2005 California Vehicle Code Sections 40300-40313 Article 1. Arrests

VEHICLE CODE
SECTION 40300-40313

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, but the procedure
prescribed herein shall not otherwise be exclusive of any other
method prescribed by law for the arrest and prosecution of a person
for an offense of like grade.
40300.2.  Whenever a person is arrested for a violation of this
code, or a violation of any other statute required to be reported
under Section 1803, the written complaint, notice to appear in court,
or other notice of violation, shall indicate whether the vehicle
involved in the offense is a commercial motor vehicle, as defined in
subdivision (b) of Section 15210.
40300.5.  In addition to the authority to make an arrest without a
warrant pursuant to paragraph (1) of subdivision (a) of Section 836
of the Penal Code, a peace officer may, without a warrant, arrest a
person when the officer has reasonable cause to believe that the
person had been driving while under the influence of an alcoholic
beverage or any drug, or under the combined influence of an alcoholic
beverage and any drug when any of the following exists:
   (a) The person is involved in a traffic accident.
   (b) The person is observed in or about a vehicle that is
obstructing a roadway.
   (c) The person will not be apprehended unless immediately
arrested.
   (d) The person may cause injury to himself or herself or damage
property unless immediately arrested.
   (e) The person may destroy or conceal evidence of the crime unless
immediately arrested.
40300.6.  Section 40300.5 shall be liberally interpreted to further
safe roads and the control of driving while under the influence of an
alcoholic beverage or any drug in order to permit arrests to be made
pursuant to that section within a reasonable time and distance away
from the scene of a traffic accident.
   The enactment of this section during the 1985-86 Regular Session
of the Legislature does not constitute a change in, but is
declaratory of, the existing law.
40301.  Except as provided in this chapter, whenever a person is
arrested for any violation of this code declared to be a felony, he
shall be dealt with in like manner as upon arrest for the commission
of any other felony.
40302.  Whenever any person is arrested for any violation of this
code, not declared to be a felony, the arrested person shall be taken
without unnecessary delay before a magistrate within the county in
which the offense charged is alleged to have been committed and who
has jurisdiction of the offense and is nearest or most accessible
with reference to the place where the arrest is made in any of the
following cases:
   (a) When the person arrested fails to present his driver's license
or other satisfactory evidence of his identity for examination.
   (b) When the person arrested refuses to give his written promise
to appear in court.
   (c) When the person arrested demands an immediate appearance
before a magistrate.
   (d) When the person arrested is charged with violating Section
23152.
40302.5.  Whenever any person under the age of 18 years is taken
into custody in connection with any traffic infraction case, and he
is not taken directly before a magistrate, he shall be delivered to
the custody of the probation officer.  Unless sooner released, the
probation officer shall keep the minor in the juvenile hall pending
his appearance before a magistrate.  When a minor is cited for an
offense not involving the driving of a motor vehicle,  the minor
shall not be taken into custody pursuant to subdivision (a) of
Section 40302 solely for failure to present a driver's license.
40303.  (a) Whenever any person is arrested for any of the offenses
listed in subdivision (b) and the arresting officer is not required
to take the person without unnecessary delay before a magistrate, the
arrested person shall, in the judgment of the arresting officer,
either be given a 10 days' notice to appear, or be taken without
unnecessary delay before a magistrate within the county in which the
offense charged is alleged to have been committed and who has
jurisdiction of the offense and is nearest or most accessible with
reference to the place where the arrest is made.  The officer may
require that the arrested person, if he or she has no satisfactory
identification, place a right thumbprint, or a left thumbprint or
fingerprint if the person has a missing or disfigured right thumb, on
the 10 days' notice to appear when a 10 days' notice is provided.
Except for law enforcement purposes relating to the identity of the
arrestee, no person or entity may sell, give away, allow the
distribution of, include in a database, or create a database with,
this print.
   (b) Subdivision (a) applies to the following offenses:
   (1) Section 10852 or 10853, relating to injuring or tampering with
a vehicle.
   (2) Section 23103 or 23104, relating to reckless driving.
   (3) Subdivision (a) of Section 2800, insofar as it relates to a
failure or refusal of the driver of a vehicle to stop and submit to
an inspection or test of the lights upon the vehicle under Section
2804 hereof, which is punishable as a misdemeanor.
   (4) Subdivision (a) of Section 2800, insofar as it relates to a
failure or refusal of the driver of a vehicle to stop and submit to a
brake test which is punishable as a misdemeanor.
