What are your rights when you get pulled over ?

[kavehman]

Thought it would be good to get a post going on what you rights are when you get pulled over.

Could we have advice based on states,

I personally don't know what rights we have. So if people can elaborate on them and maybe back them up with some supporting, I think it would make a greta post.

[GoldCoastDC5R]

(XXXXGOLD from Streetcommodores forum [url)
http://forum.streetcommodores.com.au/showt...d.php?t=8465348]

What to do if you are pulled over/searched/arrested

I have been getting quite a few PM's lately regarding your rights and obligations when it comes to dealing with the police on traffic matters (and other matters, but for the purposes of this post i'll try and stick to traffic related scenarios, although many of the principles are similar in other areas of law).

I have decided to make a brief thread outlining some of the more common situations and what is legally required of you, and what is legally required of the police. The first matter we will deal with is -

GETTING PULLED OVER

Ok, this is going to be a relatively familiar situation to quite a few of you (myself included), and can be intimidating when pulled over for a possible infringement for the first time.

The first and most important advice i can give is STAY CALM. More than likely you will be under some stress at this stage, but it is important to keep a clear head, for a number of reasons, which we will deal with shortly.

Obviously even before that, if a police officer signals for you to pull over, do so at the nearest safe location. In fact, if you are unsure whether a location is safe or not, pull over anyway and if the officer deems the situation to be dangerous, he will signal or ask you to move to a different location. This is better (in legal terms anyway) for you than driving along and just pulling over where you happen to think it's safe, this certainly earns you no brownie points from the police and you haven't even talked to them yet! If the officer asks you place yourself, and/or your vehicle in a location you deem unsafe, the first thing you should do is politely request that you be allowed to move to a safer location, and if the officer refuses, take careful note of what he/she says, and the particular location, this will be important if you choose to take matters further.

Now that you have actually been pulled over, turn your car off and wait for the officer to approach. DO NOT GET OUT OF THE CAR. Wait for the officers instructions. Some police will request you stay in the car, some will allow you to do as you please. Police are NOT legally allowed to physically prohibit you from leaving your vehicle unless there is an immediate threat to the safety of either party, however it may be in your best interest to abide by the officers request if they do indeed ask you to remain in your car.

At all times remain polite with the officer. Some will bait you, ask loaded questions and some are just downright rude, arrogant assholes... But when dealing with the police, rudeness and smart alec remarks will NEVER do your cause any good. Don't be rude to them because they are being rude to you, don't stoop to their level. You are better than that.

Next the police will generally ask you for your licence details. In some states you must carry your licence with you at all times, in other states you are allowed a certain amount of time to produce your licence at the nominated police station, best to check your local laws regarding this. You MUST provide your licence when requested when operating a motor vehicle, or if your licence is not physically present, you must provide accurate information as to your identity and place of residence. Failing to do this is a crime and you will more than likely be arrested and charged.

Usually a licence and registration check will be performed, along with cross matches of outstanding warrants and so on. Please note that you are not required by law to provide any registration details to the officer if they ask. Once again, it may be in your interests to be compliant, but by law you are only required to provide proof of your identity, and your licence/permit (usually one and the same).

Now the officer will question you in regard to your alleged infringement or offence. DO NOT INTERRUPT the officer whilst he is talking. You would expect to have your right of reply (although in reality this sometimes doesn't happen, this does not make it okay to interrupt anyone yourself, particularly the police) so keep your mouth shut, and listen very carefully to what the officer has to say. When the officer has finished, you may choose to say something in your defence, or you may choose not to comment. As always, you have the right to silence.

If you do choose to say anything in your defence, remember these 2 vital rules.

1. NEVER say more than you have to, the officer doesn't care that your cat was run over this morning and you were traumatised. Stick with facts directly relating to the incident and NEVER anything else. Always err on the side of saying too little, rather than too much.

2. Always be truthful, lies and half-truths will only come back to bite you in the bum. Be honest in your recollection of events and if there are certain parts of the incident you don't want the officer to know, simply don't tell him. DO NOT LIE.

Once the officer has explained the alleged infringement, and you have replied (or been given the chance to), one of 3 things will happen.

