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Are Cyclists Required to Carry Identification?

In an interesting, and potentially far-reaching case from Tucson, Arizona in 1999, a cyclist was arrested spent a night in jail for not carrying identification.  He was subsequently acquitted of the criminal charge, and note that he was not even charged with any vehicular infraction (though he could have been).

The cyclist brought suit for unlawful imprisonment.  In an unsettling Superior Court decision, effectively sided with the police/county...  From what I can tell, in the event a cyclist is stopped (at least in Pima county, Arizona) for cause by law enforcement without ID, they are guilty of a crime. (infractions of the vehicle code, with few exceptions, are civil violations, not crimes)

The reasoning behind the verdict appears to be faulty.  According to the Tucson Citizen article:

[Superior Court Judge] Kelly cited two traffic statutes that, when taken together, "require a bicycle rider to provide proof of identity when lawfully stopped for a traffic violation."
One statute says an operator of a motor vehicle who fails or refuses to show a driver's license or other form of identification on request is guilty of a class 2 misdemeanor. The other says that a person riding a bicycle on a roadway or a shoulder adjoining a roadway has all the rights and duties applicable to motorists.
The reference to the first statute is apparently 28-1595, which involves requirements for vehicle operators to provide identification.  The second refers to 28-812, applicability of laws to bicycle riders, and is materially incorrect.  28-812 says that bicyclists have "...all of the duties applicable to the driver of a vehicle...", not a motor vehicle.  The terms vehicle and motor vehicle have specific definitions under the law -- bicycles simply are not motor vehicles. Period.

However, 28-1595(C) does apply to cyclists: "A person other than the driver of a motor vehicle who fails or refuses to provide evidence of the person's identity ...  is guilty of a class 2 misdemeanor.", therefore it does appear that the verdict is correct, albeit not for the reasons stated.

Applicable law links to statute's full text

28-101.   Definitions (see vehicle and motor vehicle)
28-812.   Applicability of traffic laws to bicycle riders
28-1595. Failure to stop or provide driver license or evidence of identity; violation; classification
28-3169. Possession and display of driver license; defense
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Article:   Judge upholds deputy's arrest of bicyclist who didn't have ID  Arizona Daily Star; Feb 5, 2001
Editorial:   Improbable cause  Arizona Daily Star; Feb 6, 2001
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The Arizona Daily Star February 5, 2001

Judge upholds deputy's arrest of bicyclist who didn't have ID

Author: Inger Sandal

Enol Daniel Ortiz Jr. spent a night in jail because he didn't show identification to a deputy who had stopped him for weaving in traffic.

Ortiz, who is deaf and mute, was not in a car when he was stopped. He was riding a bicycle.

A lower court acquitted him last summer of the misdemeanor charge of failure to have identification. But a Superior Court judge recently sided with the deputy in a lawsuit Ortiz had filed alleging wrongful imprisonment.

Jerold A. Cartin, Ortiz' attorney, said the ruling has broad implications for anyone who rides a bicycle.

"If you violate a traffic law and you're on a bicycle you better have ID, because potentially you could be charged with a class 2 misdemeanor and you could be jailed," said Cartin, whose client wants to appeal the decision of Superior Court Judge John Kelly.

Cartin doesn't dispute that the deputy had the right to stop Ortiz at about 11:20 p.m. on Nov. 5, 1999, if his client was swerving in the westbound lanes of Golf Links approaching Ajo Road.

But Cartin questions why Ortiz was arrested for not having ID if he wasn't cited for any traffic violation. "If you're going to cite him, then you need identification. But if you're not going to cite him, then you don't need identification."

Deputy County Attorney Sean E. Holguin, who defended the Sheriff's Department in the civil case, said the judge based his ruling on laws that have been on the books for a long time.

"A lot of bicyclists may not be aware of the requirement that they must produce some form of identification if they are stopped for a traffic violation," he said, "but ignorance of the law is no excuse."

Cartin and Holguin argued their sides last month before Kelly, whose recent ruling sided with the deputy and found that the arrest and incarceration were proper.

Kelly cited two traffic statutes that, when taken together, "require a bicycle rider to provide proof of identity when lawfully stopped for a traffic violation."

One statute says an operator of a motor vehicle who fails or refuses to show a driver's license or other form of identification on request is guilty of a class 2 misdemeanor. The other says that a person riding a bicycle on a roadway or a shoulder adjoining a roadway has all the rights and duties applicable to motorists.

Kelly also found that police don't have to cite for every possible violation. "The police officer here had reasonable grounds to stop plaintiff for traffic violations and had probable cause to arrest him for failure to provide proof of identity," the judge wrote.

Walter Nash, a local attorney and avid cyclist, said the ruling appears technically correct. But Nash said he fears "an unscrupulous police officer or police agency" could use it to target cyclists and organized bicycle rides. Nash noted that there have been several recent incidents that caused ill will between cyclists and police.

"While the laws have been on the books, the specific application to this kind of situation has not been widely known. You can have a correct result under the statute, but the statutes themselves, when taken together, just don't make good sense," Nash said.

"The best example, literally applied, is your 10-year-old daughter riding her bicycle in the street could be taken to the juvenile authorities if she committed a traffic violation and didn't have ID on her," he said.

Nash said he does not carry identification when he rides because his cycling shorts don't have pockets.

Bob Beane, an accountant who belongs to the Phoenix Metro Bicycle Club, also was bothered by the ruling, although he does carry identification when he rides. "I think the cycling community would be better able to follow the laws if an issue like this was clarified legislatively rather than by individual judges," he said.