   (5) Subdivision (a) of Section 2800, relating to the refusal to
submit vehicle and load to an inspection, measurement, or weighing as
prescribed in Section 2802 or a refusal to adjust the load or obtain
a permit as prescribed in Section 2803.
   (6) Subdivision (a) of Section 2800, insofar as it relates to any
driver who continues to drive after being lawfully ordered not to
drive by a member of the California Highway Patrol for violating the
driver's hours of service or driver's log regulations adopted
pursuant to subdivision (a) of Section 34501.
   (7) Subdivision (b) of Section 2800, relating to a failure or
refusal to comply with any lawful out-of-service order.
   (8) Section 20002 or 20003, relating to duties in the event of an
accident.
   (9) Section 23109, relating to participating in speed contests or
exhibition of speed.
   (10) Section 14601, 14601.1, 14601.2, or 14601.5, relating to
driving while license is suspended or revoked.
   (11) When the person arrested has attempted to evade arrest.
   (12) Section 23332, relating to persons upon vehicular crossings.
   (13) Section 2813, relating to the refusal to stop and submit a
vehicle to an inspection of its size, weight, and equipment.
   (14) Section 21461.5, insofar as it relates to a pedestrian who,
after being cited for a violation of Section 21461.5, is, within 24
hours, again found upon the freeway in violation of Section 21461.5
and thereafter refuses to leave the freeway after being lawfully
ordered to do so by a peace officer and after having been informed
that his or her failure to leave could result in his or her arrest.
   (15) Subdivision (a) of Section 2800, insofar as it relates to a
pedestrian who, after having been cited for a violation of
subdivision (a) of Section 2800 for failure to obey a lawful order of
a peace officer issued pursuant to Section 21962, is within 24 hours
again found upon the bridge or overpass and thereafter refuses to
leave after being lawfully ordered to do so by a peace officer and
after having been informed that his or her failure to leave could
result in his or her arrest.
   (16) Section 21200.5, relating to riding a bicycle while under the
influence of an alcoholic beverage or any drug.
   (17) Section 21221.5, relating to operating a motorized scooter
while under the influence of an alcoholic beverage or any drug.
   (c) (1) A person contesting a charge by claiming under penalty of
perjury not to be the person issued the notice to appear may choose
to submit a right thumbprint, or a left thumbprint if the person has
a missing or disfigured right thumb, to the issuing court through his
or her local law enforcement agency for comparison with the one
placed on the notice to appear.  A local law enforcement agency
providing this service may charge the requester no more than the
actual costs.  The issuing court may refer the thumbprint submitted
and the notice to appear to the prosecuting attorney for comparison
of the thumbprints.  When there is no thumbprint or fingerprint on
the notice to appear, or when the comparison of thumbprints is
inconclusive, the court shall refer the notice to appear or copy
thereof back to the issuing agency for further investigation, unless
the court finds that referral is not in the interest of justice.
   (2) Upon initiation of the investigation or comparison process by
referral of the court, the court shall continue the case and the
speedy trial period shall be tolled for 45 days.
   (3) Upon receipt of the issuing agency's or prosecuting attorney's
response, the court may make a finding of factual innocence pursuant
to Section 530.6 of the Penal Code if the court determines that
there is insufficient evidence that the person cited is the person
charged and shall immediately notify the Department of Motor Vehicles
of its determination.  If the Department of Motor Vehicles
determines the citation or citations in question formed the basis of
a suspension or revocation of the person's driving privilege, the
department shall immediately set aside the action.
   (4) If the prosecuting attorney or issuing agency fails to respond
to a court referral within 45 days, the court shall make a finding
of factual innocence pursuant to Section 530.6 of the Penal Code,
unless the court finds that a finding of factual innocence is not in
the interest of justice.
   (5) The citation or notice to appear may be held by the
prosecuting attorney or issuing agency for future adjudication should
the arrestee who received the citation or notice to appear be found.
40303.5.  Whenever any person is arrested for any of the following
offenses, the arresting officer shall permit the arrested person to
execute a notice containing a promise to correct the violation in
accordance with the provisions of Section 40610 unless the arresting
officer finds that any of the disqualifying conditions specified in
subdivision (b) of Section 40610 exist:
   (a) Any registration infraction set forth in Division 3
(commencing with Section 4000).
   (b) Any driver's license infraction set forth in Division 6
(commencing with Section 12500), and subdivision (a) of Section
12951, relating to possession of driver's license.
   (c) Section 21201, relating to bicycle equipment.
