2800(a) Arrestable???

[Gundo]

Ok real quick, stop a vehcile today...Driver has an expired cdl, since 06. The passenger has a valid licesne. So issued the driver a cite for 12500(a) with a strong warning...DO NOT DRIVE!! I explained to him I see you drive and I will stop you again, issue you a second ticket and tow your truck. Time, 0700 hrs today.


OK 1145 hours today see him driving again, stop him and tow his truck. Take him to jail for 2800(a) CVC, later find out that it is not arrestable...so I cite him out...what else could I have done?? Help...

[Blizzination]

What does your department policy say on arresting 12-5's? We can arrest for 12500...I hardly ever do it, but the option is there.

And who told you 2800(a) isn't an arrestable offense? It's a misdemeanor last time I checked.

[DAL]

And who told you 2800(a) isn't an arrestable offense? It's a misdemeanor last time I checked.

Not all Vehicle Code misdemeanors are arrestable offenses.

Optional Appearance Before a Magistrate

40303. (a) Whenever a person is arrested for any of the offenses listed in subdivision (b) and the arresting officer is not required to take the person without unnecessary delay before a magistrate, the arrested person shall, in the judgment of the arresting officer, either be given a 10 days’ notice to appear, or be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made. The officer may require that the arrested person, if he or she does not have satisfactory identification, place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the 10 days’ notice to appear when a 10 days’ notice is provided. Except for law enforcement purposes relating to the identity of the arrestee, a person or entity shall not sell, give away, allow the distribution of, include in a database, or create a database with, this print.

(b) Subdivision (a) applies to the following offenses:

(1) Section 10852 or 10853, relating to injuring or tampering with a vehicle.

(2) Section 23103 or 23104, relating to reckless driving.

(3) Subdivision (a) of Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle to stop and submit to an inspection or test of the lights upon the vehicle pursuant to Section 2804, that is punishable as a misdemeanor.

(4) Subdivision (a) of Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle to stop and submit to a brake test that is punishable as a misdemeanor.

(5) Subdivision (a) of Section 2800, relating to the refusal to submit vehicle and load to an inspection, measurement, or weighing as prescribed in Section 2802 or a refusal to adjust the load or obtain a permit as prescribed in Section 2803.

(6) Subdivision (a) of Section 2800, insofar as it relates to a driver who continues to drive after being lawfully ordered not to drive by a member of the Department of the California Highway Patrol for violating the driver’s hours of service or driver’s log regulations adopted pursuant to subdivision (a) of Section 34501.

(7) Subdivision (b), (c), or (d) of Section 2800, relating to a failure or refusal to comply with a lawful out-of-service order.

(8) Section 20002 or 20003, relating to duties in the event of an accident.

(9) Section 23109, relating to participating in a speed contest or exhibition of speed.

(10) Section 14601, 14601.1, 14601.2, or 14601.5, relating to driving while the privilege to operate a motor vehicle is suspended or revoked.

(11) When the person arrested has attempted to evade arrest.

(12) Section 23332, relating to persons upon vehicular crossings.

(13) Section 2813, relating to the refusal to stop and submit a vehicle to an inspection of its size, weight, and equipment.

(14) Section 21461.5, insofar as it relates to a pedestrian who, after being cited for a violation of Section 21461.5, is, within 24 hours, again found upon the freeway in violation of Section 21461.5 and thereafter refuses to leave the freeway after being lawfully ordered to do so by a peace officer and after having been informed that his or her failure to leave could result in his or her arrest.

(15) Subdivision (a) of Section 2800, insofar as it relates to a pedestrian who, after having been cited for a violation of subdivision (a) of Section 2800 for failure to obey a lawful order of a peace officer issued pursuant to Section 21962, is within 24 hours again found upon the bridge or overpass and thereafter refuses to leave after being lawfully ordered to do so by a peace officer and after having been informed that his or her failure to leave could result in his or her arrest.

(16) Section 21200.5, relating to riding a bicycle while under the influence of an alcoholic beverage or a drug.

(17) Section 21221.5, relating to operating a motorized scooter while under the influence of an alcoholic beverage or a drug.

(c) (1) A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through his or her local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.

