Been arrested?

Elizabeth Bulger
Elizabeth Bulger

By criminal defence lawyer Elizabeth Bulger

Citizens plunged into the drama of getting arrested have access to a list of lawyers who are willing and available to help.
This help is available free through the Police Detention Legal Assistance Scheme which is administered by the Legal Services Agency.

These lawyers are there to help people at a time when they are likely to be scared, bewildered, emotional, and possibly rather cross with themselves.

Some will be intoxicated or under the influence of other substances.

It is not a time for snap decisions. Getting some immediate advice is a good idea.

The lawyers are available any time – they will give phone advice to a drink-driver caught in the night’s smallest hours.
When people are arrested, the police have a series of obligations under the Bill of Rights.

They have to advise the arrested person that they do not have to say anything, and that anything they do say will be taken down and may be used in evidence.

They also have to tell the arrested person that they have a right to consult and instruct a lawyer without delay and in private.

A phone will be made available to them to do that, and the police will provide the list of available lawyers. It is available at the police stations, and also at the “booze bus” where drink-driving tests are carried out.

There is particular advice for people arrested in those circumstances.

My advice is generally to take the evidential breath test, because if you refuse that and then go on to refuse a request to give blood you are treated as if you have committed the offence anyway and you are liable for the same penalty.

A refusal can mean other problems down the track. If you are charged with drink-driving again within five years, that triggers an indefinite driving disqualification.

If you choose to give blood for a test instead of the breath-alcohol test, you are likely to be made to pay the analyst and the doctor’s fee. That’s between $150 and $300 on top of any fine.

The phone advice is free, and if the charge is so serious or complex that the lawyer needs to attend straight away, that attendance is free as well.

Of course, people can contact their own lawyer if they wish.

Usually when people contact lawyers, they want to know whether or not to make a statement.

If you are being spoken to by the police you have no obligation to provide them with anything more than your name and address.

A lawyer’s advice to people is usually that they don’t have to make a statement, but there are some situations where making a statement can assist you.

If you have an alibi or if you are claiming self-defence, for example, I would be inclined to advise the making of a statement so that the details can be checked.

If you leave it until later to raise these matters, a judge or jury might draw some conclusions from your failure to do so earlier.

If you are arrested, the police may decide to release you on police bail. The lawyer you contact may help to negotiate to convince the police that that should happen, or may help arrange a suitable address for you among your friends or family, if the nature of the offending means you can’t go home.

If you are held in police custody, you must be brought before a court as soon as practicable so that a judge can decide about court bail.
That can mean quite a wait in the cells if you have been arrested on a Saturday afternoon with no court sittings until Monday. It can be even worse over a long weekend.

We know that Christmas brings extra stresses for families, and an upsurge in domestic disputes.

With the courts running limited services over the holiday period, it is very good advice not to get caught up in the system around that time.


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