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Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violation
My question involves a traffic ticket from the state of California During the super bloom in Riverside the streets were closed down because of the crowds. After sitting in traffic for 2 1/2 hrs and being less than a mile from my house I asked a woman behind the barricades to please have an officer come over and talk to me. She told me no and walked away. I shut off my truck and again asked her to please have an officer come over and talk to me. I was told no and to move my truck again. I sat there for maybe 5 mins. and then left. Approx. 35 minutes later to officers on bikes come up and literally rip my 62 yr old passenger and myself out of the truck. I was told that the lady said I told her I would be back in 5 mins. which is not true. I'm 54 yrs old and have had 8 back surgeries and have congestive heart failure. My plates on my truck are disabled plates. After having a taser stuck in my face I told him please do not taser me I have a Diffibulator/Pacemaker.
He told me good these things work great on them. Must the women who made the accusation be present at my hearing? Can I be given a ticket by a cop who was not even present or any other officer when this alleged violation occurred?
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
First off, lets clear some irrelevant misconceptions. Some pedestrian on the street has no obligation to run errands for you. Disabled plates do not mean you can abandon your vehicle in a traffic lane. Officer misconduct nearly never has any bearing on your guilt.
If you made statements like the above to the officer, then the officer can indeed relay them in court and you will likely lose.
If the officer is relying solely on statements made by "the lady" then indeed that is inadmissible in court, and unless they subpoenaed her as a witness (unlikely) you should prevail.
If you felt the officer's conduct was improper, you can make a complaint with his department. This is independent of your ticket.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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inspectit4u
Must the women who made the accusation be present at my hearing? Can I be given a ticket by a cop who was not even present or any other officer when this alleged violation occurred?
Yes to both questions. Penal code 837 provides for citizens to "arrest another". Technically, in your case, it is the "woman" who is making the arrest; the officer is simply "taking you into custody". Although the Penal Code provide for citizens to arrest another it is rarely done because of possible legal consequences.
Again, yes the "woman" will have to be present and testify at your trial because she is the one who witnessed the alleged offense.
What was the code section you were cited for violating?
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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Jim Kozlovich
Yes to both questions.
Penal code 837 provides for citizens to
"arrest another". Technically, in your case, it is the "woman" who is making the arrest; the officer is simply "taking you into custody". Although the Penal Code provide for citizens to arrest another it is rarely done because of possible legal consequences.
Again, yes the "woman" will have to be present and testify at your trial because she is the one who witnessed the alleged offense.
What was the code section you were cited for violating?
That is only if the arrest was made at the request of the probate citizen. For all we know the cops made the arrest on their own observations
im trying to figure out how the officers ripped the op and passenger from the truck when in the sentence immediately prior to describing that act, the op had “left”
op also makes a statement that “the woman” had directed the op to move their truck. Op claims to have been stuck in traffic for 2 1/2 hours so I’m not understanding who was directing op to move their truck and of they were stuck in traffic, how were they supposed to move their truck and to where.
Given the recitation is a chain of non sequiturs, I don’t see how any conclusion can be made regarding the situation.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Let's start with this: What was the actual code section for which you were cited? Was it VC 22400(a)?
22400. (a) No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.
No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with law.
If you were stopped AT a barricade, I'm not sure impeding would be the right section to have cited, if that was, indeed, the section used. But, maybe ...
From the sound of it, the person you tried you speak with was an employee or volunteer with the police department or organization involved in the event blocking the road, correct? Understand that they are under no obligation to have an officer come speak with you. Were you trying to have an officer assist in turning you around or letting you pass through the barricade? If not, what was it you wanted to speak with an officer about?
As to the officer's conduct, as was previously mentioned by flyingron, the officer's conduct is a matter separate from the issue of the citation. If what you say happened is entirely true, it would seem quite egregious and unnecessary and almost certainly a violation of policy. You can begin by making a personnel complaint to the agency involved.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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inspectit4u
blah, blah, blah .. .. . . . Can I be given a ticket by a cop who was not even present or any other officer when this alleged violation occurred?
Are you really so naïve as to suggest that a person can't be cited for a traffic violation (or for that matter charged with any criminal act) unless the officer issuing the citation or making the arrest can bear witness to the alleged violation of law? Geez! What an inane question.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Ummm....Actually, it is not an "inane" question at all. In California, LEO can only arrest for a misdemeanor or infraction that occurred "in the officer's presence." There are some statutory exceptions. But, generally, if the officer was not present during the violation, they must have a citizen who WAS present be willing to be the complainant. That person is technically the one making the arrest and the officer is acting on their behalf in handling the administrative activities involved. That person must also come to court and testify, if it gets to that point. I believe most (if not all) states have similar statutory restrictions on when a law enforcement officer can take action on misdemeanors or infractions. For example, here in Washington, RCW 10.31.100 says police can only arrest for misdemeanors that occurred in their presence, but provides a list of specific exceptions where an officer can arrest on probable cause - impeding traffic is not on that list of exceptions. An officer can take someone into custody for an offence that occurred in ANOTHER officer's presence, but both officers would then need to testify if needed.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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PTPD22
An officer can take someone into custody for an offence that occurred in ANOTHER officer's presence, but both officers would then need to testify if needed.