(2) Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.

(3) Upon receipt of the issuing agency's or prosecuting attorney's response, the court may make a finding of factual innocence pursuant to Section 530.6 of the Penal Code if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person's driving privilege, the department shall immediately set aside the action.

(4) If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6 of the Penal Code, unless the court finds that a finding of factual innocence is not in the interest of justice.

(5) The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee who received the citation or notice to appear be found.

[LeeRoy]

DAL beat me to the answer.

Both Gundo and Blizz. You are soup sandwhiches today in CVC portion of your academy information retention department :) The may take/must take stuff has been in the in the Vehicle Code LD for years.

Break out the big book (CVC) and review 40300-40313 CVC and report back for remedial FTO tomorrow.

Think of a big chunch of the misdeanors in the CVC just like 11357(b) HS. Citation required in most cases.

[DAL]

Don't feel bad. When I worked patrol, some of the supervisors didn't know, either. They thought that if the offense has a M next to it in the table in the back of the paperback Vehicle Code, it is an arrestable offense.

Note that 12500(a) also is not an arrestable offense. If the driver does not have identification, you may take him into custody for a reasonable period of time in order to identify him and issue a notice to appear.

[Blizzination]

DAL beat me to the answer.

Both Gundo and Blizz. You are soup sandwhiches today in CVC portion of your academy information retention department :) The may take/must take stuff has been in the in the Vehicle Code LD for years.

Break out the big book (CVC) and review 40300-40313 CVC and report back for remedial FTO tomorrow.

Think of a big chunch of the misdeanors in the CVC just like 11357(b) HS. Citation required in most cases.

http://rix0r.nl/imagemacros/pwned_flamethrower.jpg

[Gundo]

Thanks guys....I have learned a valuable leasson....now with my tail between my legs...what would the next step be??

Just cite him again and impound his truck? add the 2800(a) CVC to the cite?? or just pretend it never happened??

There has to be something I can do??

[DAL]

You have to catch him again before you do anything. If you don't catch him driving again, leave things as they are.

[Gundo]

I am sure I will see him again....but more importantly how would you handle a similiar situation?

[DAL]

I am sure I will see him again....but more importantly how would you handle a similiar situation?

Cite him for 12500(a) and 2800(a) and tow the vehicle. If he has a prior misdemeanor conviction, you can impound the vehicle and seek to have it forfeited pursuant to 14607.6 CVC.

[dbl lock pro]

if i cite someone for 12500 and allow them to have a licensed driver retrieve the car then observe the person driving again later; depending on how busy i am (usually busy) i would cite again and tow the vehicle and let the courts do what they do...

[andy5746]

Cite for the 12500(a) CVC and then impound vehicle for 30 days under 14602.6(a) CVC. Keep impounding cars as needed.... :cool:

[SgtCHP]

Give him time. He will not take care of the issues you have cited him for and everything will go to warrant. Then, you will have him high and tight!

BTW, just because he was once issued a drivers license, he is unlicensed after it expires and his vehicle is good to go, period. Don't be so nice to those who will use you for their own good. It is obvious that the party has some past issues and is not about to comply with your being nice and thoughtful. "Hook'em and Book'em!" Don't let the bad guy con you.

[Gundo]

Give him time. He will not take care of the issues you have cited him for and everything will go to warrant. Then, you will have him high and tight!

BTW, just because he was once issued a drivers license, he is unlicensed after it expires and his vehicle is good to go, period. Don't be so nice to those who will use you for their own good. It is obvious that the party has some past issues and is not about to comply with your being nice and thoughtful. "Hook'em and Book'em!" Don't let the bad guy con you.

Sir,

to clarify in your opinion....once his licesne becomes expired he is now unlicesned?? Is there a time period or just the day it expires? I had been under the impression and maybe wrongly that we could not impound(14602.6(a) for expired only none issued or suspended? Thanks fro your help...looking like I will just start adding the 2800(a) on cites if the problem continues...I am DONE being the nice guy...usually results in complaints or something chomping down on my ***...

Thanks guys and stay safe...

