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   Table Of Contents
      Chapter 4: Arrests:
         Legal Requirements of an Arrest:
            Felonies
            Misdemeanors and Infractions:
               'In the Presence' Requirement:
                  'In the Presence,' Defined
                  Exceptions
                     Juvenile Arrests
                     Driving While Under the Influence Arrests
                     Battery on School Grounds
                     Carrying a Loaded Firearm
                     Assault or Battery Against the Person of a Firefighter, Emergency Medical Technician, or Paramedic
                     Domestic Violence Restraining Orders
                     Domestic Violence Assaults or Batteries
                     Elder Abuse
                     Carrying a Concealed Firearm at an Airport
                     Operating a Vessel or Recreational Vessel or Manipulation of Water Skis, Aquaplane or Similar Device While Under the Influence
                     Operating a Vessel While Under the Influence of Alcohol and/or Drugs with an Accident
               Vehicle Code Violations, Exceptions
               Vehicle Code Parking Citations
               Stale Misdemeanor Rule
               Sanctions for Violations
            Arrests for an Infraction or Misdemeanor:
               Release Requirement
               Exceptions
               V.C. 40302
               Other Satisfactory Evidence of His Identity
               Arrestable Offenses
               The Unlicensed Driver
               Non-Residents
               Traffic Arrest Bail Bond Certificate
               Misdemeanor Citations
               With an Existing Warrant of Arrest

Felonies

Felonies:  A peace officer may make an arrest for a felony, with or without a warrant, at any time, day or night, at any location, whether or not the felony has occurred in the officer's presence, so long as such arrest is supported by "probable cause."  (P.C. § 836(a)(2), (3))

Exception:  Warrantless arrests in a person's home.  (See below)

See also V.C. § 40301:  When probable cause exists to believe that a particular person has violated a Vehicle Code felony, the subject "shall be dealt with in like manner as upon arrest for the commission of any other felony," according to the general provisions of the Penal Code on felony arrests.  (See People v. Superior Court (Simon) (1972) 7 Cal.3rd 186, 199.)

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'In the Presence' Requirement:

"In the Presence" requirement: Misdemeanors (and infractions) must have occurred in the officer's (or private person's, in the case of a private person's arrest) presence. (P.C. §§ 836(a)(1), 837.1; Jackson v. Superior Court (1950) 98 Cal.App.2nd 183; see also V.C. § 40300.)

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'In the Presence,' Defined

"In the Presence," Defined: "In the presence" is commonly interpreted to refer to having personal knowledge that the offense in question has been committed, made known to the officer through any of the officer's five senses. (See People v. Burgess (1947) 79 Cal.App.2nd

174, 176.)

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Exceptions

Exceptions:  A peace officer has statutory authorization to arrest for misdemeanors which did not occur in the officer's presence under limited circumstances:

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Juvenile Arrests

Juvenile Arrests:  (W&I Code § 625(a); In re Samuel V. (1990) 225 Cal.App.3rd 511.)

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Driving While Under the Influence Arrests

Driving While Under the Influence of Alcohol and/or Drugs, when any of the following circumstances exist (V.C. § 40300.5):

  • The person was involved in a traffic accident.
  • The person is observed in or about a vehicle that is obstructing a roadway.
  • The person will not be apprehended unless immediately arrested.
  • The person may cause injury to himself or herself or damage property unless immediately arrested.
  • The person may destroy or conceal evidence of the crime unless immediately arrested.

(People v. Schofield (2001) 90 Cal.App.4th 968; the metabolic destruction of alcohol in a DUI suspect's body (i.e., the "burn off" rate) qualifies as the "destruction of evidence" for purposes of this exception.)

See also Troppman v. Gourley (2005) 126 Cal.App.4th 755, at pp. 760-761, where it was noted that the prior Supreme Court case of Mercer v. Department of Motor Vehicles (1991) 53 Cal.3rd 753, 768-769, requiring some observation of the vehicle's movement by the arresting officer, was no longer valid case law in light of the amendment to this statute.

