a peace officer may not detain or arrest a person for no license

[moishanb]

I hope a few of you readers notice how the focus has shifted away from "peace officer" to driver/driving.

First things first!!! Who is the one claiming authority? Where did that authority come from? Do I accept his/her authority? Was the authority granted properly. Is the authority being used properly? Has the authority been lost? Am I under the purported authority? When does the authority apply? Is the current situation applicable to the authority being claimed?

You see how many questions we can come up with, and need to ask ourselves, and the claimant of authority over us, before we can start making assumptions as to whether or not the "stop" was predicated on some infraction?

[freebeme]

Originally Posted by Shoonra

Originally Posted by Calif. Veh. Code 40302

40302. Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made 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.
(b) When the person arrested refuses to give his written promise to appear in court.
(c) When the person arrested demands an immediate appearance before a magistrate.
(d) When the person arrested is charged with violating Section 23152.

Is Vehicle Code Section 40302 a provision of law?

If so... do you know what the word "notwithstanding" means in the setion I posted? In means "despite what any other law says". So as long as 40302 is a provision of law then it does not apply. Does it?

Calif. Veh. Code 12801.5

(e) Notwithstanding Section 40300 or any other provision of law,

notwithstanding
adv : despite anything to the contrary

So Shoonra, does "notwithstanding" as used in the Vehicle Code mean that the phrase trumps and nullifies "any" statute/code that suggest contrary procedure? Does it not mean that the "arrest" as mentioned in 40302 cannot be made?

Oh yes it does mean that. It means "no arrest can be made for the sole reason of suspicion of driving without a license! And what is funny is that out of the entire code, that is the only section that is afforded that level of exclusive denial of arrest. Driving without a license must be accompanied by something more. (A showing of being a public utility? Operating a commercial vehicle without a license?)

Anyway I thought I was dealing with law graduates on this site. I have never met an attorney that did not know the meaning of notwithstanding.

Peace be with you all in your "driving".

[robhalford88]

Originally Posted by moishanb

I hope a few of you readers notice how the focus has shifted away from "peace officer" to driver/driving.

First things first!!! Who is the one claiming authority? Where did that authority come from? Do I accept his/her authority? Was the authority granted properly. Is the authority being used properly? Has the authority been lost? Am I under the purported authority? When does the authority apply? Is the current situation applicable to the authority being claimed?

You see how many questions we can come up with, and need to ask ourselves, and the claimant of authority over us, before we can start making assumptions as to whether or not the "stop" was predicated on some infraction?

You will get used to bernie/shoonra/nugget derailing interesting threads.
It appears that is what his mission in life is.
Every now and then, he does actually come up with good info, usually by accident.

[Shoonra]

Originally Posted by FreeFromContract

So regardless of someone having "qualified" for a license, that qualification is no more of a guarantee of their "ability" to drive at a given future time than someone on the road without a license.

Shocking!

You just walked right into that one.

I don't know how you see that. A DL is at least evidence that at some reasonably recent time the holder demonstrated he had sufficient grasp of the traffic rules, eyesight, and reflexes to be considered fit to drive (and, in some states, that he had also complied with the insurance laws). A lack of a current DL raise the opposite supposition: that this motorist is unfit to drive and cannot be trusted behind the wheel.

[Shoonra]

Originally Posted by freebeme

If so... do you know what the word "notwithstanding" means in the setion I posted?

It has been held by California courts that Veh.Code 12801.5 prevents arrest when the ONLY reason is the cop's "belief" that the motorist is unlicensed. In at least one case, it was clear that "belief" is distinct from "positive knowledge" of the fact that the driver is unlicensed. In other cases, that if the traffic stop was for a violation of another traffic law (such as DUI) AND the officer additionally suspects the driver is unlicensed, he may arrest the driver.

Even where sec. 12801.5(e) prevents an officer from arresting a motorist, it is not clear that the cop is required to allow the unlicensed motorist to get back behind the wheel and drive off. He may insist that another person in the car, who has a DL, must do the driving or he may insist that the unlicensed motorist wait for a licensed driver such as a taxi cab.

[David Merrill]

Originally Posted by Shoonra

I don't know how you see that. A DL is at least evidence that at some reasonably recent time the holder demonstrated he had sufficient grasp of the traffic rules, eyesight, and reflexes to be considered fit to drive (and, in some states, that he had also complied with the insurance laws). A lack of a current DL raise the opposite supposition: that this motorist is unfit to drive and cannot be trusted behind the wheel.

Exactly; what a driver license fails to do is identify you. Use it only for competency. Use a Certificate of Search from the federal court on your true name, spelled in upper and lower case letters to identify yourself.



Regards,

David Merrill.

[FreeFromContract]

Originally Posted by Shoonra

I don't know how you see that. A DL is at least evidence that at some reasonably recent time the holder demonstrated he had sufficient grasp of the traffic rules, eyesight, and reflexes to be considered fit to drive (and, in some states, that he had also complied with the insurance laws). A lack of a current DL raise the opposite supposition: that this motorist is unfit to drive and cannot be trusted behind the wheel.

