California V. C. Section 14601.3

[I_Got_Banned]

What is the name of your state (only U.S. law)? California

I’m trying to understand this particular code section and would really appreciate your opinion(s) about the 2 points (questions) I highlighted beneath the text of 14601.3:

14601.3 States the following:
(a) It is unlawful for a person whose driving privilege has been suspended or revoked to accumulate a driving record history which results from driving during the period of suspension or revocation. A person who violates this subdivision is designated an habitual traffic offender.
For purposes of this section, a driving record history means any of the following, if the driving occurred during any period of suspension or revocation:
(1) Two or more convictions within a 12-month period of an offense given a violation point count of two pursuant to Section 12810.
(2) Three or more convictions within a 12-month period of an offense given a violation point count of one pursuant to Section 12810.
(3) Three or more accidents within a 12-month period that are subject to the reporting requirements of Section 16000.
(4) Any combination of convictions or accidents, as specified in paragraphs (1) to (3), inclusive, which results during any 12-month period in a violation point count of three or more pursuant to Section 12810.
(b) Knowledge of suspension or revocation of the driving privilege shall be conclusively presumed if mailed notice has been given by the department to the person pursuant to Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof.
(c) The department, within 30 days of receipt of a duly certified abstract of the record of any court or accident report which results in a person being designated an habitual traffic offender, may execute and transmit by mail a notice of that designation to the office of the district attorney having jurisdiction over the location of the person's last known address as contained in the department's records.
(d) (1) The district attorney, within 30 days of receiving the notice required in subdivision (c), shall inform the department of whether or not the person will be prosecuted for being an habitual traffic offender.
(2) Notwithstanding any other provision of this section, any habitual traffic offender designated under subdivision (b) of Section 23546, subdivision (b) of Section 23550, or subdivision (b) of Section 23550.5, who is convicted of violating Section 14601.2 shall be sentenced as provided in paragraph (3) of subdivision (e).
(e) Any person convicted under this section of being an habitual traffic offender shall be punished as follows:
(1) Upon a first conviction, by imprisonment in the county jail for 30 days and by a fine of one thousand dollars ($1,000).
(2) Upon a second or any subsequent offense within seven years of a prior conviction under this section, by imprisonment in the county jail for 180 days and by a fine of two thousand dollars ($2,000).
(3) Any habitual traffic offender designated under Section 193.7 of the Penal Code or under subdivision (b) of Section 23546, subdivision (b) of Section 23550, subdivision (b) of Section 23550.5, or subdivision (d) of Section 23566 who is convicted of a violation of Section 14601.2 shall be punished by imprisonment in the county jail for 180 days and by a fine of two thousand dollars ($2,000).
The penalty in this paragraph shall be consecutive to that imposed for the violation of any other law.
(f) This section also applies to the operation of an off-highway motor vehicle on those lands to which the Chappie-Z'berg Off-Highway Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section 38000)) applies as to off-highway motor vehicles, as described in Section 38001.

Question 1:
Am I correct in understanding that the text in subsection (c) leaves the ability to designate a driver as a “Habitual Offender” exclusively to the DMV? And that it also gives the District Attorney’s office the ultimate decision as to whether a certain “Habitual Offender” will be prosecuted as prescribed in this code?

OR

Can an officer, and in the course of issuing a citation, review a driver’s record, find out that a driver’s license has been suspended, and upon further review of the driver’s record, make the decision that they are deemed to be a “Habitual Offender” based on the driver’s record of citations that he/she received during the period of suspension… Then cite the driver with a violation of CVC 14601.3???

In other words, can someone reasonably argue that based on the text of Section 14601.3(c), that an officer does not have the ability/authority/jurisdiction to determine as to whether a driver is indeed a “Habitual Offender” –only the DMV can make that determination-… That he can cite the driver for driving while suspended but not under CVC section 14601.3?

Question 2:
Assuming that the driver’s license was in fact suspended, that he/she did in fact receive citations during the period of suspension, however, those citations have not been adjudicated in court at the time of this traffic stop… Therefore, they do not count as “convictions” as is required in order for him/her to be designated as a “Habitual Offender” pursuant to subsections (a)(1), (a)(2), (a)(3) and (a)(4)… Therefore the assumption made by the officer in the field that the driver is a “Habitual Offender” is invalid since it assumes that a “citation” will result in a “conviction”!