[Fuzz]

22651(p) CVC impound authority for an UNLICENSED driver. Having an expired license even 1 day is an unlicensed driver and subject to impound. 14602.6(a) CVC is the authority to put a HOLD on a vehicle for 30 days when the driver was suspended for certain reasons, revoked, or NEVER ISSUED a license. Having an expired license does not qualify for the 14602.6 section.


If they are 12500 then cite and tow EVERY SINGLE TIME. The only exception would be if your department has a policy regulating your tows......my department policy says not to tow until expired for 30 days to allow a grace period.

As far as the 2800 .....keep tacking it onto every cite. It will add up and go to warrant or he will get an extra fine.

[Gundo]

Guess I will be getting invited to teh tow companies christmas party after all....calling for lots of tows...

Just kidding..thanks guys..again hopefully someone else learned something...and I will stop being the nice guy..

[1tyme]

I have a "friend" who arrested a guy yesterday for 23222(b) VC (Possession of Marijuana While Driving). This friend was taught by his FTO's that this code had more teeth than 11357(b) HS so he searched the vehicle and the guy's person, incident to arrest. My friend then cited the guy out but filed a misdemeanor packet as he would with cases like 11364 HS, etc. Was my friend in the right?

[SoCalSheriff]

Your friend and I must have had the same FTO. I was taught the same, and would say your friend was in the right.

[DAL]

I have a "friend" who arrested a guy yesterday for 23222(b) VC (Possession of Marijuana While Driving). This friend was taught by his FTO's that this code had more teeth than 11357(b) HS so he searched the vehicle and the guy's person, incident to arrest. My friend then cited the guy out but filed a misdemeanor packet as he would with cases like 11364 HS, etc. Was my friend in the right?

I would say that your friend was wrong to make a physical arrest. Regardless of whether CVC 23222(b) is a misdemeanor, it is not one of the enumerated sections in CVC 40303 for which misdemeanor arrests are authorized.

[beachcop05]

I was always taught that if its a misdemeanor, its arrestable, and I still believe that. I know people who have arrested for 12500a CVC, and our City Attorney's office has taken it.

[1tyme]

Ditto re 12500's...I guess my friend better get with the DA and see what the county's stance is on that.;)

[Fuzz]

I was always taught that if its a misdemeanor, its arrestable, and I still believe that. I know people who have arrested for 12500a CVC, and our City Attorney's office has taken it.

I think there is some difference in terminology being used. If they commit the violation they are arrestable for any violation, but I think the others are referring to "physical arrest" or "bookable" offenses. For example..... 11357H&S is a misdemeanor, but specifically says in the code it is not bookable.

[DAL]

I think there is some difference in terminology being used. If they commit the violation they are arrestable for any violation, but I think the others are referring to "physical arrest" or "bookable" offenses. For example..... 11357H&S is a misdemeanor, but specifically says in the code it is not bookable.

And CVC 40302 and CVC 40303 make it clear that a custodial arrest is proper only for specified misdemeanor arrests. Otherwise, why would section 40303 contain a long list of specific code sections for which arrest were optional? Why doesn't it just say "any misdemeanor other than those listed in section 40302"?

Under section 40302, a physical arrest for a violation of section 12500(a) is mandatory is the person does not present a driver's license or other acceptable form of identification.

Even if you make a custodial arrest when you are not authorized to do so, the driver still can be prosecuted for the offense. However, the evidence that results from such an unlawful arrest would be suppressed. And, of course, if the defendant consults a lawyer who concludes that there is a chance of a large enough attorneys' fee recovery, you will get sued.

[nobodyjr]

I was always taught that if its a misdemeanor, its arrestable, and I still believe that. I know people who have arrested for 12500a CVC, and our City Attorney's office has taken it.

Agreed. We must be doing something different in SD... because the only thing we can't book on is 11357(b) IFAIK. I saw an officer book on 23222(b) CVC about a month ago. I have also booked on other various CVC's.

Of course the jail might just be releasing them with a court date. But I don't know and really don't care about that...

[DAL]

From People v. Superior Court of Los Angeles County (1972) 7 Cal.3d 186.

