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CHAPTER 1

A SYSTEM FOR CLASSIFYING MINOR TRAFFIC


VIOLATIONS AS NONCRIMINAL TRAFFIC
INFRACTIONS

A. RECOMMENDAnON
The Judicial Council recommends the enactment of legislation re-
classifying minor traffic violations as noncriminal traffic infractions,
punishable by a money penalty, license suspension, attendance at a

I
I
school for traffic violators or any combination thereof. There would
be no right to a jury trial or to the appointment of counsel in such
cases.
California law now classifies all traffic violations, including viola-
tions of statutes and ordinances relating to parking, as crimes or public
I, offenses subject to fine and imprisonment. Under this system almost
every motorist in the state at one time or another is technically classi-
I fied as a criminal and subject to a possible sanction of imprisonment,
Il
however trivial the offense. All the time-consuming procedures pro-
vided for trial of serious offenses including the right of a trial by
jury and to have appointed counsel are applicable to these minor vio-
lations although it would appear to be in the public interest to have
these cases disposed of more expeditiously and without including de-
\ privation of liberty as one of the penalties.
I, The classification of a traffic violation as something less than a mis-
\. demeanor is not unique and the elimination of jury trials and the
right to appointed counsel in such cases raises no substantial constitu-
I, tional issues and has precedent in other jurisdictions 1 The effective
enforcement of traffic laws does not require that violations be classi-
I fied and treated as crimes, and the proposed reclassification is not in-
tended to minimize the importance of enforcing such laws. Rather, the
\, proposal is aimed ultimately at developing effective procedures and
I penalties that are uniquely adapted to the lesser traffic cases and give
recognition to the fact that minor traffic violations are not viewed by
i the public as crimes. 2
1. Classification of Motor Vehicfe Violations
I The category of noncriminal traffic infractions that is proposed in
I
this recommendation would include most violations of the rules of the
road including those governing obedience to signs and signals, driving
1 See Study. infra.
J Some question has been raised as to whether the reclassification of traffic offenses as
noncriminal infractions would affect the presumption of negligence which may nnw
arise from a violation of the Vehicle Code regulating the op"-ration of motor ve~
hicles. (See Study, infra at 56.) The Council by its recommendation does not in-
tend to modify the opera.tian of this presumption, and there would 2.J)pear to be no
reason for a court to hold that the presumption does not apply merely because a
violation has been classified as an infraction for Which a jail sentence may not be
imposed.

l ( 13 )

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14 JUDICIAL COUNCIL OF CALIFORNIA


T The threat of su
on the right, lane markings, passing, right of way, pedestrians, turn.
ing and stopping, lesser speeding offenses, parking and equipment. 3 fine. Upon the fail
Misdemeanors now identified as the more serious ones, by the heavier suspend the drivin
penalties provided, would continue to he classified as crimes with the every $2 of the fin
right to a jury trial and would be subject to the usual criminal sanc- separate and seriol
tions upon conviction. These violations include drunk driving, reck- The court would
less driving, driving under the influence of narcotics or drugs, hit and ments of fines but
run incidents, driving with a suspended or revoked license and illegal defendant giving 1
transportation of explosives, radioactive materials and flammable li- quired or ~o appe~
quids· Speed contests, speeds of 25 miles or more an hour above the tion of thIS proml
lawful speed and speeds of 85 miles or more per hour, as well as eer- tute a misdemeano
tain offenses of a commercial nature,5 would also be classified as mis- Generally, the
demeanors. infractions. For I
meanors would g
2. Penalties and Procedure officers, burden 0
A defendant convicted of a traffic infraction under the recommended bringing cases to t
system could be penalized by a fine of not more than $50 or by sus- Other provisior
pension of his driving privilege for not more tban 30 days or both. 6 offense and an in
For a second conviction within a year the defendant would be subject manded, the COUI
to a maximum $100 fine and a 50-day suspension of his driving privi- jury and the infr
lege. Upon a third or subsequent conviction within a year he could be be tried by jury.
fined not more than $250 and bis license could be suspended for not find the defendan
more than 90 days. In addition, the court would be authorized to order in a criminal offer
the defendant to attend a school for traffic violators, but jail could not The two major
be imposed. are recommended
Fines and attendance at a school for traffic violators are now nor- the right to app
mally ordered upon conviction for minor traffic violations and are However, the rec'
sufficient penalty for those who commit an inadvertent violation but would make PoS!
are willing and able to be safe drivers. Other drivers, however, who trial procedures 1
reveal an attitude of disregard for traffic regulations, whether upon a infractions. 12
first or subsequent violation, may require more severe treatment. "Ex-
perience with traffic laws through the years brought the realization that
regulation of driver conduct through control of the driving privilege
offers one of the most hopeful and effective methods whereby compli-
ance with safety rules may be enforced. Fines and even jail sentences
I
I
3. Jury Trials
It is clear that
be provided in n
of the penalty (
as deterrents to unsafe driving fade in effect when compared to the loss ( to be unjustified.
of driving privilege, even for periods of short duration." 7 A driver The use of ju
who is able but apparently unwilling to abide by traffic laws should mally result in a
not be able to buy his way out by paying a fine. For these reasons the of time and expe:
\ to the defendant.
courts would be granted authority to suspend the driver's license when- I

than 50 percent
ever a violator's conduct indicates a need for such treatment.
• This proposed classification of lesser offenses is based upon the Legislature's establish-
ment of a class ot special traffic misdemeanors that are subject to a penalty not eX-
II courts are for m
and about one-tJ
ceeding a $50 fine or five days in jail upon a first conviction with provision for at- ,
tendance at a school for traffic violators for not more than 12 hours' instruction.
(Veh. Code § 42001.) See APpendix, infra, for a listing of the offenses suggested for
classification as infractions. Other bases for classification could be used, of course,
I 'Veh. Code § 40508
(Rules of the R
made applicablE
and the precise list of offenses to be treated as traffic infractions should depend upon
a legislative determination of the policy issue as to each offense. I 8 Proposed Veh. Cod·
10 Proposed Veh. Coe
• Veh. Code §§ 23102-23108. 20002. 14601; Diy. 14. Diy. 14.5 and Diy. 14.7. U Proposed Veh. Coe
Ii E.g.~ Veh. Code, Div. 13 (Towing and Loading Equipment).
e To improve the effectiveness of court-ordered license suspensions, Vehicle Code SectlO~
1803 would be amended to require that whenever suspension is ordered by the cour
the abstract of the case shall be forwarded to the Department of Motor Vehicles
.
I U See StudY, infra:
demeanor ball
This change w,
purposes only J
within two court days after conviction. \ Governing Pro'
7 Fisher, Vehicle Traffic Law (1961) p.359. procedures rna
before the cler
( 11 See Study, infra:
1967 REPORT TO THE GOVERNOR AND THE LEGlSLA1'URE 15

pedestrians, turn. The threat of suspension would also serve to enforce payment of the
sand equipment. 3 fine. Upon the failure to pay a fine the court would be authorized to
les, by the heavier suspend the driving privilege for a period not to exceed one day for
as crimes with the every $2 of the fine. Wilful failure to pay the fine would constitute a
lual criminal sane· separate and serious misdemeanor under an existing provision of law 8
unk driving, reck. The court would be authorized to permit delayed or installment pay-
I ments of fines but such permission would be made contingent upon the
l or drugs, hit and I
license and illegal defendant giving his written promise to pay the fine within the time re-
and flammable li. \ quired or to appear in court on the day the fine is due. 9 A wilful viola·
an hour above the tion of this promise to pay the fine or appear in court would consti-
our, as well as cer· tute a misdemeanor.
e classified as mis· Generally, the rules governing misdemeanor cases would apply to
infractions, For example, the provisions of law relating to misde·
meanors would govern the jurisdiction of courts, powers of peace
officers, burden of proof, statutes of limitation and the periods for
r the recommended bringing cases to trial.1°
,an $50 or by sus· Other provisions of the bill would provide that, when a criminal
30 days or both. 6 offense and an infraction are joined for trial and a jury trial is de-
t would be subject manded, the court may order that the criminal offense be tried by
, his driving privi. jury and the infraction by the court or the court may order that both
a year he could be , be tried by jury. Provision is also made to permit the trier of fact to
suspended for not find the defendant guilty of an infraction which is necessarily included
mthorized to order I in a criminal offense charged.H
but jail could not I The two major departures from ordinary criminal procedure that
are recommended are the elimination of the right to a jury trial and
ltors are now nor· the right to appointed counsel when a traffic infraction is charged.
nolations and are However, the reclassification of these violations as noncriminal matters
-tent violation but would make possible future modifications of bail, arraignment and
"ers, however, who trial procedures to establish a simple and expeditious system for traffic
LS, whether upon a
I
• infractions. 12
'e treatment. "Ex-
:he realization that
, driving privilege ( 3, Jury Trials
It is clear that there is no constitutional requirement that jury trial
s whereby compli- be provided in minor traffic cases,13 and with the proposed elimination
lven jail sentences I of the penalty of imprisonment, the retention of jury trial appears
,m pared to th e loss to be unjustified.
ttion, "7 A driver I., The use of jury trials in cases of minor traffic violations that nor-
traffic laws should mally result in a penalty of $25 or less involves an inordinate amount
r these reasons the of time and expense, without any commensurate benefits to the public or
ver's license when- f, to the defendant. A recent two-month special survey disclosed that more
atment. than 50 percent of all misdemeanor traffic jury trials in the municipal
Legislature's establish-
~ct to a penalty not e,x-
II courts are for matters which would fall within the infraction category,
and about one·third of all municipal court jury trials, civil and crim-
with provision for at-
I 12 hours' instruction. • 8Veh. Code § 40508 (b), This provision now applies only to violations of Division 11
, offenses suggested for (Rules of the Road) of the Vehicle Code. Under the Council's proposal it would be
luld be used, of course,
IDS should depend upon
~nse.
) made applicable to all infractions.
tproposed Veh. Code § 43003.
10 Proposed Veh. Code § 43004.
Div.14.7. U Proposed Veh. Code § 43007.
ti See Study, infra at 46, 53-56. One of the possible modifications is a revision of mis-
s, Vehicle Code Section demeanor bail procedures to permit a monetary payment to be made to the clerk.
is ordered bY the court This change would eliminate the procedure whereby bail is posted for forefeiture
lent of Motor Vehicles purposes only rather than to secure the defendant's appearance. (See Model Rules
\, Governing Procedure in Traffic Cases, Rule 1 :3-7.) Simplification of arraignment
procedures may also be desir'able to permit the defendant to plead "not guilty"

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before the clerk and have his case set for trial.
U See Study, infra at 36-40.

