V C Section 40303 Optional Appearance Before a Magistrate

Optional Appearance Before a Magistrate

40303.  (a) Whenever a 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 does not have 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, a person or entity shall not 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 pursuant to Section 2804, that 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 that 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 a driver who continues to drive after being lawfully ordered not to drive by a member of the Department 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), (c), or (d) of Section 2800, relating to a failure or refusal to comply with a 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 a speed contest or exhibition of speed.

(10) Section 14601, 14601.1, 14601.2, or 14601.5, relating to driving while the privilege to operate a motor vehicle 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 a drug.

(17) Section 21221.5, relating to operating a motorized scooter while under the influence of an alcoholic beverage or a 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.

Amended Sec. 52, Ch. 724, Stats. 1999. Effective January 1, 2000.
Amended Sec. 14, Ch. 860, Stats. 2000. Effective January 1, 2001.
Amended Sec. 4, Ch. 467, Stats. 2003. Effective January 1, 2004.
Amended Sec. 19, Ch. 288, Stats. 2006. Effective January 1, 2007.