BILL NUMBER: AB 1209 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Members Hagman and Ma
FEBRUARY 27, 2009
An act to amend Sections 853.5 and 853.6 of the Penal Code,
relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 1209, as introduced, Hagman. Identification.
Under existing law, in any case in which a person is arrested for
an offense declared to be an infraction or a misdemeanor, including a
violation of a city or county ordinance or a violation of the
Vehicle Code, the person may be released pursuant to specified
procedures that include presenting to a peace officer satisfactory
identification or signing a promise or notice to appear. Existing law
also authorizes a peace officer to obtain a right thumbprint, or a
left thumbprint or fingerprint if the person has a missing or
disfigured right thumb, on a promise to appear from the person
arrested for an infraction if that person does not provide
satisfactory evidence of identity, or when the person is arrested for
a misdemeanor and he or she has no satisfactory identification.
This bill would also authorize a peace officer to alternatively
require the arrestee to provide use of his or her thumbs or fingers
or both in order to capture these images with a mobile fingerprint
device.
Existing law provides that a person contesting a charge by
claiming under penalty of perjury not to be the person issued a
notice to appear under the circumstances described above may choose
to submit a print to the issuing court through his or her local law
enforcement agency for comparison with the one placed on the notice
to appear. Existing law also authorizes a local law enforcement
agency providing this service to charge the requester no more than
the actual costs.
This bill would provide that a person contesting a charge pursuant
to those provisions may choose to allow an officer to capture images
of his or her thumbprints or fingerprints or both for comparison
with the images of the fingerprints or thumbprints or both of the
arrestee.
Existing law regarding misdemeanor release procedures provides
that an officer may book an arrested person prior to release or
indicate on the citation that the arrested person shall appear at the
arresting agency to be booked or indicate on the citation that the
arrested person shall appear at the arresting agency to be
fingerprinted prior to the arrested person's court date.
This bill would authorize an officer, as an alternative to those
procedures, to require the arrestee to provide use of his or her
thumbs or fingers or both in order to capture images of the arrestee'
s thumbprints or fingerprints or both with a mobile fingerprint
device. The bill would require the officer to provide the arrestee
with verification by making an entry on the citation that images of
the arrestee's thumbprints or fingerprints or both were captured with
a mobile fingerprint device. The bill would also require the
magistrate, judge, or court, upon the arrestee's appearance in court
and before the proceeding begins, to order the defendant to provide
verification that images of his or her thumbprints or fingerprints
were captured and to take other actions regarding verification.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 853.5 of the Penal Code is amended to read:
853.5. (a) Except as otherwise provided by law, in any case in
which a person is arrested for an offense declared to be an
infraction, the person may be released according to the procedures
set forth by this chapter for the release of persons arrested for an
offense declared to be a misdemeanor. In all cases, except as
specified in Sections 40302, 40303, 40305, and 40305.5 of the Vehicle
Code, in which a person is arrested for an infraction, a peace
officer shall only require the arrestee to present his or her driver'
s license or other satisfactory evidence of his or her identity for
examination and to sign a written promise to appear contained in a
notice to appear. If the arrestee does not have a driver's license or
other satisfactory evidence of identity in his or her possession,
the officer may either: (1) require the arrestee 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
or (2) require the arrestee to provide use of his or her thumbs
or fingers or both in order to capture images of his or her
thumbprints or fingerprints or both with a mobile fingerprint device
. 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 these prints . Only if the
arrestee refuses to sign a written promise, has no satisfactory
identification, or refuses to provide a thumbprint
or fingerprint , or refuses to allow the officer to capture
images of his or her thumbprints or fingerprints or both when a
mobile fingerprint device is available, may the arrestee be
taken into custody.
(b) 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. When a mobile fingerprint device
was used to capture images of the arrestee's thumbprints or
fingerprints or both, a person contesting a charge pursuant to this
subdivision may choose to allow an officer to capture images of his
or her thumbprints or fingerprints or both for comparison with the
images of the fingerprints or thumbprints or both of the arrestee.
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 ,
or images captured by the mobile fingerprint device, to the
prosecuting attorney for comparison of the thumbprints or
fingerprints or both . When there is no thumbprint or
fingerprint on the notice to appear, or when the comparison of
thumbprints or fingerprints or both 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.
(c) 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.
(d) 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 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.
(e) 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, unless the court
finds that a finding of factual innocence is not in the interest of
justice.
SEC. 2. Section 853.6 of the Penal Code is amended to read:
853.6. (a) In any case in which a person is arrested for an
offense declared to be a misdemeanor, including a violation of any
city or county ordinance, and does not demand to be taken before a
magistrate, that person shall, instead of being taken before a
magistrate, be released according to the procedures set forth by this
chapter. If the person is released, the officer or his or her
superior shall prepare in duplicate a written notice to appear in
court, containing the name and address of the person, the offense
charged, and the time when, and place where, the person shall appear
in court. If, pursuant to subdivision (i), the person is not released
prior to being booked and the officer in charge of the booking or
his or her superior determines that the person should be released,
the officer or his or her superior shall prepare a written notice to
appear in a court.
