Police: "Give me your name and address or else!"

Have you ever resented being asked to give your name and address in order to do a breath test at a road alcohol check point? Have you ever wondered why they need your name and address to check your breath?

Lost Soul started the New Year with an unplanned test of his civil rights, the Privacy Act, and Police Powers by defying such an unnecessary request. I don't recommend you try this, especially if you are one of my American visitors!


Most people I have told this story to have told me I was being stupid, and that I should have just complied with his demand, end of story. (And they are right that I should have.) I went to the Police Station to ask more after the event about their procedures, and was told by a constable who obviously didn't like me that I should just be thankful I wasn't arrested, and that if the officer asked for my name and address it was obvious that it was because he needed it and that he wouldn't have asked me for it otherwise. He mentioned I could speak to the sergent (not the same one I tangled with on New Year's night), but told me I would just be wasting the sergent's time.

I spoke to the sergent who invited me into the interview room, and sat there silently, eyes closed, head bowed just listening to my story. "I'm not sleeping," he said, "I'm just listening carefully to what you are saying." I'm sure you've never had the total attention of a police officer before, just wanting to hear and understand you rather than set you straight, cut to the chase, give you a lecture, accuse you of hiding something or get you through some paperwork. I've also never met a more humble police officer who told me his failings and mistakes, as well as his opinions on the fruitlessness of increasingly severe consequences for those break the traffic laws. We talked together for two hours, and he asked me several times to join the police force!

I also wish to thank my father in supporting my position and proof-reading my complaint about what happened.

Finally, I must express my deeply felt thanks to my wife for helping and supporting her husband even when she disagreed with his conduct and attitude: she is the daughter of a police man and the sister of a police man, and comes from a culture where respect for people in authority is more engrained, but she said to me "I respect the law, so you have to show me how and where the law supports you."

My actions that evening were not just me thinking of myself and forgetting about my wife and two small children who were with me in the car. In fact even though it was unplanned, I want to show them by my actions and example that civil rights, proper legal purpose and procedure, and resistence to illegal use of power is something worth fighting for, even at the risk of suffering as a result of it. This post is dedicated to my wife and children.

The text of my formal complaint, filed with both the Privacy Commissioner and the Independent Police Conduct Authority is below:

Themes:
Before going into the details of what happened I would like to highlight the themes running through the incident, and the officer's conduct. In reviewing my complaint I would like you to notice the pattern of behaviour, because it adds to the credibility of each matter I detail. The themes are:

1.    The officer lost sight of the lawful purpose of the activity he was doing, and instead got very concerned about issues of no relevance whatsoever to his lawful purpose.

2.    The officer engaged in a battle of wills with me, and insisted on prevailing against me on the night.

3.    The officer acted illegally to 'win' the battle against me, by not acting for proper lawful purpose, by illegal use of physical force, by not following proper legal procedure in using powers, and by abusing police powers. He only ever appealed to his own will and his own power, and never to the law, or any law in particular, and he never stated that I was legally obliged to comply with his demands.

4.    My conduct was limited to what I believed to be minor resistance, causing no risk, harm or injury to anyone, to what I believed were demands and actions that were in breach of my rights and/or beyond the proper legal powers and proper legal purposes of the officer. I also accept that what I viewed as minor resistance is actually an arrestable offence, even if such arrest would serve no legal purpose.

What happened:
The police set up a compulsory breath test alcohol screening at the intersection. I approached from Tauranga on highway 29, with my wife and two small children in our vehicle.

I was signaled to stop by an officer in the customary manner and opened my driver window and was presented with a breath screening device, and the officer asked me to say my name and address into it. I said "hello, hello, hello" into the device so that he could conduct the breath screen test.

I did not say my name and address because I believed that the lawful purpose of the test was to detect alcohol in the breath, and that names and addresses were not relevant unless the test was failed or some other matter needed resolution (e.g. reasonable suspicion of some other offence), and that information should not be requested and need not be provided when not necessary for some proper and lawful purpose. I also did not believe he was formally requiring me to provide my name and address, as he did not state that he was requiring it mandatorily under law, or mention the law it was required under or the penalty for not providing it.

The sergeant was unhappy that I had not given my name and asked me to pull over to the side of the road and show him my driver licence. I pulled over to the side and gave it to him.

He asked for my name and address again. I replied that he had my driver licence, and that my name and details were on the driver licence. He appeared infuriated I still resisted his will. He also asked me to blow into another breath testing device until he said stop, which I did.