At the outset, a brief explanation of the statutory reference will be helpful. The exclusive procedure to be followed after a warrantless arrest for a Vehicle Code violation is that prescribed in division 17, chapter 2 (§§ 40300-40604) of the Vehicle Code. ( People v. Wohlleben (1968) 261 Cal. App. 2d 461, 463 [67 Cal. Rptr. 826].) If that violation is declared to be a felony, the arrestee is to be dealt with according to the general provisions of the Penal Code on felony arrests. (Veh. Code, § 40301.) For all other cases, however, the Legislature has created a special tripartite scheme which reflects the lesser degree of criminality attached to the act of transgressing against ordinary traffic rules and regulations.

First, the scheme in effect presumes that in the vast majority of cases the violator will not be taken into custody: with the exception of the instances next discussed, the officer must prepare a written notice to appear (i.e., a citation or "ticket"), and must release the violator "forthwith" when the latter in turn gives his written promise that he will appear as directed (§§ 40500, 40504). Indeed, such a violator may entirely avoid the necessity for appearing in court: he may choose to deposit the prescribed bail by mail (§ 40510) and, by failing thereafter to appear, forfeit that amount in lieu of fine (§ 40512).

Second, in certain cases section 40303 gives the officer the option either to follow the foregoing procedure or to take the violator "without unnecessary delay" before the "nearest or most accessible" magistrate having jurisdiction over the offense. The section lists a number of more serious violations as grounds for invoking this option, such as reckless driving, failure to stop after an accident, participating in speed contests, driving with an invalid license, attempt to evade arrest, and refusal to submit to safety inspections.

Third, section 40302 makes it mandatory for the officer to follow the latter branch of the section 40303 option -- i.e., to take the violator before a magistrate without unnecessary delay -- in four specific instances: i.e., when the violator (a) fails to present his driver's license or other satisfactory evidence of his identity, (b) refuses to give his written promise to appear, or (c) demands an immediate appearance before a magistrate, or (d) when the violator is charged with the very serious traffic offenses of misdemeanor drunk driving or driving under the influence of toxic glue or nonnarcotic drugs.

The second preliminary matter we must consider is the precise point in time at which a traffic violator is "arrested." A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place (see People v. Griffith (1971) supra, 19 Cal. App. 3d 948, 950-951, and cases cited), and the temporary restraint of the suspect's movements incident to that investigation will not ordinarily be deemed an arrest. But when the officer determines there is probable cause to believe that an offense has been committed and begins the process of citing the violator to appear in court (Veh. Code, §§ 40500-40504), an "arrest" takes place at least in the technical sense: "The detention which results [during the citation process] is ordinarily brief, and the conditions of restraint are minimal. Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest. [Citations.] Some courts have been reluctant to use the term 'arrest' to describe the status of the traffic violator on the public street waiting for the officer to write out the citation [citations]. The Vehicle Code, however, refers to the person awaiting citation as 'the arrested person.' Viewing the situation functionally, the violator is being detained against his will by a police officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution. The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear." (Fns. omitted.) ( People v. Hubbard (1970) 9 Cal. App. 3d 827, 833 [88 Cal. Rptr. 411].)

There is no doubt, of course, that a motorist who is actually taken into police custody for transportation before a magistrate pursuant to section 40302 (or 40303) is "under arrest" in the traditional sense of the term. (Pen. Code, §§ 834, 835; People v. Hatcher (1969) 2 Cal. App. 3d 71, 75 [82 Cal. Rptr. 323].) This explains why Officer Erickson and the trial judge in the case at bar both stated that defendant was arrested "under 40302(a) of the Vehicle Code." But such language is at best a kind of verbal shorthand. Upon analysis it will be seen that one cannot be arrested on the sole authority of section 40302: "such section [§ 736, predecessor to § 40302] is not penal in nature and cannot form the basis for a lawful arrest." ( People v. Randolph (1957) 147 Cal. App. 2d Supp. 836, 841 [306 P.2d 98].) The section by its terms applies only when a person "is arrested for any [nonfelony] violation of this code" and one of the four specified conditions is met. It thus assumes the violator has already been arrested under a substantive provision of the code, and simply declares the procedure which is then to be followed.