That's the "Collective knowledge doctrine" or the "Fellow officer" rule.
Also, issuing a Citation is NOT an arrest as the OP was not arrested, just cited.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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PTPD22
Ummm....Actually, it is not an "inane" question at all. In California, LEO can only arrest for a misdemeanor or infraction that occurred "in the officer's presence." There are some statutory exceptions. But, generally, if the officer was not present during the violation, they must have a citizen who WAS present be willing to be the complainant. That person is technically the one making the arrest and the officer is acting on their behalf in handling the administrative activities involved. That person must also come to court and testify, if it gets to that point. I believe most (if not all) states have similar statutory restrictions on when a law enforcement officer can take action on misdemeanors or infractions. For example, here in Washington, RCW 10.31.100 says police can only arrest for misdemeanors that occurred in their presence, but provides a list of specific exceptions where an officer can arrest on probable cause - impeding traffic is not on that list of exceptions. An officer can take someone into custody for an offence that occurred in ANOTHER officer's presence, but both officers would then need to testify if needed.
I suspect that if the vehicle were left in the roadway, and was cited for impeding, then the elements were observed by the officer. Although, CA DOES permit a private person's arrest even for infractions ... provided that's what happened. I suspect that the police either came across the scene on their own or were called, observed the violation, and cited accordingly. They may have been called to the scene by someone who spun a different tale, but, this sort of citation implies that they observed it. Though, I am still curious as to how being stopped at a barricade might be "impeding" per VC 22400. I'd still like to know the actual code section cited, and perhaps a sketch of the scene.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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RJR
Also, issuing a Citation is NOT an arrest as the OP was not arrested, just cited.
Technically that is true. The citation (Notice to Appear) is simply a document the arrestee may sign in order to be released from custody. Vehicle Code DIVISION 17, ARTICLE 2 is titled Release Upon Promise to Appear; If the person is not under arrest and in custody, what are they being released from?
VC 40302 "Whenever any person is arrested for any violation of this code…the arrested person shall be taken without unnecessary delay before a magistrate…in any of the following cases:
(b) When the person arrested refuses to give his or her written promise to appear in court."
40500(a) "Whenever a person is arrested for any violation of this code not declared to be a felony, or for a violation of an ordinance of a city or county relating to traffic offenses and he or she is not immediately taken before a magistrate, as provided in this chapter, the arresting officer shall prepare in triplicate a written notice to appear in court…"
PC 853.5(a) "Except as otherwise provided by law, in any case in which a person is arrested for an offense declared to be an infraction, the person may be released according to the procedures set forth by this chapter for the release of persons arrested for an offense declared to be a misdemeanor."
A Notice to Appear is ONLY issued to persons under arrest.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
They can use the word Arrest how they wish, but the USSC said a Citation is not the functional equivalent of an arrest for 4th Amendment purposes. Also, Ohio case law, years prior, ruled the same.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Yeah, it's pretty much a matter of context when we use the term, "Arrest".
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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RJR
They can use the word Arrest how they wish, but the USSC said a Citation is not the functional equivalent of an arrest for 4th Amendment purposes. Also, Ohio case law, years prior, ruled the same.
First, we are discussing arrests in California not Ohio, and Ohio case lase law is not relevant in California. With me, if you want to convince me as to the legitimacy of your argument, you are going to have to provide case law citations you are referring to otherwise they are meaningless.
Second, again, you have missed the point. The issuance of the citation (Notice to Appear) does not constitute an arrest. The actual arrest happens before the Notice to Appear is issued.
An arrest is made when there is probable cause the facts support an objective belief that the person to be arrested has committed a crime (Traffic infractions in California are criminal in nature). An arrest requires taking someone into custody, against that person's will, in order to prosecute. An arrest does not mean the person is actually taken to jail. In traffic stop, the driver is technically under arrest because the driver is not free to leave until they sign the Notice to Appear. If the driver refuses to sign the Notice to Appear, they will be taken to jail (CVC 40302(b)).
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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Jim Kozlovich
First, we are discussing arrests in California not Ohio, and Ohio case lase law is not relevant in California. With me, if you want to convince me as to the legitimacy of your argument, you are going to have to provide case law citations you are referring to otherwise they are meaningless.
My point was, and that word "Arrest" is subject to context, as Carl said. Knowles states a Citation is not the = of Arrest, as in "Search incident to citation"and "Search incident to arrest".
https://supreme.justia.com/cases/federal/us/525/113/
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Second, again, you have missed the point. The issuance of the citation (Notice to Appear) does not constitute an arrest. The actual arrest happens before the Notice to Appear is issued.
