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Old 04-24-2018, 04:07 PM   #1
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"Violations not committed in my presence, declared on information and belief"

A friend of mine was in a crash, and ended up getting a ticket in the mail, from the investigating CHP officer, for 22350.

On it, the box "Violations not committed in my presence, declared on information and belief" is checked.

I had thought that misdemeanors and infractions could only be cited/arrested for if committed in the officer's presence (with some exceptions, 22350 not one of them). Has there been some recent change, or is there an exemption for post-crash?
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Old 04-25-2018, 07:39 AM   #2
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If the officer is trained in basic collision investigation, he/she can cite for the PCF even if committed outside their presence.
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Old 04-25-2018, 07:52 AM   #3
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Interesting, I hadn't known that. I hadn't heard of it happening before in CA.
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Old 04-25-2018, 08:10 AM   #4
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Yup, which is another reason I find it funny that some will insist on having an officer come out, even for basic fender-benders. Just exchange info and get it over with... no reason to risk one party getting a ticket on top of higher insurance rates.
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Old 04-25-2018, 11:12 AM   #5
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Makes sense.

If the officer is trained in accident investigation he/she can take pics/measurements and combined with witness info develop an informed expert opinion on who/what went sideways fault assignment.
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Old 04-25-2018, 01:23 PM   #6
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I had thought that misdemeanors and infractions could only be cited/arrested for if committed in the officer's presence
The phrase " in the officer’s presence" has a different connotation in a legal sense from what is used commonly. The phrase goes back to common law. US case law has numerous opinions which deal with appeals to the "in the officer's presence" requirement which have held different interpretations which include describing the physical senses (Davids vs State 208, Md.), sight, sound, or smell of a crime (Clay vs United States, 239 5th Circuit), and probable cause or from another officer (Robinson vs State, Md). California also has its own case law which deals with the "in the officer's presence requirement. One case in particular states that "the Fourth Amendment supports arrests for misdemeanors when there is objective and reasonable probable cause to justify the arrest, regardless of the ‘in the presence’ requirement outlined in Penal Code Section 836(a)(1)" (California vs David Burton, No. 2010028438, 2013).

Citations are routinely issued for violations that require more than just the issuing officer personally observing, or being physically present to witness the violation as it occurred. The standard has always been the objective and reasonable probable case to justify it.
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Old 04-25-2018, 03:34 PM   #7
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If the officer is trained in basic collision investigation, he/she can cite for the PCF even if committed outside their presence.
Yeah, but what's the legal authority under the vehicle code that allows for this exception to the "in the presence" requirement? I haven't been able to find one. The other misdemeanor exceptions to arrest, such as DUI, are written into statutory law.

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The phrase " in the officer’s presence" has a different connotation in a legal sense from what is used commonly. The phrase goes back to common law. US case law has numerous opinions which deal with appeals to the "in the officer's presence" requirement which have held different interpretations which include describing the physical senses (Davids vs State 208, Md.), sight, sound, or smell of a crime (Clay vs United States, 239 5th Circuit), and probable cause or from another officer (Robinson vs State, Md). California also has its own case law which deals with the "in the officer's presence requirement. One case in particular states that "the Fourth Amendment supports arrests for misdemeanors when there is objective and reasonable probable cause to justify the arrest, regardless of the ‘in the presence’ requirement outlined in Penal Code Section 836(a)(1)" (California vs David Burton, No. 2010028438, 2013).

Citations are routinely issued for violations that require more than just the issuing officer personally observing, or being physically present to witness the violation as it occurred. The standard has always been the objective and reasonable probable case to justify it.
I looked at California vs Burton. It is a DUI case, for which there is a specific authority section which allows for arrests not committed in the officer's presence. The other case laws cited in that decision also had to do with DUI cases, with one of those DUI cases that ruled that there was no Federal civil rights requirement that a misdemeanor be committed in an officer's presence before an arrest can be made. Indeed, there is not. Some states don't have this arrest requirement, but California does.

So, it seems to me, that case law really only applies to California arrests where there is a written exception to the misdemeanor rule. It's actually the "public offense" rule, which also includes infractions, not just misdemeanor rule.

If there is a vehicle code authority section that allows for arrests (citations) for violations not committed in the officer's presence, please point that out to me. Maybe I just don't know where to look for it. I'd be interested to see how a motion to supress might work on one of those collision tickets.