Thus viewed, a principal purpose of the statute becomes apparent. The citation procedure of section 40500 (discussed ante) is essentially an honor system, requiring the good faith and cooperation of the person cited. At the very least, he must be able to convince the officer -- either by exhibiting his driver's license or by "other satisfactory evidence" -- that the name he is signing on the written promise to appear corresponds to his true identity (see also § 40504, subd. (b) [signing such a promise with a false name is a misdemeanor]). When he cannot do so the officer has no assurance the promise will be honored, and under those circumstances subdivision (a) prohibits the use of the citation procedure. ( People v. Mercurio (1970) 10 Cal. App. 3d 426, 430 [88 Cal. Rptr. 750].)

[nobodyjr]

Even if you make a custodial arrest when you are not authorized to do so, the driver still can be prosecuted for the offense. However, the evidence that results from such an unlawful arrest would be suppressed. And, of course, if the defendant consults a lawyer who concludes that there is a chance of a large enough attorneys' fee recovery, you will get sued.

http://www.legalupdateonline.com/4th/172#cont196

Misdemeanor Citations

P.C. § 853.6(i); Misdemeanor Citations: A person arrested for a misdemeanor must also be cited (on a "misdemeanor citation form") and released unless one of the following statutory exceptions applies:

* The person is intoxicated.
* The person requires medical treatment.
* The person was arrested for one or more of the offenses listed in V.C. §§ 40302 or 40303 (see above).
* The person has outstanding warrants.
* The person is unable to provide "satisfactory evidence of identification" (see above).
* Prosecution would be jeopardized by immediate release.
* Reasonable likelihood that the offense would continue or that persons or property would be imminently endangered by the release of the person.
* The person demands to be taken before a magistrate or refuses to sign the notice to appear.
* There is reason to believe that the person would not appear on the citation.

It is not unconstitutional to make a custodial arrest (i.e., transporting to jail or court) of a person arrested for a minor misdemeanor (Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2nd 549].), or even for a fine-only, infraction. ( People v. McKay (2002) 27 Cal.4th 601, 607; see also United States v. McFadden (2nd Cir. 2001) 238 F.3rd 198, 204.)

California's statutory provisions require the release of misdemeanor arrestees in most circumstances. (e.g., see P.C. §§ 853.5, 853.6, V.C. §§ 40303, 40500) However, violation of these statutory requirements is not a constitutional violation and, therefore, should not result in suppression of any evidence recovered as a result of such an arrest. (People v. McKay, supra, at pp. 607-619, a violation of V.C. § 21650.1 (riding a bicycle in the wrong direction); People v. Gomez (2004) 117 Cal.App.4th 531, 539, seat belt violation (V.C. § 27315(d)(1)), citing Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2nd 549].)
-------------------------------------


Our reports for misd cases have check boxes for one all of those conditions for a misdemeanor arrest. Generally when I arrest on the unlisted conditions it because "the offense is likely to continue." Which makes it legit to book on. In the above poster's question, I would say the offense is likely to continue and is it good to go on booking.

[DAL]

http://www.legalupdateonline.com/4th/172#cont196

California's statutory provisions require the release of misdemeanor arrestees in most circumstances. (e.g., see P.C. §§ 853.5, 853.6, V.C. §§ 40303, 40500) However, violation of these statutory requirements is not a constitutional violation and, therefore, should not result in suppression of any evidence recovered as a result of such an arrest. (People v. McKay, supra, at pp. 607-619, a violation of V.C. § 21650.1 (riding a bicycle in the wrong direction); People v. Gomez (2004) 117 Cal.App.4th 531, 539, seat belt violation (V.C. § 27315(d)(1)), citing Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2nd 549].)


Atwater was a case in which state law authorized a custodial arrest for any misdemeanor. Both McKay and Gomez rely on Atwater for alternative holdings on the suppression issue.

Most significantly, however, McKay expressly states that civil remedies are unaffected. That includes suit for false imprisonment, which is a distinct possibility if you arrest.

