can police breath test you on private property?

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richgamer

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#29196 28-Dec-2008 16:35

if you are driving on the road and someone spots you driving badly and you go onto your private property and go inside, can the police breath test you? because it would be hard to prove if the person didn't just go home, drink alcohol before the police arrived which means the person could just say i wasn't over the limit when on the road but once i got home i drank alcohol which is why i'm over the limit now.

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#186382 28-Dec-2008 16:42

You seem to have an unnaturally keen interest in the police/laws and how to avoid/circumvent them.

I would say that there is a HUGE difference to driving while under the influence, in a manner that a member of the public would report you, and you have a beer or two when you get in the door.

Unless of course you are a 16 year old with no tolerance, and really bad driver.

bigal_nz

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#186386 28-Dec-2008 17:10

richgamer: if you are driving on the road and someone spots you driving badly and you go onto your private property and go inside, can the police breath test you? because it would be hard to prove if the person didn't just go home, drink alcohol before the police arrived which means the person could just say i wasn't over the limit when on the road but once i got home i drank alcohol which is why i'm over the limit now.

Under some circimstances they can.

Re question two, there is case law on that, and that you had a drink after you stopped driving is not a defence. I cant remember the name of the case.

Incidentially any one who drink drives is a d**k head, and those that defend them are just as bad.

-Al

stagnant16

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#186387 28-Dec-2008 17:14

richgamer: if you are driving on the road and someone spots you driving badly and you go onto your private property and go inside, can the police breath test you? because it would be hard to prove if the person didn't just go home, drink alcohol before the police arrived which means the person could just say i wasn't over the limit when on the road but once i got home i drank alcohol which is why i'm over the limit now.

If they follow you onto the property then YES!

If they rock up a few hours later then no - But you are obliged to tell them who was driving the car if a crime was committed!

NZFINEST

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#186389 28-Dec-2008 17:17

how long had you been home for before the cops came over ??
did you get arrested and DIC'd ??
did you give any type of statement

Anything I suggest or say is my own thoughts and not provided by anyone else unless stated

bigal_nz

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#186391 28-Dec-2008 17:26

stagnant16:
richgamer: if you are driving on the road and someone spots you driving badly and you go onto your private property and go inside, can the police breath test you? because it would be hard to prove if the person didn't just go home, drink alcohol before the police arrived which means the person could just say i wasn't over the limit when on the road but once i got home i drank alcohol which is why i'm over the limit now.

If they follow you onto the property then YES!

If they rock up a few hours later then no - But you are obliged to tell them who was driving the car if a crime was committed!

Note quite correct. There is a common law right for anyone (including the Police) to go to your front door.

stagnant16

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#186404 28-Dec-2008 19:48

Note quite correct. There is a common law right for anyone (including the Police) to go to your front door.

hahah yes sorry I didn't mean they'd bowl the door down.

I believe in the past they didn't even have the right to follow you onto private property.

corksta

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#186415 28-Dec-2008 20:27

This is from section 119 of the Land Transport Act 1998:

Powers of entry

(1) An enforcement officer may exercise the powers conferred by subsection (2) if the enforcement officer

(a) Has good cause to suspect that a person

(i) Has contravened a request or requirement or demand made under section 114 (other than subsection (1); and

(ii) Has also committed or is committing an offence against section 35(1)(a) or section 35(1)(b) (which relate to reckless or dangerous driving offences), or is, or has recently been, driving under the influence of drink or a drug, or both; and

(b) Is freshly pursuing that person.

(2) The enforcement officer may, without warrant, in the course of the pursuit enter, by force if necessary, any premises which the person has entered, for either or both of the following purposes:

(a) Determining whether or not a power conferred on an enforcement officer by section 68 or section 69 should be exercised in respect of that person:

(b) Exercising or completing the exercise of any such power in respect of that person (as if the person were in a motor vehicle on a road).

Sections 68 and 69 relate to who must undergo a breath screening test, but section 119 essentially gives the police the legal authority to remain on your property (when they've been in fresh pursuit) to carry out a breath screening test if you try to tell them to get lost.

Other comments are correct: if the police are not in fresh pursuit and they turn up a considerable amount of time later then you are within your rights to ask them to leave your property and they cannot invoke section 119. If they're in fresh pursuit you're screwed basically.

Sharesies

Trade NZ and US shares and funds with Sharesies (affiliate link).

richgamer

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#186515 29-Dec-2008 14:50

what common law says anyone can go to your front door?

bigal_nz:
stagnant16:
richgamer: if you are driving on the road and someone spots you driving badly and you go onto your private property and go inside, can the police breath test you? because it would be hard to prove if the person didn't just go home, drink alcohol before the police arrived which means the person could just say i wasn't over the limit when on the road but once i got home i drank alcohol which is why i'm over the limit now.

If they follow you onto the property then YES!

