How to Deal with Police at the Roadside

Last Sunday on 2UE Motoring with Tim Webster there was some general discussion on dealing with the cops at the roadside. Lyle's comments below via the web followed that discussion. (Comments from 2UE listener Lyle in bold; responses from me below.)

Comment: I am listening to your show on the radio right now and some of your advice from both yourself and your participants is wrong. Under the Australian Road Rules when requested by a Police Officer you are obliged by law to supply the name and place of abode of the driver. You commit a serious offence if you do not supply those details. There are only two acts of parliament in Australia that compel you to supply certain details when requested, Australian Road Rules and The Taxation Act. The offence is fail to supply name and place of abode of the driver.

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Response: The Australian Road Rules is not an act of parliament. They are 'model laws' constructed by the Standing Council on Transport and Infrastructure. Certainly registered car owners in NSW are required to supply the name and address of the driver, but this is a major loophole in legislative practise - drivers who have committed a serious offence and are not stopped on the spot, perhaps because they evade police, can claim subsequently not to know who was driving the vehicle, and face this lesser charge. It's also easy to imagine a scenario in which parents go away for a weekend and there's a party at their home, and a car registered in one of their names is driven by persons unknown. Finally, the cops don't have a 100 per cent accuracy record in identifying vehicles they fail to stop at the roadside.

Comment: If you fail to nominate a driver for a camera offence you also commit an offence yourself and there are again steep fines, over $1000 for failing to nominate a driver as an individual and over $5000 for a corporation.

Response: Yep - we said that, in relation to nominating who was driving. I haven't looked into the penalties payable. The main point raised on air was that it is often hard or impossible for the registered owner to know who was driving at a particular time, several weeks previously. This is especially true for families with as many as four or five licensed drivers under the one roof - who knows who took the car out to get the milk three weeks ago last Saturday?

Comment: The reason Police ask you if you have been drinking at a roadside breath test is they have to be sure there is no mouth alcohol present when they breath test you. Fail to answer the question will result in you being detained at the side of the road for 15 minutes to ensure there is no mouth alcohol present.

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Response: I don't think that's true. In fact, I have respectfully declined to answer that question in the past. What happened was, the police subjected me to the breath test on the spot, I registered zero and drove on. I just rang a solicitor contact of mine who reinforced my view that the police can't compel you to answer that question, and I don't think the cops can detain you temporarily without actually arresting you - there's no middle ground there. You're either under arrest or not. Making an admission about the consumption of alcohol during a random breath test could lead to a stronger prosecution case for DUI (as opposed to PCA) if the PCA case falls over, for example by virtue of the cops blowing the 'two-hour' rule or the 'home safe' rule.

(PCA = measurement of alcohol in the blood; DUI = driving in a state where you are affected by alcohol, which is harder to prove. The cops usually allege bloodshot eyes, slurring speech and smell of alcohol on breath here. If you make an admission that would help them. Two-hour rule = the cops aren't allowed to breath test you more than two hours after you have driven a car. Home safe rule = the cops aren't allowed to breath test you once you are back home.)

Comment: You should contact Inspector Phil BROOKS of the Traffic Command to get the right answers and not these so-called experts I have just had to listen to.

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Response: Thanks - I know how to contact Phil Brooks. Callers are generally not experts, and I prefaced everything I said by acknowledging that I wasn't a solicitor. Callers get to say what they want on air - within reason. Sometimes they get it wrong. The main point made were:

  • It's often difficult or impossible for someone to establish who was driving well after the event - for both camera fines and general traffic offences. It's a major loophole for criminals and serious offenders to exploit. (If the options were, for example, Dangerous Driving Occasioning Death - an offence under the Crimes Act - of fail to supply name and address of driver...)
  • Be polite to the cops - but don't make admissions. It can't help.

Comment: Road side mobile speed cameras have a range of 600 metres along with number plate recognition technology.

Response: I'm unaware of the capability of mobile speed cameras.

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