A friend of Fair DUI sent us this juicy document from the Los Angeles County District Attorney’s Office.
We already knew Florida prosecutors were in a tizzy trying to deal with the Fair DUI flyer. Now we know their rage is national.
Mr. Devallis Rutledge, a refugee from the Orange County DA’s office, writes his opinion about various issues and in this case he took on our California Fair DUI flyer.
In his “brief” on the issue we get this from Rutledge:
The license and identification must be examined to assure validity and the presence of restrictions. … There can be little doubt that in both circumstances [license and registration], the driver is expected to surrender the specified documents to the peace officer for examination….”
People v. McKay (2002) 27 Cal.4th 601, 621-22.
This is a great example of a prosecutor using the wrong case to get to what he wants. People v. McKay was not about the encounter between a police officer and a driver at the window.
Around 6:00 p.m. on June 19, 1999, Los Angeles County Deputy Sheriff Valento observed defendant riding a bicycle in the wrong direction on a residential street.
A bicycle? Mr. Rutledge, please.
The statute refers to Section 40302(a) of the California Vehicle Code, which says:
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:
(a) When the person arrested fails to present his driver’s license or other satisfactory evidence of his identity for examination.
The Fair DUI Flyer talks about what happens before arrest. If you’re stopped by a police officer, you haven’t been arrested yet, so 40302 doesn’t apply. And even if it did,
Upon analysis it will be seen that one cannot be arrested on the sole authority of section 40302: “such section … is not penal in nature and cannot form the basis for a lawful arrest.”
There’s certainly an argument that if you’ve been stopped for a traffic violation you might have to hand over your license at some point – particularly when the officer has decided to write you a citation. But the initial encounter at the window is before that decision has been made.
Keep in mind that most of the flyer’s publicity comes from checkpoints, and in a checkpoint the driver hasn’t been stopped for any traffic violation. So there is no requirement to physically hand over the license in a checkpoint.
Rutledge also misapplies another case:
[E]very motorist knows that the officer will wish to speak with him, however briefly…. It may be necessary, for example, for the driver to roll down his window.” People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 822.
Kiefer is a case where the court ruled for the defendant:
The controlling issue in this proceeding is whether in the circumstances shown Officer Cameron’s act of opening the door of defendants’ car and looking inside was an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution. We conclude that the question must be answered in the affirmative, and that the trial court correctly granted defendants’ motion to suppress.
The court’s reference to rolling down the window was only to explain why the actions and movements of the driver and passenger inside the car were not suspicious. They didn’t say the driver has to roll down the window. They said it might be necessary.
Mr. Rutledge claims this is the bottom line:
BOTTOM LINE: Upon demand of a peace officer at a lawful traffic stop or CDL/sobriety checkpoint, the driver must give required documents to the officer, and may not merely exhibit them through rolled-up glass.
We disagree. The bottom line is that you do not have to give the documents to police at a traffic stop until the officer has decided to give you a citation. You should only give it to the officer if you are ordered to do so. And you don’t have to do it at all at a checkpoint.
With that said, consistent with what we say on the back of the flyer, if you are ordered by police to do something it is safer to comply. Your lawyer can fight the legality of that order later in court.
One issue that we expect to see in federal court in the future is whether a state statute requiring surrender of the license outweighs the driver’s Fourth Amendment rights. In 1968 which Rutledge refers to, police may have needed physically hold the license in their hands (though that still seems weak). But today police can write down the license number and other information, and check it on the computer in their car or call it in. That kind of technology did not exist in 1968.
There are states that clearly require surrender of the license. That’s an attempt to get around the Fourth Amendment and we can only hope that the federal courts will reject such an end run.
Another issue is what happens if a driver doesn’t follow our advice, refuses an order, and police smash the window. Police officers should be very careful with this, as they could be held liable for excessive force under Deville v. Marcantel.
It’s easy for prosecutors to offer up opinions like this. They’re not the ones who get sued in federal court when a cop goes too far on their advice. People think Fair DUI is anti-cop. We’re not. We do want police to follow the law (and many don’t like that), but we also want to protect police from dumb advice from the lawyers who are supposed to be on their side.