   (d) Any infraction involving equipment set forth in Division 12
(commencing with Section 24000), Division 13 (commencing with Section
29000), Division 14.8 (commencing with Section 34500), Division 16
(commencing with Section 36000), Division 16.5 (commencing with
Section 38000), and Division 16.7 (commencing with Section 39000).
40304.  Whenever any person is arrested by any member of the
California Highway Patrol for any violation of any state law
regulating the operation of vehicles or the use of the highways
declared to be a misdemeanor but which offense is not specified in
this code, he shall, in the judgment of the arresting officer, either
be given a 10-day notice to appear in the manner provided in this
chapter or be taken without unnecessary delay before a magistrate
within the county in which the offense charged is alleged to have
been committed and who has jurisdiction of the offense and is nearest
or most accessible with reference to the place where the arrest is
made, or, upon demand of the person arrested, before a magistrate in
the judicial district in which the offense is alleged to have been
committed.
40304.5.  Notwithstanding any other provision of law, whenever any
person is taken into custody for bail to be collected on two or fewer
outstanding warrants for failure to appear on a citation for a
parking offense or a traffic infraction, the person shall be provided
the opportunity immediately to post bail, and shall not be booked,
photographed, or fingerprinted, nor shall an arrest record be made,
when the amount of bail required to be paid on the warrant may be
ascertained by reference to the face thereof or to a fixed schedule
of bail, unless and until all of the following requirements have been
exhausted:
   (a) If the person has sufficient cash in his or her possession,
that person shall be given the opportunity immediately to post bail
with the person in charge of the jail or his or her designee.
   (b) If the person does not have sufficient cash in his or her
possession, that person shall be informed of his or her rights and
given the opportunity to do all of the following:
   (1) Make not less than three completed telephone calls to obtain
bail.  The person shall be permitted the use of the police or sheriff'
s department telephone to make not less than three completed local or
collect long-distance telephone calls to obtain bail.
   (2) Have not less than three hours in which to arrange for the
deposit of bail.
40305.  (a) Whenever a nonresident is arrested for violating any
section of this code while driving a motor vehicle and does not
furnish satisfactory evidence of identity and an address within this
state at which he or she can be located, he or she may, in the
discretion of the arresting officer, be taken immediately before a
magistrate within the county where the offense charged is alleged to
have been committed, and who has jurisdiction over the offense and is
nearest or most accessible with reference to the place where the
arrest is made.  If the magistrate is not available at the time of
the arrest and the arrested person is not taken before any other
person authorized to receive a deposit of bail, and if the arresting
officer does not have the authority or is not required to take the
arrested person before a magistrate or other person authorized to
receive a deposit of bail by some other provision of law, the officer
may require the arrested person, if he or she has no satisfactory
identification, to place a right thumbprint, or a left thumbprint or
fingerprint if the person has a missing or disfigured right thumb, on
the notice to appear as provided in Article 2 (commencing with
Section 40500).
   Except for law enforcement purposes relating to the identity of
the arrestee, no person or entity may sell, give away, allow the
distribution of, include in a database, or create a database with,
this print.
   (b) (1) A person contesting a charge by claiming under penalty of
perjury not to be the person issued the notice to appear may choose
to submit a right thumbprint, or a left thumbprint if the person has
a missing or disfigured right thumb, to the issuing court through his
or her local law enforcement agency for comparison with the one
placed on the notice to appear.  A local law enforcement agency
providing this service may charge the requester no more than the
actual costs.  The issuing court may refer the thumbprint submitted
and the notice to appear to the prosecuting attorney for comparison
of the thumbprints.  When there is no thumbprint or fingerprint on
the notice to appear, or when the comparison of thumbprints is
inconclusive, the court shall refer the notice to appear or copy
thereof back to the issuing agency for further investigation, unless
the court finds that referral is not in the interest of justice.
   (2) Upon initiation of the investigation or comparison process by
referral of the court, the court shall continue the case and the
speedy trial period shall be tolled for 45 days.
   (3) Upon receipt of the issuing agency's or prosecuting attorney's
response, the court may make a finding of factual innocence pursuant
to Section 530.6 of the Penal Code if the court determines that
there is insufficient evidence that the person cited is the person
charged and shall immediately notify the Department of Motor Vehicles
of its determination.  If the Department of Motor Vehicles
determines the citation or citations in question formed the basis of
a suspension or revocation of the person's driving privilege, the
department shall immediately set aside the action.
   (4) If the prosecuting attorney or issuing agency fails to respond
to a court referral within 45 days, the court shall make a finding
of factual innocence pursuant to Section 530.6 of the Penal Code,
unless the court determines that a finding of factual innocence is
not in the interest of justice.