If they rock up a few hours later then no - But you are obliged to tell them who was driving the car if a crime was committed!

Note quite correct. There is a common law right for anyone (including the Police) to go to your front door.

corksta

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#186523 29-Dec-2008 15:48

richgamer: what common law says anyone can go to your front door?

Common law is the system of laws developed in England based on court decisons, and the doctrines implicit in those decisions, rather than a written law as such. So there is no written law that says "the court orders that everyone and anyone can walk up to your door", but based on cases tested in the court it is implied that people have the "right" to go to someone's door provided they have genuine intentions.

Basically for New Zealand it means that, for example, a door to door salesperson doesn't need to send you a letter, call you up, etc, just to get permission to go to your door, it is their "right" to go to your door and what you decide to do after that is totally up to you.

Dratsab

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#186525 29-Dec-2008 15:53

Common law isn't a written law, it's a set of circumstances, loosely based on common sense, relating to the rights of everyone. These "laws" have been gradually building since King John signed the Magna Carta back in the 13th century and have been amended, as time has progressed, to keep in step with needs of the time.

Under common law everyone has the right to approach you house and knock on the doors. That includes the postal worker who wants to deliver your mail, courier driver who wants to deliver your summons, gang members who want to smash you over, the burglars who want to break in and take your stuff and police officers who want to request you undergo a breath screening test (BST).

Common law is enshrined in judges rulings, whether they be District Court, High Court or Supreme Court judges. The only way to get around the right of everyone to rock up to your front door and knock on it is to trespass them. Each and every one of them - you can't issue a blanket trespass notice which covers, for instance, all Geekzone users or all police.

If police are in fresh pursuit of you and you refuse to undergo a BST you will be arrested and given a pleasant drive back to their place, free of charge, for further dealings in a room which will have some quite technical machinery in it which, as a Geekzone person, I'm sure you'll be very "in to". Dependant on your level of cooperation from there, you will either be released after a relatively short period of time or booked into one of the many comfortable suites they (usually) have available. This too is free of charge, as is breakfast.

If police are not in fresh pursuit of you, you may refuse to undergo a BST. However, if someone can positively ID you as having driven your vehicle a short time ago in a dangerous or reckless manner and you stink to bits of alcohol and can hardly speak or stand, or whatever, you'll may end up being arrested anyway (this is called reasonable cause to suspect) and put on the breathalyser at the police station.

Alcohol works through your body (absorption through gut and removal via the liver) at quite specific rates, so if you're smashed and someone can stand up in court and say you were at the wheel (positive identification) only minutes before police arrived, you're not looking good...

Look on the bright side though - think of how much money you'll be saving in petrol, parking, vehicle wear and tear etc when you get disqualified for 6 months :-)

Edit: ha ha - corksta got in before me!

corksta

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#186533 29-Dec-2008 16:11

LOL good answer Dratsab!!!!!

And to expand just slightly based on your answer, it's clear there's no hard and fast definition of "fresh pursuit" - it all comes down to the circumstances of each individual "pursuit".

GeekGuy

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#186538 29-Dec-2008 16:21

Years ago ... I had a friend who was a Traffic Cop (back when they were separate from the Police) and he advised me that if ever I got drunk and crashed my car that I should never go home and to stay somewhere else for the next 24 hours, as they will visit your house and test you for alcohol. That said, he also stated that if he ever caught me drink driving he would have no problems with charging me as he had no time for drink drivers and has seen the results of what they can cause.
All this was back in the early 80's and I dont know whether the laws have changed or not since then.

Aaroona

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#187025 2-Jan-2009 14:52

corksta:
richgamer: what common law says anyone can go to your front door?

Basically for New Zealand it means that, for example, a door to door salesperson doesn't need to send you a letter, call you up, etc, just to get permission to go to your door, it is their "right" to go to your door and what you decide to do after that is totally up to you.

I hate door-to-door salesperson/s. We get alot of them around here. If it's not for vacuum cleaners its for the movies, if not movies its for the movie stores.

It's endless and annoying..
If only there was something we could do about those people.

and just be warned people, if you get visited by the people from Kirby (the vacuum cleaner place), the sales staff are very pushy, persistant and actually quite rude.

We've had two lots of them now, and they tried every trick in the book to get us to buy one. In fact, they were at our house for 3 hours before we asked them to leave. THey really don't like the word/answer; "No"

ANyways, thats more off-topic than this off-topic, topic.

My bad :P

bigal_nz

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#187036 2-Jan-2009 16:54

I will second the bit about the Kirby people. They just wont take no for an answer!!

Asmodeus

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#187481 5-Jan-2009 12:34

So what happens if you have a locked gate at the street and/or large dogs, etc and refuse to come out of the house? Can they climb the fence or have the dogs snared or something?

Also, what if you pretend you're not home...?

Not trying to spread law evasion tactics here, just wondering :)

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