He also appeared to be fishing for a reason to forbid me from driving under the Land Transport Act, section 121, which provides for a police officer to forbid a person from driving if he is incapable of driving, e.g. due to intoxication or breaches of heavy vehicle driving hours limits, so he asked me when I last slept, and I responded that I slept the night before, which he accepted.

He did threaten to arrest me and he did threaten to forbid me from driving for not telling him my name and address, but I didn't take him seriously because he did not say he was requiring it mandatorily under law, or mention which law it was required under; he appealed only to himself, and to what he wanted. He wanted to impose his will on me, without reference to his lawful purpose that night, or to the law or any law in particular. I doubted the legality of his threats, as they seemed to be disproportionate to the circumstances, and his delivery of the threats seemed more like a gross exaggeration than a fair and formal demand and warning before taking further action. I also believed that even if he did have the power to arrest me for not giving him my name and address, that it would not be proper for him to do so because this patently served no lawful purpose, since he already had my name on the licence, he could look up my address on the computer (as a firearms licence holder I'm required to keep my residential address updated). What would he say if questioned about his decision to arrest me? "I really needed him to tell me his name and address when I had his driver licence in my hand because we.. er um, well I just needed ok?! Anyway the guy wouldn't give it to me! and I had no other option to get his address, it's not like I could have looked it up or anything right?"  I guess I was calling his bluff about the fact that he really didn't need me to tell him my name and address.

Upon finding that I was lawfully driving on a valid driving licence and with no sign of alcohol on my breath, and was not fatigued, it appears that the officer decided to complain to me 'for having a bad attitude' (i.e. resisting his will) and send me on my way. He gave me back the driving licence, but held on to one end of it while he complained about my attitude. In response to his complaint about my attitude, I responded to him that I thought he was the one with the attitude problem. He tried to take my licence back by force, but I held onto it. The reason I held onto it is because I was the one who should lawfully possess it, and because he had already seen it, and he was giving it back to me, and because he was using it as a tool to impose his will on me rather than to administer and enforce the law, and because I resented him using it that way and treating me that way. (My use of force to defend possession of movable property is lawful under sections 52 and/or 53 of the Crimes Act.) He also had not stated that he was demanding to see my driver licence, or that I was required to give it to him under law, or that there would be a penalty under law for not providing it, and as soon as he lost his grip on it, he lost interest in it and never sought it again.

He then took the keys from the ignition of my car and said he was forbidding me from driving that evening. He did not give a reason, although he did fish for a legal justification, asking if I was 'agitated' due to having a conflict with him (i.e. apparently fishing for a reason under section 121), trying to justify his decision after the fact.

I had to call a car and two drivers to pick us up and get us to our destination and they arrived after about 20 min.

My complaints about the Sergeant's conduct:

I have four complaints about this officer and his conduct:

1. The Officer Breached the Privacy Act, Privacy Principle 1. In asking for my name and address and responding adversely when I did not give it was in breach of the Privacy Act 1993, section 6, Principle 1: Purpose of collection of personal information
'Personal information shall not be collected by any agency unless—
      (a) the information is collected for a lawful purpose connected with a function or activity of the agency; and
      (b) the collection of the information is necessary for that purpose.'

I submit that the lawful purpose of a breath alcohol screen check point is to test the driver's breath for alcohol, and not to gather names and addresses of the drivers passing through it. The identity of the driver is only relevant should the test return positive for alcohol and the driver is required to conduct further tests or is to be charged with an offence.

I submit that the proper conduct of an officer administering such tests is to either not ask for this information at that point, and/or to accept if the driver wishes to say something else instead. For example, the officer could ask if the person had drank any alcohol that night or how their day was going, and the purpose and function of the breath screening would not be any less effective.

2. The Officer Breached the Privacy Act, Privacy Principle 3. In asking for my name and address, it should have been necessary for him to have this information for some lawful purpose. The officer breached Privacy Principle 3, concerning the manner in which he asked for it:
'Principle 3 Collection of information from subject
(1) Where an agency collects personal information directly from the individual concerned, the agency shall take such steps (if any) as are, in the circumstances, reasonable to ensure that the individual concerned is aware of—

·        (a) the fact that the information is being collected; and

·        (b) the purpose for which the information is being collected; and

·        (c) the intended recipients of the information; and

·        (d) the name and address of—

o        (i) the agency that is collecting the information; and

o        (ii) the agency that will hold the information; and

·        (e) if the collection of the information is authorised or required by or under law,—

o        (i) the particular law by or under which the collection of the information is so authorised or required; and

o        (ii) whether or not the supply of the information by that individual is voluntary or mandatory; and

·        (f) the consequences (if any) for that individual if all or any part of the requested information is not provided; and

·        (g) the rights of access to, and correction of, personal information provided by these principles.'

