate.

NOTE: Police do not have to record their conversation with you if they arrest you for a summary offence, such as for drink driving. So beware of your discussions with Police, as they will write down what you say to them and will use it against you in Court.

What happens next?

Police can only keep you in custody for a “reasonable” time before they charge you. If you are charged, police can either seek to have you “remanded” (kept in jail) or “bailed” (released home with a requirement to attend court on a later date).

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