1. No action will be taken.
2. You will be issued with an infringement notice (or a notice to appear/summons in more serious cases, these are sometimes issued on the spot).
3. You will recieve a summons or notice to appear in the mail in the coming weeks (the officer must inform you if this is the case).

Obviously if no action is to be taken you do a Homer impersonation and go 'woohoo' and toddle off to wherever you were going, but should either of the other 2 scenarios happen, there is little point arguing, you won't have the decision reversed and may well make your situation considerably worse.

To aid your case take careful note of as many of these details as possible.

1. The exact location where the alleged incident occurred. This also includes careful investigation of the location of the officer, where they were located when they detected the incident.

2. The exact time and day when it occurred.

3. The name, rank, number (if applicable) and station of the attending officer/s.

4. The traffic conditions at the time.

5. The weather conditions at the time. Was it rainy? hot? foggy?

6. If a mechanical device was used to issue the infringement notice (radar/laser detector) take careful note of the make and model of the device.

7. Try to remember as accurately as possible what the officer said during the matter and also what you said. A recording (if possible) may be very useful here, generally it can't be admitted as evidence (except in a small number of circumstances) but you can accurately remember what transpired. Always ask before taking a recording, and if you are refused make careful note of the reasons given.

8. The road conditions, was there oil on the road? Maybe the road surface was poor....

9. Take note of witnesses that may be able to substantiate your claims.

Obviously some of these observations will be more applicable to some offences than others. There are other things to take note of depending on the particular incident, but this list covers some of the main points, in short gather as much information as possible.

Oh and it also goes without saying that you don't pull a burnout in front of the police when you leave the scene....

IF YOU ARE A PASSENGER

If you are a passenger and the police allege you have committed an infringement, a slightly different set of obligations apply. These would apply if it is alleged you weren't wearing a seatbelt, had a limb protruding from the vehicle and so on. Despite popular belief, bad singing at the traffic lights is not an offence although many believe it should be...

As a passenger who it is alleged has committed an infringement, your only obligation is to provide your name and address. If you are asked to produce a licence you are within your rights to decline, although once again it may make you life easier in regards to providing positive identification. The exception to this rule is if the driver is on a permit or similar which requires a licenced driver to accompany them at all times. In this case you are obliged to show your applicable licence. You can be issued with a fine and demerit points if you are found guilty of certain offences as a passenger, obviously demerit points only apply if you hold a licence in the first place. You may not be required to undertake a breath test.

Passengers who have not been alleged to have committed an offence in general have no obligations. You will not be compelled to state your name and residence, even if asked. The exception to this is if you are witness to a serious or indictable offence, or are suspected of having committed a criminal offence yourself (having 2oz of pot sticking out of your pocket). This may include being a passenger in a car in which the driver has been, or will be charged with dangerous driving causing death. You are not required as a passenger to provide your details under any other circumstances.

Stolen from another forum

This was written by a QLD lawyer.

Please use this as a guide only, it does not represent anyhting to do with me, i found it on anouther forum as stated above and thought it would be helpful for us as members on CITR....

If any one has a problem with it PM me and i will remove it given sufficient reasons...

[GoldCoastDC5R]

RIGHTS REGARDING PERSONAL AND VEHICLE SEARCHES

A number of people on here have been subjected to vehicle and personal searches so i thought it would be a good idea to quickly outline your rights and obligations regarding this.

I am going to use the term reasonable quite a lot here. Loosly defined legally, reasonable means 'in all probability'. It is reasonable to assume that someone injecting themselves in front of you is probably injecting a drug of some description (legal or otherwise), however it is not reasonable to assume someone with red eyes is under the influence of drugs. It may be a possibility, but given the multitude of possibilities, it certainly is not reasonable to assume this.

Police have the power to search you, and your personal belongings (including your car) in a number of circumstances. These include (but not limited to) -

1. If you are reasonably suspected of being in the process of committing, or having committed a criminal offence (having 15 cigarette cartons stuffed under your shirt whilst standing in front of a broken servo window would be considered reasonable).

2. You are suspected of harbouring an escapee.

3. You are reasonably suspected of possessing stolen property (whether you were the person who stole it is immaterial)

4. It is reasonably suspected that you are in possession of evidence relating to an offence which may be destroyed if an immediate search is not carried out. (might have blood on the tyres for example)

5. If it can be reasonably expected that you were on your way to commit an offence (maps of the local bank indicating the vault position might be a good indication)

A police officer must inform you why a search is being conducted. Take careful note of the response if always. If no reason is given, insist that they stop and if they don't, create as much fuss as possible to attract as much attention to your plight as you can. This is so witnesses are made aware of the situation and that the police are acting unlawfully.