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16 JUDICIAL COUNCIL OF CALIFORNIA
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in aI, are for infractions. Applying the ratios obtained in the special A repeated refrain
study to statistics collected by the Council from municipal and justice jeopardy there is a :
courts for the 1965-66 fiscal year,14 it may be estimated that about not be imposed upon
4,000 jury trials held in the 1965-66 fiscal year were in cases that cial Counsel's propos
would be classified as traffic infractions. The average time required to to have counsel appoi
try a jury case of this nature was almost two hours 15 as compared to that every defendan 1
about 15 minutes per case for a court triaL invidious distinction
able to afford counse'
fendants charged wit
Traffic AJl~proceediog5 one. '8 Insofar as the
tions are concerned,
Traffic
I tion, not the rule. Th
men t of counsel app
Infrac- Misde- Infrae- Misde-- Other
Tolal tions meanors Total tions meanors criminal Civil I adequately represent
simple factual and
Juries SWOrD .• ________ 834 451 383 1.384 451 383 491 59 I counsel may be far I
Percent of trials_______
Houts oftriaL ________
Percent of hours. ______
100%
3,211
100%
54.]%
852
26.6%
45.9"3
2,35
73.5~
100%
--
..
32.6%
..
--
27.7%
--
--
35.3%
--
--
4.3%
..-- I to incur. Therefore,
are financially able t
Hours per trial (avg.) __ 3.8 1.9 6. -- -. -- .. ..

• Data Oil traffic jury trials compiled from special survey of municipal courts. Data on other criminal and civil trials
I' compiled from regular monthly reports from same courts.
I tion is involved." 9 Th
with an infraction ,
I others.
These figures do not reflect the full burden that is imposed upon the Other reasons sug
court system and the public by the application of the right to jury. \ should not be applie
There are many more jury demands than jury trials. The clerical and ! the purpose of provi
judicial processing of such demands, with the later waivers or changes port into the noncrir
of plea, and the impaneling of jurors that may not be used constitute to protect the right
an undetermined but substantial expense. Moreover, service as a juror torney in a crimina'
is often a considerable burden on the individual citizen. He may well criminal violation is
question the need for his services and the rationality of a judicial ment; they appear
system that requires them in the trial of cases that normally result in , with a minor offens.

l
a fine of $25 or less. threatened.
The Council has recommended, therefore, that there be no right to For the foregoin~
trial by jury in traffic infractions. plates that the right
same as the right of
4. Right to Counsel there be no depriVE
The California Supreme Court has held that the right to counsel except upon proper
extends to all criminal prosecutions including misdemeanors 16 and no ., to counsel. au(
rio-bt
defendant charged by the State of California with a crime may be a traffic infractJOn .
deprived of life or liberty without the aid of counsel, absent a waiver provided by law 20
thereof. However, the proposed reclassification of minor traffic viola- The Judicial Cot
tions as noncriminal infractions and the elimination of imprisonment system should be ac
as a sanction remove any constitutional requirement that free counsel simple means of en
be supplied in such cases. the effectiveness of
In the absence of any constitutional mandate for extending the . judicial time in dis
right to appointed counsel to traffic infractions, the issue should still ties of criminal Jaw
be considered as a matter of basic policy. Such a consideration sug- ) time for the seriom
gests that the reasons for affording the right to appointed counsel in infringing upon th
impartial tribunal.
criminal proceedings do not apply when infractions are involved.
14 The total number of juries sworn in traffic cases in municipal and justice courts during
( 17Id. at 47-48.
the 1965-66 fiscal year was 7,460.
15 Jury Trials Held in 58 Municipal Courts August and September 1966.·
1AI See Study I tn/ra at 51.
I laId. at 47.
1;
:!l)
California Traffic Law
Propo~ed Veh. Code § ~

l
r
T
I 1967 REPORT TO TIlE GOVERNOR AND TIlE LEGISLATURE 17

special A repeated refrain in many cases is that where a man's liberty is in


justice jeopardy there is a right to counse]l7 However, imprisonment could
about not be imposed upon conviction of a traffic infraction under the Judi-
eS that cial Couusel's proposal. .i\Iorcover, the right of an indigent defendant
ired to to have counsel appointed at the public's expense is illtended to insure
ned to that eyery defelldant is tried fairly, and is designed to prevent an
invidious distinction between indigcnts and those defendants who are
able (0 afford counsel. Mr. .Justice Black has pointed out that few de-
fendants charged with a crime who can afford an attorney fail to hire
one. IS Iusofar as the traffic cases that would be reclassified as infrac-
tions are concerned, howcver, representation by counsel is the excep-
tion, not the rule. The disinclination (0 hire counselor request appoint-
ment of counsel apparently is based on the belief that a layman can
Civil adequately represent himself since minor traffic matters usually involve
simple factual and legal issues. Furthcrmore, the cost of engaging
59 counsel may be far greater than the penalties the defendant is likely
4.3%
to incur. Therefore, it is not economically reasonable for persons who
are financially able to hire counsel to do 80 when a minor traffic viola-
tion is involved. '9 Thus, to provide free counsel to an indigent charged
j civil trials with an infraction would give such a person an advantage over all
others.
Ipon the Other reasons surtgest that the right to connsel in criminal cases
to jury. should not be applied to traffic infractions. It seems inconsistent with
·ical and the purpose of providing a simplified and less costly procedure to im-
changes port into the noncriminal infraction category the procedures necessary
onstitute to protect the right of every defendant to be represented by an at-
; a Juror torney in a criminal case. These procedures are appropriate when a
nay well criminal violation is charged or the defendant is subject to imprison-
judicial ment; they appear inappropriate when applied to a person charged
result in with a minor offense, such as overtime parking, whose liberty is not
threa tened.
right to For the foregoing reasons, the Council's recommendation contem-
plates that the right to counsel in a traffic infraction case shall be the
same as the right of a civil litigant. In order, howevcr, to assure that
there be no deprivation of liberty without the assistance of counsel
J counsel except upon proper waiver, special provision is made for advice on the
G and no right to counsel and for assignment of counsel when a defendant in
may be a traffic infraction proceeding has been arrested and not released as
a waiver provided by 1aw. 20
'fic viola- The Judicial Council believes that the proposed traffic infraction
isonment system should be adopted. It will meet the needs of the public for a
e counsel simple means of enforcing the rules of the road without decreasing
the effectiYeness of the state's traffic safety efforts. It will save
ding the judicial time in disposing of minor violations without the technicali-
)uld still ties of criminal law procedure in such cases and thereby allow more
tion sug- time for the seriollS offenses. It will accomplish these things without
)unsel in infringing upon the right of a dcfendant to a fair trial before an
lved. impartial tribunal.
Jrts during 17 ld. at 47-48.
lAId. at 47.
\ IICahjontio Traffic Law Jl(l1ninist1'arion (1960) 12 Stan. L. Re\", 388, 411-12, 436.
2lPropo~ed Veh. Code § 43006.

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18 JUDICIAL COUNCIL at' CALIFORNIA

The following bill contains the Council's recommendation :21 designatec


making al
An act to amend Section 15 of the Penal Code and to add Section , second an
22365 and Division 19 (coJnmencing with Section 43000) to, to penalty to
a,mend Sections 1803, 12951, 21714, 2310,2, 23103, 23109, 23111,
23112, 27003, 27460,S, 27461, 27500, 28501, 28511, 35784, 35790,
I a report f
tion from
40000, 40508, 42001, 42003, and 42004 of, and to repeal Section prima faci
42005 of, the Vehiele Code, relating to trajJic infractions. regardless
ings has aJ
The people of the State of Califo1'11ia do enact as follows:
For pur
Section 1. Section 15 of the Penal Code is amended to read: to be a co:
]5. A crime or public offense is an act committed or omitted in 43002.
violation of a law forbidding or commanding it, and to which is an- by Section
nexed, upon conviction, either of the following punishments: infraction
1. Death; l the opera'
2. r mprisonment; this code,
3, Fine, except when imposed f01" a tmjJic infraction p11rsuant to (, The cou
Division 19 (commencing with Section 43000) of the Vehicle Code; ilege of al
4, Removal from office; or, 1 to attend 1
5, Disqualification to hold and enjoy any office of honor, trust, or 43003,
profit in this state, infraction
Sec. 2, Division 19 (commencing with Section 43000) is added to I grant pen
the Vehicle Code, to read:
I of time OJ
contingent
DIVISION 19, TRAFFIC INFRACTIONS I! within the
, the fine or
43000. It is a traffic infraction for any person to violate any of the
following provisions of this code, or any ordinance, order, rule or ,, Any pel
I appear in
regulation adopted pursuant to such provisions, unless a violation
I- (b) If'
thereof is specifically declared to be a misdemeanor, a felony or punish-
of a traffi<
able by imprisonment: I \ thereof, tl
(a) Sections 4159, 4160, 4454, 12951 or 14600;
I person to
(b) Any provision of Division 11 (commencing with Section 21000),
sllspendinl
except Chapters 11 (commencing with Section 22950) and 13 (com-
mencing with Section 23250) ; or
(c) Any provision of Division 12 (commencing with Section 24000),
I the extent
two dollar
Division 15 (commencing with Section 35000) or Division 16 (com-
I 43004,
II or after J
mencing with Section 36000),
Except as
43001, Every person convicted of a traffic infraction for which
another penalty is not provided shall for a first conviction thereof
be punished by a fine of not more than fifty dollars ($50) or by a
l misdemear
peace offi<
and for br
suspension of his driving privilege for a period of not more than 30 I 43005.
days or by both such fine and suspension; for a second conviction within r to a trial t
a 12-month period such person shall be punished by a fine of not more
43006,
than one hundred dollars ($100) or by suspension of his driving privi- l titled to h
lege for not more than 60 days, or by both such fine and suspension; I
! defender:
upon a third or subsequent conviction within a 12-month period such
as provide
person shall be punished by a fine of not more than two hundred and
43007,
fifty dollars ($250) or by suspension of his driving privilege for not
been join€
more than 90 days, or by both such fine and suspension. A prior con-
court may
viction for a traffic infraction or for a violation of the Vehicle Code
fraction tJ
21 The statutory language submitted here is generally based on Assembly Bill No. 845 of tion be tri
the 1965 General Session of the Legislature.
I, I.! 196 7 REPORT TO THE GOVERNOR AND THE LEGISLATURE 19
l :21
designated as a crime shall constitute a conviction for the purpose of
making applicable the greater penalties provided by this section for
add Section second and subsequent offenses. For the purpose of determining the
3000) to, to }
penalty to be imposed pursuant to this section, the court may consider
3109, 23111,
I. a report from the Department of Motor Vehicles containing informa-
'5784, 35790,
tion from its records showing prior convictions; and the report is
peal Section
ons.
I, prima facie evidence of such convictions, if the defendant admits them,
regardless of whether or not the complaint commencing the proceed-
ings has alleged prior convictions.
For purposes of this section, a prior bail forfeiture shall be deemed
lad: to be a conviction of the offense charged.
r omitted in 43002. In addition to imposing any other punishment authorized
which is an- by Section 43001, the court may order any person convicted of a traffic
i:
I
I infraction to attend a school for traffic violators for instruction in
the operation of a motor vehicle consistent with tbe provisions of
this code.
p~lrsuant to The court may suspend for not more than 90 days the driving priv-
ide Code; ilege of any person who wilfully fails to comply with such an order
to attend a school for traffic violators
101', trust, or 43003. (a) When a person is sentenced to pay a fine for a traffic
i infraction the fine shall be payable forthwith, except that the court may
is added to grant permission for the payment to be made within a specified period
of time or in specified installments. Such permission shall be made
i contingent upon the person giving his written promise to pay the fine
within the time authorized or to appear in court on the date on which
te any of the the fine or any installment thereof is due.
'der, rule or Any person wilfully violating his written promise to pay the fine or
; a violation appear in court is guilty of a misdemeanor.
ly or punish- I, (b) If within the time authorized by the court a person convicted
of a traffic infraction fails to pay the fine imposed or any installment
thereof, the court may suspend the driving privilege and order the
ction 21000),
.nd 13 (com-
( person to surrender his driver's license to the court. Every such order
suspending the driving privilege for nonpayment of a fine shall specify

ction 24000),
I the extent of the suspension which shall not exceed one day for every
two dollars ($2) of the fine.
ion 16 (com- I4 43004. Acts defined by law as traffic infractions and committed on
or after January 1, 1968, do not constitute crimes or public offenses.
,n for which Except as otherwise provided by law, all provisions of law relating to
ction thereof misdemeanors shall apply, including but not limited to powers of
~50) or by a peace officers, jurisdiction of courts, periods for commencing action
nore than 30 , and for bringing a case to trial and burden of proof.
Tiction within 43005. No person charged with a traffic infraction shall be entitled
l of not more
I to a trial by jury.
i
iriving privi- 43006. A person charged with a traffic infraction shall not be en-
i suspension;
I period such
hundred and
! titled to have counsel appointed to represent him or to have the public
defender represent him, except when he is arrested and not released
as provided by law.
,ilege for not 43007. (a) When a criminal offense and a traffic infraction have
A prior con- been joined or consolidated for trial and a jury trial is demanded the
Vehicle Code court may order that the criminal offense be tried by jury and the in-
y Bill No. 845 of fraction tried by the court, or that the criminal offense and the infrac-
tion be tried by jury.

