Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

If you have been affected by recent fires or storms,
Disaster Legal Help Victoria can help.

Being arrested

What happens when you are arrested by the police and your rights in custody.

On this page

A police officer can arrest you when they:

  • reasonably believe you have broken a law
  • have a warrant for your arrest
  • know you are a risk to a family member.

Once you have been arrested, you are not free to leave.

The police officer must tell you that you are under arrest. They do not have to do this if it is too hard for them to tell you, for example, you are running away from them.

You must go with the police officer if you are arrested

You must go with the police officer if you are under arrest or apprehended.

The police can charge you with ‘resisting arrest’ if you try to stop them from arresting you.

The police officer can use reasonable force to arrest you if you refuse to accept your arrest. Reasonable force means using enough physical force to arrest you, and no more. The police officer can only do this if they had the right to arrest you in the first place.

You can make a complaint if the police officer uses too much force to arrest you or tries to arrest you without a reason.

If you're not sure ask the police officer ‘Am I under arrest?’ and ‘Why am I under arrest?’. If you are not under arrest, you do not have to go with the police officer.

Police can no longer arrest you for being intoxicated (affected by alcohol) in public. For more information go to public intoxication.

Going to the station for a breath or drug test

If the police want you to take a breath or drug test at the police station, you are not actually under arrest. However, if you do not go with them to the police station for further drug or alcohol testing when you have been driving a vehicle, this can have an impact on your drivers license.

Being held in custody

After arrest, the police will take you into custody. This means the police officer will take you to a police station, custody centre or the police cells at court. You may have to travel in a police vehicle to get there. The police officer may handcuff you.

While you are in custody, the police may:

You can make two phone calls

You have the right to make two phone calls:

  • one to a lawyer
  • one to a friend or relative.

The police must give you a private space to use the phone. The police should not be able to hear you while you talk.

The police officer might not let you call anyone if:

  • they brought you into custody for a drink driving or drug driving matter
  • the police officer reasonably believes the phone call may:
    • help another person involved in the offence get away
    • lose, change or destroy evidence
    • put other people in danger.

How long do you stay in custody?

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

When you think the police have kept you in custody for too long:

  • ask when they are going to charge you or release you
  • ask to phone a lawyer
  • make a complaint later.

What happens to your personal property

The police will take your things (personal property) if the police are holding you in a police cell. They must list all property on a ‘property sheet’. They will then ask you to sign the sheet to agree with them about what property has been taken.

The police must give your property back to you when they release you from custody. They do not have to do this if they have kept your property as evidence or destroyed it.

If you need an interpreter

If you do not understand English very well, you can ask the police officer for an interpreter to help explain things. The interpreter must be qualified (not just a relative). You do not have to pay for this, the police will pay.

Help for First Nations people in custody

The police must tell the Victorian Aboriginal Legal Service (VALS) that they are holding you in custody. A client services officer from VALS will speak to you. They will offer support and advice. You can choose what advice you want to follow.

The police must also contact an Aboriginal Community Justice Panel, if there is one nearby. The Aboriginal Community Justice Panel works with government agencies and police officers to make sure Aboriginal and Torres Strait Islander people are looked after properly when dealing with the police, the courts or prisons. A panel member can give you support and advice. The police may release you into the panel member’s care if the case is not too serious.

Health needs and drug addiction

You can see a doctor if you need to. Ask the police officer to organise this. The police officer can call the Custodial Risk Management Unit. A nurse from the unit may be able to help you with medicine or treatment.

The police should help you get your medicine if you have a prescription. This includes prescriptions for methadone and buprenorphine (bupe).

Ask for your medication or medical attention before an interview starts. You might need help to get through the interview.

Other support

Find out how you can get other support for your rights when it comes to police powers.

I need legal information about

Updated

Back to top
Legal Help Chat