By this decision, we in no way countenance violations of state arrest procedure. As we explained at the outset, Proposition 8 left intact the substantive scope of state statutory and constitutional rights against arrest for minor offenses. Violation of those rights exposes the peace officers and their departments to civil actions seeking injunctive or other relief. ( Garrett v. City of Bossier City (La.Ct.App. 2001) 792 So.2d 24, 26-28 [although the arrest for a seatbelt offense was constitutional under Atwater, the arrest's failure to comply with state procedure supported a private civil suit]; see generally People v. Mayoff (1986) 42 Cal. 3d 1302, 1318 [233 Cal. Rptr. 2, 729 P.2d 166] (plur opn. of Grodin, J.).) Violation of those state rights also may subject the offending officer to an internal investigation, additional training, and departmental discipline. (See Heffernan, Foreword: The Fourth Amendment Exclusionary Rule as a Constitutional Remedy (2000) 88 Geo. L.J. 799, 865 ["A direct sanction imposed on individual officers--internal police discipline, for example--is likely to channel police behavior into patterns of legal conduct far more effectively than does the indirect sanction of exclusion"].)

In addition, the Penal Code section dealing with release on a citation only applies to situation where a custodial arrest is authorized in the first instance. Accordingly, you cannot rely upon it to make a custodial arrest when the Vehcile Code prohibits one.

As a footnote, in Virginia v. Moore, the US Supreme Court stated in 2008 that if their decision to follow Atwater when state law does not permit custodial arrest is abused, then it will revisit whether the exclusionary rule should be applied when the arrest violates state law.

[hbliam]

Agreed. We must be doing something different in SD... because the only thing we can't book on is 11357(b) IFAIK. I saw an officer book on 23222(b) CVC about a month ago. I have also booked on other various CVC's.

Of course the jail might just be releasing them with a court date. But I don't know and really don't care about that...

You can arrest someone for a CVC that refuses to sign the citation. If they won't "promise to appear" you can book them. As you said they will probably be released OR with a court date as are the vast majority of misdemeanors. You can also book someone for the CVC's if they are being booked for another bookable open charge.

If you guys are taking people to jail for vehicle code infractions only, for no reason other then you want to, then yes, you are doing something different. Something wrong. :) It will just take one arrestee with a clue and your department will have another budget shortage to deal with when they pay off his settlement.

[hbliam]

Our reports for misd cases have check boxes for one all of those conditions for a misdemeanor arrest. Generally when I arrest on the unlisted conditions it because "the offense is likely to continue." Which makes it legit to book on. In the above poster's question, I would say the offense is likely to continue and is it good to go on booking.

The list you quoted that includes "the offense is likely to continue" is specific to a misdemeanor and has nothing to do with an infraction.

People v Mckay dealt with someone that could not produce identification. That's obvious that we can take you to jail to ID if we need to.

[beachcop05]

If you guys are taking people to jail for vehicle code infractions only, for no reason other then you want to, then yes, you are doing something different. Something wrong. :) It will just take one arrestee with a clue and your department will have another budget shortage to deal with when they pay off his settlement.

Not taking people to jail for vehicle code infractions, they are specific vehicle code misdemeanors. Look up the codes we were talking about earlier.

[hbliam]

Not taking people to jail for vehicle code infractions, they are specific vehicle code misdemeanors. Look up the codes we were talking about earlier.


Read what I quoted. I know what you are talking about. Nobodyjr is saying his agency is taking guys to jail for infractions. He hasn't clariffied why.

[DAL]

Not taking people to jail for vehicle code infractions, they are specific vehicle code misdemeanors. Look up the codes we were talking about earlier.

But you taking them to jail for violations that the Vehicle Code for which the Vehicle Code does not permit arrests. The Vehicle Code and California Supreme Court decisions make it clear that custodial arrest is not authorized for these violations.

[beachcop05]

Read what I quoted. I know what you are talking about. Nobodyjr is saying his agency is taking guys to jail for infractions. He hasn't clariffied why.

Ok, in his two posts, he never specifically says they are taking people to jail for infractions. We CANNOT do that. He mentions 23222b CVC, which is a misdemeanor, not an infraction. So I still don't see what you're referring to.

I know for a fact we do not take people to jail for infractions. For misdemeanors, yes.

