When Can You Be Arrested For a Driving Offence?
If the police suspect you have committed a driving offence, they have the power to arrest you, but only in certain circumstances.
What offences can I be arrested for?
All offences are potentially arrestable offences. This includes driving offences, no matter how minor.
This does not mean that the police can lawfully arrest you without good reason. The arrest must be justified and necessary.
The power of arrest must be used fairly, and responsibly, with respect for people suspected of committing offences and without discrimination.
What elements are required for a lawful arrest?
- of your involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
- that they have reasonable grounds for believing that your arrest is necessary.
It will never be necessary for the police to arrest you unless there are reasonable grounds to suspect you of committing an offence.
What procedure should the police follow?
If you are arrested, the police must tell you that you have been arrested, even if this fact is obvious.
The police must also tell you the relevant circumstances of the arrest. They police should caution you after arresting you and you should not be questioned about an offence before you are cautioned.
The custody officer must be informed of the reasons for arrest on arrival at the police station.
Grounds to suspect an offence
To arrest you without a warrant, the police officer must be satisfied that:
- you are about to commit an offence or are in the act of committing an offence;
- the officer has reasonable grounds for suspecting you are about to commit an offence or to be committing an offence;
- the officer has reasonable grounds to suspect that you are guilty of an offence which he or she has reasonable grounds for suspecting has been committed;
- you are guilty of an offence which has been committed or if the officer has reasonable grounds for suspecting you to be guilty of an offence.
The arrest must be necessary
The police officer will make the decision about whether the arrest is necessary.
In summary, the reasons to justify an arrest are:
- To enable the police to establish your correct name and/or address.
- To prevent you from causing or suffering physical injury.
- To prevent you from causing damage or loss of property.
- To prevent you from committing offences against public decency.
- To prevent an unlawful obstruction of the highway.
- To protect a child or other vulnerable person.
- To allow the prompt and effective investigation of the offence.
- To ensure you don’t run away.
Arrests in driving cases
Although the police have the power to arrest for any offence, it is rare for them to arrest for most driving offences. Arrests are made routinely in cases of suspected drink or drug driving so that the police can investigate the alleged crime. This normally means the police will require you to provide a breath or blood sample.
The reasonable suspicion of the crime having been committed may come from a positive roadside breath test or swab. Alternatively, the police may form the preliminary view that you are unfit to drive because of your demeanour.
If the police ask you to attend a voluntary interview for a driving offence and you refuse, you may be arrested. The same may happen if you walk out of an interview. Although it is called a voluntary interview, it does not mean that you can refuse to attend.
Conducting an interview is part of the police’s investigation. The police may want the opportunity of putting questions to you, even if you are planning on answering ‘no comment’.
The police cannot usually dictate the time and place for a voluntary interview. You are required to cooperate with the police’s investigation and to act reasonably. Therefore, if the police suggest an interview appointment time that isn’t convenient for you, it should be possible to rearrange it. We can help with this.