An arrest is made when there is probable cause the facts support an objective belief that the person to be arrested has committed a crime (Traffic infractions in California are criminal in nature). An arrest requires taking someone into custody, against that person's will, in order to prosecute. An arrest does not mean the person is actually taken to jail. In traffic stop, the driver is technically under arrest because the driver is not free to leave until they sign the Notice to Appear. If the driver refuses to sign the Notice to Appear, they will be taken to jail (CVC 40302(b)).
My problem is if CA terms Arrest as detainment prior to the issuance of a citation. All states permit the issuance of a citation in lieu of arrest for non felonies. That's my point.
Per the USSC Arrest in the traditional sense means transporting a person to jail/court to answer for a crime.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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RJR
My problem is if CA terms Arrest as detainment prior to the issuance of a citation. All states permit the issuance of a citation in lieu of arrest for non felonies. That's my point.
California considers traffic infractions criminal in nature however, several states consider traffic infractions as civil violations. The rules between criminal and civil actions differ greatly so you can't include "all states" when you refer to how they handle traffic citations.
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RJR
Per the USSC Arrest in the traditional sense means transporting a person to jail/court to answer for a crime.
What do you think will happen if, in California, you refuse to sign the citation? [HINT: see CVC 40302(b)] The Notice to Appear is simply releasing you on your own recognizance with your promise to appear at a later date.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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Jim Kozlovich
What do you think will happen if, in California, you refuse to sign the citation? [HINT: see
CVC 40302(b)] The Notice to Appear is simply releasing you on your own recognizance with your promise to appear at a later date.
The same in Ohio for a Minor Misdemeanor. An arrest in not permissable except for the following.
http://codes.ohio.gov/orc/2935.26v1
The problem I see with CA is, if one is considered "under arrest" then released on a promise to appear, could this happen?
A motorist is pulled over for an offense. When he is detained is he "under arrest"?? If that is true, then a vehicle search is permissable, right? Then he is issued a citation in lieu of arrest. Can an officer use the arrest ruse to search every vehicle he stops? Just wondering!
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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RJR
A motorist is pulled over for an offense. When he is detained is he "under arrest"?? If that is true, then a vehicle search is permissable, right? Then he is issued a citation in lieu of arrest. Can an officer use the arrest ruse to search every vehicle he stops? Just wondering!
That has been tried and dismissed in CA. We cannot conduct a search incident to arrest on a traffic infraction. Not to mention that the scope of any post-arrest search would be limited in scope, and tossing the whole car simply because of the arrest simply would not be permitted. (Am travelling right now on vacation, so not inclined to look up the authorities, but, this is a question that rises up from time to time among recruits and even academics.)
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Thanks Carl, was just curious how that legally played out!
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Further (now that I have some time):
From CPOLS ...
However, neither the issuance of a citation nor probable cause for a cite-and-release offense is enough to invoke the search-incident-to-arrest exception. (Macabeo (2016) 1 Cal.5th 1206; In re D.W. (2017) 13 Cal.App.5th 1249.) The reason is that the justifications for the exception--officer safety, preserving evidence, and preventing escape--are not present when the arrestee will not be taken into custody.
Example: Macabeo rolled through a stop sign on his bike in a residential neighborhood at 1:40 a.m. in violation of Vehicle Code section 22450. After giving confusing answers about his probation status, Macabeo consented to his "stuff" being removed from his pockets. One of the officers examined the contents of the cell phone taken out of Macabeo's pocket and found images of underage girls, and Macabeo was placed under arrest. HELD: The existence of a cite-and-release traffic infraction--without a custodial arrest--did not provide a basis to conduct a search incident to arrest. (Macabeo (2016) 1 Cal.5th 1206).
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Thanks again Carl, "exactly" what I wanted to know, you are the Man. :D
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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Jim Kozlovich
In traffic stop, the driver is technically under arrest because the driver is not free to leave until they sign the Notice to Appear. If the driver refuses to sign the Notice to Appear, they will be taken to jail (CVC 40302(b)).
They are surely detained if they are not free to leave. But when after the detention takes place does the arrest occur? Arrest and detention are not the same thing.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Perhaps the moment they are handed the citation they are under arrest?
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
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Taxing Matters
They are surely detained if they are not free to leave. But when after the detention takes place does the arrest occur? Arrest and detention are not the same thing.
People v. Superior Court, (1972) 7 Cal.3d 186 at 200
"The second preliminary matter we must consider is the precise point in time at which a traffic violator is "arrested." (4) 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].)"
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Jim, I understand your argument of the word "Arrest" as in this 6th Circuit case, was Richardson under arrest or just detained pursuant to Terry. I was just wondering about the "citation-search" as opposed to "arrest-search" and Carl answered that.
https://www.leagle.com/decision/19911800949f2d85111662
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
Once again, I'll reiterate that in CA whether a release on an infraction citation is an "arrest" is dependent upon the context.
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Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati
vehicle code 22400a vc court 8-22 will let you know what happens.