|Sent on:||Tuesday, October 2, 2012 12:45 PM|
This is a subject that is very near and dear to my heart. As someone who has been studying the vehicle code and it’s legislative history on and off for the past 12 years, I just can’t help but smile when someone proves in open court that the vehicle enforcement apparatus is nothing more than a massive racketeering operation. Ok, maybe he didn’t prove that, but Dan Giguere of Los Angeles did prove that the police can’t write a ticket for an infraction.
Dan received a traffic citation a little over a year ago for unsafe speed in violation of California Vehicle Code section 22350. Dan went to court and made a special appearance to obtain information as to who the plaintiff in the case was so that he can file a motion and properly serve the opposing party. Since the citation doesn’t indicate who that party is, it was fair to ask the court. Instead of answering Dan’s question the judge entered a plea of not guilty with Dan’s objection. Dan was able to quote a California court case known as People v. Sava which ruled “The limitation of an accused right to a jury trial has withstood constitutional attack upon the rationale that the legislature had never intended infractions to be criminal. The Judge agreed and admitted that the case is not criminal, which is correct. The judge set the case for trial and ignored the obvious implications of such a fact.
Dan consulted the Vehicle code and the powers of arrest by a peace officer and it turns out that peace officers only have the authority to make an arrest without a warrant if they have probable cause to believe a public offense has been committed in their presence. A public offense according to 683 of the Penal code is a type of offense that warrants a criminal prosecution. But since infractions are not crimes, then it can’t be a public offense. Some of you may think “wait a minute, I’m not arrested when I’m given a ticket.” Oh yes you are. According to 40500 of the Vehicle code a traffic stop and issuance of a notice to appear constitutes an arrest, besides what happens if you refuse to sign the ticket? They’ll hall you off to jail.
Dan filed a motion to dismiss for lack of subject matter jurisdiction and a motion to suppress the notice to appear arguing that the officer lacked any probable cause to believe a crime has been committed in his presence and therefore no crime has been alleged. He filed with the court just a few days before his trial. The judge agreed with the motion and suppressed the citation and dismissed Dan’s case.
The significance of this is huge because what you have are peace officers conducting traffic arrests for non-criminal activity, triggering debt collection actions on behalf of non-complaining parties by way of a voidable notice to appear.
The next time I get pulled over for an infraction I’m simply going to ask the officer “What is your probable cause to believe a crime has been committed?” If he starts to name anything other than an actual crime than I’m going to tell the officer that infractions are not crimes according the California Supreme court and that I don’t consent to the stop”. Once I say I don’t consent and the officer doesn’t release me, they can be charged for violating Penal code section 146 “False Arrest” and that is a crime.
Good job Dan.