Monday, March 15, 2010

What are your rights when stopped at a roadblock?

Generally, when I tell someone new that I studied law, the response is akin to my having stuffed a particularly bitter lemon into his or her mouth – faces are pulled, sarcastic comments are muttered and sometimes, with the kind ones, there’s a quick look of distaste that passes over his or her face before it can be masked with polite interest. Given this, I’ve decided to do a series of blog posts on why the law is useful to you. The hope is that I’ll be able to illustrate the real impact that the law can have on your life (and win affection and popularity for myself).

I thought that I’d start with the question that everyone always asks me – what are my rights when I get stopped by the police at a road block. I’ve heard some pretty harrowing stories of policemen intimidating and threatening motorists with the goal of extracting a bribe. Frightened by the prospect of spending a night in jail and all the dangers that come with it, most people cave in and pay up. Given that I’m not a big fan of corruption and would prefer if people don’t get pushed into acting in a way that encourages it, I give you the Law-shield-that-may-work-in-some-instances-to-get-you-out-of-these-situations-but-unfortunately-not-in-all-instances.

So, here are the frequently asked questions:
  1. Can the police search my car and other possessions?
    Your car: Police officers are empowered to stop, inspect and test your vehicle to ensure that it complies with the safety and functionality requirements of the National Road Traffic Act (NRTA) and regulations. This includes the power to at any time enter your vehicle and inspect it.
    As a side note, the NRTA actually specifies that officers aren’t allowed to dismantle any parts of your car unless they happen to be a qualified mechanic and if they do, it’s compulsory for them to put it all back together again. If you are ever in the situation that a police officer actually dismantles your engine, please do write and tell us, we can put it on our ‘never saw that coming’ list of the impossible.
    Searching your other possessions: The State may seize anything which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence. Normally a police officer would need a search warrant to search your person or property. However, there are certain instances when they can do so without a warrant:
    i. You consent to the search for and seizure of the item or,
    ii. That police officer believes on reasonable grounds that a search warrant would be issued to him anyway and that the delay in obtaining such a warrant would defeat the object of the search.
    A lot can be said about what constitutes belief on ‘reasonable grounds’ but for our purposes it’s enough to say that it is required. If an officer is trying to search your stuff when it is clearly unreasonable and there is obviously no connection to an offence, he is overstepping his powers.

  2. Do I have to take a breathalyzer test? If so, what is the actual legal limit for blood-alcohol levels?
    • Yes, you do have to take a breathalyzer. The NRTA prohibits you from refusing to give a blood or breath sample. However, in the name of your protection (to avoid dodgy dealings) and just plain hygiene, make sure that the officer inserts a fresh mouthpiece into the base of the inhaler in your presence and that the mouthpiece is still covered by its protective covering. The protective covering should then be removed when you are ready to blow.
    Legal limit: The blood alcohol limit is 0,05 grams per 100 millilitres. Apparently, for an average 65kg woman, this means that your limit is about 1 glass of wine or 2 beers over 2 hours of drinking. For an average 70kg man the limit is approximately 2 glasses of wine or 2 beers. To calculate this easily for yourself go to
    http://www.health24.com/tools/bloodalcohol/start.asp.

  3. Can I be arrested for being rude?
    • Not in most cases (it depends on whether you go blurting out hate speech or become severely abusive). However, the NRTA does specifically prohibit you from threatening the police officer and his family with either physical violence or injury to their property. So keep your rage in your pocket.
    • On the other hand, to state the obvious, no-one likes a prick. There is no point in looking for trouble and annoying a police officer. At the risk of sounding preachy, we would suggest that you be polite and respectful and in most cases you’ll be treated in the same way in return.

  4. Can the police officer refuse to let me go on my way?
    • They can indeed. If you appear to be incapable of driving because of your physical or mental condition, the officer can temporarily forbid you to drive.

  5. If I get threatened or asked for a bribe what should I do?
    • Bluff tactics and crippling legal knowledge are useful here:
    o Ask for the officer’s name, unit and service identification number. Ask to see his badge and verify that he has given you the right name and number.
    o Start as many sentences as you can with ‘the Criminal Procedure Act/ National Road Traffic Act says...’ followed by you reeling off whatever you can remember from this blog-post.
    o Make it very clear that if the officer arrests you, you will consult a lawyer and you will sue for unlawful arrest.