In the circumstances of a police officer asking a driver for his name and address, at the very least where the driver is reluctant to provide it, the officer should tell the person the purpose of collection, that he is requiring it mandatorily under law (if that is the case), and the law he is requiring it under (e.g. section 114 of the Land Transport Act), and the consequences for not supplying it (the other points are probably obvious enough to go without saying, unless specifically asked for). In my case the officer did not specify any purpose (because he had none) and did not invoke any authority to me other than himself, and he wanted me to accept his demand under no other explanation than it was what he was asking for -- no purpose, no recipients, no agency details, no law, no statement that it was mandatory. (He did threaten to arrest me for not providing it, which is a correct consequence, and to forbid me from driving, which was not. I did not take these threats seriously because he appeared to be acting not for proper lawful purpose, and because he had not mentioned any law I doubted that he legally had them for such circumstances). If he had told me he was requiring it mandatorily under sec. 112 of the Land Transport Act, under penalty of arrest I would have complied without delay.

3. Officer used illegal physical force to attempt to re-take my driver licence. The officer's conduct here is objectionable on three counts: a) unlawful purpose (or no lawful purpose), b) unlawful demand (or no lawful and proper demand), and c) improper and unlawful use of force to attempt to re-take possession of property.

This part of the incident also best shows the officer's intentions and the character of his conduct on the night, and does lend weight to my other claims of unlawful purpose and unlawful use of powers.

Unlawful purpose/No Lawful Purpose
Firstly the officer had no lawful purpose in holding onto one end of the licence or trying to re-take it from me. He had already asked for and received the licence and taken it away and was returning it to me. The fact that, after he lost hold of the licence, he did not demand it and did not seek it again also shows he had finished with it and had no lawful purpose in trying to re-take it by force.

The officer's intention and purpose in holding onto one end of my licence was to impose his will on me, and to deprive me of the benefits of possession of the licence should I resist his will. This intention and purpose can be seen from the fact that it was when I objected to his attitude that he tried to take it back by force. This is not a lawful purpose: his lawful purpose and function is to conduct the breath alcohol test and administer traffic law to achieve the objective of road safety.

Unlawful Demand/No Lawful Demand
If he had wanted it back for some lawful purpose, he should have demanded it, and, if necessary, told me he was requiring it under section 5 of the Land Transport Act. If I had then been reluctant to provide it to him, he should have warned me that I could face a fine of up to $1000 under section 31 of the Land Transport Act. Finally, if I had failed to provide it after lawful demand, and warning about the consequences of failing to produce it for him, he could have issued me with an infringement notice, and sent me on my way. At no stage did he make any lawful demand, or have any legal power to use physical force to attempt to re-take it, or have the right to use any failure to produce a licence as a basis for forbidding me from driving.

Improper and Unlawful use of force
Given the lack of legal purpose, and power to use force to attempt to re-take my licence, the officer's use of force to attempt to take possession of property is in fact not unlike hand-bag snatching.

The level and length of the force he used was considerable, probably 10 seconds of pulling and yanking, and ended only when I managed to pull hard enough to make him lose his grip, and in the process my licence was extensively damaged.

Violent theft of movable property is called robbery, which is a serious criminal offence under section 234 of the Crimes Act; I consider the officer's conduct here was akin to attempted robbery.

Even if you cannot accept that his conduct was akin to attempted robbery, the officer's conduct amounts to serious police misconduct: a police officer engaging in a school-ground-style bullying struggle with a member of the public, as a means of imposing his will over a member of the public whose primary alleged fault is objecting to the officer's conduct.

As mentioned above, my conduct in resisting the taking of my licence by force, was lawful and protected by the Crimes Act, sections 52 and/or 53.