In any case in which a person is arrested for a misdemeanor
violation of a protective court order involving domestic violence, as
defined in subdivision (b) of Section 13700, or arrested pursuant to
a policy, as described in Section 13701, the person shall be taken
before a magistrate instead of being released according to the
procedures set forth in this chapter, unless the arresting officer
determines that there is not a reasonable likelihood that the offense
will continue or resume or that the safety of persons or property
would be imminently endangered by release of the person arrested.
Prior to adopting these provisions, each city, county, or city and
county shall develop a protocol to assist officers to determine when
arrest and release is appropriate, rather than taking the arrested
person before a magistrate. The county shall establish a committee to
develop the protocol, consisting of, at a minimum, the police chief
or county sheriff within the jurisdiction, the district attorney,
county counsel, city attorney, representatives from domestic violence
shelters, domestic violence councils, and other relevant community
agencies.
Nothing in this subdivision shall be construed to affect a
defendant's ability to be released on bail or on his or her own
recognizance.
(b) Unless waived by the person, the time specified in the notice
to appear shall be at least 10 days after arrest if the duplicate
notice is to be filed by the officer with the magistrate.
(c) The place specified in the notice shall be the court of the
magistrate before whom the person would be taken if the requirement
of taking an arrested person before a magistrate were complied with,
or shall be an officer authorized by that court to receive a deposit
of bail.
(d) The officer shall deliver one copy of the notice to appear to
the arrested person, and the arrested person, in order to secure
release, shall give his or her written promise to appear in court as
specified in the notice by signing the duplicate notice which shall
be retained by the officer, and the officer may either (1)
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 or (2) require the arrestee to provide use
of his or her thumbs or fingers or both in order to capture images
of his or her thumbprints or fingerprints or both with a mobile
fingerprint device . 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 these
prints . Upon the signing of the duplicate notice, the
arresting officer shall immediately release the person arrested from
custody.
(e) The officer shall, as soon as practicable, file the duplicate
notice, as follows:
(1) It shall be filed with the magistrate if the offense charged
is an infraction.
(2) It shall be filed with the magistrate if the prosecuting
attorney has previously directed the officer to do so.
(3) The duplicate notice and underlying police reports in support
of the charge or charges shall be filed with the prosecuting attorney
in cases other than those specified in paragraphs (1) and (2).
If the duplicate notice is filed with the prosecuting attorney, he
or she, within his or her discretion, may initiate prosecution by
filing the notice or a formal complaint with the magistrate specified
in the duplicate notice within 25 days from the time of arrest. If
the prosecution is not to be initiated, the prosecutor shall send
notice to the person arrested at the address on the notice to appear.
The failure by the prosecutor to file the notice or formal complaint
within 25 days of the time of the arrest shall not bar further
prosecution of the misdemeanor charged in the notice to appear.
However, any further prosecution shall be preceded by a new and
separate citation or an arrest warrant.
Upon the filing of the notice with the magistrate by the officer,
or the filing of the notice or formal complaint by the prosecutor,
the magistrate may fix the amount of bail that in his or her
judgment, in accordance with Section 1275, is reasonable and
sufficient for the appearance of the defendant and shall endorse upon
the notice a statement signed by him or her in the form set forth in
Section 815a. The defendant may, prior to the date upon which he or
she promised to appear in court, deposit with the magistrate the
amount of bail set by the magistrate. At the time the case is called
for arraignment before the magistrate, if the defendant does not
appear, either in person or by counsel, the magistrate may declare
the bail forfeited, and may, in his or her discretion, order that no
further proceedings shall be had in the case, unless the defendant
has been charged with a violation of Section 374.3 or 374.7 of this
code or of Section 11357, 11360, or 13002 of the Health and Safety
Code, or a violation punishable under Section 5008.7 of the Public
Resources Code, and he or she has previously been convicted of a
violation of that section or a violation that is punishable under
that section, except in cases where the magistrate finds that undue
hardship will be imposed upon the defendant by requiring him or her
to appear, the magistrate may declare the bail forfeited and order
that no further proceedings be had in the case.
Upon the making of the order that no further proceedings be had,
all sums deposited as bail shall immediately be paid into the county
treasury for distribution pursuant to Section 1463.
(f) No warrant shall be issued for the arrest of a person who has
given a written promise to appear in court, unless and until he or
she has violated that promise or has failed to deposit bail, to
appear for arraignment, trial, or judgment or to comply with the
terms and provisions of the judgment, as required by law.
(g) The officer may book the arrested person prior to release or
indicate on the citation that the arrested person shall appear at the
arresting agency to be booked or indicate on the citation that the
arrested person shall appear at the arresting agency to be
fingerprinted prior to the date the arrested person appears in court.