When the officer explains why the search is being conducted, if you disagree with the reasons ask the officer to elaborate and if you still disagree, once again try and draw attention to yourself, informing either your passengers or the general public that you feel the search is unjust. This is important if you wish to take the matter further.

If a search is conducted on your property, on conclusion of the search your property must be returned to as close to the original position and condition as possible. If this does not happen make a careful note and take further action. If personal belongings are damaged or loss during the search, the police are required to repair, and or replace the items.

You are legally allowed to use as much force as necessary to prevent an unlawful search from taking place. However i highly advise against this unless you are VERY familiar with the law, if it turns out the intended search was indeed lawful, you would be up on some very serious charges including assaulting police, obstructing police and so on. An obvious example where you would be entitled to resist would be if an officer attempted to do a cavity search on you in public.

Strip searches must NOT be performed in public unless an immediate threat is present (you have a bomb strapped to your body for instance). you can otehrwise only be strip searched in private, with only same sex officers present.

Cavity searches can only happen in extreme cases. Either you must give permission (highly unlikely) or a court order must be given. A police officer CANNOT demand a cavity search without permission or a court order. Should a cavity search be conducted it must be carried out by a doctor of the same sex as the person being searched, with minimal discomfort and embarrassment caused (as is possible in the situation).

Please note, that any evidence that is gathered during what is deemed to be an unlawful search is inadmissible as evidence. An example of this is if the officer suspected you of having drugs in your car and searched accordingly, with no reasonable cause and found a box of illegally harvested Abalone, this would not be allowed to be entered as evidence, you may still be charged with an offence, but the findings of the illegal Abalone could not be put before the court so obviously the chances of a charge being successful without that evidence would be minimal. The key point here is pay careful attention to the search and the officers explaination so that you have further proof that a search was illegal. This is particularly important if you have sensitive items on your person and/or property.

If you wish to make a formal complaint against the legality of a search seek legal advice as soon as possible.

once again

This was written by a QLD lawyer.

Please use this as a guide only, it does not represent anyhting to do with me, i found it on anouther forum as stated above and thought it would be helpful for us as members on CITR....

If any one has a problem with it PM me and i will remove it given sufficient reasons...

[GoldCoastDC5R]

GOING TO COURT

This section is for those who are required, or have elected to have a matter heard before a Judge or Magistrate.

Courts can be intimidating, with their formality and daunting processes, but in reality it is quite a simple process. Courts, and court processes vary from state to state (for instance what might called a loacl court in one state will be a magistrate's court in another) but the basic principle is the same.

You have the defendant (you) and you have the prosecution (either a police prosecutor or a crown prosecutor). A police prosecutor is just that, a police officer, and is usually found in minor courts such as local and magistrate. A crown prosecutor is generally a lawyer/solicitor/barrister and serves in the higher criminal courts, district and supreme. And of course you either have a Magistrate or a Judge presiding. Most traffic matters won't require a jury so for the purposes of this thread this will be omitted.

You will be asked to appear at a particular date and time, never be late. As i said, courts around the country vary so it pays to ask where you need to 'check in' to notify the court you have arrived to have your matter heard. Sometimes this is not necessary and you will just have your name called out when the court is ready, but it's always a good idea to announce your presence, and is essential in many cases.

Most small matters will be heard on the same day, the more serious or complicated matters will generally be adjourned (put off) until another day. You can also apply to have the matter adjourned if you are waiting on legal representation or further evidence. Assuming you request is legitimate, this will generally always be allowed.

I can't advise on specific details due to differences from state to state, so if you are appearing in court i highly advise you to attend at least 1 court session in the days preceding your court appearance. This will give you an idea of the order of things, questioning, cross examination, presentation of evidence, court etiquette and so on. If you are very keen, try and sit in on as many different magistrates or judges in general and make notes on each. What they dislike, what they seem to respond to and so on. With any luck you will appear before one you have researched and you will be able to structure your argument in a way that will appeal to the person that matters.