Thanks in advance…What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[SMBI]

In other words, can someone reasonably argue that based on the text of Section 14601.3(c), that an officer does not have the ability/authority/jurisdiction to determine as to whether a driver is indeed a “Habitual Offender” –only the DMV can make that determination-… That he can cite the driver for driving while suspended but not under CVC section 14601.3?

Assuming the officer is only looking at your DMV record, then they have no information available to them other than convictions. Pending charges will only show up on a license only if someone has FTA'd (Failed To Appear) and then they are listed separately from convictions.

In fact tickets that are dismissed due to attending traffic school do not appear to the officer or whomever runs the license through a law enforcement link to DMV.

14601.3(a) clearly states that violating the subdivisions is what results in being designated as a habitual offender.

I don't know if officers cite on this or not, it seems it would be up to their discretion. There are other provisions of driving suspended that I know CHP has used to seize vehicles owned by those who habitually drive on suspended/revoked licenses.

 

[I_Got_Banned]

Thank you for your reply…

Assuming the officer is only looking at your DMV record, then they have no information available to them other than convictions. Pending charges will only show up on a license only if someone has FTA'd (Failed To Appear) and then they are listed separately from convictions.

But that goes to the basis for my question. Even an added charge of Failing to Appear (FTA) is considered a “Pending charge”, i.e. it is NOT a conviction; neither is the underlying charge (the violation that the driver was originally cited for). So how can a driver be designated as a “Habitual Offender” when in fact, the “offenses” that he/she was charged with are still “pending”?

In fact tickets that are dismissed due to attending traffic school do not appear to the officer or whomever runs the license through a law enforcement link to DMV.

No argument there; in fact, by the definition of a “1st offender traffic school”, it clearly states that the violation is deemed to not have occurred after the successful and timely completion of the course.

14601.3(a) clearly states that violating the subdivisions is what results in being designated as a habitual offender.

That is also clear by the text of CVC 14601.3. The question is, can an officer make that determination based on the number of citation (that maybe still pending) on a driver’s record?

I don't know if officers cite on this or not, it seems it would be up to their discretion.

Theoretically, an officer can do “anything” he/she wants to and claim he has discretion. Question is, would that “anything” hold up in court?
Also, wouldn't 14601.3(c) take away that descretion from the officer and leaves it primarily in the hands of the DMV and subsequently the D.A.?

There are other provisions of driving suspended that I know CHP has used to seize vehicles owned by those who habitually drive on suspended/revoked licenses.

Example(s)???
And I am looking for provisions or CVC sections that are not related in any way to DUI violations/convictions. It seems to me that officers normally resort to citing for 12500(a) when in fact, 12500(a) has nothing to do with driving while suspended or revoked. It clearly applies to someone who has not had a drivers license at all.

 

[SMBI]

But that goes to the basis for my question. Even an added charge of Failing to Appear (FTA) is considered a “Pending charge”, i.e. it is NOT a conviction; neither is the underlying charge (the violation that the driver was originally cited for). So how can a driver be designated as a “Habitual Offender” when in fact, the “offenses” that he/she was charged with are still “pending”?

My point was that they won't (or shouldn't) consider an FTA ... it shows up in a completely different section from convictions so that is is clear that it is a pending charge.

Example(s)???
And I am looking for provisions or CVC sections that are not related in any way to DUI violations/convictions. It seems to me that officers normally resort to citing for 12500(a) when in fact, 12500(a) has nothing to do with driving while suspended or revoked. It clearly applies to someone who has not had a drivers license at all.

A clear example, and this is the section used when I worked at CHP, 14607.6(a).
The statue clearly only requires that the car be registered to the same person who is driving it and they are only required to have ONE previous conviction. It was used rarely but in those cases where someone had numerous suspensions (or even revocations) but was out driving around.


14607.6. (a) Notwithstanding any other provision of law, and except
as provided in this section, a motor vehicle is subject to
forfeiture as a nuisance if it is driven on a highway in this state
by a driver with a suspended or revoked license, or by an unlicensed
driver, who is a registered owner of the vehicle at the time of
impoundment and has a previous misdemeanor conviction for a violation
of subdivision (a) of Section 12500 or Section 14601, 14601.1,
14601.2, 14601.3, 14601.4, or 14601.5.