   (5) The citation or notice to appear may be held by the
prosecuting attorney or issuing agency for future adjudication should
the arrestee who received the citation or notice to appear be found.
40305.5.  (a) Whenever a nonresident is arrested for violating any
section of this code while driving a commercially registered motor
vehicle, excluding house cars, with an unladen weight of 7,000 pounds
or more, and does not furnish satisfactory evidence of identity and
an address within this state at which he or she can be located, the
arresting officer may, in lieu of the procedures set forth in Section
40305, accept a guaranteed traffic arrest bail bond certificate, and
the nonresident shall be released from custody upon giving a written
promise to appear as provided in Article 2 (commencing with Section
40500).  The officer may require the arrested person, if he or she
has no satisfactory identification, to place a right thumbprint, or a
left thumbprint or fingerprint if the person has a missing or
disfigured right thumb, on the notice to appear as provided in
Article 2 (commending with Section 45000).  Except for law
enforcement purposes relating to the identity of the arrestee, no
person or entity may sell, give away, allow the distribution of,
include in a database, or create a database with, this print.
   (b) Every guaranteed traffic arrest bail bond certificate shall
contain all of the following information:
   (1) The name and address of the surety and of the issuer, if other
than the surety.
   (2) The name, address, driver's license number and signature of
the individual covered by the certificate.
   (3) The maximum amount guaranteed.
   (4) Exclusions from coverage.
   (5) A statement that the issuing company guarantees the appearance
of a person to whom a guaranteed traffic arrest bail bond
certificate is issued and, in the event of failure of the person to
appear in court at the time of trial, the issuing company shall pay
any fine or forfeiture imposed on the person, not to exceed the
amount stated on the certificate.
   (6) The expiration date of the certificate.
   (c) A guaranteed traffic arrest bail bond certificate may be
issued by a surety admitted in this state.  The certificate may also
be issued by an association of motor carriers if all of the following
conditions are met:
   (1) The association is incorporated, or authorized to do business,
in this state.
   (2) The association is covered by a guaranteed traffic arrest bail
bond issued by a surety admitted in this state.
   (3) The association agrees to pay fines or bail assessed against
the guaranteed traffic arrest bail bond certificate.
   (4) The surety guarantees payment of fines or bail assessed
against the guaranteed traffic arrest bail bond certificates issued
by the association.
   (d) The arresting officer shall file the guaranteed traffic arrest
bail bond certificate with the notice to appear required to be filed
by Section 40506.
   (e) A "guaranteed traffic arrest bail bond certificate" is a
document which guarantees the payment of fines or bail assessed
against an individual for violation of this code, except driving
while under the influence of alcohol or drugs, driving without a
license or driving with a suspended or revoked license, operating a
motor vehicle without the permission of the owner, or any violation
punishable as a felony.
   (f) A "guaranteed traffic arrest bail bond" is a bond issued by a
surety guaranteeing the obligations of the issuer of guaranteed
traffic arrest bail bond certificates.  The bond shall be in the
amount of fifty thousand dollars ($50,000) and shall be filed with
the Secretary of State.  Any court in this state may assess against
the surety the amount of covered fines or bail which the issuer of a
guaranteed traffic arrest bail bond certificate fails to pay.
   (g) (1) A person contesting a charge by claiming under penalty of
perjury not to be the person issued the notice to appear may choose
to submit a right thumbprint, or a left thumbprint if the person has
a missing or disfigured right thumb, to the issuing court through his
or her local law enforcement agency for comparison with the one
placed on the notice to appear.  A local law enforcement agency
providing this service may charge the requester no more than the
actual costs.  The issuing court may refer the thumbprint submitted
and the notice to appear to the prosecuting attorney for comparison
of the thumbprints.  When there is no thumbprint or fingerprint on
the notice to appear, or when the comparison of thumbprints is
inconclusive, the court shall refer the notice to appear or copy
thereof back to the issuing agency for further investigation, unless
the court finds that referral is not in the interest of justice.
   (2) Upon initiation of the investigation or comparison process by
referral of the court, the court shall continue the case and the
speedy trial period shall be tolled for 45 days.
   (3) Upon receipt of the issuing agency's or prosecuting attorney's
response, the court may make a finding of factual innocence pursuant
to Section 530.6 of the Penal Code if the court determines that
there is insufficient evidence that the person cited is the person
charged and shall immediately notify the Department of Motor Vehicles
of its determination.  If the Department of Motor Vehicles
determines the citation or citations in question formed the basis of
a suspension or revocation of the person's driving privilege, the
department shall immediately set aside the action.