The old California rule of requiring a valid arrest, even of an unconscious suspect, prior to the extraction of a blood sample (See People v. Superior Court [Hawkins] (1972) 6 Cal.3rd 757, 762.), was abrogated by passage of Proposition 8, in 1982.  Now, so long as probable cause exists to believe that the defendant was driving while intoxicated, a formal arrest is not a prerequisite to a warrantless seizure of a blood sample.  (People v. Trotman (1989) 214 Cal.App.3rd 430, 435; People v. Deltoro (1989) 214 Cal.App.3rd 1417, 1422, 1425.)

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Battery on School Grounds

Battery on School Grounds during school hours.  (P.C. § 243.5)

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Carrying a Loaded Firearm

Carrying a Loaded Firearm, in violation of P.C. § 12031(a)(1).  (P.C. § 12031(a)(5)(A))

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Assault or Battery Against the Person of a Firefighter, Emergency Medical Technician, or Paramedic

Assault or Battery Against the Person of a Firefighter, Emergency Medical Technician, or Paramedic, per P.C. §§ 241(b) or 243(b).  (P.C. § 836.1)

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Domestic Violence Restraining Orders

Persons Violating a Domestic Violence Protective or Restraining Order issued under authority of:     

  • CCP § 527.6 (Harassment Orders);
  • Fam. Code, §§ 6200 et seq. (Domestic Violence);
  • P.C. § 136.2 (Victim or Witness Intimidation);
  • P.C. § 646.91 (Stalking);
  • P.C. § 1203.097(a)(2) (Acts of violence, threats, stalking, sexual abuse, and harassment, in Domestic Violence);
  • W&I § 213.5 (During Child Dependency Proceedings);
  • W&I § 15657.03, (Elder or Dependent Adult Abuse) or
  • Similar orders from another state, tribe, or territory;

. . . where the officer has probable cause to believe the suspect has knowledge of the order and has committed an act in violation of the order.  (P.C. § 836(c)(1))

Note:  This section, and P.C. § 13701(b), at least when "domestic violence" (per Fam Code, §§ 2040 et seq., 6200 et seq., or 7700 et seq.) is involved, or when victim or witness intimidation (per P.C. § 136.2) is involved, make this arrest mandatory upon the officer, absent "exigent circumstances" excusing the lack of an arrest.

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Domestic Violence Assaults or Batteries

Assaults or Batteries upon the suspect's current or former spouse, fiancé, fiancée, a current or former cohabitant (per Fam. Code, § 6209), a person with whom the suspect currently is having or has previously had an engagement or dating relationship (per P.C. § 243(f)(10)), a person with whom the suspect has parented a child, or is presumed to have parented a child (per the Uniform Parentage Act; Fam. Code, §§ 7600 et seq.), a child of the suspect, a child whose parentage by the suspect is the subject of an action under the Uniform Parentage Act, a child of a person in one of the above categories, or any other person related to the suspect by consanguinity or affinity within the second degree, when the officer has probable cause and the arrest is made as soon as probable cause arises.  (P.C. § 836(d))

P.C. § 13700(b):  "Cohabitant" is defined in the Penal Code as "two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.  Factors that may determine whether persons are cohabiting include, but are not limited to,

(1)    sexual relations between the parties while sharing the same living quarters,

(2)    sharing of income or expenses,

(3)    joint use or ownership of property,

(4)    whether the parties hold themselves out as husband and wife,

(5)    the continuity of the relationship, and

(6)    the length of the relationship."

Fam. Code, § 6209:  "Cohabitant" is defined in the Family Code as a person who regularly resides in the household.  "Former Cohabitant" is defined as a person who formerly regularly resided in the household.

P.C. § 243(f)(10):  "Dating Relationship" is defined as frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.

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Elder Abuse

Assaults or Batteries upon any person who is 65 years of age or older and who is related to the suspect by blood or legal guardianship, when the officer has probable cause and the arrest is made as soon as probable cause arises.  (P.C. § 836(d))

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Carrying a Concealed Firearm at an Airport

Carrying a Concealed Firearm, per P.C. § 12025, when a peace officer has reasonable (or probable) cause to believe a violation has occurred within the area of an airport (as "airport" is defined by the Pub. Utilities Code, § 21013) to which access is controlled by the inspection of persons and property, and when the arrest is made as soon as reasonable (or probable) cause arises.  (P.C. § 836(e))

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Operating a Vessel or Recreational Vessel or Manipulation of Water Skis, Aquaplane or Similar Device While Under the Influence