 

[I_Got_Banned]

Thanks again for your prompt reply...

My point was that they won't (or shouldn't) consider an FTA ... it shows up in a completely different section from convictions so that is is clear that it is a pending charge.

Gotcha... And nowadays, those FTA's could be the reason for the suspension.

A clear example, and this is the section used when I worked at CHP, 14607.6(a).
The statue clearly only requires that the car be registered to the same person who is driving it and they are only required to have ONE previous conviction. It was used rarely but in those cases where someone had numerous suspensions (or even revocations) but was out driving around.


14607.6. (a) Notwithstanding any other provision of law, and except
as provided in this section, a motor vehicle is subject to
forfeiture as a nuisance if it is driven on a highway in this state
by a driver with a suspended or revoked license, or by an unlicensed
driver, who is a registered owner of the vehicle at the time of
impoundment and has a previous misdemeanor conviction for a violation
of subdivision (a) of Section 12500 or Section 14601, 14601.1,
14601.2, 14601.3, 14601.4, or 14601.5.

.... I haven't come across that one yet but that's good to know.

Still leaves both of my questions open though...

1. Based on the text of 14601.3(c) & (d), is it reasonable to argue that an officer (in the field) does not have the jurisdiction to determine that someone is a "Habitual Offender" (as defined in subsection 14601.3(a)) based on citations on the driver's record... when those citation are still pending?

2. Does the California Vehicle Code have a section that an officer can use to cite a driver for driving while suspended (not driving without a license as per 12500(a)) when that suspension is NOT DUI related?

 

[CdwJava]

Question 1:
Am I correct in understanding that the text in subsection (c) leaves the ability to designate a driver as a “Habitual Offender” exclusively to the DMV? And that it also gives the District Attorney’s office the ultimate decision as to whether a certain “Habitual Offender” will be prosecuted as prescribed in this code?

It appears to have both components. The DMV assigns points based upon the abstracts of court proceedings and then determines if the violations fall within the elements of 14601.3. After a designation is made, an abstract of this designation is provided to the local District Attorney who may then pursue the prosecution under any enhancements relevant for the offense in question.

Can an officer, and in the course of issuing a citation, review a driver’s record, find out that a driver’s license has been suspended, and upon further review of the driver’s record, make the decision that they are deemed to be a “Habitual Offender” based on the driver’s record of citations that he/she received during the period of suspension… Then cite the driver with a violation of CVC 14601.3???

No, the officer does not make this decision. In fact, most agencies in the state require potential misdemeanors (such as driving while suspended, or driving unlicensed) to be run through the DA's office before deciding whether to file as a misdemeanor or an infraction - the officer rarely has that discretion in the field.

In other words, can someone reasonably argue that based on the text of Section 14601.3(c), that an officer does not have the ability/authority/jurisdiction to determine as to whether a driver is indeed a “Habitual Offender” –only the DMV can make that determination-… That he can cite the driver for driving while suspended but not under CVC section 14601.3?

An officer can cite for CVC 14601.3 as a misdemeanor if the person i already designated as a habitual traffic offender (as I recall - and it has been a while - this will be indicated on the DMV printout). But, the officer does not get to evaluate the record and make this determination. Even if he or she tried, the ultimate filing decision lays with the DA.

If the license was suspended, the officer should cite for the appropriate section.

- Carl

 

[CdwJava]

1. Based on the text of 14601.3(c) & (d), is it reasonable to argue that an officer (in the field) does not have the jurisdiction to determine that someone is a "Habitual Offender" (as defined in subsection 14601.3(a)) based on citations on the driver's record... when those citation are still pending?

It is reasonable to argue this. However, the charging document may still be modified. If the charge goes to trial for CVC 14601.3 without an appropriate evaluation as required in subsections (c) and (d), then I would say the charge is improper. However, nothing prevents an officer from writing this on the citation ... it's just that the charges may be amended before trial.

2. Does the California Vehicle Code have a section that an officer can use to cite a driver for driving while suspended (not driving without a license as per 12500(a)) when that suspension is NOT DUI related?

Yep. CVC 14601(a) or CVC 14601.1(a) as appropriate.

- Carl

 

[SMBI]

2. Does the California Vehicle Code have a section that an officer can use to cite a driver for driving while suspended (not driving without a license as per 12500(a)) when that suspension is NOT DUI related?