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1967 REPORT j
20 JUDICIAL COUNCIL OF CALIFORNIA
the United States BUl
(b) When a defendant is charged with a criminal offense the jury, or lance is operated in v
the judge if a jury trial is waived, may find the defendant guilty of tion, the Commissione
any infraction, the commission of which is necessarily included in the notice and hearing, 1"
offense charged. . owner to operate am]
Sec. 3. Section 1803 of the Vehicle Code is amended to read: may order that no alI
1803. (a) Every clerk of a court, or judge if thcre be no clerk, in as an authorized emer
which a person was convicted for any violation of this code, and of and regulations to imp
any narcotic offense under Division 10 ('commencing with Section Sec. 6. Section 22,
11000) of the Health and Safety Code, and of any violation of any 22365. Violations'
other statute relating to the safe operation of vehicles, shall prepare driving at a speed of
withffi W ~ aitei' eeffi4etioo and immeEl-iMcly forward to the depart- speed or, in any even
ment at its office at Sacramento an abstract of the record of the court meanor.
covering the case in which the person was so convicted which abstract Sec. 7. Section 23
must be certified by the person so required to prepare the same to be 23102. (a) It is 1
true and correct. In those cases in which the cour-t has sllspended the under the influence oj
dr-iving pr-ivilege of the pel'son convicted, the abstr-act shall be for-war-ded ence of intoxicating I
within two court days aftel' the wspension is imposed. All other- ab- highway. Any p~rs?r
stracts shall be forwar-ded within 10 days after conviction. upon a first convlctlo
For the purposes of this section, a forfeiture of bail shall be equivalent than 30 days nor mOl
to a conviction. hundred fifty dollars
(b) Violations of Sections 22500, 22502, 22503, 22.508, and 22514 re- or by both such fin<
lating to the parking of vehicles, and violations for which a person was subsequent convictior
cited as a pedestrian or while operating a bicycle, are not required to prisonment in the c,
be reported under (a) above, unless the COltrt has suspended the dl'iv- than one year and b;
ing pl'ivilege . ($250) nor more th
Sec. 4. Section 12951 of the Vehicle Code is amended to read: under this section s1
12951. (a) The licensee shall have the license issued to him in his has previously been
immediate possession at all times when driving a motor vehicle upon code.
a highway. (b) If any perso'
Any charge under this subdivision shall be dismissed when the per- under this section .
son charged produces in court a driver's license duly issued t~ such granted probation, j
person and valid at the time of his arrest, except that upon a thIrd or son be confined in ja
subsequent charge the court in its discretion may dismiss the char~e. and pay a fine of a
When a temporary, interim, or duplicate driver's license is produced III more than one thOUSl
court the charge shall not be dismissed unless the court has been fur- ( c) If the person
nished proof by the Department of Motor Vehicles that such tempo- years and the vehic:
rary, interim, or duplicate license was issued prior to the arrest, that persotl, the vehicle:
the driving privilege and license had not been suspended or revoke~, less than one day no
and that the person was eligible for such temporary, interim, or duplI- Sec. B. Section:
cate license. 23103. Any pen
(b) The driver of a motor vehicle shall present his license for exam- ful or wanton disre:
ination upon demand of a peace officer enforcing the provisions of this of reckless driving
code. thereof shall be pu:
fe+ GefWtet.i_ :~nder tffis seeti6fi shaH Btl punish~ ~ a ~ net less than five days
ezeeeffing Mty- dellars ($50) er ~ imprisenffiefH; ffl the eellnty ;fail net twenty-five dollars
exeeeding ffie day&.- ($250) or by both
Sec. 5. Section 21714 of the Vehicle Code is amended to read: Section 23104.
21714. Ne It is a misdemeanor for the owner of a publicly or pri- Sec. 9. Section
vately owned ambulance sficll to permit the operation of such ambu- 23109. (a) Ne
lance in emergency service unless either the operator thereof or an gage in any motor
attendant on duty therein possesses an Advanced American Red Cross
First Aid Certificate or an Advanced First Aid Certificate issued by
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 21

the United States Bureau of Mines. In any case in which an ambu-


nse the jury, or lance is operated in violation of the preceding provisions of this sec-
ldant guilty of tion, the Commissioner of the California Highway Patrol may, after
included in the notice and hearing, revoke any permit that has been issued to such
owner to operate ambulances as authorized emergency vehicles and
to read: may order that no ambulance owned by such owner may be operated
be no clerk, in as an authorized emergency vehicle. The commissioner may issue rules
is cod e, and of and regulations to implement this section.
5 with Section Sec. 6. Section 22365 is added to the Vehicle Code, to read:
iolation of any 22365. Violations of this chapter are traffic infractions except that
>, shall prepare driving at a speed of 25 miles or more per hour in excess of the lawful
d to the depart- speed or, in any event, driving 85 miles or more per hour is a misde-
,rd of the court meanor.
which abstract Sec. 7. Section 23102 of the Vehicle Code is amended to read:
the same to be 23102. (a) It is unlawfal a misdemeanor for any person who is
; S1I spended the
under the influence of intoxicating liquor, or under the combined influ-
III be forwarded ence of intoxicating liquor and any drug, to drive a vehicle upon any
l. All other ab- highway. Any person convicted under this section shall be punished
tion. upon a first conviction by imprisonment in the county jail for not less
111 be equivalent than 30 days nor more than six months or by fine of not less than two
hundred fifty dollars ($250) nor more than five hundred dollars ($500)
3, and 22514 re- or by both such fine and imprisonment and upon a second or any
ch a person was subsequent conviction, within seven years of a prior conviction, by im-
not required to prisonment in the county jail for not less than five days nor more
,ended the dr·iv- than one year and by a fine of not less than two hundred fifty dollars
($250) nor more than one thousand dollars ($1,000). A conviction
ed to read: under this section shall be deemed a second conviction if the person
~d to him in his has previously been convicted of a violation of Section 23101 of this
or vehicle upon code.
(b) If any person is convicted of a second or subsequent offense
1 when the per- under this section within seven years of a prior conviction and is
issued to such granted probation, it must be a condition of probation that such per-
upon a third or son be confined in jail for at least five days but not more than one year
~iss the charge. and pay a fine of at least two hundred fifty dollars ($250) but not
) is produced in more than one thousand dollars ($1,000).
·t has been fur- (c) If tl'le person convicted under this section is under the age of 21
at such tempo- I, years and the vehicle used in any such violation is registered to such
the arrest, that person, the vehicle may be impounded at the owner's expense for not
led or revoked, less than one day nor more than 30 days.
:erim, or dupli- Sec. 8. Section 23103 of the Vehicle Code is amended to read:
23103. Any person who drives any vehicle upon a highway in wil-
lense for exam- ful or wanton disregard for the safety of persons or property is guilty
ovisions of this of reckless driving, which is a misdemea.nor, and upon conviction
thereof shall be punished by imprisonment in the county jail for not
~ by ft Roo llilt ( less than five days nor more than 90 days or by fine of not less than
I
ooffiHy jailllilt twenty-five dollars ($25) nor more than two hundred fifty dollars
($250) or by both such fine and imprisonment, except as provided in
to read: Section 23104.
ublicly or pri. Sec. 9. Section 23109 of the Vehicle Code is amended to read:
of such ambu- f 23109. (a) Ne It is a. misdemeamor for any person sfiall to en-
thereof or an gage in any motor vehicle speed contest or exhibition of specd on a
can Red CrosS
cate iss ned by

--~------_.........--~-
22 JUDICIAL COUNCIL OF CALIFORNIA

highway and no person shall aid or abet in any motor vehicle speed is an unretreadel
contest or exhibition on any highway. cut or burned.
(b) Ne It is a misdemeanor for any person , shall for the pur- Sec. 15. Sect
pose of facilitating or aiding or as an incident to any motor vehicle 27500. (a) 'I
speed contest upon a highway, to in any manner obstruct or place any standards and c
barricade or obstruction or assist or participate in placing any barri- i. vehicle type as
cade or obstruction upon any highway. (b) In adopti
(c) Any person who violates this section shall upon conviction evidence of gen
thereof be punished by imprisonment in the county jail for not more which have beer
than 90 days or by fine of not more than two hundred fifty dollars
($250) or by both such fine and imprisonment.
t sion.
I (c) In adopti
Sec. 10. Section 23111 of the Vehicle Code is amended to read: I cass strength, si:
23111. Outside of a business or residence district no person in any I acteristics.
vehicle and no pedestrian shall willfully or negligently throw or dis- \ (d) Ne It i.
charge from or upon any road or highway or adjoining area, puhlic l offer for sale al
or private, any lighted cigare'tte, cigar, ashes, or any other flaming or in compliance w
glowing substance. A.ny violation of the provisions of this section is a ( erative six mon1
misdemeanor. This section shall be known as the Paul Buzzo Act. become effective.
Sec. 11. Section 23112 of the Vehicle Code is amended to read: (e) This sect
23112. (a) No person shall throw or deposit, nor shall the regis- I cars.
tered owner or the driver, if such owner is not then present in the o
" Sec. 16. Sec!
vehicle, aid Or abet in the throwing or depositing upon any highway any 28501. Ne I
bot~l~, can, garbage, glass, nai~, offal, p?-per, wir" any substance likely . station unless a
to lllJure or damage traffic usmg the hIghway, or any noisome, nause- 1 Sec. 17. Sec
ous or offensive matter of any kind. 28511. It is
(b) No person shall place, deposit or dump, or cause to be placed, a licensed static
deposited or dumped, any rocks or dirt in or upon any highway, in- chapter.
cluding any portion of the right-of-way thereof, without the consent Sec. 18. Sec
of the state or local agency having jurisdiction over the highway. 35784. It is 1
(c) Any violation of the provisions of this section is a misdemeanor. i any of the term
Sec. 12. Section 27003 of the Vehicle Code is amended to read: \ in an incorpora
27003. An armored car may be equipped with a siren which may be ( the permit wou
used while resisting armed robbery. At all other times, the siren shall , permittee may I
not be sounded. The authority to use a siren granted by this section
does not constitute an armored car an authorized emergency vehicle,
I provided that tl
route. A detour
and all other provisions of this code applicable to drivers of vehicles l streets.
apply to drivers of armored cars. Any violation of the provisions of Sec. 19. Sec
this section is a misdemeanor.
Sec. 13. Section 27460.5 of the Vehicle Code is amended to read:
27460.5. Ne It is a misdemeanor tor any person shall knowingly
!, 35790. (a)
with respect to
application in
to sell or offer or expose for sale any motor vehicle tire except a com-
mercial vehicle tire, or any motor vehicle equipped with any tire ex-
I annual permit;
coach in exces,
cept a commercial vehicle tire, which has been recut or regrooved. For ~ width, exclusiv
purposes of this section a recut or regrooved tire is an unretreaded 35109, and 35:
or unrecapped tire into which new grooves have been cut or burned. party granting
( (b) A publi
Sec. 14. Section 27461 of the Vehicle Code is amended to read:
27461. Ne It is a misdemeanor tOl' any person shall to cause permits for the
or permit the operation of an ~ for any driver shaH knowinglY ing the individ
to operate any motor vehicle except a commercial vehicle, on any or relocation of
street or highway, which is equipped with one or more recut or re- (c) The apr
grooved tires. For purposes of this section a recut or regrooved tire l the trailer coal