Operating a Vessel or Recreational Vessel, or Manipulation of Water Skis, Aquaplane or Similar Device, while under the influence of drugs and/or alcohol, or addicted to the use of drugs.  (Har. & Nav. Code, § 655(b), (c), (d) or (e))  Upon information from a commissioned, warrant or petty officer of the United States Coast Guard establishing "reasonable cause," a peace officer may arrest for a violation of any the above offenses.  (Subd. (g))

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Operating a Vessel While Under the Influence of Alcohol and/or Drugs with an Accident

Operating a Vessel While Under the Influence of Alcohol and/or Drugs, when the person is involved in an accident on the waters of this state, with "reasonable cause," any peace officer may arrest.  (Har. & Nav. Code, § 663.1)

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Vehicle Code Violations, Exceptions

Vehicle Code Violations:  The Vehicle Code contains limited exceptions for citing a person for a misdemeanor or infraction even though the offense cited for did not occur in the peace officer's presence:

V.C. § 16028(c):  A peace officer, or a regularly employed and salaried employee of a city or county who has been trained as a traffic collision investigator upon review by a peace officer, at the scene of an accident, may cite any driver involved in the traffic collision who is unable to provide evidence of financial responsibility.

V.C. § 40600(a):  A peace officer who has successfully completed a course or courses of instruction, approved by the Commission on Peace Officer Standards and Training (i.e., P.O.S.T.) in the investigation of traffic accidents may cite any person involved in a traffic accident when the officer has probable cause to believe the person violated a provision of the Vehicle Code not declared to be a felony or a local ordinance and when the offense cited for was a factor in the occurrence of the traffic accidentSubd. (d) provides that the offense need not occur in the officer's presence.  However, subd. (c) provides that such a citation is not considered as an "arrest."

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Vehicle Code Parking Citations

Vehicle Code Parking Citations:  Parking violations are "civil infractions" only, enforceable under a separate civil administrative scheme, and subject to civil penalties.  (V.C. §§ 40200 et seq.)  (See Tyler v. County of Alameda (1995) 34 Cal.App.4th 777; United States v. Choudhry (9th Cir. 2006) 461 F.3rd 1097, 1101; 82 Op.Att'y Gen.Cal. 47 (1999).)

California peace officers are specifically authorized under the Vehicle Code to enforce parking citations.  (V.C. §40202(a); People v. Hart (1999) 74 Cal.App.4th 479; United States v. Choudhry, supra.)

A parking violation, even though civil, is cause for a police officer to stop and detain a vehicle's driver despite the fact that such a violation is but a "pretext" for detaining the driver to investigate some other offense for which the officer does not have a reasonable suspicion, per the rule of Whren v. United States (1996) 517 U.S. 806 [135 L.Ed.2nd  89].  (United States v. Choudhry, supra.)

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Stale Misdemeanor Rule

"Stale Misdemeanor Rule:"  The arrest for a misdemeanor must occur at the time, or shortly after, the commission of the offense.  (People v. Hampton (1985) 164 Cal.App.3rd 27.)  If not, it is a "stale misdemeanor" for which the defendant may not be arrested even if it occurred in the officer's presence.  (People v. Craig (1907) 152 Cal. 42, 47.)  What is and what is not stale depends upon the circumstances: 

"No hard and fast rule can, however, be laid down which will fit every case respecting what constitutes a reasonable time. What may be so in one case under particular circumstances may not be so in another case under different circumstances. All that can be affirmed with safety is that the officer must act promptly in making the arrest, and as soon as possible under the circumstances, and before he transacts other business.' . . . . ‘(W)e hold that in order to justify an arrest without warrant the arrestor must proceed as soon as may be to make the arrest.  And if instead of doing that he goes about other matters unconnected with the arrest, the right to make the arrest without a warrant ceases, and in order to make a valid arrest he must then obtain a warrant therefor (sic)."  (Oleson v. Pincock (1926) 68 Utah 507, 515-516 [251 P. 23, 26].)

"In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot delay for any purpose which is foreign to the accomplishment of the arrest."  (Jackson v. Superior Court (1950) 98 Cal.App.2nd 183, 187; next day, arrest illegal.)

