Failing To Stop For Police (NSW)
Failing to stop for police in New South Wales is an offence that carries heavy penalties. There are various reasons that police stop a motor vehicle, including if they “suspect on reasonable grounds” that the driver or passenger is committing or did commit an offence.
Section 39 of the Law Enforcement (Powers and Responsibilities) Act 2002 states a driver must not, without reasonable excuse, fail or refuse to stop the vehicle when directed by a police officer.
The maximum penalty is a fine of 50 penalty units ($5500), or 12 months imprisonment, or both.
When police can stop a vehicle
Section 36A of the Act grants a police officer the power to stop a vehicle if the officer suspects on reasonable grounds that the driver or a passenger is committing or committed an offence.
Police have the power to stop, detain and search a vehicle without a warrant if an officer reasonably suspects the vehicle:
- contains stolen property;
- is being, or was, or may have been, used in an offence;
- contains anything used or intended to be used in an offence;
- is in a public place or school and contains a dangerous item (such as a gun or bomb), that is being, or was, or may have been, used in an offence;
- contains a prohibited plant or drug;
- is in or near a public place or school and there is a serious risk to public safety.
Police also have the power to stop a vehicle at a roadblock they have established. They can have a roadblock set up for up to 6 hours if they suspect on reasonable grounds that:
- a vehicle is being, or was, or may have been, used in an offence;
- there are circumstances in the area that could pose a serious risk to public safety and a roadblock may lessen that risk.
Failure to stop for police, in the context of a police pursuit, is considered an offence under the Crimes Act 1900. Section 51B states that a driver commits an offence if they:
- know or ought to know that police are pursuing their vehicle; and
- do not stop the vehicle; and
- then drive recklessly or at a speed in a way dangerous to others.
For a first offence, the maximum penalty is imprisonment for 3 years. For a subsequent offence, the maximum penalty is imprisonment for five years.
Rights when pulled over
If you are stopped by police, the police have a right to:
- ask you for their name and address;
- ask you for your licence;
- conduct a random roadside breath or drug test;
- question you if they reasonably suspect your involvement in an offence;
- search the vehicle (in limited circumstances).
You have a right to:
- ask to see the officer’s police identification;
- ask why you have been pulled over;
- not answer questions, if you have a reasonable reason for refusing;
- record the names of witnesses at the scene.
What must be proven
The prosecution must prove:
- the driver was given a direction to stop;
- a police officer gave the direction;
- the driver knew they had been given a direction;
- the driver did not stop and did not have a reasonable excuse.
Defences to the charge include:
- that the direction given by police was not clearly given;
For advice or representation in any legal matter, please contact Armstrong Legal.