Of course you wouldn't know, nor admit to seeing that. To do so would completely blow away your false sense of security and contradict your belief that a holder of a license is just as much at liberty to act carelessly and break the rules of the road as those without a license. Head down to traffic court and see how many offenders are also holders of licenses. Why, if these people are more qualified to be behind the wheel, are they there being charged with reckless driving, DUI, DWI, speeding, etc. etc.

Getting behind the wheel of a car or pickup truck and manipulating the steering wheel, brake, gas and applying the appropriate judgment to travel down the road is something incredibly simple (so simple that I was able to command that skill by the time I was 10 years old). The facts of the real world contradicts your opinions and beliefs; fact is that only a very small percentage of those who apply for a license are denied, yet those "qualified" drivers choose to ignore the rules of the road (injuring and killing thousands in the process).

Originally Posted by Shoonra

In at least one case, it was clear that "belief" is distinct from "positive knowledge" of the fact that the driver is unlicensed.

And that case is????

Originally Posted by Shoonra

Even where sec. 12801.5(e) prevents an officer from arresting a motorist, it is not clear that the cop is required to allow the unlicensed motorist to get back behind the wheel and drive off. He may insist that another person in the car, who has a DL, must do the driving or he may insist that the unlicensed motorist wait for a licensed driver such as a taxi cab.

Wrong. It is very clear: there is no language in the Cal Statute indicating the officer has the authority to stop the driver if he has "positive knowledge" is there?

freebeme provided the text which clearly only mentions "belief" as the criteria which prohibits police action. You can't simply extend the context of the statute beyond what is actually written (you of all people should know better). If the legislature intended to include the condition concerning "knowledge" then it would be in the language of the statute.

This brings us to something moishanb pointed out. The officer may not do something simply because he feels like it. You know that. Is that why you interjected additional circumstances to give your argument traction? (Weak!) The officer has no authority under which to take action unless it is explicitly supported by statute. This is something your lawyer buddies would jump all over in an effort to get their client found not guilty on a technicality whereas a judge would railroad a pro se attempting to do the same. (Don't say it doesn't happen...I've seen it first hand.)

To make it as clear as possible for you, it settles on this: there is no correlation that those holding a driver's license exhibit a higher level of driving skills or propensity to obey the "rules of the road" when compared to those who do not hold a driver's license. If you disagree, please explain why you do not see only unlicensed drivers in traffic court for moving violations, accidents and other offenses.

It comes down to this Shoonra: the authority to act or not to act ultimately rests in the man or woman choosing their course of action. This is called liberty. This authority and course of action is independent of any "qualification" in the form of any license that may or may not be in their possession.

I know it gives you a warm fuzzy to believe that while you're waiting for the light to change that those sitting next to you in their cars and trucks have licenses, but any one of them can just as easily choose to run the next red light they come upon as someone who doesn't hold a license.

That is a fact.

[Shoonra]

Originally Posted by David Merrill

Exactly; what a driver license fails to do is identify you. Use it only for competency. Use a Certificate of Search from the federal court on your true name, spelled in upper and lower case letters to identify yourself.

Every state now has a photo of the licensee, and numerous institutions, including the police, are willing to accept DLs for identification.
A mere letter, without any photo or physical description, saying that a name hasn't been found in court records, is not proof of the name of the person holding the letter.

[farmer_giles_of_ham]

If such a letter is "furnished", to a 'law enforcement authority in uniform', after giving notice of "subjected to an investigation", then if the name is false thats a criminal offense.

Yet we are presumably innocent. So failing an arrest for "furnishing false info", the name must be true. Only 2 choices- offensive, or lawful.

And, by writing the same name in the "presence" of the 'officer', that establishes ID for exactly the same reason.

This is even required in the VC usually.

BTW- no matter what, everyone competent and of age automatically has an 'international' DL. Somehow conveniently ignored...

[Jerry Pitts]

Yes! moishanb: I noticed, but merely thought it peculiar. It is indeed interesting how no-one is attempting to make any distinction between a 'peace officer' and a 'motor cycle cop' or a 'patrol car cop' or a 'law enforcement officer'.

Here is a case from Florida wherein the term 'peace officer' is used in an ambiguous correlation to the term 'law enforcement officer"; thus making the terms synonymous within the perspective of the court. Something still seems to be amiss in the courts analogy of the two terms.
http://209.85.165.104/search?q=cache...ient=firefox-a

Jerry Carlos

Edited Info: Another interesting find relative to California status of 'Peace Officer' is found here; http://www.geocities.com/tthor.geo/peaceofficer.html

Originally Posted by moishanb

I hope a few of you readers notice how the focus has shifted away from "peace officer" to driver/driving.

First things first!!! Who is the one claiming authority? Where did that authority come from? Do I accept his/her authority? Was the authority granted properly. Is the authority being used properly? Has the authority been lost? Am I under the purported authority? When does the authority apply? Is the current situation applicable to the authority being claimed?

You see how many questions we can come up with, and need to ask ourselves, and the claimant of authority over us, before we can start making assumptions as to whether or not the "stop" was predicated on some infraction?