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Being arrested

When can I be arrested?

The police can only arrest you when they think you have broken a law or they have a warrant for your arrest. A warrant is a court order that says what the police can do.

When you are arrested the police may handcuff you and take you to the police station.

When the police take you into custody you should always ask the police officer ‘Am I under arrest?’ and ‘Why am I under arrest?’.

Police must tell you that you are under arrest unless it is not practical for them to do so – for example, if you are being violent towards them.

When do I have to go with the police?

When the police arrest you, you must go with them.

The police might ask you to go with them to the police station without arresting you. You can choose not to go with them.

Sometimes you must go with the police when you are not under arrest. For example, when the police want to do a ‘breathalyser’ test (for alcohol) or a drug test. After this, you must go with the police to get a blood test if they ask you to.

The police have special arrest powers if they believe you have a mental illness. See ‘People with a mental impairment’ (link below).

What if I disagree with the arrest?

If you refuse to accept your arrest, police can use reasonable force to arrest you. Reasonable force means using enough physical force to arrest you, and no more.

If you try to stop the police from arresting you, you can be charged with ‘resisting arrest’.

The police can only use reasonable force if the law says that there are reasons to arrest you. If the police use force to arrest you without a reason you can make a complaint. See ‘Complaints about police’ (link below).

What happens after I am arrested?

When the police arrest you, you may be:

  • questioned by police
  • taken to a police station
  • asked to give your name and address for police records
  • formally interviewed by the police
  • fingerprinted by the police
  • charged by the police
  • taken to a bail justice or to a court to make a ‘bail application’. A bail justice is someone who can give or refuse to give you bail outside of court operating hours.

How long can the police hold me?

The police can only keep you in custody for a reasonable time before they charge you. The law does not define what is a reasonable time. The length of time depends on the seriousness of the offence and how long it takes the police to question you.

If you think you have been kept in custody for too long you can:

  • ask police when they are going to charge you with an offence or release you
  • ask to phone a lawyer
  • make a complaint later (see ‘Complaints about police’, link below).

When will I be released or charged with an offence?

After the police have spoken to you, you may be:

  • released from police custody without being charged
  • released from police custody but charged later – in this case the police will ‘serve’ (give you a written copy of) charges at a later date (‘on summons’)
  • charged but released on bail
  • charged and kept in custody until you go to court – for example, if you are arrested on Friday night you will go to court on Monday morning.

Bail

Bail means you are released from custody if you promise to go to court to face the charges against you. The police can give you bail at the police station.

When the police do not think bail is right for you they must take you to court, where you can apply for bail yourself. The court will decide if you should get bail.

When the court is closed, the police will take you to a bail justice – for example over the weekend. If they refuse your bail then you have to stay in custody until you can go to court and make a bail application.

A lawyer can help you make another bail application if the court will not give you bail.

More information

Complaints about police

Koori community

People with a mental impairment

Terrorism laws

Youth issues – Young people and the police

Related publications

Your rights: police powers in Victoria

How we can help

Call Victoria Legal Aid’s (VLA) Legal Information Service for free information over the phone about the law and how we can help you with your legal problem. You can speak to a legal information officer in English or ask for an interpreter. Phone (03) 9269 0120 or 1800 677 402 (country callers), Monday to Friday from 8.45 am to 5.15 pm.

VLA’s other free legal services include:

  • advice at VLA offices and other locations across Victoria
  • advice at many correctional facilities, remand and detention centres
  • lawyers who are on ‘duty’ to help at many courts and tribunals.

For some criminal law matters we can provide you with a lawyer to help you run your case.

To find out more about any of our legal services see What we do.

Who else can help?

Your local community legal centre (CLC) can give you legal information and advice. Most CLC services are free. See the Community Law website for more information and CLC contact details.