I
1
-.
J967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 23
I
\

. vehicle speed is an unretreaded or unrecapped tire into which new grooves have been
cut or burned.
, for the pur- Sec. 15. Section 27500 of the Vehicle Code is amendcd to read:
motor vehicle 27500. (a) The department shall adopt regulations relating to
;t or p la.ce any standards and certification procedure for new tires of the passenger
.ing a.ny barri- vehicle type as it determines necessary to provide for public safety.
I
1
(b) In adopting these regulations, the department shall consider as
Jon conviction evidence of generally accepted standards, the rules and regulations
I for not more which have been adopted by the Vehicle Equipment Safety Commis-
:d fifty dollars sion.
(c) In adopting these regulations, the department shall consider car-
i to read: cass strength, size and load capacity, performance and mounting char-
person in any acteristics.
. throw or dis- I1 (d) Ne It is a misdemeanor for any person shaH to sell or
19 area, public offer for sale any new tire of the passenger vehicle type that is not
.her flaming or in compliance with such regulations. This subdivision shall become op-
his section is a ( erative six months after the date upon which the regulations adopted
uzzo Act. become effective.
ded to read:
;hall the regis-
I I cars.
(e) This section shall have no application to motorcycles or house
I Sec. 16. Section 28501 of the Vehicle Code is amended to read:
present in the
'y highway any 28501. Ne It is a misdemeanor for any person shaH to operate a
ubstance likely
10isome, nause-
} station unless a license therefor has first been issued by the department.
Sec. 17. Section 28511 of the Vehicle Code is amended to read:
28511. It is uRlavtful a misdemeanor for any person, other than
e to be placed, a licensed station, to issue a certificate of compliance required by this
y highway, in- chapter.
,ut the consent
,ighway.
r Sec. 18. Section 35784 of the Vehicle Code is amended to read:
35784. It is a misdemeanol- traffic infraction for any persou to violate
I
any of the terms or conditions of any such special permit, except that

~
a. misdemeanor.
d to read: in an incorporated city where compliance with the route described in
1 which may be the permit would result in a violation of local traffic regulations the
the siren shall l permittee may detour from the prescribed route to avoid such violation
provided that the permittee returns as soon as possible to the prescribed
by this section
,rgency vehicle, I route. A detour under this section shall be made ou only nonresidential
,ers of vehicles \.\ streets.
e provisions of Sec. 19. Section 35790 of the Vehicle Code is amended to read:
35790. (a) The Department of Public Works or local authorities
ended to read: with respect to highways under their respective jurisdictions may upon
llffill knowingly application in writing and if good cause appears issue a special or
~ except a com- annual permit in writing authorizing the applicant to move any trailer
th any tire ex- coach in excess of the maximum width but not exceeding 10 feet in
regrooved. For I width, exclusive of lights and devices provided for in Sections 35112,
an unretreaded
cut or burned.
1 35109, and 35110, upon any highway under the jurisdiction of the
party granting such permit.
ld to read:
siHHl to cause
I (b) A public agency in the exercise of its discretion in granting
permits for the movement of overwidth trailer coaches, and in consider-
haH knowingly Ing the individual circumstances of cach case, may use merchandising
,ehicle, on any or relocation of residence as a basis for movement for good cause.
,re recut or re- (c) The application for a special permit shall specifically describe
regrooved tire the trailer coach to be moved and the particular highways over which

___J.-------------~
24 JUDICIAL COUNCIL OF CALIFORNIA
declared to be a fel
the permit to operate is requested, and whether the permit is requested 'as a felony or misd
for a single trip or for continuous operation. tion as defined by ~
The application for an annual permit shall specifically describe the (b) The period f
power unit to be used to tow the overwidth trailers and the particular having filed or cau
highways over which the permit to operate is requested. The annual or counterfeit docm
permit shall be subject to all of the conditions of this section and any Department of the
additional conditions imposed by the public agency. I' a misdemeanor, eXf

(d) The Department of Public Works or local authority is author- (c) The period f
ized to establish seasonal or other time limitations within which a trailer I having filed or cau
coach may be moved on the highways indicated, and may require an ,or counterfeit docl
undertaking or other security as may be deemed necessary to protect 'the ilepartment of
the highways and bridges from injury or to provide indemnity for any I is a felony, expire
injury resulting from the operation. . . . (d) The time all
(e) Permits for the movement of traIler coaches as provIded for m vided in paragrapl
this section may not be issued except to licensed manufacturers, dealers yond five years frOD
and transporters and only under the following conditions: Sec. 21. Section
1. The power unit used to tow overwidth trailers baving a gross 40508. (a) Any
weight of 18 000 pounds or less must be a three-quarter-ton truck or appear in court or
tractor or a' truck or tractor of greater power, equipped with dual bail is guilty of a
wheels.' The power unit used to tow an overwidth trailer having a gross charge upon which.
weight of more than 18,000 pounds must be a ton-and-one-half truck (b) Any person
or tractor or truck or tractor of greater power, equipped with dual a criminal violatior
wheels. Section 21000) of 1
2. The trailer coach for which tbe permit is issued shall comply authorized by the
with the provisions of Sections 35550 and 35551 of this code. . lull payment of the
3. A permit which has been issued for the movement of anJ: traIler Sec. 22. Sectior
coach shall not be valid between sunset and sunnse of the followlllg day, I 42001. Every p
nor between sunset on Friday to sunrise on Monday following, nor on . Division 10 (comm
any days declared to be legal holidays by the State. . ffig with £e%i_ g
(f) The Department of Public Works or local aut~ority shaP. have I ~ 229130) aOO ±<l
the authority to establish additional reasonable permIt regulatIOns as ~ ~ as it ilfl
they may deem necessary in the interest of public safety, which regu- ¥isiffll:j,g (eemmeB
lations shall be consistent with this section. ' with Section 29000
(g) Every permit shall be carried in ~he trailer coach or power unit . and Sections 2800,
to which it refers and shall be open to mspectIOn of any peace officer to stop and submit
or traffic officer any authorized agent of the Department of Public tion endangering a:
Works or any other officer or employee charged with the care and pro- 23112, 27003, 2746
tection of the highways. .
* different penalty i,
W ±t, it; ib misElemeal'lel' fui' ibl'lJ' pef'sel'l ffi vielate ibl'lJ' the terms ished upon a first (
*
eP eel'lditisl'ls ibl'lJ' &aeft pel"mit. . or by imprisonmer
fit for a second convi
(h) To the extent that the application of this section to highways exceeding one hu:
which are a part of the National System of Interstate and Defense county jail for no
Highways (as referred to in subdivision (a) of Section 108 of the prisonment and fo
Federal-aid Highway Act of 1956) would cause thIS State to be de- riod of one year b~
prived of any federal fUJ:.lds for hig~way purpo~es, this section to such or by imprisonmel
extent shall not be applIcable to highways which are a part of such or by both such fit
system. iug the penalty to
Sec. 20. Section 40000 of the Vehicle Code is amended to read: consider a teletrr
40000. (a) It is unlawful and constitut.es a misdeme~n.or fo~ an:", Motor Vehicles COl
person to violate, or to fail to comply ":'l~h, any ~rovlsIOn of thiS convictions; and t
code , unless the violation is under the prOVISIOns of thiS code expressly
·.
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 25

declared to be a felony or a public offense which is punishable either


:mit is requested as a felony or misdemeanor, or unless the violation is a traffic infrac-
tion as defined by Section 43000 .
:illy describe the (b) The period for commencing criminal action against any person
Ld the particular having filed or caused to be filed any false, fictitious, altered, forged
ted. The annual or counterfeit document with the Department of Motor Vehicles or the
section and any Department of the California Highway Patrol shall, if the offense is
a misdemeanor, expire one year from time of discovery of such act.
10rity is author- (c) The period for commencing criminal action against any person
n which a trailer having filed or caused to be filed any false, fictitious, altered, forged
may require an or counterfeit document with the Department of Motor Vehicles or
~ssary to protect the Department of the California Highway Patrol shall, if the offense
demnity for any is a felony, expire three years from time of discovery of such act.
(d) The time allowed for commencing criminal proceedings as pro-
provided for in vided in paragraphs (b) and (c) of this section shall not extend be-
'acturers, dealers yond five years from tbe date of commission of the act.
]s: Sec. 21. Section 40508 of the Vehicle Code is amended to read:
having a gross 40508. (a) Any person willfully violating his written promise to
·ter-ton truck or appear in court or before a person authorized to receive a deposit of
ipped with dual bail is guilty of a misdemeanor regardless of the disposition of the
~r having a gross charge upon which he was originally arrested.
Ld-one-half truck (b) Any person willfully failing to pay a lawfully imposed fine for
ipped with d,ual a criminal violation of any provision of Division 11 (commencing with
Section 21000) of this code or for a traffic infraction within the time
ed shall comply authorized by the court is guilty of a misdemeanor regardless of the
code. full payment of the fine after such time.
nt of any trailer' Sec. 22. Section 42001 of the Vehicle Code is amended to read:
he following day, 42001. Every person convicted of a misdemeanor for a violation of
'ollowing, nor on Division 10 (commencing with Section 20000), Di':isisn H (esHlmene
ffig wt-tfi See4;ioo ~OO% exeept Gllaptel's H (esmmeBeiRg with See-
aority shall have tioo 229130) iHHl ±3 (esmmeneing with Seetisn 2g2aO) iHHl exeept See-
it regulations as tioo 21461 as it applies te Yeflie~~lar eFsssings, iHHl SeetisB 25 9 64, D-t-
'ety, which regu- YisieR ±2 (esmmeneIDg wi#i Seetioo 24OOlB-; Division 13 (commencing
with Section 29000), iHHl PWffiien ~ {$mmeneiug with Seetisn g5000)
ch or power unit and Sections 2800, 2801, 2802, 2803, 2804 insofar as they affect failure
any peace officer to stop and submit to inspection of equipment or for an unsafe condi-
-tment of Public tion endangering any person, 2806, 2809, iHHl 2812, 21714,23110, 23111,
;he care and pro- 23112, 27003, 27460.5, 27461, 27500, 28501 and 28511, except where a
different penalty is expressly provided in said provisions, shall be pun-
ished upon a first conviction by a fine not exceeding fifty dollars ($50)
or by imprisonment in the county jail for not exceeding five days and
for a second conviction within a period of one year by a fine of not
tion to highways exceeding one hundred dollars ($100) or by imprisonment in the
.ate and Defense county jail for not exceeding 10 days, or by both such fine and im-
ction 108 of the prisonment and for a third or any subsequent conviction within a pe-
: State to be de- riod of one year by a fine of not exceeding five hundred dollars ($500)
is section to such or by imprisonment in the county jail for not exceeding six months
e a part of such or by both such fine and imprisonment. For the purpose of determin-
ing the penalty to be imposed pursuant to this section, the court may
lded to read: consider a teletype esmffiuRieatien report from the Department of
emeanor for any Motor Vehicles containing information from its records showing prior
provision of this cQnvictions; and the eeffiffiuBieatisn report is prima facie evidence of
lis code expressly
26 JUDICIAL COUNCIL OF CALIFORNIA