[hbliam]

Ok, in his two posts, he never specifically says they are taking people to jail for infractions. We CANNOT do that. He mentions 23222b CVC, which is a misdemeanor, not an infraction. So I still don't see what you're referring to.

I know for a fact we do not take people to jail for infractions. For misdemeanors, yes.


I stand corrected. I read his post's to mean they take people to jail for anything. Doesn't change the fact that we can not take people to jail for some misdemeanors.

[nobodyjr]

Yeah sorry about the confusion somewhere... I'm only talking about CVC misdemeanors when referring to an offense likely to continue. 2800 in my cheat sheets and CHP redi-ref is listed as a misdemeanor.


As beachcop said, we are not booking on infractions (with the exception of refusals to sign.)

I personally don't see that it is that clear. 11357(b) HS specifically prohibits booking in the code. I've read through the above CVC codes, and all it says it "optional." It's good to go with the city attorney here.

[DAL]

You still have not come up with a code section that allows you to make a custodial arrest for a Vehicle Code misdemeanor, other than those specifically authorized in Vehicle Code §§ 40302 and 40303. If you can make a custodial arrest for any Vehicle Code misdemeanor, then § 40303 serves no purpose at all.

The California Supreme Court has held that you cannot make a custodial arrest for a misdemeanor violation of the Vehicle Code unless that is permitted by § 40302 or 40303. I suspect that if you ask your City Attorney to examine the issue carefully, and call his attention to these sections and the following case, he will tell you that there fact that a vehicle code violation is a misdeameanor does not authorize a custodial arrest.

From People v. Superior Court of Los Angeles County (1972) 7 Cal.3d 186:

At the outset, a brief explanation of the statutory reference will be helpful. The exclusive procedure to be followed after a warrantless arrest for a Vehicle Code violation is that prescribed in division 17, chapter 2 (§§ 40300-40604) of the Vehicle Code. ( People v. Wohlleben (1968) 261 Cal. App. 2d 461, 463 [67 Cal. Rptr. 826].) If that violation is declared to be a felony, the arrestee is to be dealt with according to the general provisions of the Penal Code on felony arrests. (Veh. Code, § 40301.) For all other cases, however, the Legislature has created a special tripartite scheme which reflects the lesser degree of criminality attached to the act of transgressing against ordinary traffic rules and regulations.

First, the scheme in effect presumes that in the vast majority of cases the violator will not be taken into custody: with the exception of the instances next discussed, the officer must prepare a written notice to appear (i.e., a citation or "ticket"), and must release the violator "forthwith" when the latter in turn gives his written promise that he will appear as directed (§§ 40500, 40504). Indeed, such a violator may entirely avoid the necessity for appearing in court: he may choose to deposit the prescribed bail by mail (§ 40510) and, by failing thereafter to appear, forfeit that amount in lieu of fine (§ 40512).

Second, in certain cases section 40303 gives the officer the option either to follow the foregoing procedure or to take the violator "without unnecessary delay" before the "nearest or most accessible" magistrate having jurisdiction over the offense. The section lists a number of more serious violations as grounds for invoking this option, such as reckless driving, failure to stop after an accident, participating in speed contests, driving with an invalid license, attempt to evade arrest, and refusal to submit to safety inspections.

Third, section 40302 makes it mandatory for the officer to follow the latter branch of the section 40303 option -- i.e., to take the violator before a magistrate without unnecessary delay -- in four specific instances: i.e., when the violator (a) fails to present his driver's license or other satisfactory evidence of his identity, (b) refuses to give his written promise to appear, or (c) demands an immediate appearance before a magistrate, or (d) when the violator is charged with the very serious traffic offenses of misdemeanor drunk driving or driving under the influence of toxic glue or nonnarcotic drugs.

Section 40303 specifies instances when an arrest may be made for a violation of § 2800:

(3) Subdivision (a) of Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle to stop and submit to an inspection or test of the lights upon the vehicle pursuant to Section 2804, that is punishable as a misdemeanor.

(4) Subdivision (a) of Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle to stop and submit to a brake test that is punishable as a misdemeanor.

(5) Subdivision (a) of Section 2800, relating to the refusal to submit vehicle and load to an inspection, measurement, or weighing as prescribed in Section 2802 or a refusal to adjust the load or obtain a permit as prescribed in Section 2803.