4. The officer forbade me from driving for the evening. As with his other conduct he cited no lawful purpose or authority other than himself; he made no mention of the law, or that he was using his powers granted under the law, or which law he was using. He appeared to be fishing for a reason to forbid me from driving under section 121 of the Land Transport Act: e.g. as to when I last slept, or if I was feeling agitated due to the confrontation/struggle with him, but he did appear to be satisfied that I was not fatigued or otherwise incapable of driving. He had made his decision to use the power, and sought a pretext to justify his decision, both before and after he had executed his decision by grabbing my keys from the ignition.

His motive for forbidding me to drive was because I challenged his attitude. He determined that I would pay a price for doing this, and he was willing to risk getting caught breaking the law to make his point and win. I think he figured that it was unlikely I would formally complain about the incident and that if I did he would be able to fabricate a story about a hysterical driver or a driver who couldn't keep his eyes open or some such version of events that would whitewash his abuse of police powers.

My motive in complaining is not to punish him (I wish only that he be corrected if any fault is found) but to, as far as possible, demonstrate to my wife and children who witnessed the event that police who are not acting for lawful purpose, not acting according to the lawful procedure, and/or are going beyond their powers or abusing their powers, should be lawfully resisted, and that any alleged misconduct should be reported to the proper authority for investigation. I also accept that I must provide my name and address when it is lawfully demanded of me, and that I risk arrest if I don't, and that failure to provide name and address when demanded is not a lawful form of resistance, even if the request serves no legal purpose.

I submit that the proper purpose of forbidding a person from driving under section 121 is for that person's safety and the safety of other road users, and it should only be done when the capacity of the person to drive is very seriously degraded. The law uses the term 'is incapable of having proper control of the vehicle', which represents a very high level of driving impairment. I submit that no reasonable grounds existed to justify a belief that I had lost the capacity to drive that night, and that the officer did not believe I had lost the capacity to drive. If he offers a different version of events to support a claim to the contrary, this should not just be seen as 'his word against mine' but as a version that lacks credibility, and one that has a motive to fabricate to whitewash his actions on that night.

I am glad I maintained enough self-control on that night to avoid shouting, swearing, insulting, threatening, or getting out of my vehicle, as this reduced the chances of my conduct and condition on the night being credibly misconstrued as providing reasonable grounds for a belief I had lost the capacity to drive. Apart from exchanging words about rights, powers and attitude problems and holding onto my licence there is no conduct of mine to misconstrue.

I did have a brief conversation with another older looking officer, asking him if he was the superior officer to the person I am complaining about, to which he replied that he was not, and that the officer I was complaining about was a Sergeant and the most senior officer there. After he told me that, I stopped talking to him and he went away. If you ask him I think he will tell you I appeared nothing more than frustrated that I had no one else more senior to appeal to on that night. You can also ask my wife about what happened and about my conduct and condition.

My Requests to the Authorities
This complaint is made to both the Privacy Commissioner, and the Independent Police Conduct Authority.

I request the Privacy Commissioner to investigate complaints 1 and 2 only, which deal with privacy law. I am seeking a finding that the officer breached my privacy rights, and confirming that and detailing how the privacy principles 1 and 3 apply to traffic law enforcement under the Land Transport Act. Complaints 3 and 4 are to provide a context only, showing how a police breach of privacy law can lead to adverse consequences for citizens.

I request the Independent Police Conduct Authority to investigate complaints 1 to 4.

Regarding complaints 1 and 2, I suggest that your primary concern should be to seek legal advice about the application of the Privacy Act to traffic law enforcement practices and policies, and to review traffic law enforcement practices and policies to identify and correct any faults. I have spoken to a few police officers about the topic and it appears that they all seem to believe (erroneously, in my view) that the privacy principles 1 and 3 of the Privacy Act do not apply to demands for information from motorists under the Land Transport Act. Although I have complained that the officer lost perspective on his lawful purpose, and that his conduct  listed in complaints 1 and 2 advanced no proper or reasonable traffic law purpose, and you may wish to investigate this and may find fault with the officer in this count, myprimary concern is for traffic law policies and practices.

Regarding complaints 3 and 4, I am seeking only findings of fault in the officer's conduct. I would also appreciate if the New Zealand Police would pay for or re-imburse me for the cost of replacing my damaged driver licence.

Thankyou for your careful consideration of this complaint; I await your decision with interest.

In addition to my testimony detailed above, which I certify is an honest and accurate account of the events that night and my reasons for resistance and complaint, I enclose, as further evidence, photographs of my damaged driver licence.