Just saw BobT and ftg’s posts. Lets just say that, with today’s court, I’m not so sure the SCOTUS would be so quick to strike down the current CA statute.
Thanks, BobT for the clarification and the link. As can be seen by BobT’s link, 647(e) has been found “unconstitutionally vague”.
Actually, BobT’s link found the 1983 version of 647(e) was unconstitutionally vague. In 1983 they did not look into a crystal ball and say future versions of the statute were also unconstitutionally vague.
This is how it was worded in 1983 (from the link):
This is how you posted it:
The (presumably) later version you posted adds politically-correct language in the form of “himself or herself” and “his or her” instead of the gramatically ungendered “himself” and “his”. The only other difference is this:
“if the surrounding circumstances would indicate to a reasonable person that the public safety demands this identification.”
vs.
“if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.”
Given that the changes (in bold) do not alter the meaning of the text, it must still be unConstitutionally vague.
I did civil disobedience in 1991 in California, and I can tell you what our attorneys told us then.
We were told that, while it was illegal to give any false information to the police, it was perfectly legal to give no information to them whatsoever. For a minor crime, the police were likely to release you on your own recognizance if you gave them a name and address; failing that, you’d be arrested for the most trivial offense (e.g., trespassing, which carried a maximum $10 fine in the area we were in).
On the other hand, when you’re arraigned (they told us), the judge can cite you for contempt of court if you decline to answer his questions.
That’s what we were told by our attorneys. When we got to jail, a succession of police told us all sorts of different stories; they even told us that we’d be charged with violation of statute 142, subsection 8 (or something like that) if we didn’t give them our names and addresses prior to arraignment. We refused to provide that information to them, and we were not charged with any additional crime. We answered the judge’s questions, were charged with trespassing, and were released.
Daniel
So the cops can lie to you, but you can’t lie to the cops?
great.
jb
Johnny L.A., what, exactly is your point? I get the impression you are being contrary without really having anything to say.
The statute exists. I am certain the CA legislature knew of the 1983 decision, and yet they decided to keep it intact. (I don’t know where you are reading the 1983 version from, but you didn’t post it correctly. All you did was post the current statute twice.)
Second, the SCOTUS did not strike down the statute, but struck down the state court’s interpretation of the statute. Specifically,
The state courts did not simply require a driver’s license be shown to the police.
Clearly, the court was concerned that the police could be arbitrary in what they accepted as “identification.” I can only assume that later cases more clearly defined what identification was necessary. If you have the time to muck through CA caselaw and find out what identification meets the standard, please be my guest and report back. Otherwise, the information currently available does not lead to the conclusion that you are asserting
You got it, bub.
There’ve been threads on here before about whether the cops ought to be allowed to lie to suspects. And in general, it does make sense that cops can deceive a certain amount: otherwise, undercover investigations can’t occur. But it seems a little unfair for cops to be able to lie about the nature of the law to inmates; our legal system should encourage, not discourage, participants to know their rights.
But that’s imho.
Daniel
You posted 647(e). I replied using BobT’s link that the law you quoted had been overturned.
As I said, I got the 1983 quote from the link. You posted the section of the law that I posted after it. And if you will notice, I used bold type to indicate differences. So: the 1983 text came from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=461&invol=352, as I stated. You will have to say where the other one came from, as it was from your post. They are slightly different, but not so much that I can see that the one you posted would be any less unconstitutional than the 1983 text.
What about this (from the link)?
Johnny, the texts were EXACTLY the same. nThe differences you pointed out were not present in either text. You fucked up. Do it over.
Okay, I see it now. I did indeed fuck up. But the fact remains that the text here: http://store6.yimg.com/I/pomegranate_1721_98236312 and what Pencil Pusher posted are slightly different. But – and this is my point – the differences are minor. “Himself and herself” instead of “himself”, “him or her” instead of “him”. Therefore I cannot see how the one PP posted can be considered Constitutional when the 1983 version – which is essentially the same – is unconstitutional.
QED & Bricker are both right. There are “vagrancy” laws still on the books. You can still be arrested for it, even under 647e in CA. BUT- those laws are unconstitutional. So, if a Cop does arrest you based upon that- it’ll be thrown out of Court. But you will still have spent a night or 2 in jail.
A smart PO will simply find some other statute to arrest you on, one less clearly unconstitutional. Or, plant drugs on you (happened to me). Or, say you were 'resisting arrest" (and, yes, they can convict you for “resisting” even though you were not being arrested for any valid statute).
Good old 647e is pretty darn clearly unConstitutional. But it is dearly loved by the Police, who still like to quote it to scare dudes into cooperation. Daniel… has it exactly right.
Note, however, that you DO have to produce a drivers license if driving.
DrDeth: Sounds good to me.
First, double check the link you posted. I don’t that goes where you thought it would.