such convictions, if the defendant admits them, regardless of whether


or not the complaint commencing the proceedings has alleged prior
convictions.
In addition to imposing any other punishment authorized by this
section, the court may require o1'der any person convicted of a misde- LIST OF VEHICLE COl
meanor described in this section involving a traffic violation to attend
a traffic ffiH~ school for t1'affic vio~at01's fup n&t mere than ~ 4159 Notice of Cbang,
fttffirs for instruction in the operation of a motor vehicle consistent 4160 Cbange of Addre
4454 Display of Regis
with the provisions of this code. 12951 Possession of Li,
The court may suspend for not more than 90 days the driving privi- 14600 Notice of Cbang,
~e(Je of any p'erson who willfully fai~s to cornp~y with such am order 21106 Establisbment 01
to attend a schoo~ for traffic vio~ators. 21113 Public Grouuds
21201 Equipment Requ
For the purposes of this section, a prior bail forfeiture shall be 21202 Keep to Right
deemed to be a conviction of the offense charged. 21203 Hi tching Rides
Sec. 23. Section 42003 of the Vehicle Code is amended to read: 21204 Riding on B icyc:
42003. A judgment that a person convicted of any fe~ony or mis- 21205 Carrying Article
21370 Regulation of T,
demeanor violation of this code be punished by a fine may also order, struction Zone
adjudge and decree that the person be imprisoned until the fine is 21406 Contractor's W.
satisfied. In every such case, the judgment shall specify the extent of 21451 Green or "Go'.'
the imprisonment which shall not exceed one day for every five dol- 21<152 Yellow or "Caut
21453 Red or "Stop"
lars ($5) of the,fine, nor extend in any such case beyond the term for 21454 Green Arrow
which the defendant might be sentenced to imprisonment for the of- 21455 Streetcar at Rei
fense of which he was convicted. Signal
Sec. 24. Section 42004 of the Vehicle Code is amended to read: 21456 Walk, Wait, or
21457 Flashing Signal,
42004, Any driver or operator of a trolley coach is guilty of a 21460 Double Lines
traffic infraction, a misdemeanor, or a felony H the ~tffi!ar seetien 21460.5 Two-way Turnil
Be p,'eYides, as provided by provis1:ons of this code applicable to the 21461 Obedience to Oft
particu~ar section, upon the violation of any of those sections enumer- Control Devices
21462 Obedience to Tr
ated in subdivision (c) of Section 21051. ( Signals
Sec. 25. Section 42005 of the Vehicle Code is repealed. r21463 Illegal Operatio
4200Ei. Eve'7 pe,'sen eenvieted ffi a vielatien ffi £eetiens 21709, 21464 Interference Wi
219EiO el' 219Eil sl<aH 00 punished by a fiM ffi n&t exeeeding fifty dellaFs Devices
21465 Unautborized T
($EiO) el' by imflrisenmeut in the eeuuty jaH fup n&t exeeedifig fi¥e ~ 21466 Unlawful Displ:
exeept that suffi a yielatien pFeximatel;y eausing l3edily injury ~ the 21650 Rigbt Side of R
pedes:,'ian shall 00 punished as a misdemeaner. 21651 Divided Highw,
Sec. 26. The provisions of this act shall become operative on Jan- 21652 Entrance to Pul
From Service R
uary 1, 1968. 21653 One-way Traffic
21654 Slow-moving V,
21655 Designated Lan
21656 Turning Out of
moving Vehiclel
21657 Offcen ter Lanes
21658 Laned RoadwaJ
21659 Tbrec-Ianed Hi!
21660 Approacbing V,
21661 Narrow Roadw'
21662 Mountain Drivi
21663 Driving on Sid,
21664 On-Ramp Exit
21700 Obstruction to :
21701 Interference Wi
Mechanism
21703 Following Too
21704 Distance Betw,
1967 REPOR
28 JUDICIAL COUNCIL OF CALIFORNIA
25951 Direction of Bef
221H Hand Signals 24404 Spotlamps 25953 Compliance wit!
22H2 School Bus Signal 24405 Maximum Number of Lamps Hegulations
22349 Maximum Speed Limit 24406 Multiple Beams 26100 Mandatory Test
22350 Basic Speed Law 24.07 Upper and Lower Beam Approval
22356 Increase of Freeway Limit 24408 Beam Indicator 26101 Approval of MOt
22400 Minimum Speed Law 24409 Use of Multiple Beams 26301 Motor Vehicles (
22405 Violations on Bridges and 24410 Single Beams Tons
Structures 24600 'l.'aillamps 26302 Trailers
22406 '.rruck Speed 24601 License Plate Lamp 26303 Trailer Coaches
22407 Decreasing Truck Speed Limit 24602 Taillamps on Trucks 26304 Breakway Brakf
22408 Passenger Vehicle or Bus as 24603 Stop Lamps 26309 Disapproved Brl
Towing' Vehicle 24604 Lamp or Flag on Projections driven Cycle
22409 Solid Tire 24605 Tow Ca,·s and Towed Vcbicles 263H Service Brakes (
22410 ~Metal Tires 24606 Backup Lamps 26450 Reqnired Bral\.e
22412 Scbool Buses 24607 Reflectors on Rear 26451 Parking Brake t
22414 Farm Labor Bus or Truck 24608 Reflectors on Front and Sides 26452 Brakes After En
22450 Stop Requirements 24609 Reflectors on Trucks 26453 Condition of Br:i
22451 Train Signal 24800 Lighted Parking Lamps 26454 Control and Stol
22452 Railroad Crossings 24950 Turn Signal System Required ments
22454 School Bus 24951 rI'urn Signal System 26457 Exemptions
22500 Prohibition of Stopping, 24%2 Yisibilit;y Requirements of 26458 Power Brake: S:
Standing, or Parking Signals 26502 Adjustment and
22502 Curb Parking 249,,3 Turn Signal Lamps Devices
22504 Unincorporated Area Parking 25100 Clearance and Side-marker 26503 Safety Valve
22505 State Highway Parking Lamps 26504 Air Governor
22510 Parking in Snow Areas 25101 Clearance Lamps on Trailer 26505 Pressure Gauge
22514 Fire H~ydrants Coaches 26500 ';Yarning Device
22515 Unattended Vehicles 25102 Lamps on Sides of Vehicles 26507 Check Valve
22516 Locked Vehicle 25103 Lamp or Flag on Projecting 26508 Emergency StoPI
22517 Opening and Closing Doors Loacl 26520 Vacuum Gauge
22520 Stopping on Freeway 2GI04 Red Flag on ~7ide Vehicles 26521 Warning Device
22650 Prohibition of Removal 25105 Courtesy Lamps 26522 Cbeek Valve
22700 Abandonment Prohibited 25106 Side, Cowl, or Fender Lamps 26700 Windshields
23114 Spilling Loads on Highways 25107 Cornering Lamps on Feu~ers 26701 Safety Glass
23115 Ruhbisb Vehicles 25108 Pilot Indicator Lamps 26703 Safety Glass Rep
23120 Temple Widtb of Glasses 2GI0n Running Lamps Z 26706 Windsbield Wipe
252;:;0 Flashing Lights
23121 Drinking in 'l\ilotor Vehicle
23122 Possession of Opened Con- 25252 Warning Lamps ou Authorized ( 26707 Condition and U~
shield Wipers
tainer Emergency Vehicles 26708 Restricted View:
23123 Storage of Opened Container 25253 ';Varning Lamps on Tow Cars [ or l\1aterial
23123.5 Possession by Minor 25257 School Bus Warning Signal 26709 Mirrors
System
23341 Commercial Vehicles
23343 Violation of Rules and 25268 Use of Flashing Amber Warn- [ 26710 Defective Windsb
Rear Windows
Regulations ing Ligbt 26711 Eyeshades on Bn:
24002 Vehicle Not Equipped or 2,,269 Use of Red Warning Light Coacb
Unsafe 25300 Warning Devices on Disabled 26712 Defroster Requirl
24003 Vebicle Witb Unlawful Lamps or Parked Vebicles 27000 Horns or Warnin
24004 Unlawful Operation After 25301 Utility and Public Utility 27001 Use of Horns
Notice by Officer Vehicles 27002 Sirens
24005 Sale, Transfer or Installation of 25305 Use of Fusees 27150 Mufflers
Unlawful Equipment 25350 Identification Lamps and Signs 27151 Modification of E:
24006 Name or Trademark 25351 Identification I...amps and Signs Systems
24007 Dealer's Responsibility 25400 Lighting Requirements 27152 Exha ust Pipes
24008 Modification of Vebicles 25401 Diffused Lights Resembling 27153 Exhaust Productf:
24250 Lighting During Darkness Signs 27154 Gases and Fumes
2-J252 Maintenance of Lamps and 25452 Glare of Lights 27155 Fuel Tank Caps
Devices 25502 Limitations on Reflectorizing 27156 Air Pollution Con
24400 Headlamps on Motor Vebicles Material 27300 Safety Belts
24401 Dimmed Lights on Parked 25650 Headlamps on Motorcycles 27302 Use of Approved 1
Vehicles 25651 Headlamps on Motor-driven 27303 Safety Belt Ancb,
24402 Auxiliary Driving and Passing Cycles
27304 Driver Training \
Lamps 25803 Lamps on Otber Vehicles
24403 Fog Lamps 25950 Color of Lights and Reflectors ( 27305 Firefighting Vehic

}
'.

