Driver convicted in Colorado horn-honking incident

If you haven’t yet seen the actual video of the incident, it’s really remarkable.

Kudos to the Colorado Highway Patrol (and the prosecutors) for actually investigating; and bringing the driver to justice.

According to the Daily Camera, driver “James Ernst pleaded guilty to two counts of harassment — a Class 3 misdemeanor — and two counts of improper use of a horn — a traffic offense”, and received 12 months probation, including a court-ordered anger management class.

I’m starting a new tag today, intentional, to highlight intentional mis-deeds; which are both far less common than unintentional (but still dangerous) behavior, and  in some types of cases  can be hard to prove. Nothing to do with this case — nobody was injured — I’ve also always wondered about insurance policy’s “intentional acts exclusion” — if an insured person intentionally runs over somebody with their car, is their auto insurance off the hook for damages?

‘In the presence’ Requirement?

With the prevalence of dash cams, go pros, and smart phones, these sorts of videos have become more and more common, e.g. here’s another one from Oregon in 2015, Police credit cyclist’s video in careless driving citation:

The police bureau frequently sees videos and photos of unsafe driving, bureau spokesman Sgt. Pete Simpson. But it’s rare that enough information is captured to issue a citation. “Quite often there’s not enough there to show that will beyond a reasonable doubt, show who was driving a car at the time,” Simpson said.

Note the “reasonable doubt” is the standard of proof for a criminal charge (e.g. Reckless driving in Arizona is criminal, but virtually all driving infractions are civil, where the standard of proof is “preponderance of the evidence”. AZ doesn’t really have the equivalent of careless driving).

It’s been stated/claimed that police can only cite drivers for actions they have personally witnessed — and therefore a citizen-supplied video cannot be used as the basis for police to issue a citation. I question this claim. Relating specifically to CA, this is often offered: ‘In the Presence’ requirement: Misdemeanors (and infractions) must have occurred in the officer’s presence, so Q.E.D. Furthermore, all states have similar, with varying wrinkles, requirements; see e.g. William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. (1993).

I find that all fascinating, but at the heart of the matter is the fact that a police officer issued citation need not, and rarely does, involve an arrest — so the ‘warrantless arrest’ thing is a red-herring.

Here’s are some references to AZ law regarding ‘In the presence’, warrantless arrests, and some issues regarding citizen’s arrest:

  • §13-3903 Notice to appear and complaint
  • §28-1556  …arrest without a warrant (note: title 28)
  • “citizen arrest” provisions:
  • §13-3884 Arrest by private person
  • §13-3889 Method of arrest by private person
  • §13-3900 Duty of private person after making arrest

Note in AZ the standard for a citizen’s arrest must be “the person to be arrested has in his presence committed a misdemeanor amounting to a breach of the peace, or a felony.” I wonder what exactly breach of the peace means? This, e.g. varies from CA law where a citizen’s arrest can be made for any “public offense” which apparently  “include(s) misdemeanors and infractions”.

Citations for photo-enforcement (Arizona cities use both photo-red, and photo-speeeding) violations are routinely delivered without arrest; notices of intent to file are mailed, and if ignored result in an ATTC delivered by a process server to the alleged driver.

It’s also obviously true that police routinely issue citation(s) pursuant to a traffic collision investigation which they have not personally witnessed. This is handled explicitly in CA, CVC § 40600 (or direct link to codes) says traffic investigations can result in citations even though the no police witnessed the action; it also explicitly says such a citation is not an ‘arrest’ — is that necessary? I can’t find any equivalence in AZ.


One thought on “Driver convicted in Colorado horn-honking incident”

  1. more weird stories out of colorado

    And especially the “Mark Ewell” video out of Colorado Springs, CO (now removed at his request from youtube… The incident happened approx July 16?, 2013; and was removed as of July 19.;v=MffTv_M0zHc

    The incident that sparked his rage occured on a “section of Marksheffel Road where Mark Ewell was complaining about the cyclists is only 25 mph. Mark Ewell complained that the cyclists were only doing 20-25 mph”. Which i cannot confirm (i mean: i cannot confirm the posted limit). I don’t know the ins-and-outs of CO law, but the lanes were presumably (but again i can’t confirm) “too narrow for a vehicle to safely pass a bicycle…”

    He, via his facebook page, later apologized; well sort of…

    “July 17, 2013 at 11:18 PM
    I would like to apologize to the cycling community of Colorado for the video that was posted on Monday.

    While the cyclists in question were clearly breaking state law by riding in a pack instead of single file, that does not excuse my commentary or actions. I intended the video to demonstrate the attitudes and indifference of cyclists, but was more successful in showcasing my own frustrations.

    I will be examining myself as a result of this incident. Perhaps the cyclists who engage in the behavior shown in the video will be able to overlook my comments and consider their own behavior as well. Hey – maybe we can go for a ride together sometime. Or a run.

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