Sure:

14601.1. (a) No person shall drive a motor vehicle when his or her
driving privilege is suspended or revoked for any reason other than
those listed in Section 14601, 14601.2, or 14601.5, if the person so
driving has knowledge of the suspension or revocation. Knowledge
shall be conclusively presumed if mailed notice has been given by the
department to the person pursuant to Section 13106.


And you're absolutely right a lot of officers charge 12500(a) instead of one of the many available 14-6 citations. I think it carries lesser punishment though so I'm not sure that it is really hurting anyone per se.

 

[I_Got_Banned]

It appears to have both components. The DMV assigns points based upon the abstracts of court proceedings and then determines if the violations fall within the elements of 14601.3. After a designation is made, an abstract of this designation is provided to the local District Attorney who may then pursue the prosecution under any enhancements relevant for the offense in question.


No, the officer does not make this decision. In fact, most agencies in the state require potential misdemeanors (such as driving while suspended, or driving unlicensed) to be run through the DA's office before deciding whether to file as a misdemeanor or an infraction - the officer rarely has that discretion in the field.


An officer can cite for CVC 14601.3 as a misdemeanor if the person i already designated as a habitual traffic offender (as I recall - and it has been a while - this will be indicated on the DMV printout). But, the officer does not get to evaluate the record and make this determination. Even if he or she tried, the ultimate filing decision lays with the DA.

If the license was suspended, the officer should cite for the appropriate section.

- Carl

It is reasonable to argue this. However, the charging document may still be modified. If the charge goes to trial for CVC 14601.3 without an appropriate evaluation as required in subsections (c) and (d), then I would say the charge is improper. However, nothing prevents an officer from writing this on the citation ... it's just that the charges may be amended before trial.


Yep. CVC 14601(a) or CVC 14601.1(a) as appropriate.

- Carl

Thank you very much for your input, Carl. Enlightening and informative, as always!

 

[I_Got_Banned]

And you're absolutely right a lot of officers charge 12500(a) instead of one of the many available 14-6 citations. I think it carries lesser punishment though so I'm not sure that it is really hurting anyone per se.

I've seen quite a few dismissals of 12500's if the person were to appear in court with a valid license... And I've seen many Judge's voluntarily offer extensions (with a "can you get a license in 60 days?" )to drivers who have not. Whereas a 14601 will usually get some sort of fine/penalty.

* And as it turns out, a 12500(a) is eligible for a correction per VC 40303.5 and VC 40610. Additionally, and although both are misdemeanors, a 12500(a) and a 14601.1(a) are typically charged as infractions and are subject to a fine of not exceeding $250 pursuant to P.C. 19.8. As for the other 14601's, they are considered misdemeanors.

* This is all from the 2008 Uniform Bail and Penalty Schedule http://www.courtinfo.ca.gov/reference/documents/2008_jcbail.pdf

Again, I appreciate your following up, SMBI!

 

[zudnic]

Not a lawyer. Give me more time to research California vehicle code and are they like most states in that traffic infractions are not criminal and therefore civil. If yes, they are civil then a court has not really convicted you of a crime. So your civil offenses have not received due process to make the accused a habitual traffic offender. Did the DMV give opportunity for a hearing before they suspended the license in the first place? Need some more information.

If the DMV does not give a hearing before making someone a habitual traffic offender. Id argue the habitual offender statute is contrary to the guaranty of due process because they do not provide adequate procedural safeguards to ensure against the erroneous deprivation of a driver's interest in the continued use and possession of his orher driver's license." per SCOTUS . Just need to find the right case to cite. Since the other citations have not been calculated by the DMV, they also have not been given due process. More time and I'll have this making sense******************************************************************************************************************************

 

[CdwJava]

Give me more time to research California vehicle code and are they like most states in that traffic infractions are not criminal and therefore civil.

In CA they are nominally criminal, but they are held to a slightly different standard than misdemeanors and felonies. But, they ARE, 'per se', criminal.

Did the DMV give opportunity for a hearing before they suspended the license in the first place? Need some more information.

The status of a habitual traffic offender is spelled out in the CVC. Specific convictions and time frames must be met and then the status is bestowed. Yes, the DMV DOES permit an Administrative Hearing to refute the claim, so due process IS offered, just not before the determination.