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 29


259:>1 Direction of Beam 27309 New Passenger Vehicles
25953 Compliance with Mounting 27450 Thickness of Solid Tire
mber of Lamps Regulations 27452 Condition of Solid Tire
JS 26100 Manda tory '.resting and 27453 Dual Solid Tires
wer Beam Approval 27454 Protuberances on '.rires
or 26101 Approval of :M.odifying Devices 27459 Snow-tread Tires
Ie Beams 26301 Motor Vehicles Over Seven 27460 Four-wheel Drive Vehicles
, TOllS 27600 Fenders and Mudguards
( 20302 Trailers 27601 Radiator Ornaments
Lamp
Trucks I 20303
26304
Trailer Coaches
Breakway Brakes
27602 Television
27603 Former School Bus Coloring
20309 Disapproved Brake on l\1otor- 27700 Required Equipment
, on Projections
1Towed Vehicles
I 26311
driven Cycle
Service Brakes on All Wheels
27800 Equipment for Passenger
27801 Required Position of Equipment
JS 26450 Required Brake Systems 27900 Identification Required
Rear 26451 Parking Brake System 27001 Name and Trademark
Front and Sides 26452 Brakes After Engine li'ailure 27903 DesigIHI tion of Cargo
rl'rucks i
{
26453 Condition of Brakes 27005 Fire Departments
ing Lamps
\
20454 Control ano Stopping Require- 27906 School Buses
System Required ments 27907 Tow Cars
System 20457 Exemptions 28000 Refrigerator Vans
quirements of I 26458 Power Brake: Single Control 35100 ,Vidth

l
26502 Adjustment and Use of Special 35101 Pneumatic Tires
Lamps Devices 35102 Loo1'e Loads
ld Side-marker 26503 Safety Valve 35103 Plywood Loads
( 26504 Air Governor 35104 Vehicles Limited to 120-inch
lIDPS on Trailer 26505 Pressure Gauge Width
\ 20506 ';Yarning Device 35109 Projecting Lights or Devices
des of Vehicles 26507 Check Valve 35110 Projecting Equipment
19 on Projecting 26508 Emergency Stopping System 35111 Loads on Passenger Vehicles
26520 Vacuum Gauge 35115 Projecting Devices for Agricul-
Wide Vehicles 26521 Warning Device tural Products
mps 26522 Check Valve 35250 Height
or Fender Lamps 26700 Windshields 35400 General Limitation
,amps on FelH~ers 26701 Safety Glass 35401 Combinations of Vehicles
tor Lumps 26703
mps ,,, 26706
Safety Glass Replacement
Windshield Wipers
35403 Passenger Buses in Urban or
Suburban Service
ghts 20707 Condition aod Use of Wiud- 35404 Passenger Buses Equipped
tmps on Authorized
Vehicles
\ shield Wipers 'Vith Tbree or More Axles
26708 Restricted View: Signs, Stickers 35405 Length of Trolley Coach
nnps 00 Tow Cars ( Or 1\1aterial 35406 Loads
Warning Signal ,
)
26709 Mirrors 35408 Front Bumper
26710 Defective Windshields and 35409 Moving Picture Equipment
.bing Amber -VVarn· Rear Windows
\ 26711 Eyeshades on Bus or Trolley
35410 Projections to the Rear
35411 Combination of Vehicles
Warning Li~ht Coach 35413 Tires on Front of Vehicle
evices on Disabled
Vehicles I 27000
26712 Defroster Required
Horns or Warning Devices
35417 Logging Dolly Combination
Limit
Public Utility 27001 Use of Horns
I 27002 Sirens
35550 Axles
35551 Ratio of Weight to Length-
ees 27150 Mufllers COllier-Porter Act
on Lamps ano. Signs
on Lamps and Signs \ 27151 Modification of Exhaust 35600 Solid Tires
Systems 35601 Metal Tires
.equi rements 27152 Exhaust Pipes 35655 Violation of Decreased
ights Resembling 27153 Exhaust Products Restriction
27154 Gases and Fumes 35753 Violation of Decreased
ights 27155 Fuel Tank Caps Restrictions
s on Reflectorizing 27156 Air Pollution Control Device 35783 Possession of Permit
27300 Safety Belts 35784 Violation of Permit
on Motorcycles
.5 27302 Use of Approved Belts 35785 Hauling of Saw Logs
son l\1otor-driven 27303 Safety Belt AncDors 35789 Building Mover's Notice to
\ 27304 Driver Training Vehicles Railroad
Other Vehicles 27305 Fil'efigh ting Vehicles 35790 Overwidtb Trailer CoaChes
rights and Reflectors (
l
,1
30 JUDICIAL COUNCIL OF CALIFORNIA

Permits for Vehicle Carriers 36600 Width Exemptions and Limita-


35793
Identification Plate Required tions
36125 36605 Limit of 120 Inches for Certain
36400 Lift-carrier Limit Vehicles i
36510 Stopping Distance Require- 36620 Cotton Trailer Comhination-
ments 70 Feet Length Limit I,ntroduction
The classificatic
\ is receiving incre
i but in other juri~
, problem in the CI
are proposing th
offenses be defin
lesser violations (
the creation of a
tence authorized
such as the SUSpl
violators. 2 Jail "
visions of law on
mean or cases woo
duct trials with:
without all the
eliminate inappr
plea might be co
required of defe]
constitutional an
adopted in Calif
Background on Inl
In New York
enacted in 1934
with a misdeme
minor traffic vio:
law-abiding and
in number, were
" A.ccordingly
in what is now ~
, ... punishmen·
a penal or crirr
• This assignment v
at the direction
study.
1Wechsler, The Am
(1956) 42 A.B.
10, 1965, Vol. .
Penal Code, Pl
Offenses as Civ
Offense (1952)
Colum. L.Rev.
Enforcement O'
Law oj New Y
to aNew Pena:
t See Assembly Bir
Penal Code, Pr
plied on contur
on proof of the
latter would pt
appear (Veh. (
& Association of
Bergan, J. (cOnell
and 266 N.Y.S.
ions and Limita·
1
lches for Certain

Corobination-
B. STUDY *
. Limit Introduction
, The classification of minor traffic violations as noncriminal infractions
I is receiving increasing attention in recent years, not only in California
I but in other jurisdictions, as a basis for more realistic treatment of the
i problem in the courts. Leading authorities in the field of criniinal law
I are proposing that the historic distinction between petty and serious
offenses be defined more systematically to facilitate enforcement of
lesser violations of police regulations l The system under study involves
the creation of a category of non-criminal offenses for which the sen-
tence authorized upon conviction would be a fine or other civil penalty,
such as the suspension of a license or attendance at a school for traffic
violators. 2 Jail would not be authorized as a sanction. Existing pro-
visions of law on arrest, evidence, presumptions and defenses in misde-
meanor cases would apply to traffic infractions and judges would con-
duct trials within the present framework of criminal procedure but
without all the paraphernalia of jury trial. Other modifications to
eliminate inappropriate criminal procedures on arraignment, bail and
plea might be considered in order to reduce the number of appearances
required of defendants who wish to appear on their traffic citations. No
constitutional amendment would be required and the proposal could be
adopted in California by appropriate amendments to the codes.
Background on Infraction System
In New York" [T]he traffic infraction was first created by a law
; enacted in 1934 (L.1934, Ch. 485) after it bad become apparent that,
~ with a misdemeanor criminal status attached to convictions even for
I minor traffic violations, the automobile drivers of the State, a generally
. law-abiding and responsible group of citizens then rapidly increasing

l
in number, were incurring misdemeanor convictions in vast number." 3
"Accordingly, the Vehicle and Traffic Law was amended to provide
in what is now Section 155 '[ a] .traffic infraction is not a crime and the
' . . . punishment imposed therefor shall not be deemed for any purpose
: a penal or criminal . . . punishment, and shall not affect or impair
( • This assignment was underta]<en by the Administrative Office of the California Courts
at the direction of the Judicial Council. Mr. Eugene J. Didak. attorney, prepared the
study.
Wechsler, The American Law Institute: Some Observations On Its Model Penal Code
1
(1956) 42 A.B.A.J. 321 ; Justice of the Peace and Local Government Review, July
10, 1965. Vol. 129. pp. 442-443, and September 11, 1965, Vol. 129, p. 594; Model
Penal Code. Proposed Official Draft, 19G2; Gausewitz, Reclassification of Certain
Offenses as Civil Instead of Criminal (1937) 12 Wis. L.Rev. 365; Perkins, The Civil
Offense (1952) 100 U. of Pa. L.Rev. 832; Sayre, Public WeZfare Offenses (1933) 33
Colum. L.Rev. 55; Perkins on Criminal Law (1957) pp. 692-710; Lord Devlin, The
Enforcement of Morals (1965) pp. 26-42, Oxford Univer~ity Press; Proposed PenaZ
Law of New York (1964) 64 Colum.L.Rev. 1469; Gausewitz, Considerations Basic
toaNew Penal Code (1936) 11 Wis. L.Rev. 346, 480.
~ See Assembly Bill No. 845 of the 1965 session of the California Legislature; Model
Penal Code, Proposed Official Draft, 1962. Provision could be made for jail to be ap-
plied on contumacious failure to pay a fine. as provided in the Model Penal Code or
on proof of the violation of a written promise to pay a fine, or appear in court. The
latter would parallel the California procedure upon violating a written promise to
appear (Veh. Code § 40508) and has been suggested by a special committee of the
Association of Municipal Court Clerks.
\ 'Bergan, J. (concurring) People v. Letterio and People v. Kohler (1965) 16 N.Y.2d 307
(. and 266 N.Y.S.2d 368.
( 31 )

l
__1 ----
32 JUDICIAL COUNCIL OF CALIFORNIA

the credibility as a witness, or otherwise, of any person convicted Icourtroom t


thereof.' By the same statute of 1934, the definitions of 'crime' in sec- and listen ~
tion 2 of the Penal Law were amended to state 'Except that the acts .parking tid
defined as traffic infractions by the vehicle and tra[-fic law. hereto- tiously by
fore or hereafter committed, are not crimes.' " 4 other litigm
The same condition that prevailed in New York in 1934 exists to a on such rela
heightened degree in California today. Section 15 of our Penal Code with import
defines as a crime or public .pffense an "act committed or omitted in . and cost of (
violation of a law forbidding or commanding it, and to which is an- , violations 11:
j the 3,000,00
nexed, upon conviction, either of the following punishments: (1)
Death; (2) Imprisonment; (3) Fine; (4) Removal from office; or, (5) tions that 11
Disqualification to hold and enjoy any office of honor, trust, or profit a minute or
in this state." During the 1965-66 fiscal ycar 9,041,374 cases involv- judges for t
ing traffic violations were filcd in the municipal and justice courts of England
California. 5 Fines and jail being authorized upon conviction in these
In Ellgla
cases, the net effect is that practically every person who drives a car in
the Lord C
this state either is or can expect to be classified a misdemeanant. 6 Vilbile
criminal designation may be appropriate for wilful and serious traffic port that r
nal jurisdi,
violations such as reckless or drunken driving, or driving without a
license or with a suspended or revoked 'license, it may be less appropri- vation is to
ate for that vask bulk of vehicle law violations such as parking and of those wI
minor" moving" violations now subject to a maximum penalty of $50 consequenci
fine or five days in jail upon a first conviction. 7 tach to the
criminal on
In addition, California, unlike New York, thc federal government lish tra[-fic (
and many of the states, allows a jury trial, however trivial the offense. s
The cost to the state and counties of conducting a jury trial has been United State
estimated at several hundred dollars per day.9 In the 1965-66 fiscal In the l
year there were almost 7,500 jury trials of tra[-fic violations in Cali- acknowledg
fornia municipal and justice courts. 10 The number of tra[-fic jury trials forcement i
in the municipal courts increased 288 percent within the past 10 years, the condu(
as compared to about a 67 percent increase in total tra[-fic filings dur- to satisfy
ing the same period l l Reliable estimates are that about half the traffic which the
jury trials are for minor violations subject to a maximum penalty of or fine and
$50 fine or five days in jail. There is further cause for concern in the cancellati OJ
fact that traffic jury cases take so long to try, from one-half day to one serve the l(
week or longer for each case.12 Not only are the judge, clerk, bailiff and of crime (
, Ibid. 13 12 Stan.L.I
5 Based on statistical reports filed with the Judicial Council by the municipal and justice
Angeles
courts. superior
6 Pen. Code § 19; Veh. Code § 4200l.
months
7Veh. Code § 42001. Of the more than nIne million traffic filings last year, close to 5 mil- noted th
lion were parking violations and probably well over 95 % of the balance were minor during t
moving violations. Note 5, supTa, Wechsler, 'l'he American Law Institute: Some less thar
Observations On Its Mfldel Penal Code (1956) 42 A.B.A.J. 321, 324; Perkins on port of
Criminal Law (1957) p. 701. figures (
8 Pen. Code § 689. The 1964 Annual Traffic Court Inventory by the American Bar As-
U The Ameri
sociation showed that 265 cities of at least 10,000 population do not provide a jury facilities
trial in minor traffic cases. ('.C.raffic Court Justice, VoL 7, No.1, January 1966, pub: necessar
lished by the A.B.A.) The 1$lt3 Inventory showed that courts in 22 states do nOl Vehicle'
afford a jury trial for traffic offenses in their courts. 15 See note 1
9 A recent five-day jury trial in San Francisco on seven parldng tickets was estimateCl
"Trial b
to cost the taxpayers between $3,000 and $3,750, or an average of $600 to $750 per of cour.:
day. (People Y. Muller, reported by the San Francisco press in January, 1966; Which it
Letter from lVfr. James Cannon, Clerk of the San Francisco Municipal Court to inhere i
Mr. Ralph N. Kleps, January 19,1966). tages. M
II} Based on statistical reports filed with the Judicial Council by the municipal and justice

