Whether you’ve been arrested, detained or are simply being questioned by the police, exercising your right to obtain legal advice from a lawyer can be the difference between being charged or walking away without a conviction. This article explores the reasons why people often hesitate to seek help from a lawyer, and the case study that follows demonstrates the importance of getting legal advice.
Misconception 1: I have to answer questions from the police before speaking to a lawyer
Most people think they must answer questions from the police immediately, especially if they don’t think they have done anything wrong. However, you have the right to remain silent until you’ve spoken with a lawyer. This is important because anything you say can be used as evidence in Court. The legal system is complex, with confusing jargon and procedures, and even innocent people can unintentionally make statements that are misinterpreted or used against them. A lawyer will guide you through the process, ensuring you have legal support in an environment that can feel coercive and intimidating.
Misconception 2: Asking for a lawyer makes me look guilty
The notion that requesting a lawyer will imply guilt is mistaken. Your right to legal counsel is a fundamental protection in the New Zealand Bill of Rights Act 1990. The law guarantees that you cannot be penalised for seeking legal advice, and doing so means that you are taking your situation seriously.
Misconception 3: The police will inform me of all my rights
While the police are required to inform you of certain rights, it is your responsibility to understand and assert your rights. Speaking with a lawyer ensures you are fully aware and appreciate the extent of your legal protections. A lawyer can also be physically present during interactions with law enforcement, helping to preserve your rights throughout the process. This presence serves as a buffer against the psychological pressure of detention, providing support and guidance when you need it the most.
Misconception 4: Speaking with a lawyer is too expensive
The Police Detention Legal Assistance (PDLA) scheme has been set up so that you can talk to a lawyer for free. You should be allowed to talk to a PDLA lawyer if the police have arrested you or you have been detained. Speak to them, as you have everything to gain from their advice and nothing to lose.
Legal advice for drink drivers
Sarah’s case study below illustrates how failing to seek legal advice can profoundly affect the outcome of a case.
Sarah is stopped by the police at a checkpoint stop for a routine breath test. Feeling anxious, Sarah starts talking to the police to try to appear cooperative. Sarah tells the police that she had five drinks within two hours and that her last wine was 15 minutes before being stopped.
Sarah does not know her rights, so she does not exercise her right to remain silent. By sharing this information with the police, they can record her statements and use them as evidence in court against her because she has admitted to consuming alcohol.
Sarah takes the breath screening test, which shows she is over the legal limit, and accompanies the police to the booze bus for an evidential breath test.
The evidential breath test shows Sarah has 703 micrograms of alcohol per litre of breath, which is well above the legal limit. When asked whether she wants to elect a blood test, she declines.
Sarah didn’t realise that choosing to do a blood test would likely have been more beneficial for her. This is because she had consumed several drinks quickly just before being stopped, meaning the alcohol might not have fully absorbed into her bloodstream. As a result, her blood alcohol concentration could have been lower than her breath alcohol concentration. Unaware of this option, Sarah relies solely on the evidential breath test results.
As confirmed in a case called Rae v Police [2000] 3 NZLR 452, a lawyer could have informed Sarah that blood test results take time to process, so she would not have been charged until the results of the blood test were available. This would have meant that Sarah would not have been subject to immediate arrest, giving her more time to consult a lawyer to plan her defence or mitigate her sentence.
Furthermore, because Sarah’s evidential breath test reading exceeded 650 micrograms of alcohol per litre, the police immediately suspended her license for 28 days under section 95 of the Land Transport Act. Given that it takes time to process blood test results, a lawyer could have advised her to choose a blood test to avoid the immediate suspension.
During the procedures, the police officer also failed to advise Sarah without delay that she had failed her evidential breath test. If she had spoken to a lawyer, they could have identified this mistake as a procedural error and advised her to challenge the admissibility of her breath test result.
Ultimately, as this is Sarah’s first offence, she has been charged under section 56(1) of the Land Transport Act 1998 for driving with excess breath alcohol. She faces a conviction, fine and a mandatory six-month disqualification period. These penalties could have long-lasting consequences for her, but had she spoken to a lawyer, this outcome could have been avoided.
