‘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). Here’s a nolo.com article on the subject. In the case of CA, they refer to this code section:

CVC 40300. The provisions of this chapter shall govern all peace officers in making arrests for violations of this code without a warrant for offenses committed in their presence

As well as a 1950 court case involving a warrantless (physical) arrest. I find that all fascinating, but it doesn’t mean video evidence can’t be the basis for issuance of a citation for one or two (or possible both) reasons — 1) a police officer issued citation need not, and rarely does, involve an arrest — so the ‘warrantless arrest’ thing is a red-herring, and/or 2) if 1 is incorrect; it only means a warrant must be obtained, meaning a police officer (or prosecutor? or anybody?) must show the evidence to a judge/justice and if they agree, a warrant can be issued.

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
  • §28-1592 (title 28)  “A civil traffic violation case is commenced by issuance [i.e on the spot by a LEO who witnessed the event] or filing [e.g. later. or anther e.g. for a photo-enforcement ticket] of a uniform traffic ticket and complaint as provided in this article”
  • §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.

[this material was moved from the article driver-convicted-in-horn-honking-incident ]

Filing Police Reports

See CA Attorney Seth Davidson’s article Report Card, where he stresses the need, neigh duty, to report such behaviors, which are nothing more or less than using a dangerous instrument to commit a crime. The article speaks to the imperative to file police reports if you feel you have been the victim of a crime; it specifically deals with reporting a crime (not merely a traffic infraction), and so has nothing to do with any ‘in the presence’ requirement. They make excellent points: Police must take your report; the report may ultimately lead nowhere and not be investigated but is still potentially valuable e.g. for repeat offenders.
There an interesting sample police report (it’s a real police report, but with some names redacted).

For reference, here is a list of Arizona crimes that motorists can commit, especially by using their vehicles as dangerous instruments:

 

More References: state of Oregon, and Washington

f.b. thread. OR and WA was mentioned.

Washington has provisions prohibiting non-witnessing officers from issuing citations, with exceptions for crash investigations, automated enforcement AND A PROVISION FOR ASKING A COURT by any officer:

RCW 46.63.030
Notice of traffic infraction—Issuance—Abandoned vehicles.
(1) A law enforcement officer has the authority to issue a notice of traffic infraction:
(a) When the infraction is committed in the officer’s presence, except as provided in RCW 46.09.485;
(b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed;
(c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident has committed a traffic infraction;
(d) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170; or
(e) When the infraction is detected through the use of an automated school bus safety camera under RCW 46.63.180.
(2) A court may issue a notice of traffic infraction upon receipt of a written statement of the officer that there is reasonable cause to believe that an infraction was committed.

Oregon:

810.410 Arrest and citation.
(2) A police officer may issue a citation to a person for a traffic violation at any place within or outside the jurisdictional authority of the governmental unit by which the police officer is authorized to act:
(a) When the traffic violation is committed in the police officer’s presence; or
(b) When the police officer has probable cause to believe an offense has occurred based on a description of the vehicle or other information received from a police officer who observed the traffic violation.

In Oregon, they don’t have an explicit provision enabling an officer to go to a court. (i suppose it could be elsewhere). In the news story about OR, linked above, said police issued citations for careless driving (which might be criminal?), and improper passing (which is certainly civil).

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4 thoughts on “‘In the presence’ Requirement?”

  1. Citations were issued in Flagstaff by PD apparently at the behest of the city attorney in a case involving a Bus overtaking a bicyclist at less than 3 feet, and speeding; based on the bus’s surveillance video. The alleged violations were not witnessed by any law enforcement officer. Curiously the city attorney later motioned to have the citations dismissed; never explained why.
    http://azbikelaw.org/an-historic-citation/
    I believe the citation was made after the statute of limitations (even at the time of the request), and I believe the attorney knew this, and requested issuance anyway, if only to be able to make the statement that “a citation has been issued”. Citations not involving a collision investigation must be filed within 60 days of the alleged infraction, 28-1592

  2. Have you been threatened/intimidated/harassed, etc?

    There’s a great article written in the CA context, though the same principles apply: https://pvcycling.wordpress.com/2016/05/26/report-card/

    So the first thing is to forget the notion of “getting the driver cited” (for some traffic violation) — the police will probably tell you, rightly or wrongly, that “there is nothing they can do since they didn’t witness the incident”. I don’t think that’s correct, see e.g. http://azbikelaw.org/in-the-presence-requirement/
    But regardless; you need to think in terms of what *criminal* conduct might have occurred.
    Several escalating possibilities are:
    Endangerment
    Threatening or Intimidating
    (Aggravated) Assault
    (the statutes are here: http://azbikelaw.org/vehicular-assault/
    These are all crimes.

    Be prepared for frustration: Police will at first probably dissuade you (some will flat out refuse). You’ll probably have to insist. You will probably need to give the report in person, typically anywhere in the jurisdiction. Once a report is taken, there’s not really any way to force the police to investigate — but it’s a critical first step, and is needed to get everything on the record. Be sure to get a report number.

    Once this happens you are a/an (alleged, i guess) “crime victim”. Crime victims have special rights in Arizona.

  3. Indicia of Criminality:

      Repeated or prolonged horn activation
      Changing lanes repeatedly
      Changing lanes to become impeded
      Failure to change lanes given the opportunity / Driving too slowly
      Passing too closely
      Failure to drive within one lane (“Straddling” lanes)
      Slowing after passing
      Any Reckless or Aggressive Driving
      Shouting
      Causing extra noise (revving engine)

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