11
12
courts.
Ibid.
See California Traffic Law Admini.stration (960) 12 Stan.L.Rev. 388, 413; The re-
cent parking violation cases of People v. Muller, note 9, supra, which took five daYS
to try before a jury. is not an isolated example. See Warren, Traffic Courts (1942)
l 16 Justice of
442-443.
11 Newkirk, 11
18 See note 1!

2-8218
p.74. f
'.
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 33

courtroom tied up but 12 jurors, at considerable personal loss, must sit


l'son convicted
and listen as long as a week on the issue, for example, of guilt on a
'crime' in sec-
parking ticket, whereas the same issue can be heard much more expedi-
t that the acts
,w ' , , hereto- tiously by the court without a jury. It seems unfair to the jurors,
other litigants and the public to spend so much time, effort and money
on such relatively minor cases, particularly when our courts are jammed
934 exists to a
I with important cases waiting months for trial.l 3 The considerable time
ur Penal Code
or omitted in ( and cost of conducting these several thousand traffic jury trials on minor
;0 which is an-
violations may be used to better advantage in giving more court time to
lishments: (1)
1 office; or, (5)
I the 3,000,000 other citations issued annually for" moving" traffic viola-
tions that now can receive but scant attention at a bail window or for
trust, or profit a minute or two in congested courts,14 or in providing more courts and
'4 cases involv- I, judges for the trial of substan tial and serious civil and criminal cases.'5
1stice courts of England
liction in these In England the Council of the Law Society last year recommended to
drives a car in , the Lord Chancellor, the Home Secretary and the Minister of Trans-
leanant. 6 While port that noncriminal traffic offenses should be removed from crimi-
:I serious traffic nal jurisdiction and transferred to traffic courtS.'6 The main moti-
ving without a vation is to end the" stigmatising as criminals of more than 62 percent
e less appropri- of those who . . . come before the courts" which "has the inevitable
as parking and eonsequence of diminishing the obloquy which ought properly to at-
penalty of $50 tach to those who commit what the public normally regard as truly
criminal offences." 17 Magistrates would preside in the proposed Eng-
ral government lish traffic courts, and would not have the power to give jail sentences,'s
'ial the offense. 8
y trial has been United States
l 1965~66 fiscal In the United States, the drafters of the Model Penal Code have
,lations in Cali- acknowledged the need for a public sanction calculated to secure en-
raffic jury trials I for cement in situations where it would be impolitic or unjust to condemn
e past 10 years, \ the conduct involved as criminal. In their view, "the proper way
affic filings dur- t. to satisfy that need is to use a category of noncriminal offense, for
t half the traffic which the sentence authorized upon conviction does not exceed a fine
num penalty of or fine and forfeiture or other civil penalty, such, for example, as the
: concern in the canceJJation or suspension of a license. This plan, it is believed, will
-half day to one serve the legitimate needs of enforcement, without diluting the concept
;lerk, bailiff and of crime or authorizing the abusive use of sanctions of imprison-
1812 Stan.L.Rev., supra note 12 at 413. It was reported that civil cases in the Los
.unicipal and justice Angeles Municipal Court were required to wait 18 months for trial. In the
superior courts on June 30, 1965, there 'Was an average delay of from 4 to 13
months for civil jury trials in courts with nine or more judges. It should be
year, close to 5 mil- noted that there were 7,984 jury trials in all the superior courts of the state
balance were minor during the 1964-65 fiscal year, of which 3,000 were criminal cases, Which was
aw Institute: Some less than the number of jury trials on lesser traffic offenses. (See Annual Re-
H. 324; Perkins on port of the Administrative Office of the California Courts (1966) 27-32, for
figures on superior court backlog, delay and number of jury trials.)
~ American Bar ,As- a The American Bar Association Traffic Court Program has consistently urged that
o not provide a Jury facilities be provided to bring more violators into courts staffed by judges as a
January 1966, pub: necessary part of an effective program to promote traffic safety. (See Fisher,
in 22 states do nOt Vehicle Traffic Law (1961) p. 52.)
15S ee note 13, sU1Jra. As pointed out by Warren (Traffic Courts (1942) pp. 74-75):
c1<ets was esti materl "Trial by jury has come to be applied to all types of cases at law as a matter
• of $600 to $750 per of course, with the result that it Is occasionally used under conditions for
; in January, 1966; which it is not well fitted, Le., under circumstances where the advantages which
Municipal Court to inhere in the jury system are outweighed by a number of practical disadvan-
tages. Most traffic cases fall into this category."
nunicipal and justice leJustice of the Peace and Local Government Review, July 10, 1965, Vol. 129, pp.
442-443.
\ 11 Newkirk, Motoring ()ffen8es~ 115 Law Journal 655, Oct. 1, 1905.
v, 388. 413: The re- See note 174, inJ'l"u.
which took five dayS
'raffle Courts (1942)
( 18

2-82189

l
_ _ _ _.J,,. _
--sc
34 JUDICIAL COUNCIL OF CALIFORNIA

ment. "19 Accordingly, the Model Penal Code provides in paragraph As noted in
(5) of Section 1.04: "( 5) An offense defined by this Code or by any providing in:
other statute of this State constitutes a violation if it is so designated With respec
in this Code or in the law defining the offense or if no other sentence proposes to
than a fine, or fine and forfeiture or other civil penalty is authorized Penal Law,
upon conviction or if it is defined by a statute other than this Code breach of an
which now provides that the offense shall not constitute a crime. A vio- tD imprisonn
lation does not constitute a crime and conviction of a violation shall
California
not give rise to any disability or legal disadvantage based on convic-
tion of a criminal offense. " 20 Since 196:
V pon conviction of a violation the Model Penal Code authorizes the tion of mino
court to suspend imposition of sentence 21 or impose a fine not exceeding to trial witl
$500 22 and suspend or cancel a license.z s When a fine is imposed, the duced in th,
court may order jail commitment for contumacious failnre to pay the Council, by
fine at a rate not exceeuing one day per each five dollars or a total of a traffic
of thirty days.24 Bill No, 84f
Comparing these provisions with those authorizing jail as an imme- measure wa
diate sanction the drafters said: "A petty offense category, less than the highest
a misdcmeanor, is, of course, widely employed, though generally such special coml
offenses are denominated criminal. See, e.g., V.S. Code, Title 18, Sec. 1. ship of Ju'
Motivated mainly by a wish to facilitate enforcement, there has been Court, and
some development of a petty offense category, which, though sentence mendations
of fine or imprisonment is authorized, is declared not to constitute Judge Fr
a 'crime.' See, e.g., N.Y. Vehicle and'Tra:ffic Law Sec. 2 (29), Con- ipal Court
servation Law Sec. 678 (' traffic infractions '); . . . . It is submitted from the i
that this plan is undesirable. If a sentence of imprisonment is author- 1,000 jury'
ized (as an immediate sanction upon conviction rather than merely civil cases t
to coerce the payment of a penalty) it is an inadmissible semantic County Gr~
manipulation to declare that the offense is not a crime. Imprisonment, of legislatic
it is submitted, ought not be available as a punitive sanction, unless the \ the Los AI
conduct that gives rise to it warrants the type of social condemnation l of such lee
that is and ought to be implicit in the concept crime." 25
New York
l 27
28
I bid.
Ibid.
"1962 Study
lion of 1
The approach taken in the Proposed Penal Law of New York is [ Office of
Committ(
similar to that of the Model Code in that every offense that is not a the law t
demeanOl
crime is a "violation." 26 Proposed section 15.15 provides that" An Speech t
offense is a violation if . . . a person convicted thereof may be sen- Lawyers
Daily Jo·
tenced to a term of imprisonment which cannot exceed 15 days.... " 15, 1963.
Safety C
'9 Model Penal Code, Tentative Draft No.2, 1954, Comment, pp. 8-9. For proposals of certai
of this kind the comment refers to G~\.usewitz, Reclassification of Certain Governor
Offenses as Civil Instead of Criminal (1937) 12 Wis. L.Rev. 365; Perkins, The classified
Civil Offense (1952) 100 U. of Pa. L.Rev. 832. (See Tn
20 ModeJ Penal Code, Proposed Official Draft, 1962. The Model Penal Code is not tion of t
intended to establish uniformity, but rather to supply an integrated body or recomme
material which can be useful in any cf(ort to revise substantive penal laWS. reported
It has been in formulation for more than 10 years and has served as a guide Judges, :
for tho.5'e stales which have revised or are revising their criminal laws. Packer, Commer<
The Case for Revision of the Penal Code (1961) 13 Stan.L.Rev. 252; Turner, Anaheim
Why No Revised Criminal Code' (1961) 49 Ky.L.J. 477; Remington and Rosen~ sponsore
blum, Cun'ent Problems in Criminal Law: The Cr'iminal Law and the Legi3la· Francisc
tive Process (1960) U. Ill. L.F. 481. ~ Introduced
"§ 6.02(4). n Letter fror.
"§6.03(4). Judge :R
"§ 6.02(5). Novembf
Q Los Angele
" § 302.2.
25 See note 19, supra. 1965.
26 P"ol)Osed Penal Law of New York (1964) 64 Colum. L.Rev. 1469. aa Los Angele
-,
l 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 35
in paragraph As noted in the comment above, however, the New York practice of
Jode or by any providing imprisonment as an immediate sanction has been criticised. 27
s so designated With respect to traffic infractions it does not appear that New York
other sentence proposes to change the position it adopted in 1934, for the Proposed
y is authorized Penal Law defines an offense, of which crime is a subcategory, as a
than this Code breach of any law other than a traffic regulation, for which a sentence
a crime. A vio- to imprisonment or to a fine is authorized upon conviction?S
violation sball
ised on convic- California
Since 1962 interest has been growing in California in the classifica-
, authorizes the tion of minor vehicle law offenses as noncriminal" infractions" subject
e not exceeding to trial without jury,29 and in 1965 Assembly Bill No. 845 was intro-
is imposed, the duced in the Legislature to create such a classification. 3o The Judicial
lure to pay the Council, by action taken at its May 1965 meeting, endorsed the concept
Hal's or a total of a traffic infraction system for California and supported Assembly
Bill No. 845, provided certain amendments could be made. After the
ail as an imme- measure was assigned for interim legislative study, the Council gave
19ory, less than the highest priority to this subject and, acting in cooperation with a
generally sucb special committee of the State Bar of California under the chairman-
Title 18, Sec. 1. ship of Judge Raymond R. Roberts, of the Los Angeles Superior
there has been Court, and other interested groups, proposes to submit its recom-
:hough sentence mendations to the 1967 Legislature and to the Governor. 31
It to constitute Judge Francis Cochran, Presiding Judge of the Los Angeles Munic-
~. 2 (29), Con- ipal Court in 1965, said both the public and the courts would benefit
It is submitted from the infractions system and estimated that it would eliminate
ment is author- 1,000 jury trials per year in the Los Angeles court, freeing judges for
er than merely clvil cases then waiting nearly 18 months for triaP2 The Los Angeles
issible semantic County Grand Jury report of December 1965 recommended enactment
. Imprisonment, , of legislation to provide for nonjury trials of traffic infractions 33 and
ction, unless the ~ the Los Angcles County Board of Supervisors favors the adoption
tl condemnation l of such legislation as a convenience to the citizens with savings to
27 Ibid.
:til/bid.

