Traffic Law - Access to your property

**PrincessBandit** · 17th December 2010, 13:47

Got our regular newsletter from Inder Lynch (solicitors) and there was a big article on the rights of officers to enter your property.

It was written by John Foliaki (senior firm lawyer who specialises in traffic law).

As I'm not sure about the legal ramifications of duplicating the contents I'll just outline the main points. The whole thing can probably be viewed at www.inderlynch.co.nz for anyone really fascinated sufficiently to read it all.

Main points:
1. The Land Transport Act allows an officer to enter any premises which a person (the officer believes or suspects to have commited a serious traffic offence) has entered BUT there is an emphasis on it being in the course of "fresh pursuit". i.e. it is not an automatic right for an officer to enter if there has been a break in the chain of events during the "fresh pursuit". Turning up on your doorstep some time after the event does not constitute "fresh".
2. "No one is permitted to set foot on the land of another unless they can show lawful justification for doing so". Trespass will not be accorded if (a) the entry is authorised by statute (e.g. fresh pursuit), (b) the entry is expressly authorised by or on behalf of the landowener e.g. inviting someone onto your property, (c) entry is impliedly authorised by or on behalf of the landowner, (d) entry is justified by necessity or on some other basis recognised by law.

All this means is that once a driver is on his/her own property the driver has some protection from Police officers. The legal provision of "fresh pursuit" only operates if conditions of the Land Transport Act are strictly adhered to by such officers. If it is NOT a "fresh pursuit" then the officer is still legally entitled to be on the property by virtue of the implied licence, until that licence is revoked "clearly and unequivocally" by the owner or occupier of the land concerned.

The example used in the article was of a driver who was sighted driving erratically after consuming alcohol but the Police only followed up on him at home later, requesting a breath test. The driver had locked himself in his garage and refused to come out. The Appeal Court held that the verbal refusal by the occupier/driver to come out of the garage constituted a lcear and unequivocal revocation of the officer's implied licence to remain on the driver's property.

As it turned out the officer involved said that he might have to use force to enter so the guy basically gave in, opened the door and submitted to the breath test.

The article was based around how occupiers can revoke implied licence for officers to be on their property. (Although I'm sure they weren't actually encouraging people being pursued by Police to obstruct the course of justice...!) I'm sure no riders here would have to resort to locking themselves in their garage and refusing to come out for the law, would they.

**miloking** · 17th December 2010, 16:58

Ok great, now i know that if i ever do a runner and make it home first i can just lock myself in a garage and horrible popo boogeyman cant get me there...as long as he doesnt "trick" me with friendly pleading and/or threats into opening the door.

**red mermaid** · 17th December 2010, 19:13

There's more than one way to skin a cat, and if you are old enough and experienced enough you will know ways to work within the law and still get a result.

Originally Posted by miloking

Ok great, now i know that if i ever do a runner and make it home first i can just lock myself in a garage and horrible popo boogeyman cant get me there...as long as he doesnt "trick" me with friendly pleading and/or threats into opening the door.

**PrincessBandit** · 17th December 2010, 19:47

Originally Posted by miloking

Ok great, now i know that if i ever do a runner and make it home first i can just lock myself in a garage and horrible popo boogeyman cant get me there...as long as he doesnt "trick" me with friendly pleading and/or threats into opening the door.

Leopards never change their spots and I see that neither do spotted dicks.

**marty** · 17th December 2010, 20:03

i know of a couple of senior cops that have got off using this defence. if, though, you think that doing a runner into your property then locking yourself in the house will work - you're wrong. power of entry is complete if in 'fresh pursuit' -

**HenryDorsetCase** · 17th December 2010, 20:05

Originally Posted by red mermaid

There's more than one way to skin a cat, and if you are old enough and experienced enough you will know ways to work within the law and still get a result.

.............really?

**miloking** · 17th December 2010, 20:35

Originally Posted by marty

i know of a couple of senior cops that have got off using this defence. if, though, you think that doing a runner into your property then locking yourself in the house will work - you're wrong. power of entry is complete if in 'fresh pursuit' -

Well and thats where you get into the slightly grey area of "fresh pursuit" ...so if popo lost a sight of the "fleeing rider", and they were heading in a general direction of the riders house...can popo just turn up hour later and kick the door down? What about two hours...or two days?

**miloking** · 17th December 2010, 20:37

Originally Posted by PrincessBandit

Leopards never change their spots and I see that neither do spotted dicks.

Its called "build a bridge & get over it" i was only trying to have hypothetical discussion on the topic you brought up...and you have to start with the whole "dick thing" all over again...

**Katman** · 17th December 2010, 21:06

Originally Posted by miloking

and you have to start with the whole "dick thing" all over again...

You've made it all too easy for us.

**AllanB** · 17th December 2010, 21:23

Bugger
I can see it now - there I am minding my own business in my own private garage just finishing off a worn rear tyre at 6,000 rpm and a hand reaches through the smoke and taps me on the shoulder - 'ello ello sir, just what do you think you are doing then? ...."

And they would probably report me to the council for lighting up during the summer fire ban season.

**SMOKEU** · 19th December 2010, 22:57

Originally Posted by miloking

Ok great, now i know that if i ever do a runner and make it home first i can just lock myself in a garage and horrible popo boogeyman cant get me there...as long as he doesnt "trick" me with friendly pleading and/or threats into opening the door.

Jump a few fences and you'll be sweet.

**Max Preload** · 20th December 2010, 22:58

Here's one we prepared earlier...
http://www.kiwibiker.co.nz/forums/sh...ers-my-home...

Originally Posted by AllanB

Bugger
I can see it now - there I am minding my own business in my own private garage just finishing off a worn rear tyre at 6,000 rpm and a hand reaches through the smoke and taps me on the shoulder - 'ello ello sir, just what do you think you are doing then? ...."

And they would probably report me to the council for lighting up during the summer fire ban season.

There's no smoke without fire! Oh... wait...

**marty** · 21st December 2010, 07:04

Originally Posted by miloking

Well and thats where you get into the slightly grey area of "fresh pursuit" ...so if popo lost a sight of the "fleeing rider", and they were heading in a general direction of the riders house...can popo just turn up hour later and kick the door down? What about two hours...or two days?

I have lost a NG on a 5 minute delay. I know of losses (or wins - depending which side you're on) on much less (like 2 minutes), so an hour later is unlikely to be even tried. IF though, they turn up, say 'were you driving?' and you're dumb enough to say yes, then blow in the bag by consent, you will have a tough time getting off (and yes people have done this and gone down for it)

And the cops can turn up and kick your door in any time they like. Whether they'll get away with it is another thing....

**rastuscat** · 21st December 2010, 08:36

I've suggested this to a few people over the years.

If you don't want to get caught drink driving, (or doing any other illegal thing), invent a time machine. Wind it back a few hours, then relive the time without breaking the law.

Certainly you'll not get caught.

In summary, until you can invent a time machine, don't break the law, and you won't get caught.