Which Way is Right? Code or Police Instructions?

[winki]

What is the name of your state? California

My son was stopped on his bicycle and issued a citation for hs 11357(b)

The citation form as well as the "Proof of Service/Correction" form mailed to him
a few weeks later have vc language in them and I am wondering if there is any
reason for this. I looked into it a little bit and am fairly sure that as per the law it
is standard to use these forms in the context of his situation...but I digress, although
the reason for my curiosity is as follows;

When reading the actual health and safety code 11357(b), it states that,

" In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking."

I have always been under the impression that a person could not be arrested for less than an ounce of marijuana, ( I do not condone his use, that has always just been what I thought the law was) So, one of my questions is, if he was arrested, -then I am wrong that a person cannot be arrested for less than an ounce, (he had 1/8th ounce)?

Since he provided his ID and signed the citation, which stated the day and time for him to appear in court, then why has he received this "Proof of Service/Correction" notice - (also on a traffic form, TR-100 I believe), stating that he must report for informal booking?

He was on his bike, not in or driving a car and he has no criminal record , this is his first offense.

Have you any personal knowledge of what the typical sentence for 1st time offenders is in Santa Clara County Superior Court? Would it behoove him to ask the DA for some alternative like attending meetings or doing community service so this would not become a record at all?

In summation, has he been arrested?, is that legal?, did he not sign a "promise to appear "(sufficient to satisfy the wording in the code), using the citation form as that document, when he provided ID and was allowed to go on his way? Was an official "Promise to Appear" form neccessary to satisfy the wording of the hs code 11357(b) and if so was the officer mistaken? Why must he now appear for informal booking?

I appreciate your time taken in reviewing this and I greatly appreciate any clarification you can provide. Thank You.What is the name of your state?

 

[CdwJava]

The "promise to appear" is just that - a promise to appear. The correction or amendment form requesting his booking was likely sent because H&S 11357(b) IS a misdemeanor under CA law even though it is punishable by a fine only. Prior to court, most misdemeanors require a person be "booked" prior to trial - in other words, that they present themselves for photos and prints. This is because the offense CAN result in a criminal offender record (for a period of two years ... marijuana is the only offense in CA that I know of that automatically disappears after two years).

And, yes, there probably are diversion programs available for first offenders.

Hopefully he will get help for his marijuana problem before things get worse. Like it or not, marijuana IS illegal, it CAN cause problems, and it is not the happy, benign weed that its advocates would like you to believe.

- Carl

 

[winki]

Thank You for that....

but what about my other questions regarding arrest not being an option for less than an ounce? and the wording about not subject to booking? aren't those legitimate questions?

 

[CdwJava]

but what about my other questions regarding arrest not being an option for less than an ounce? and the wording about not subject to booking? aren't those legitimate questions?

"Booking" is not always the same as "arrest." One can be required to be booked even if they are not subject to jail time as a penalty.

Unless your son was cuffed and transported away from the scene, he was not arrested - he was issued a citation to appear in court and released at the scene on his own recognizance. He was not subject to booking at that time ... in other words, he was not arrested.

However, pursuant to PC 853.6(g) a person can still be ordered to appear before court for a pre-trial booking. Whether he is required to do so in this case might be arguable and is often a matter of local agency and court policy. As it is a misdemeanor, and even H&S 11357(b) defers to PC 853.6, I would presume that he must appear for said booking (which is photos, prints, and release) if so ordered.

He can always refuse to appear for the booking, opt to hire an attorney (for at least $1,500) to fight the $100 ticket, and take the issue to court.

If your son is over 18 then this might be a question he needs to raise with the issuign agency. It may be that this is not their policy and the issuing officer erred on the booking info. I know that in my agency it is NOT common for us to do this, and only when a judge orders someone to be booked will this occur.

- Carl

 

[winki]

So There We Were Surrounded W/ Wonder

Hello~

Yesterday was my sons much anticipated court date. He was not on calender and upon checking with the court clerk we were informed that the citation had not yet been forwarded to the court.

We were instructed to call back once a week for, ostensibly, the next year.....seemed like maybe a stroke of luck or something, but...

Today we received another "Proof of service/correction" form and now this one says that the court date is changed from yesterday, to the first week of July. In addition to that the case number has also been changed. Besides the case number being changed & the notice being 2 days too late to inform us of the date change, it is also signed by not only the officeer who gave my son the citation, but by another officer as well, with "-clu" following her name and badge number.


Can you please shed some light on what if anything is askew about this handling of the citation.What is "CLU"? Isn't there a certain number of days that , once booked,(as my son did complete his informal booking prior to yesterdays appearance),- isn't there some number of days that he must be seen in court by? How is it that they can put it off for 2months? and change the case number?

I thought I read somewhere in my researching that the citation must not be ammended in any salient way, i.e. additonal charges or extra detail that was not there when the citation was originally signed......anyway, why on earth would they change the case number and what would you suggest I look into at this point.?

I don't expect you to tell me anything definitive, but can you please share your initial impression /thoughts with regard to these rather peculilar circumstances. I certainly would appreciate it greatly as I am now, completely at a loss.

Thank you in advance for any contribution you can make to my general state of informedness.

Hope this finds you well

Kelly

 

[CdwJava]

Can you please shed some light on what if anything is askew about this handling of the citation.

It's a paperwork SNAFU to be sure, but I doubt that there is anything untoward about it. To know for sure, you'd have to consult an attorney ... something that will cost far more than the fine for the marijuana possession.

What is "CLU"?

Probably shorthand for some "unit" ... I can't say what the "C" and the "L" might stand for, but my guess is the officer that submitted the correction is part of an administrative unit of some kind.

Isn't there a certain number of days that , once booked,(as my son did complete his informal booking prior to yesterdays appearance),- isn't there some number of days that he must be seen in court by? How is it that they can put it off for 2months? and change the case number?

Generally, since he is not in custody, speedy trial issues do not apply. There may be other time issues that are relevant, but this is not an area I generally deal with and would require an attorney's opinion. However, it is not likely that this will be an issue, ultimately.

I thought I read somewhere in my researching that the citation must not be ammended in any salient way, i.e. additonal charges or extra detail that was not there when the citation was originally signed......anyway, why on earth would they change the case number and what would you suggest I look into at this point.?

A change in the case number does NOT mean a change in the charges. A change in the case number is simply a change in the reference number used to associate a report with the case. I can hypothesize as to why until the cows come home, but they would only be guesses.

Hope this finds you well

Overworked, underpaid, and scrambling to please my wife with a gift on Mother's Day, but otherwise well. Thanks.

- Carl

 

[Bretagne]

Generally, since he is not in custody, speedy trial issues do not apply. There may be other time issues that are relevant, but this is not an area I generally deal with and would require an attorney's opinion. However, it is not likely that this will be an issue, ultimately.

Carl is right, and there are no issues with timing here, except for a statute of limitations potential, and even that may not apply as he has already been charged. I know that it seems wierd, but that's the system.

In my state, the court date on an infraction citation often arises before the prosecutor even knows of the matter. If you fail to appear, and the prosecutor's not there because they don't even know of the ticket yet, the court will refer the citation information back to the prosecutor so they know what's going on. Here, you can appear over and over and over again without a prosecutor's presence, so sometimes the judge will finally just dismiss the matter. Or, the judge might, on his/her own motion, resolve the case without the prosecutor's input since they obviously don't care about the charge.