Lastly, let's consider this. If an officer were, say, to arrest a shoplifter for a misdemeanor not committed in his presence, it would not be a lawful arrest, procedurally, per California law. But what are the ramifications of doing this? So long as probable cause exists, it is not a 4th amendment violation. And it is a situation where the D.A. could file a complaint. So even if you throw out the arrest, charges can still be filed. Contrast that with a traffic citation issued following a collision, where the violation did not occur in the officer's presence. Again, not a 4th amendment violation, and there isn't even a custody issue here. But this is a circumstance where the D.A. is not going to file a complaint for an infraction. So, it seems, the only way to accomplish charing someone in cases like this is for the officer to intentionally violate the laws of arrest (of course, unless I'm missing the authority section for this). That seems wrong to me. Why have laws of arrest if they don't have to be followed?
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Old 04-25-2018, 04:58 PM   #8
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Yeah, but what's the legal authority under the vehicle code that allows for this exception to the "in the presence" requirement? I haven't been able to find one. The other misdemeanor exceptions to arrest, such as DUI, are written into statutory law.
40600 VC and 40604 VC are what you’re looking for.
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Old 04-25-2018, 05:59 PM   #9
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I looked at California vs Burton. It is a DUI case, for which there is a specific authority section which allows for arrests not committed in the officer's presence. The other case laws cited in that decision also had to do with DUI cases, with one of those DUI cases that ruled that there was no Federal civil rights requirement that a misdemeanor be committed in an officer's presence before an arrest can be made. Indeed, there is not. Some states don't have this arrest requirement, but California does.

So, it seems to me, that case law really only applies to California arrests where there is a written exception to the misdemeanor rule. It's actually the "public offense" rule, which also includes infractions, not just misdemeanor rule.
Great point.

I think I oversimplified what I was trying to convey with my last statement of “The standard has always been the objective and reasonable probable cause to justify it.”

The courts have ruled that the in the presence requirement be liberally construed (In re Alanzo C 1978 87 Cal App. 3d). There are many interpretations of presence where the officer is not physically at the location to observe the crime and the presence requirement is met (Royton v Battin 1942 55 Cal. App. 2d officer observed the violation through a telescope) (People v Cahill 1958 163 Cal App 2d Officer overheard solicitation of prostitution) (People v Lee 1984 157 Cal App 3d Officer saw Lee walk into a dressing room with 5 articles, leave with 3, and only 1 item was in dressing room and it was ruled that “physical proximity nor sight is essential”).

There are also interpretations where the officer is not physically at the location to observe the crime and the presence requirement is not met (Forgie-Buccioni v. Hannaford Brothers, Inc 1st Cir. 2005 where police officers watched a partial videotape of the plaintiff allegedly shoplifting and it was decided that the officer who made the arrest did not observe the plaintiff shoplifting).
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Old 04-25-2018, 06:22 PM   #10
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40600 VC and 40604 VC are what you’re looking for.
Ah, right you are.

I swear I read over those. Maybe my brain wasn't functioning correctly. 40600 CVC would be the exception to the public offense rule. Thanks.
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Old 04-25-2018, 06:26 PM   #11
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Great point.

I think I oversimplified what I was trying to convey with my last statement of “The standard has always been the objective and reasonable probable cause to justify it.”

The courts have ruled that the in the presence requirement be liberally construed (In re Alanzo C 1978 87 Cal App. 3d). There are many interpretations of presence where the officer is not physically at the location to observe the crime and the presence requirement is met (Royton v Battin 1942 55 Cal. App. 2d officer observed the violation through a telescope) (People v Cahill 1958 163 Cal App 2d Officer overheard solicitation of prostitution) (People v Lee 1984 157 Cal App 3d Officer saw Lee walk into a dressing room with 5 articles, leave with 3, and only 1 item was in dressing room and it was ruled that “physical proximity nor sight is essential”).

There are also interpretations where the officer is not physically at the location to observe the crime and the presence requirement is not met (Forgie-Buccioni v. Hannaford Brothers, Inc 1st Cir. 2005 where police officers watched a partial videotape of the plaintiff allegedly shoplifting and it was decided that the officer who made the arrest did not observe the plaintiff shoplifting).
I'd have to research the case law, but regarding video surveillance, I've read that video surveillance viewed through a monitor while it's occurring, where the officer or person is on scene, but in another room, does count as occurring in presence for arrest purposes. Whereas video surveillance viewed after the fact, or from a remote location, did not count.
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Old 04-26-2018, 07:44 AM   #12
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Thanks for the info.

I'm surprised that 40604 allows FTA warrants with no proof of service - they just have to mail the courtesy notice normal mail, no requirement that it's registered mail, no requirement of proof of delivery, etc.
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