Cartin, who has practiced law in Tucson since 1967, said he took on Ortiz's case for free. "It's the most unusual that I've had and I don't know another case like it," he said.

Ortiz was born in Puerto Rico but grew up in New York. Both his parents were deaf.

Ortiz said he has a driver's license and usually carries a card from the Community Outreach Program for the Deaf, which can provide an interpreter in case of an emergency day or night. But he had left his wallet at home the night he was arrested.

Ortiz said he felt he was discriminated against because of his hearing impairment and his race. He also said he was bewildered when the deputy arrested him because he had no idea what he had done wrong.

"We had very limited communication," he said in a written exchange. "If the deputy asked me for my name and address, I would tell him, but somehow he went into his patrol car for dispatch. He cited me (as) John Doe on the report."

The question of whether the deputy should have requested an interpreter was not raised in Ortiz's lawsuit. And, Deputy County Attorney Holguin said, Ortiz still would have been in violation of the law for not having identification.

Deputy Kenneth Atchley reported that he gave Ortiz a note pad to write on after he learned from his hand gestures that Ortiz could not speak or read lips. He said the man wrote in a "very disjointed manner" what appeared to be an "H" and then "My" and then what appeared to be "Mallet," which the deputy took to mean that Ortiz did not have his wallet.

The deputy, who later identified Ortiz through computer records, said he feared Ortiz would get hurt if he were left on the road and initially took him to Pretrial Services, thinking that office had a way to communicate. But court officials rejected Ortiz after he became aggressive and started yelling, so the deputy instead booked him into jail as "John Doe."

"The officers at the jail were very rude to me," said Ortiz, who said he refused to fill out paperwork because he didn't understand why he had been taken to jail. "The officers threw me into the cell and handcuffed my hands and legs on the bunk for a couple of hours," he said.

Steve Palevitz, an attorney with the Arizona Center for Disability Law, said police nationwide often fail to provide interpreters for the deaf.

In 1999, he said, the Pima County Sheriff's Department agreed to pay $10,000 to settle a discrimination claim that it failed to provide a sign language interpreter.

The center had filed the federal lawsuit on behalf of a deaf woman who was cited in a Dec. 20, 1997, traffic collision. The deputy in that case questioned the other driver and a witness but not the deaf woman, and he made no attempt to secure the services of an interpreter.

That same year, the Sheriff's Department adopted a policy requiring a qualified interpreter be used to administer Miranda warnings, interrogate a hearing-impaired person, and/or interpret the person's statements.

* Contact Inger Sandal at 573-4241 or isandal AT azstarnet DOT com.


The Arizona Daily Star
February 6, 2001

Improbable cause

Section: EDITORIALS

Correction: * Tuesday's B6 editorial with the headline "Improbable Cause" misspelled the name of Tucson attorney Jerold Cartin.

In some countries it's still possible to be thrown in jail for failing to produce your identification papers.

But even right here in Pima County you can be riding your bicycle one moment and be thrown in the clink the next simply because you did not produce identification. It's the law. Or so says Superior Court Judge John Kelly, who ruled recently that the jailing of a bicycle rider because he lacked identification constituted probable cause and was the correct application of the law.

We look forward to the time when this law is equally applied by sheriff's deputies - when the county jail will be filled with legions of cyclists - men, women, Hispanics and anglos alike - who roam the streets as lawbreakers, dangerous outlaws notorious for their lack of identification.

Much like Enol Daniel Ortiz Jr., who was riding his bike a year ago November and was detained by a Pima County sheriff's deputy. The deputy had received a report that the cyclist was weaving. Ortiz, who is deaf, spent a night in jail. He was not accorded the services of a sign-language interpreter. He was never charged with a crime other than not having ID.

Ortiz's lawyer, Jerrold Curtin, applied common sense, arguing that absent the charge of unlawful behavior, identification is unnecessary. "If you're going to cite him, then you need identification. But if you're not going to cite him, then you don't need identification."

Sounds reasonable. But not to Judge Kelly. He ruled that Ortiz's lawsuit for wrongful imprisonment could not continue because the sheriff's deputy complied with the law. Kelly sided with the county attorney who cited a statute that says a bike rider "is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle." The language of the law goes on to say there are exceptions.

If, for example, a child is stopped, do the cops haul this under-age, identity-less misdemeanant to durance vile? No, says Curtin. Police may detain the little tyke for six hours for purposes of identity. Clearly the application of the statute governing motorists to bike riders carries exceptions. Ortiz's case should have been one of them. Kelly noted that the law applies to children, and also noted that children could not be jailed.

As for Curtin's argument, Kelly reasoned thus:

"Plaintiff also contends that he could not be cited for failure to provide proof of identity because he was not cited for any traffic violations. There is no authority for this argument. The police are not required to cite a person for every possible violation. The police officer here had reasonable grounds to stop plaintiff for traffic violations and had probable cause to arrest him for failure to provide proof of identity."

Actually, there is authority for Curtin's argument. It's called common sense. Kelly's ruling implies that possession of identification constitutes behavior, which is the key ingredient in probable cause.

What in fact constitutes probable cause for arresting a Hispanic deaf man solely because he lacks identification? There is no probable cause.

One wonders what the outcome of this case would be had Ortiz not been Hispanic or deaf, riding his bicycle near Golf Links and Ajo Way. If he had been a middle-aged white guy riding his bike on Sunrise near La Paloma would a sheriff's deputy have stopped him for weaving, then hauled him to jail for failing to produce his identification papers? Not hardly.

The Ortiz case is an example of abuse of power by the sheriff's department made all the more egregious for the stamp of legitimacy that Judge Kelly bestowed on it.

Copyright 2001 The Arizona Daily Star


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