The stale misdemeanor rule applies to arrests by private citizens, under authority of P.C. § 837, as well.  (Green v. Department of Motor Vehicles (1977) 68 Cal.App.3rd 536; arrest made some 35 to 40 minutes after the observation held to be lawful; see also Ogulin v. Jeffries (1953) 121 Cal.App.2nd 211; 20 minute delay, arrest lawful.)

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Sanctions for Violations

Sanctions for Violations:  A violation by a peace officer of either the "in the presence," or, arguably, the "stale misdemeanor" rules does not require the suppression of any evidence, in that these rules are statutory, or non-constitutionally based case law, only, and evidence is suppressed only when it's discovery is the direct product of a constitutional violation.  (People v. Donaldson (1995) 36 Cal.App.4th 532; People v. Trapane (1991) 1 Cal.App.4th Supp. 10; see also Jackson v. Superior Court, supra; and People v. McKay (2002) 27 Cal.4th 601, 607-619, a violation of V.C. § 21650.1 (riding a bicycle in the wrong direction); and People v. Gomez (2004) 117 Cal.App.4th 531, 539, seat belt violation, citing Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2nd 549]; United States v. Miranda-Guerena (9th Cir. 2006) 445 F.3rd 1233.)

"The violation of a state statute, standing alone, does not form the basis for suppression under the Fourth Amendment."  (People v. Hardacre (2004) 116 Cal.App.4th 1292, 1301; United States v. Miranda-Guerena (9th Cir. 2006) 445 F.3rd 1233.)

"It is elemental that the illegality tainting evidence and rendering it inadmissible is illegality flowing from the violation of a defendant's constitutional rights-primarily those involving unlawful searches and seizures in violation of the Fourth Amendment to the United States Constitution and the essentially identical guarantee of personal privacy set forth in article I, section 19, of the California Constitution.  [Citations.]  Evidence obtained in violation of a statute is not inadmissible per se unless the statutory violation also has a constitutional dimension."  (People v. Brannon (1973) 32 Cal.App.3d 971, 975; People v. Pifer (1989) 216 Cal.App.3rd 956, 962-963.)

See also the same reasoning being used in Rodriguez v. Superior Court (1988) 199 Cal.App.3rd 1453, 1470; suggesting that because a "nighttime" search does not violate any constitutional principles, evidence discovered during a nighttime search without judicial authorization, in violation of the requirements of P.C. § 1533, should not result in suppression of any evidence.

And see People v. Collins (2004) 115 Cal.App.4th 137:  Violation of the administrative provisions for the searching of prisoners in a prison, absent a constitutional violation, does not require the suppression of any resulting evidence.

The use of a "Phlebotomist" to draw blood from a "Driving while Under the Influence" (i.e., "DUI") suspect, as opposed to using one of the medical professionals authorized by V.C. § 23158, not being a constitutional violation merely due to the violation of the statute, does not result in the suppression of any evidence.  (People v. Esayian (2003) 112 Cal.App.4th 1031; People v. McHugh (2004) 119 Cal.App.4th 202; People v. Mateljan (2005) 129 Cal.App.4th 367, 376-377.)

A violation of "implied consent law," forcing a "DUI" (Driving While Under the Influence") suspect to summit to a blood test instead of a breath test, being a violation of state law only, does not expose the officer to any civil liability.  (Ritschel v. City of Fountain Valley (2005) 137 Cal.App.4th 107.)

However, at least one jurisdiction (i.e., Virginia) is in disagreement, holding that violating a state statutory restriction on arrest results in the arrest itself being without probable cause and thus in violation of the Fourth Amendment.  (Moore v. Commonwealth (2006) 272 Va. 717.)  This decision has been appealed to the United States Supreme Court which has granted certiorari.  (Virginia v. Moore, 06-1082.)

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Release Requirement

Release Requirement:  Persons subject to citation for the violation of a crime deemed to be an "infraction" must be released on a citation, except in limited circumstances.  If the person to be cited does not have a driver's license or other satisfactory evidence of identification, the officer may (in lieu of a custodial arrest, at the officer's discretion) require the arrestee to place a right thumbprint, or left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the promise to appear.  (P.C. § 853.5)

See also Public Resources Code § 5786.17, for the authority for uniformed employees of a Parks and Recreation District to issue misdemeanor and infraction citations for violations of state law, city or county ordinances, or district rules, regulations, or ordinances when the violation is committed within a recreation facility and in the presence of the employee issuing the citation.