Second, are you going to make me quote the entire case to you? You took one sentance out of context. Congratulations. Here is your law degree, you can now join the ranks of many other litigators I know.
Here are the good parts:
Now, after reading that, what do you think the court objected to? Did they not like the words of the statute, or the additional restrictions imposed by the courts? I think the answer is abundantly clear.
Once upon a time, some years ago, I found myself attending a weekend “driving school.” It may or may not have had something to do with a citation that had been issued to me for DUI (or was it DWI?). I did not want to be there; I wanted not also to pay the $300 fee for the privilege of being there. But there I was.
The Saturday session, however, was worth the price of admission. A Columbus (OH) attorney lectured for most of the day, and I learned an awful lot of stuff that I wish I’d known before I stumbled my way into our weekend retreat in the first place! The following applies specifically to traffic stops, but, the attorney told us, is true in general.
According to that attorney (and several others I’ve talked to since then), the crux of the cooperation issue is “arrest.” If you are placed under arrest by a law officer, you are pretty much at the mercy of said officer, and are well-advised to do as the officer says. But unless and until you are actually placed under arrest, you owe NO officer ANYTHING, except perhaps producing driver’s license, registration, proof of insurance, etc. during a traffic stop. That attorney drummed it into our heads – until an officer actually says, “You’re under arrest,” he/she is just fishing, collecting evidence that CAN be used in court against you. Every move you make, every word you speak, every gesture, EVERYTHING is quite admissible in court as part of an officer’s testimony. But until the officer actually places you under arrest, you are required to do NOTHING. You don’t have to answer questions. You don’t have to say hello. You don’t have to get out of your vehicle. You don’t have to touch your nose or walk heel-to-toe on some line. You don’t have to blow in any tube. You don’t even have to look at the officer.
Getting back to the OP, I’m wondering what offense was the “first offense?” Spitting on a public sidewalk is against the law in a lot of places, and so is transporting or possessing a tactical nuclear weapon. (It’s kinda funny to consider that the former is certainly illegal in a lot more places than is the latter…)
Obviously they did not like the way the statute is worded. That’s why they called it “unconstitutionally vague”.
But what we’re forgetting is that the original idea was to drain the swamp, not fight aligators. The OP asks what happens if a person who is arrested refuses to say anything. In Brown v. Texas the court decided that “The defendant had every right to walk away and to refuse to produce identification in such a situation, and any law to the contrary did not meet constitutional standards.” I remembered the case of Kolender v. Lawson and we got sidetracked from there.
Neither case is about someone who has been arrested for something else, but for being arrested because the person failed to identify himself.
I think our misunderstanding arose when you said “In 1983 they did not look into a crystal ball and say future versions of the statute were also unconstitutionally vague.” I said that the 1983 text and the text you posted were virtually identical, so if the 1983 text is unconstitutionally vague, then the text you posted is as well. I copied both texts onto Wordpad and unfortunately I cut and pasted the same passage twice which lead to some rancor. For reasons I won’t get into right here, your tone pissed me off and then I became hostile. I’ve cooled down now, and frankly I’m tired of arguing.
I think DrDeth provided a good answer to the OP and I think we should leave it at that.
Umm, yes- mostly. But he doesn’t have to actually SAY you are under arrest or arrest you for a particular crime in order for you to be “under arrest”. The bright line test is “are you free to go?”. Yes- you’re not under arrest. No- you’ve been arrested… or as some will put it “detained”. See- if you ARE free to go, not being detained- then you are not under duress, and if you do admit you “done it”- that could be admissable, even if they have NOT read you your Miranda rights. But- if you are not free- then they have to read you your rights in order for your testimony to be admissable.
Some police officers (Hi Bricker!
) will insist that just being “detained” is not tantamount to being “arrested”. SCOTUS does not agree. True, it is not the exact same thing- but they are very similar as far as your civil rights are concerned.
So- if you are being “detained & questioned”- ask the question- “Am I free to go?”. If they say “no”, then shut the fuck up and ask for your attorney. If they say “yes”- then watch what you say- “it can & will be used against you in a Court of Law”.
Thanks Johnny!
I was under the impression that, while technically, it is your right not to do it when you are not under arrest, if you did refuse to breathe into the tube that they then will, with out acception*, arrest you and take you in and have you tested at the station. Wouldn’t that defeat the point of having the right to not do it, if not doing it results in arrest.
Please correct if I am wrong, but that is what MY drivers ed teacher told me.
*assuming of course that they have probable cause to suspect that you are beyond the legal limit, i.e. you were weaving…
I’ll note that in some states, including Washington, refusing to submit to a breathalyzer(sp) test will result in criminal consequences, notably the suspension of your license. According to state law, you give consent to be tested whenever you operate a motor vehicle.
IANAL. YMMV. HAND.
choosing not to take the breathalizer can be to your advantage, though. If you do not breathe into a machine, it will be much harder to get a DWI conviction vs. a DUI.