Many people claim 'they will believe the police over me anyway, why bother?' This is not the case at all. What magistrates and judges hate is poorly presented arguments. Nothing will incur the wrath of the 'boss' more than you turning up to court and saying 'ummmm Your Honour, i am here because i didn't do it'. It happens very often that police present poorly researched arguments and believe me, magistrates are even harder on them than they will be on you if you stuff up. Sit in on a few sessions and you will see what i mean. They hate nothing more than police and Crown incompetence.

The key here is present your argument is a clear, succinct manner, with facts and evidence to back your claims. In many cases if you present a professional, well researched defence, even if you lose you will recieve a reduced penalty. The court does not like having it's time wasted, and they will show appreciation when an argument is presented when it is well presented and researched, even though the initial outcome may not be in your favour.

If you plan on taking a matter to court, here are some points.

RESEARCH - I cannot stress this enough. Rack your brain thinking of ways the allegations could be tarnished. If it was a speeding fine, think of where the reading was obtained, and in what way it was obtained. Is it possible it could have been the reading of another car? Was the reading corrupted by geographical or weather phenomena? Examine every angle. Perhaps you chirped your tyres... was there oil on the road? Was it wet? Was it on an incline on a newly laid stretch of asphalt?

Gather all applicable evidence, copies of the relevant legislation, photographs, witness statements and so on. You can never have too much evidence, but make sure it is all applicable to your case. The judge doesn't care if you ate a burger with onion on it that caused you to break wind and lose concerntration on the road. Keep your evidence direct and to the point.

Be relentless, think of every possibility and group together all factors in your favour. Don't forget to investigate the factors seemingly against you. It is possible that the prosecution will bring these points up and you don't want be caught off guard.

PROFESSIONALISM - Many people tell you the best way to approach a court hearing is to suck up to authority. THIS IS 100% WRONG. Appearing to be a suck up will always work against you, you want to present as a calm, rational and professional defendant. Dress appropriately - in simple matters, a suit might be going overboard so stick with maybe a polo shirt (tucked in) and some good jeans or slacks. Prsent yourself as well groomed too. Shave, brush your hair, even wear some flash aftershave. You might laugh at the aftershave and think who will notice? Chances are no one will, wel no one that matters, but going to court is a mental game... if you feel professional, chances are you will project that image and that's what you want.

When addressing the court, always be polite... but equally important is to always be firm and have conviction in whatever you say. Yes it can be daunting, but think of it as a challenge, challenge yourself to overcome you fears and present a professional argument, believe me, the judge will appreciate your efforts. Always speak in a clear voice and try your best not to swear, that might seem obvious but it's amazing what words sometimes slip out in courtrooms.

Most of all, LISTEN to everything the judge and prosecution have to say, take notes if needed. Effectively this is a debate, even a fight. You have to dodge the prosecutions legal punches and land some knockout blows of your own and that's what will win the fight. If no knockout blows are landed on either part it will be a points decision, and no matter the outcome you can be proud that you stood up to teh charge and didn't get knocked out.

THE VERDICT - The big one, hopefully it is reached in your favour. No matter the outcome make a point of ensuring that on completion of your hearing that you thank the magistrate/judge and also the prosecutors. You may think why should you do that when you have just lost, but the legal world is a small world. Should you ever have the misfortune to appear before the same people, your politeness, professionalism and graciousness will certainly be remembered. In any case, these people have given you a fair trial and the verdict has carefully been considered. Generally if you presented a great case you will also be thanked in return.

This is certainly not an exhaustive tutorial, but it goes over some of the basic points of the most common situations. If anyone has any specific questions i will always do my best to help. If it is not a particularly sensitive matter, post it here for everyone to see so people in similar situations may also be helped. Also post your own experiences and legal knowledge so we may all be helped in some way.

Once again:

This was written by a QLD lawyer.

Please use this as a guide only, it does not represent anyhting to do with me, i found it on anouther forum as stated above and thought it would be helpful for us as members on CITR....

If any one has a problem with it PM me and i will remove it given sufficient reasons...

[Jingers]

holy shit strip search in public

I am glad my run in with the law isn't to that extent

[noodleman]

Thought it would be good to get a post going on what you rights are when you get pulled over.

the rights to remain silent....