Since the other citations have not been calculated by the DMV, they also have not been given due process.

All citations for which a "guilty" or "true finding" (in juvenile court) is made are to have the records forwarded to the DMV where the proper points are assigned against the driving record. The due process is the trial, AND the offering of an Administrative Hearing in some cases.

- Carl

 

[zudnic]

The hearing is offered after the suspension comes into effect? If yes, have a good arguement that won in Washington State's Supreme Court, they based their logic on a cited SCOTUS case that held the same concept.

To save typing:

In City of Redmond v. Moore, 151 Wn.2d 664, 667, 668, 91 P.3d 875

(2004), our Supreme Court invalidated two statutes which outline certain

license suspension procedures. The Court held that RCW 46.20.289 (no

predeprivation hearing for mandatory driver's license suspension) and RCW

46.20.324(1) (mandatory suspension of driver's license under certain

conditions) are unconstitutional for lack of sufficient due process,

because they fail to provide a formal hearing prior to the suspension of a

driver's license. Id. at 672.

All citations for which a "guilty" or "true finding" (in juvenile court) is made are to have the records forwarded to the DMV where the proper points are assigned against the driving record. Most traffic tickets are civil, so "courts" are merely saying the person based on the evidence, if the case went to civil court that court would likely find that person committed the infraction.

CALIFORNIA CONSTITUTION
ARTICLE 6 JUDICIAL


SEC. 9. The State Bar of California is a public corporation. Every
person admitted and licensed to practice law in this State is and
shall be a member of the State Bar except while holding office as a
judge of a court of record.

One could also argue that Judges cannot practice law while being a judge. Hence why SCOTUS has held before a state can suspend a license, they must give those who appear guilty the chance to be herd and object************************************************************************************..

 

[CdwJava]

The hearing is offered after the suspension comes into effect? If yes, have a good arguement that won in Washington State's Supreme Court, they based their logic on a cited SCOTUS case that held the same concept.

However, WA state case law is not binding on CA. Also, WA has civil traffic offenses, not criminal. It may also be that WA state suspensions were arbitrary and not based upon a point system, I don't know.

Also, in CA a person whose license is suspended is noticed of the suspension and they have an opportunity to schedule a hearing if they choose ... it's just that many do NOT choose to do so, or they lose. But, the due process occurs at trial. Here, points are assigned as a result of criminal convictions or as a result of being found the party most at fault in a traffic collision.

One could also argue that Judges cannot practice law while being a judge. Hence why SCOTUS has held before a state can suspend a license, they must give those who appear guilty the chance to be herd and object

Since you did not cite the SCOTUS case, I can't say one way or the other. But, an argument can be made that due process existed at the time of trial. The points assigned as a result of a guilty conviction or a plea of no contest are part of the assigned penalty. The defendant can also object and file an appeal. Thus, due process has been provided.

Each element of a penalty does not have to require a new court hearing prior to implementation.

- Carl

 

[zudnic]

Your making the assumption California is giving a fair and impartial trial. All cops are lying scumbags when they write their reports. The actual fact, that you are not required to appear for a traffic infraction, unless its a Misdemeanor traffic ticket. A traffic infraction you also have to ask the court for a "trial". The "trial" is not criminal its civil and more of a hearing to determine based on the biased not real "judge/state attorney" and lying cop's statement they have enough to win a civil court proceeding. The whole house of cards depends on the person admitting that he did sign the ticket and receive the ticket.

The reality, its like cops putting a decoy on the street to flirt with passing motorists and the one's who ask how much, get accused of soliciting prostitution. A promise to appear ticket is criminal. A notice to appear, does not mean you really have to appear. If you do not respond, a court clerk decides your "guilty" notifies the DMV who suspends your license.

Washington had a simular system. Both laws and court decisions from other are admissible in every court in The United States.

see Dixon v. Love, 431 U.S. 105, 112, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977). and Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)

due process requires a
hearing be made available to diminish clerical error and inaccuracy.
Property interests, including driver's licenses, are protected from
deprivation by due process. the test governs whether the process the government provides is sufficient. The test references three factors: (1) the private interest involved, (2) the risk of error and the
efficacy of additional procedural safeguards, and (3) the government's interest in the added administrative burden and cost.

Colorado also held a simular opinion. That suspensions before a opportunity for a hearing from the DMV are void.