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Exceptions

The exceptions to the requirement that the subject be released on his written promise to appear as listed in P.C. § 853.5 are:

  • As specified in V.C. §§ 40302, 40303, 40305 and 40305.5 (see below); or
  • The arrestee refuses to sign a written promise to appear; or
  • The arrestee has no satisfactory identification; or
  • The arrestee, without satisfactory identification, refuses to provide a thumbprint or fingerprint.

Because the section is written in the disjunctive, it is the opinion of the State Attorney General that if the person does not have satisfactory evidence of identification, the officer has the discretion to take the person into physical custody despite the fact that the person is willing to sign a written promise to appear and to provide a thumbprint.  (2005 Opn.Cal.Atty.Gen., #05-206)

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V.C. 40302

V.C. § 40302: Persons who would otherwise be cited and released for a Vehicle Code infraction or misdemeanor shall be arrested and taken immediately before a magistrate when the person:

  • Fails to present his driver's license or other satisfactory evidence of his identity for examination; or
  • Refuses to give his written promise to appear; or
  • Demands an immediate appearance before a magistrate; or
  • Is charged with violating V.C. § 23152 (i.e., "driving while under the influence.").
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Other Satisfactory Evidence of His Identity

"Other Satisfactory Evidence of His Identity:"   The arresting officer has the discretion to determine what constitutes "other satisfactory evidence of his identity," when the subject fails to provide a driver's license as required by the section.  (People v. Monroe (1993) 12 Cal.App.4th 1174, 1182; People v. McKay (2002) 27 Cal.4th 601, 619-625.)

However, that discretion is not unlimited.  Identification documents which are an "effective equivalent" are presumptively (i.e., in the absence of contrary evidence) sufficient.  This would include a California identity card (issued per V.C. § 13000) or any current written identification which contains at a minimum a photograph and description of the person named on it, a current mailing address, a signature of the person, and a serial or other identifying number.  (People v. Monroe, supra, at p. 1186.)

The officer is not legally obligated to make radio or other inquires in an attempt to verify the person's oral assertions of identity.  (Id., at p. 1189; People v. McKay, supra.)

An officer's refusal to accept oral statements as sufficient evidence of identity will be upheld on appeal.  (People v. McKay, supra; People v. Grant (1990) 217 Cal.App.3rd 1451, 1455; see also People v. Anderson (1968) 266 Cal.App.2nd 125, 128.)

An officer's refusal to accept a Social Security card upheld on appeal.  (People v. Farley (1971) 20 Cal.App.3rd 1032, 1036, fn. 2.)

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Arrestable Offenses

V.C. § 40303; Arrestable Offenses:  This section lists 17 different circumstances in which an arresting officer has the option of either taking a person "without unnecessary delay" before a magistrate, or releasing the person with a 10-days' written notice to appear:

  • Violation of V.C. §§ 10852 or 10853, relating to injuring or tampering with a vehicle.
  • Violation of V.C. §§ 23103 or 23104, relating to reckless driving.
  • Violation of V.C. § 2800(a), relating to failure to stop and submit to an inspection or test of a vehicle's lights per V.C. § 2804.
  • Violation of V.C. § 2800(a), relating to failure to stop and submit to a brake test.
  • Violation of V.C. § 2800(a), relating to failure to stop and submit to a vehicle inspection, measurement, or weighing, per V.C. § 2802, or a refusal to adjust the load or obtain a permit, per V.C. § 2803.
  • Violation of V.C. § 2800(a), relating to continuing to drive after being lawfully ordered not to drive by a member of the California Highway Patrol for violating the driver's hours of service or driver's log regulations, per V.C. § 34501(a).
  • Violation of V.C. § 2800(b), (c) or (d), relating to failure or refusal to comply with any lawful out-of-service order.
  • Violation of V.C. §§ 20002 or 20003, relating to duties in the event of an accident.
  • Violation of V.C. § 23109, relating to participating in a speed contest or exhibition of speed.
  • Violation of V.C. §§ 14601, 14601.1, 14601.2, or 14601.5, relating to driving on a suspended or revoked license.
  • When the person arrested has attempted to evade arrest.
  • Violation of V.C. § 23332, relating to persons upon vehicular crossings.
  • Violation of V.C. § 2813, relating to the refusal to stop and submit a vehicle to an inspection of its size, weight, and equipment.
  • Violation of V.C. § 21461.5, relating to being found on a freeway within 24 hours of being cited for same, and refusing to leave when lawfully ordered to do so by a peace officer after having been informed that he is subject to arrest.
  • Violation of V.C. § 2800(a) relating to being found on a bridge or overpass within 24 hours of being cited for same, and refusing to leave when lawfully ordered to do so by a peace officer pursuant to V.C. § 21962, after having been informed that he is subject to arrest.
  • Violation of V.C. § 21200.5, relating to riding a bicycle while under the influence of alcohol and/or drugs.
  • Violation of V.C. § 21221.5, relating to operating a motorized scooter while under the influence of alcohol and/or drugs.
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The Unlicensed Driver

