How to respond to a police search and stay on the right side of the law

It is important to know how best to respond and what your rights are if you’re asked to pull over at a police roadblock or traffic stop, especially at this time of year with the festive season fast approaching when police will be out in full force.

This can help ensure that you stay on the right side of the law. “To protect themselves, all citizens should get to know their rights when dealing with the police and traffic law enforcers in South Africa,” says Kirstie Haslam, partner at DSC Attorneys who offers some advice and tips as to your rights if you are stopped.

If you are stopped on the road

If the police signal you to stop at a roadblock or on the side of the road, she says to always follow these guidelines:

• pull over when flagged down; do not drive away
• stay calm, cordial and respectful
• give personal details when requested
• if you are presented with a fine or infringement notice, sign it and avoid a roadside argument; don’t become rude or aggressive
• do not try to engage in bribery or you will be prosecuted

If a uniformed member of the police or a traffic official stops your vehicle and asks for your identity details, you are required to comply.

A traffic officer is permitted to ask to see your driver’s licence, which you should always have on you when driving, and your ID book. “In some cases, members of the police may also demand to see your vehicle license, or require that you present it at a police station within a week,” Haslam explains.

Your right to verify the authenticity of a roadblock

In the past, there have been cases of crimes committed by criminals dressed as police or traffic enforcement officers. Accordingly, Haslam says that you are allowed to request to see an officer’s identification (certificate of appointment). Failure to provide this is a violation of Section 334(2)(a) of the Criminal Procedure Act.

“If an official refuses to show you identification, take a note of their vehicle details to report later, but remain alert and calm.”

She continues: “Also, although you’re not entitled to refuse being stopped and even searched at a roadblock, you may ask to see written authorisation for the roadblock from the National or Provincial Police Commissioner before you submit. If, for any reason, you are not convinced of the validity of a roadblock, you can request to be taken to the nearest police station.”

If your vehicle is found to be unroadworthy

If a police or traffic enforcement officer deems your vehicle unroadworthy, they may take one of the following actions: request that you drive the car only to get to your destination or for a short distance; remove your vehicle licence disc from the windscreen; demand that you cease to drive the vehicle immediately.

Since law enforcement officials are within their power here, Haslam says that it’s unwise to challenge any of these actions.

Arrest for outstanding fines

You may have heard rumours about drivers who have not paid up all their fines being forced to pay there and then at a police stop or face immediate arrest.

Haslam says that you cannot be forced to pay on the spot as this is extortion. “Also, you can be detained only if you have already been issued with a warrant of arrest and if an officer can show you a valid copy of the warrant,” she explains. “If an officer can’t provide this but still wants to arrest you, ask to call your attorney immediately. If the officer does have a warrant, however, the police have the right to detain you until you can pay the outstanding amount.”

If no warrant has been given, the officers may still issue you with a summons, provided the court date given is a minimum of two weeks in the future, not counting Sundays or public holidays. If you fail to appear, you are in contempt of court and a warrant will then be issued.

Driving under the influence

There are strict procedures officers must follow in cases where they suspect drinking and driving. Haslam says to take note of the following:

• If an officer asks whether you have been drinking and you have, answer honestly to avoid a lie working against you if the breathalyser suggests otherwise.
• You may not unreasonably refuse to be breathalysed. If your blood-alcohol level is above the legal limit (0.05g/dl), you will be taken to a mobile unit, clinic or hospital for blood to be drawn.
• You have the right to call your own doctor, provided they can get there in time, and to insist on the use of sterile, clean equipment (opened in front of you) for drawing blood. If you don’t believe these health standards are being met, you may refuse to have blood taken until the situation is remedied.
• If the prosecution intends relying on the results of the blood samples to prove the case, these blood samples have to be taken within two hours of you being stopped, so keep an eye on the time. Late test results could be thrown out of court, as will results from test kits that were beyond their expiry date.
• A police officer should stay present when your blood is being taken
• You may be detained while your case is being processed. You should be detained with others of your own gender only.

If the worst happens

If you are arrested, Haslam says that the following rules apply:

• You must be told your rights immediately
• You must be taken directly to the nearest station
• You have the right to appear in court within two days
• You can apply for bail at the station, unless you are being held for a serious offence
• You still have the right to be treated professionally and with respect for your human dignity

Unlawful arrests and police brutality

She says that unfortunately, unlawful arrests and police brutality are a common occurrence in South Africa. “If you are ever a victim of unlawful, injurious behaviour, you may have grounds to launch a personal injury case of police brutality or unlawful arrest against the South African Police Services or the Metropolitan Police Department in your city.”

To launch a personal injury case

To successfully claim damages, Haslam says that it’s important to begin the claim process as soon as possible after an assault or wrongful arrest occurs, because there are cut-off times to factor in.

“To prepare, you should aim to gather: the names of the offending officers; witness(es) names and contact details; any relevant medical reports and invoices; and photographs of any visible injuries,” she adds.

If you believe you or another person is being badly treated or bullied by police or traffic officers, she says that it can help to get video or photo evidence. “However, be sure to consider your safety if doing so at the scene – trying to film the actions of the police could make you more of a target,” she warns.

Statutory requirements must be met before claims are initiated against any government body. Because the South African Police Services is a government agency, Haslam points out that claims against the police have their own complexities, requiring particular expertise. “Therefore it is worthwhile consulting with a reputable personal injury lawyer who can assist before making a claim,” she says.

She explains that in order to prosecute SAPS-related claims, other than the statutory notice periods (including what to put in the notice, where to send it and whether to include the Minister of Justice & Constitutional development, Director of Public Prosecutions etc. depending on the circumstances), expertise is needed to advise the client as to whether there is in the first instance a valid cause of action.

“Often members of the public seem to be under the impression that just because they succeeded with representations, charges were withdrawn or they have been found not guilty (or succeeded on appeal) they have an automatic right to sue the State,” she says.

“There are however various factors to consider and the truth is that more than 90% of the time there will probably not be valid grounds for a civil claim for wrongful arrest and/or prosecution in these circumstances (the claim often lying against the complainant for maliciously laying charges which the police then have to investigate, often unfortunately meaning arresting the accused).

She adds that the grounds of negligence to be proven are tough. “Or rather, the defences available to the police are often valid and very successful against claims of unlawful arrest.”

She continues: “The police will then enforce any negative cost order granted against the plaintiff. They always do, so a decision to institute civil action against the police is not to be taken lightly or without the necessary expert legal assistance as it can turn into an expensive lesson in the end.”

For more information visit: www.dsclaw.co.za

Via: DSC Attorneys