(6) Subdivision (a) of Section 2800, insofar as it relates to a driver who continues to drive after being lawfully ordered not to drive by a member of the Department of the California Highway Patrol for violating the driver’s hours of service or driver’s log regulations adopted pursuant to subdivision (a) of Section 34501.

(7) Subdivision (b), (c), or (d) of Section 2800, relating to a failure or refusal to comply with a lawful out-of-service order.

(15) Subdivision (a) of Section 2800, insofar as it relates to a pedestrian who, after having been cited for a violation of subdivision (a) of Section 2800 for failure to obey a lawful order of a peace officer issued pursuant to Section 21962, is within 24 hours again found upon the bridge or overpass and thereafter refuses to leave after being lawfully ordered to do so by a peace officer and after having been informed that his or her failure to leave could result in his or her arrest.

You are arguing, in effect, that all of this language is pointless, because you have the authority to make a custodial arrest for any violation of § 2800 whatsoever. That is not plausible, and I cannot imagine that a court will accept that argument if you or your agency is sued by someone you arrest.

[Feb2nd1979]

I'll arrest everyone. That is why God invented the 849 slip.

[DAL]

I'll arrest everyone. That is why God invented the 849 slip.

It's also why God invented the lawsuit.

[beachcop05]

It's also why God invented the lawsuit.

God didn't invent the lawsuit, lawyers did.

[DAL]

God didn't invent the lawsuit, lawyers did.

If it is fair to say that God invented the 849(b) form, then it is fair to say that He invented lawsuits too.

[Feb2nd1979]

If it is fair to say that God invented the 849(b) form, then it is fair to say that He invented lawsuits too. I would say you are partially correct. God invented the lawyer who in turn invented the lawsuit.

[nobodyjr]

You still have not come up with a code section that allows you to make a custodial arrest for a Vehicle Code misdemeanor, other than those specifically authorized in Vehicle Code §§ 40302 and 40303. If you can make a custodial arrest for any Vehicle Code misdemeanor, then § 40303 serves no purpose at all.



It's the PC state above. 40302 and 40303 only state the CVC's you don't have to further articulate why you made an arrest. If the offenses is on going, prosecution may be hindered, or if any of the other reasons exist above, an arrest may be made.

There is nothing to state that the arrest is not a bookable offense as HS 11357(b) has.

I think we're going to have to agree to disagree on this one. Every city attorney/DA has different opinions on things. That's just how we do things here. It it has not been an issue. Apparently the defense attorneys agree, because they don't press the issue.

[Ultimate86]

I have seen plenty of times where someone has been arrested for 23222(b)VC, a search incident to their arrest has occurred, and they're transported to our PD where they are cited out.

Dunno...

[andy5746]

I would say you are partially correct. God invented the lawyer who in turn invented the lawsuit.

Satan invented the lawyer to litigate the angels ... :cool:

[barkalot]

Just a few thoughts...

Does a 12500 conviction automatically result in a license suspension in CA? I don't remember, but if so, 14601 is arrestable. Although in the county I worked, they would almost immediately cite and release, so it wasn't worth the trip.

I think a prior 12500 or 14601 conviction will allow you to impound a vehicle for an extended period (90 days comes to mind). The CHP has a little cheat sheet on it; see if you can score one.

Also, you didn't mention whether the driver had insurance or not. It seems most unlicensed drivers do not, so if you cited for that, I believe that will also result in a suspended license.

As a side note, you didn't mention your PC for either stop. Just playing devil's advocate, if you stopped him the second time because you recognized him and knew him to be unlicensed, how did you know he hadn't gotten his license since the prior stop?

I mention this because I have done that (I got impatient with the return from dispatch and the driver was "getting away").

Although I was right, I got my butt chewed about it and raised eyebrows from the prosecuting attorneys. I have learned over the years that when I push the envelope on minor crimes, it comes back to bite me.

[barkalot]

I see much of what I wrote has already been covered...

[WPD954]

I see much of what I wrote has already been covered...

lol....whats new in Idaho Barkalot ?