Metropolitan News-Enterprise


Thursday, November 17, 2005


Page 1


Lack of Identification Is Grounds for Arrest When Suspect Is Charged With Infraction—Lockyer


By a MetNews Staff Writer


An accused offender who lacks a driver’s license or similar piece of identification but offers to give a fingerprint may be arrested for a non-Vehicle Code infraction, Attorney General Bill Lockyer has opined.

In an opinion requested by Assemblywoman Sharon Runner, R-Lancaster, and made public yesterday, Lockyer said a law allowing police to arrest an alleged offender who refuses to provide a fingerprint should not be interpreted as prohibiting the arrest of one who does not refuse.

Infractions are violations of the Penal Code or other statutes that are less serious than misdemeanors and punishable only by a fine. Persons accused of infractions are not entitled to trial by jury and are only entitled to appointed counsel if taken into custody.

Most infractions involve violations of the Vehicle Code, but a number of non-vehicular offenses are infractions, including evading payment of a transit fare or smoking, eating, or drinking on a bus or train or in a transit facility whose operator prohibits such activities.

Runner asked Lockyer for an explanation of Penal Code Sec. 853.5(a), which provides that person charged with a non-Vehicle Code infraction shall be released upon providing identification and signing a promise to appear in court. The statute further provides that if the person lacks proper identification, he or she may be required to provide a fingerprint or thumbprint, and that “[o]nly if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody.”

The quoted language, Lockyer said, was not intended as a prohibition against taking a person who has no identification into custody based on the suspect’s willingness to provide a thumbprint.

“We view the two requirements of signing a promise to appear and furnishing satisfactory identification as the critical conditions of the statute,” the attorney general wrote. “If both are provided, the arrestee must be released. If either is refused, the peace officer may take the arrestee into custody. Submitting a thumbprint or fingerprint does not satisfy the requirement of presenting proper identification unless the officer so permits.”

The attorney general noted that the fingerprint language was added to the statute in 1995 to address the problem of arrestees furnishing false identification or signing other people’s names to promises to appear. By furnishing a fingerprint or thumbprint, the suspect simplifies the process of resolving defendants’ claims of misidentification.

“The Legislature could well have concluded that an arrestee who has not only refused to provide satisfactory identification but also a thumbprint or fingerprint for identification purposes should be specifically mentioned as liable to custodial arrest since such refusal frustrates the aims of the legislation as a whole,” the attorney general wrote.

The opinion, No. 05-206, was prepared for Lockyer by Deputy Attorney General Marc J. Nolan.


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