13 comments:

  1. Howzit Emma, great article! However, my concern is that most Cops in SA won't comply to the very same laws which will often lead to negligence or abusive measures. Again, what if the scenario is set in an environment if we are driving alone and their are no other witnesses around to verify your knowledge of the laws above? Apart from that, will we still have rights to accuse the negligent cops thereafter.... or will it be snuffed by the Constitution as insufficient evidence?

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  2. From what I've heard, corrupt police officers will often leave you alone if you show you know the law - they get scared and back off. Unfortunately, that may not always work and if the cop persists, you may be arrested or fined and have to challenge it later.

    You can challenge the policeman's actions later even if there aren't any other witnesses. The problem of evidence is a common one in the law - there are many crimes that don't have immediate eye witnesses - but the court can look to surrounding circumstances and also hear testimony of both parties. Often the police officer is the one that has to prove that he or she had reasonable suspicions so the burden of showing this with evidence falls on them.

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  3. Nice post

    but when this sort of thing is happening, im not sure what hope you have if you are in the presence of dodge cops

    http://beta.mnet.co.za/carteblanche/Article.aspx?Id=3870&ShowId=1

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  4. I've seen breathalyzer kits on sale in Pharmacies. If one carried this around with you, and your one differs from the officer's one, what is your recourse?

    Their issue was announced by the Transport Minister Sibusiso Ndebele at the end of last year: http://www.iol.co.za/index.php?click_id=13&set_id=1&art_id=nw20091206173337721C329566

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  5. This is such an awesome post! Thank you guys! we should definitely have a resource online where people can consult as to what are their rights and what they can do and not do (with examples ofcourse). People don't understand their rights and are therefore taken advantage off. Something i like www.ihaverights.co.za (made up name) where it lists peoples rights in layman's terms with examples (like above). Such a brilliant article :)

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  6. Interesting article. Thanks!

    I do think it is whack that the police can search my car for 'compliance with regulations' without reasonable cause. Note to self: 'Hide the drugs in my underwear, not under the seat.'

    Check out Chris Rock's version of how to deal with being pulled over: http://www.youtube.com/watch?v=wOx6OM01M5M&feature=related

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  7. On the issue of abusive police check this article out from today on Eblockwatch which is a attempt to help individuals deal with corrupt policeman. See the article at http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20100315072152441C333080 or visit their website at http://www.eblockwatch.co.za/

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  8. @Warren: In deciding whether or not to arrest you, I’d imagine that the official breathalyzer would trump because those are certified and standardised (although recently there have been problems with a whole batch of the official breathalyzer machines, the results of which were declared invalid due to flawed certification processes).
    If you do get arrested and taken to court, you could bring evidence relating to the results shown on your breathalyzer to try to disprove the charge. However, in terms of the Criminal Procedure Act and National Road Traffic Act, the police can make you give a blood sample. If this is taken within a certain period of time it will provide fairly conclusive proof of whether or not you were over the limit, giving more accurate results than the breathalyzers.

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  9. Emma Lambert-PorterMarch 22, 2010 at 1:36 PM

    Emma.

    This is great! Although I'm not much of a drinker and I haven't made a habit actively provoking police offers. What would be more useful to me is knowing my rights with regards to traffic fines. From what I've understood, a police officer only has the right to arrest one for unpaid speeding fines if there is a warrant for your arrest and he/she has a copy of the original in his possession when one is stopped. Do you know more about this?

    I know they've recently changed the appeal system whereby you can only request that a fine is reduced once it has reached summons stage (at which point it becomes a 'legal issue', before that it's a 'traffic department issue'.)

    Knowing more would help me (and my dad).

    Thank you, law friend.

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  10. I have just been through a roadblock and the trafic cop wanted to take my drivers lisence which I refused to hand over to him. They also did not have a copy of the authority to hold a roadblock with them.

    What are my rights here

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    Replies
    1. They HAVE to provide a copy of authority from the Commissioner if requested...if they can't, then it is not a legal roadblock.

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