   (4) If the prosecuting attorney or issuing agency fails to respond
to a court referral within 45 days, the court shall make a finding
of factual innocence pursuant to Section 530.6 of the Penal Code,
unless the court determines that a finding of factual innocence is
not in the interest of justice.
   (5) The citation or notice to appear may be held by the
prosecuting attorney or issuing agency for future adjudication should
the arrestee who received the citation or notice to appear be found.
40306.  (a) Whenever a person is arrested for a misdemeanor or an
infraction and is taken before a magistrate, the arresting officer
shall file with the magistrate a complaint stating the offense with
which the person is charged.
   (b) The person taken before a magistrate shall be entitled to at
least five days continuance of his case in which to plead and prepare
for trial and the person shall not be required to plead or be tried
within the five days unless he waives such time in writing or in open
court.
   (c) The person taken before a magistrate shall thereupon be
released from custody upon his own recognizance or upon such bail as
the magistrate may fix.
40307.  When an arresting officer attempts to take a person arrested
for a misdemeanor or infraction of this code before a magistrate and
the magistrate or person authorized to act for him is not available,
the arresting officer shall take the person arrested, without
unnecessary delay, before:
   (a) The clerk of the magistrate who shall admit him to bail in
accordance with a schedule fixed as provided in Section 1269b of the
Penal Code, or
   (b) The officer in charge of the most accessible county or city
jail or other place of detention within the county who shall admit
him to bail in accordance with a schedule fixed as provided in
Section 1269b of the Penal Code or may, in lieu of bail, release the
person on his written promise to appear as provided in subdivisions
(a) through (f) of Section 853.6 of the Penal Code.
   Whenever a person is taken into custody pursuant to subdivision
(a) of Section 40302 and is arrested for a misdemeanor or infraction
of this code pertaining to the operation of a motor vehicle, the
officer in charge of the most accessible county or city jail or other
place of detention within the county may detain the person arrested
for a reasonable period of time, not to exceed two hours, in order to
verify his identity.
40309.  Whenever a notice of parking violation is issued in
accordance with Sections 40202 and 40203, or a notice of delinquent
parking violation is issued pursuant to Section 40206, the amount
fixed as a parking penalty for the violation charged may be forwarded
by United States mail to the person authorized to receive a deposit
of the parking penalty.  Payment of a parking penalty forwarded by
mail is effective only when actually received, and the presumption
that a letter duly directed and mailed was received does not apply.
Section 40512 is applicable to a parking penalty posted pursuant to
this section.
40310.  The Judicial Council shall annually adopt a uniform traffic
penalty schedule which shall be applicable to all nonparking
infractions specified in this code, unless in a particular case
before the court the judge or authorized hearing officer specifies a
different penalty.  No penalty shall be established for any
infraction in an amount, exclusive of any additional penalty levied
pursuant to Section 1464 of the Penal Code, in excess of the amount
of the maximum fine pursuant to Section 42001 or 42001.5, and
penalties shall be set without regard to residence.  In case a
traffic penalty is not paid within 20 days following mailing of a
notice that the penalty has been assessed, a late charge shall be due
in the amount of 50 percent of total initial penalty.
   In establishing a uniform traffic penalty schedule, the Judicial
Council shall classify the offenses into four or fewer penalty
categories, according to the severity of offenses, so as to permit
convenient notice and payment of the scheduled penalty.
40311.  Whenever a person is arrested under authority of a warrant,
the court to which such person is taken shall, with his consent, have
jurisdiction to arraign him at that time for any other alleged
violation of this code or an ordinance relating to traffic offenses
for which he has been issued a written notice to appear in court,
notwithstanding the fact that the time for appearance specified in
such notice has not yet arrived.
40312.  A peace officer shall not arrest, on the basis of an
outstanding warrant arising from a violation of this code, any person
who presents to the peace officer a receipt, from a proper official
of the court, indicating that the person has paid the fine for the
violation that caused the warrant to be issued.  The receipt shall
contain sufficient information to identify the name and number of the
court issuing the receipt, the date the case was adjudicated or the
fine was paid, the case number or docket number, and the violations
disposed of.
40313.  If a notice of reexamination was issued pursuant to Section
21061, the record of arrest for the traffic violation, or any notice
to appear issued under this article, or both, shall include a
notation indicating that the notice of reexamination was issued to
the arrested person and the driver's license record  maintained by
the department shall contain a record of the notice of
reexamination.  The record of the notice of reexamination shall be
considered confidential by the department pursuant to Section 1808.5.


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