V.C. § 12801.5(e): The Unlicensed Driver: "Notwithstanding (V.C.) Section 40300 or any other provision of law, a peace officer may not detain or arrest a person solely on the belief that the person is an unlicensed driver, unless the officer has reasonable cause to believe the person is under the age of 15 years."

See Bingham v. City of Manhattan Beach (9th Cir. 2003) 329 F.3rd 723, amended and superseded on denial of rehearing at 341 F.3rd 939; arrest for driving with an expired driver's license, in contravention of this statute, subjects the offending officer to federal civil liability.

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Non-Residents

V.C. § 40305; Non-Residents:  A nonresident who is arrested for any violation of the Vehicle Code and who fails to provide satisfactory evidence of identity and an address within this State at which he can be located may be taken immediately before a magistrate.

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Traffic Arrest Bail Bond Certificate

V.C. § 40305.5; Traffic Arrest Bail Bond Certificate:  Provisions for the arresting officer to receive a guaranteed traffic arrest bail bond certificate (with the requirements for such a certificate listed) when a nonresident driver of a commercial vehicle of 7,000 pounds or more (excluding house cars) is arrested for violating any provision of the Vehicle Code and fails to provide satisfactory evidence of identification and an address within the State at which he can be located.

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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].)

However, at least one jurisdiction (i.e., Virginia) is in disagreement, holding that violating a state statutory restriction on arrest results in the arrest itself being without probable cause and thus in violation of the Fourth Amendment.  (Moore v. Commonwealth (2006) 272 Va. 717.)  This decision has been appealed to the United States Supreme Court which has granted certiorari.  (Virginia v. Moore, 06-1082.)

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With an Existing Warrant of Arrest

With an Existing Warrant of Arrest:        

P.C. § 818:  A peace officer serving upon a person a warrant of arrest for a misdemeanor offense under the Vehicle Code or under any local ordinance relating to stopping, standing, parking, or operation of a motor vehicle and where no written promise to appear has been filed and the warrant states on its face that a citation may be used in lieu of physical arrest, may, instead of taking the person before a magistrate, prepare a notice to appear and release the person on his or her promise to appear.  In such a case, issuing a citation is deemed to be compliance with directions of the warrant.  The officer shall endorse on the warrant; "Section 818, Penal Code, complied with," and return the warrant to the magistrate who issued it.

P.C. § 827.1:  A person for whom an arrest warrant has been issued for a misdemeanor offense may be released upon the issuance of a citation, issued per P.C. §§ 853.6 to 853.8, in lieu of physical arrest, unless one of the following conditions exists:

  • The misdemeanor cited in the warrant involves violence.
  • The misdemeanor cited in the warrant involves a firearm.
  • The misdemeanor cited in the warrant involves resisting arrest.
  • The misdemeanor cited in the warrant involves giving false information to a peace officer.
  • The person arrested is a danger to himself or herself or others due to intoxication or being under the influence of drugs or narcotics.
  • The person requires medical examination or medical care or was otherwise unable to care for his or her own safety.
  • The person has other ineligible charged pending against him or her.
  • There is reasonable likelihood that the offense or offenses would continue to resume, or that the safety of persons or property would be immediately endangered by the release of the person.
  • The person refuses to sign the notice to appear.
  • The person cannot provide satisfactory evidence of personal identification.
  • The warrant of arrest indicates that the person is not eligible to be released on a citation.
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