If it is indicated on the citation that the arrested person shall be
booked or fingerprinted prior to the date of the person's court
appearance, the arresting agency at the time of booking or
fingerprinting shall provide the arrested person with verification of
the booking or fingerprinting by making an entry on the citation. If
it is indicated on the citation that the arrested person is to be
booked or fingerprinted, the magistrate, judge, or court shall,
before the proceedings begin, order the defendant to provide
verification that he or she was booked or fingerprinted by the
arresting agency. If the defendant cannot produce the verification,
the magistrate, judge, or court shall require that the defendant be
booked or fingerprinted by the arresting agency before the next court
appearance, and that the defendant provide the verification at the
next court appearance unless both parties stipulate that booking or
fingerprinting is not necessary.
(h) As an alternative to the procedures set forth in subdivision
(g), prior to release, the officer may instead require the arrestee
to provide use of his or her thumbs or fingers or both in order to
capture images of the arrestee's thumbprints or fingerprints or both
with a mobile fingerprint device. The officer shall provide the
arrestee with verification by making an entry on the citation that
images of the arrestee's thumbprints or fingerprints or both were
captured with a mobile fingerprint device. Upon the arrestee's
appearance in court, the magistrate, judge, or court shall, before
the proceeding begins, order the defendant to provide verification
that images of his or her thumbprints or fingerprints were captured
by the arresting officer with a mobile fingerprinting device. If the
defendant provides the verification, the magistrate, judge, or court
shall order the defendant to be fingerprinted immediately by the
court. If the defendant cannot produce the verification, the
magistrate, judge, or court shall require that the defendant be
booked or fingerprinted by the arresting agency before the next court
appearance, and that the defendant provide the verification at the
next court appearance unless both parties stipulate that booking or
fingerprinting is not necessary.
(h)
(i) A peace officer shall use the written notice to
appear procedure set forth in this section for any misdemeanor
offense in which the officer has arrested a person without a warrant
pursuant to Section 836 or in which he or she has taken custody of a
person pursuant to Section 847.
(i)
(j) Whenever any person is arrested by a peace officer
for a misdemeanor, that person shall be released according to the
procedures set forth by this chapter unless one of the following is a
reason for nonrelease, in which case the arresting officer may
release the person, or the arresting officer shall indicate, on a
form to be established by his or her employing law enforcement
agency, which of the following was a reason for the nonrelease:
(1) The person arrested was so intoxicated that he or she could
have been a danger to himself or herself or to others.
(2) The person arrested required medical examination or medical
care or was otherwise unable to care for his or her own safety.
(3) The person was arrested under one or more of the circumstances
listed in Sections 40302 and 40303 of the Vehicle Code.
(4) There were one or more outstanding arrest warrants for the
person.
(5) The person could not provide satisfactory evidence of personal
identification.
(6) The prosecution of the offense or offenses for which the
person was arrested, or the prosecution of any other offense or
offenses, would be jeopardized by immediate release of the person
arrested.
(7) There was a reasonable likelihood that the offense or offenses
would continue or resume, or that the safety of persons or property
would be imminently endangered by release of the person arrested.
(8) The person arrested demanded to be taken before a magistrate
or refused to sign the notice to appear.
(9) There is reason to believe that the person would not appear at
the time and place specified in the notice. The basis for this
determination shall be specifically stated.
The form shall be filed with the arresting agency as soon as
practicable and shall be made available to any party having custody
of the arrested person, subsequent to the arresting officer, and to
any person authorized by law to release him or her from custody
before trial.
(j)
(k) Once the arresting officer has prepared the written
notice to appear and has delivered a copy to the person arrested,
the officer shall deliver the remaining original and all copies as
provided by subdivision (e).
Any person, including the arresting officer and any member of the
officer's department or agency, or any peace officer, who alters,
conceals, modifies, nullifies, or destroys, or causes to be altered,
concealed, modified, nullified, or destroyed, the face side of the
remaining original or any copy of a citation that was retained by the
officer, for any reason, before it is filed with the magistrate or
with a person authorized by the magistrate to receive deposit of
bail, is guilty of a misdemeanor.
If, after an arrested person has signed and received a copy of a
notice to appear, the arresting officer determines that, in the
interest of justice, the citation or notice should be dismissed, the
arresting agency may recommend, in writing, to the magistrate that
the charges be dismissed. The recommendation shall cite the reasons
for the recommendation and shall be filed with the court.
If the magistrate makes a finding that there are grounds for
dismissal, the finding shall be entered in the record and the charges
dismissed.
Under no circumstances shall a personal relationship with any
officer, public official, or law enforcement agency be grounds for
dismissal.
(k)
(l) (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. When a mobile
fingerprint device was used to capture images of the arrested person'
s thumbprints or fingerprints or both, a person contesting a charge
pursuant to this sub division may choose to allow an
officer to capture images or his or her thumbprints or fingerprints
or both for comparison with the images of the fingerprints or
thumbprints or both of the arrested person. 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 , or images
captured by the mobile fingerprint device, to the prosecuting
attorney for comparison of the thumbprints or fingerprints or
both . When there is no thumbprint or fingerprint on the notice
to appear, or when the comparison of thumbprints or
fingerprints 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 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, 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.
()
(m) For purposes of this section, the term "arresting
agency" includes any other agency designated by the arresting agency
to provide booking or fingerprinting services.