What is the name of your state (only U.S. law)? California.
Generally:
If a law states a certain procedure that an "arresting" (used loosely) officer must follow in a given circumstance, and states an exception to that procedure that relies on the officer making a decision, must there be evidence for that decision?
Specifically:
I was charged with violating two equipment-related laws on my vehicle - window tint (CVC 26708 a (1)) and tinted taillights (can't find the section ATM). Pursuant to CVC 40303.5 (d), both violations are correctable "unless the arresting officer finds that any of the disqualifying conditions specified in subdivision (b) of Section 40610 exist". CVC 40610 (b) lists the following disqualifying conditions:
(1) Evidence of fraud or persistent neglect.
(2) The violation presents an immediate safety hazard.
(3) The violator does not agree to, or cannot, promptly correct the violation.
Pursuant to CVC 40522, the court shall dismiss these violations upon proof of correction (which I've obtained).
"Fraud" is clearly irrelevant. "Persistent neglect" seems untenable, as this was the first time I had been cited for any equipment violation. I agreed to and did promptly correct the violations and obtained proof of same. I don't think there's a case for "immediate safety hazard", either - the citation occurred in broad daylight and my taillights, while darker than stock, are visible when on. In any event, the question I have is whether the state is required to produce evidence of any of these disqualifying conditions, or whether it's enough to assume that since the officer marked the violations as non-correctable, that they are established to be disqualified from 40303.5.
Miscellaneous details: someone else was actually driving the car and got stopped; I wasn't there and got a ticket in the mail later. There was no speeding, accident, or other violations involved, apart from a missing registration certificate, which was marked Correctable. The tint in question was on the front side windows, not the windshield, and was 5% VLT. That's dark for night but is not a meaningful obstruction in daylight. The stop happened at ~8am so it's not like night was about to fall and turn the tint into an immediate hazard.
Generally:
If a law states a certain procedure that an "arresting" (used loosely) officer must follow in a given circumstance, and states an exception to that procedure that relies on the officer making a decision, must there be evidence for that decision?
Specifically:
I was charged with violating two equipment-related laws on my vehicle - window tint (CVC 26708 a (1)) and tinted taillights (can't find the section ATM). Pursuant to CVC 40303.5 (d), both violations are correctable "unless the arresting officer finds that any of the disqualifying conditions specified in subdivision (b) of Section 40610 exist". CVC 40610 (b) lists the following disqualifying conditions:
(1) Evidence of fraud or persistent neglect.
(2) The violation presents an immediate safety hazard.
(3) The violator does not agree to, or cannot, promptly correct the violation.
Pursuant to CVC 40522, the court shall dismiss these violations upon proof of correction (which I've obtained).
"Fraud" is clearly irrelevant. "Persistent neglect" seems untenable, as this was the first time I had been cited for any equipment violation. I agreed to and did promptly correct the violations and obtained proof of same. I don't think there's a case for "immediate safety hazard", either - the citation occurred in broad daylight and my taillights, while darker than stock, are visible when on. In any event, the question I have is whether the state is required to produce evidence of any of these disqualifying conditions, or whether it's enough to assume that since the officer marked the violations as non-correctable, that they are established to be disqualified from 40303.5.
Miscellaneous details: someone else was actually driving the car and got stopped; I wasn't there and got a ticket in the mail later. There was no speeding, accident, or other violations involved, apart from a missing registration certificate, which was marked Correctable. The tint in question was on the front side windows, not the windshield, and was 5% VLT. That's dark for night but is not a meaningful obstruction in daylight. The stop happened at ~8am so it's not like night was about to fall and turn the tint into an immediate hazard.
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