WA Traffic Law - Police Trespassing Property for Breath Test

[Jake Harfield]

Hi guys, thanks in advance for any help. It's my first time on these forums.

So my friend J was driving home in the morning after a night of drinking. He pulled into his garage and started rolling his garage door down when a policeman crawled under the gap and told him he would be given a breath test.

J wasn't sure of his rights so said he wouldn't, and the policeman said he would have to arrest him. He handcuffed J and pulled him out of the car onto his knees - it's a high 4WD and he has scraped on his knees and nerve damage and bruising of the bone in his wrists. Some of this is on video from over the road. He was taken to the station and breathalysed, being over just slightly and getting 2 months of suspended drivers licence without ever going to court.

I would like to know if he had legal grounds to enter under Traffic Law J's property like that and if at any point the policeman acted illegally. The police admitted he had no reason to follow J, just that he was the only car on the road, but this isn't on tape.

 

[Therese]

Hi Jake,

it sounds like the police have acted outside their powers - therefore, your friend could engage lawyers to challenge what happened.

The power to enter an individual's premises without consent:
Police can only do so if relying on a relevant legal power. In your friends case, if the policeman only followed him as he was the only car on the road and could not demonstrate that he had reason to believe he was intoxicated then the legal power may not apply. Refer to Legal Aid WA website for further info, see: Police powers to search.

The power to arrest without a warrant:
In WA, this can only happen if the police believe that a person has committed an 'arrestable offence'. As drink driving has a punishment of imprisonment it can fit into the category of 'arrestable offences'. However, police cannot use 'unreasonable force' to arrest someone. This could be something your friend could demonstrate, the use of the tape would be good evidence. Refer to Legal Aid WA website for further info, see: Police powers to arrest and detain.

I would suggest getting in contact with a lawyer to try and challenge the suspended licence. See Get Connected with the Right Lawyer for You.

 

[Jake Harfield]

Thanks, Therese, I've passed on the information. Unfortunately, the video evidence was wiped as part of an automatic process on the hard drive it was on. We've been in touch with a lawyer and are considering options now.

Thanks, again, for the very concise and helpful information.

 

[Tim W]

it sounds like the police have acted outside their powers...

Whereas to me, it sounds like the police have acted within their powers.

It sounds to me like your friend was arrested for refusing a breath test.
Refusing a test can be an offence in itself even if the person goes on to blow negative.

It also sounds to me like your friend might have acquired his injuries while resisting arrest.

Going only on what you have told us, missing facts missing and unstated ifs, buts, and maybes not allowed for,
I am also fairly comfortable with the idea that the constable validly entered the land
in pursuit of a person suspected of committing an arrestable offence.
In fact, closing the garage door could potentially found a separate charge of obstructing.

 

[Tim W]

Whereas to me, it sounds like the police have acted within their powers.

By which I mean section 132 of the
Criminal Investigation Act 2006 (WA).