I
29 1962 Study of the New York Law on Infractions and Offenses made at the direc-
tion of the Judicial Council by Mr. Eugene Didak, attorney, Administrative
,f New York is Office of the Courts. H.R. 61, 1963 Reg. Sess., requesting the Assembly Interim
Committee on Transportation and Commerce to study the subject of revision of
se that is not a \ the law to the end that many of the motor vehicle offenses now classed as mis-
demeanors instead be treated as administrative rather than criminal offenses.
vides that "An
)Of may be sen- [ Speech by Judge Raymond R. Roberts, Los Angeles Superior Court, to the
Lawyers Club of Los Angeles, August 14, 1963, reported in the Los Angeles
Daily Journal for that date and in the Los Angeles Metropolitan News, August
I 15 days.... " 15, 1963. The judges and prosecutors division of the 1963 Governor's Traffic
8-9. For proposals I Safety Conference recommended that study be given to possible reclassification
of certain traffic offenses as infractions. An earlier recommendatlon by the 1958
lication of Certain
365; Perkins, The I Governor's Traffic Safety Conference was that certain traffic misdemeanors be
classified as "petty offenses," limited in penalty and triable without a jury.
Penal Code is not
I (See Traffic Law Admt,nistTation~ 12 Stan. L.Rev. 388, fn. 189 at 415.) Resolu-
tion of the Municipal Court Judges vVorkshop, April 18, 1964, in San Francisco,
integrated body or recommending the classification of minor traffic violations as infractions, and
tantive penal laws. reported by the Municipal Courts Section to the Conference of California
: served as a guide JUdges, September 26, 1964. Assembly Interim Committee on Transportation and
minal la \VS. Packer, Commerce, F'inal Report (1965) 21. Reports by Judge Claude M, Owens,
~.Rev. 252; Turner, Anaheim-Fullerton Municipal Court to the Municipal Court Judges Workshops
nington and Rosen- sponsored by the Conference of california Judges at Palm Springs and San
.w and the Legisla- Francisco in April, 1965.
IKl Introduced by Assemblymen Carren and Kennick.
11 Letter from Mr. Ralph N. Kleps, Director, Administrative Office of the Courts, to
Judge Raymond R. Roberts, September 28, 1965. Los Angeles Daily Journal,
November 26, 1965.
ul.A:>s Angeles Herald-Examiner, May 17, 1965; Los Angeles Daily Journal, May 18,
1965.
( II Los Angeles Times, December 12, 1965.

____1 _
36 JUDICIAL COUNCIL OF CALIFORNIA

the ~axpayers.34 Of the more than 100 municipal court judges attending or petty offenses tl
semmars held by the Conference of California Judges in Palm Springs a jury; and, lU.J
and San Francisco in April 1965, all but three favored adoption of went is satisfied 1
an infraction system for traffic cases. 35 Declaring that" the ordinary accorded to the a(
traffic offense is not a crime and should not be treated as such," As- an illustration of
semblyman Song, Chairman of the Assembly Subcommittee on Admin- while the founde
istration of Justice, announced that a series of public hearings on the with them to the
subject will be held throughout the sta~e by his committee. 36 As pointed that mode of tri3
out by Assemblyman Song the gravity of the problem involving 10 sacred to be surre
million licensed drivers and more than 200,000 accidents per year is offenses against f
undeniable and a new approach is needed in the interests of justice supposed to be in
and to reduce our court congestion B7 So in State v. Gl
, notwithstanding'
Constitutionality of Infractions Proposal , 46 , and in that. c
General shall be taken, llY
The proposal to eliminate jury trials for traffic infractions requires peers, or by the
consideration of the constitutional guaranties of jury trial in criminal leO'islation
b
in tha
.
cases. diction upon JUS!
The third clause of Section 2, Article III, of the United States Con- for minor and s'
stitution provides that" the trial of all crimes, except in cases of im- that the party i:
peachment, shall be by jury," and the Sixth Amendment provides that must be underst<
"in all criminal prosecutions the accused shall enjoy the right to a by the regular c<
speedy and public trial by an impartial jury." as theretofore P
With respect to the federal and similar state 'constitutions it is firmly have been inten
established that certain minor or petty offenses can be excepted by Con- either criminal
gress and the legislatures from the provisions requiring a jury trial the Constitution
in criminal cases B8 In a dictum in Callan v. Wilson (1887) 127 U.S. inviolate,' the (
540, Mr. Justice Harlan for the court said: "According to many ad- constantly exer<
judged cases, arising under Constitutions which declare, generally, that breaches of the
the right of trial by jury shall remain inviolate, there are certain minor posed to confli
84 Los Angeles Daily Journal, May 18, 1965. citizen a trial b;
35 Informal poll of the judges conducted by Judge Claude M. Owens, Anaheim- Upon a prose·
Fullerton Municipal Court, following his report on infractions to the seminars.
Judge Luther N. Hussey, 1965 Chairman of the Municipal Courts Section of the a penalty of $5
Conference of California Judg-es, reported the favorable vote to the Conference. United States (
Los Angeles Metropolitan News, September 21, 1965.
86 Los Angeles Daily Journal, November 9, 1965. Los Angeles Metropolitan News, for violating a
November 11, 1965.
81 Ibid. one necessarily
38 Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty have been the
Of Trial by J1try (1926) 39 Harv. L. Rev. 917; 50 C.J.S., Juries, § 77; 31 Am.
Jur., Jury, §§ 7~37 at 13-43; 29 Cal. Jur.2d, Jury, § 11 at 499; Fisher, Vehicle with approval
Traffic Law (1961) pp. 451-455; Perkins on Criminal Law (1957) pp. 13-14,
692-710; 75 L.Ed. Anno. 177-220; Rose's notes, pp. 209-211 and 1932 Supple- sions of state
ment, Vol. 6, notes on Schick v. U.S. (1904) 195 U.S. 65. See 75 L.Ed. annota- within any co
tion, for U.S. and state citations illustrating or adhering to the following rule
of construction: the U.S. constitutional guaranties of jury trial in all criminal .
cnmes. "
prosecutions, as well as provisions in the state constitutions which, in various
forms, guarantee the right of trial by jury, are to be construed in the light In a reckles
of the common law as it existed when the constitutions were adopted, and the
constitutional right of trial by jury limited to that class of cases which, at the
bia v. Colts (
common law, or at the time of the adoption of the constitution, were triable by cases, said tha
jury. The California cases cited are: Cassidy v. Sullivan (1883) 64 Cal. 266;
People v. Powell (1891) 87 Cal. 348; Ex parte Wong You Ting (1895) 106 Cal. " ... is to be
296; Re Mana (1918) 178 Cal. 213; People v. Martin (1922) 188 Cal. 281. See which petty c
also Taylor v. Reynolds (1881) 92 Cal. 573; In re Fife (1895) 110 Cal. 8;
People v. Kelly (1928) 203 Cal. 128, 133; People v. One 1941 Chevrolet (1951) magistrate sit:
37 Cal. 2d 283, 287, 300. "Constitutional guaranties of a jury trial of all crimes,
and of the right to a speedy and public trial by an impartial jury in all criminal called 'petty'
prosecutions, do not refer to minor or petty offenses, which according to the the meaning (
common law, may be proceeded against summarily." Anno., 75 L.Ed. 183. For
Colonial and state legislation concerning summary disposition of petty offenses, pense with a
see: Appendices A-D, Petty Federal Offenses and the Constitutional Gttaranty of
Trial by Jury, supra at 983-1019. 89 At 72-73. See J
"

udges attending
I , 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE

or petty offenses that may be proceeded against summarily, and without


37

n Palm Springs a jury; and, in respect to other offenses, the constitutional require-
:ed adoption of ment is satisfied if the right to a trial by jury in an appellate court is
; "the ordinary accorded to the accused. Byers v. Commonwealth, 42 Pa. 89, 94, affords
i as such," As. an illustration of the first of the above classes. It was there held that
ittee on Admin. while the founders of the Commonwealth of Pennsylvania brought
hearings on the with them to their new abode the right of trial by jury, and while
.ee. 36 As pointed that mode of trial was considered the right of every Englishman, too
m involving 10 sacred to be surrendered or taken away, 'summary convictions for petty
:nts per year is offenses against statutes were always sustained, and they were never
lrests of justice supposed to be in conflict with the common-law right to a trial by jury.'
So, in State v. Glenn, 54 Md. 573, 600, 605, it was said that 'in England,
notwithstanding the provision in the Magna Charta of King John, art.
46, and in that of 9 Hen. 3, chap. 29, which declares that no freeman
shall be taken, imprisoned, or condemned but by lawful judgment of his
actions requires peers, or by the law of the land, it has been the constant course of
;rial in criminal legislation in that kingdom, for centuries past, to confer summary juris-
diction upon justices of the peace for the trial and conviction of parties
ited States Con· for minor and statutory police offenses .... And when it is declared
in cases of im· that the party is entitled to a speedy trial by an impartial jury, that
nt provides that I must be understood as referring to such crimes and accusations as have,
the right to a
! by the regular course of the law and the established modes of procedure,
as theretofore practiced, been the subject of jury trial. It could never
tions it is firmly have been intended to embrace every species of accusation involving
xcepted by Con. either criminal or penal consequences.' So, also, in New Jersey, where
.ng a jury trial the Constitution guaranteed that' the right of trial by jury shall remain
(1887) 127 U.S. inviolate,' the court said: 'Extensive and summary police powers are
ng to many ad· constantly exercised in all the States of the Union for the repression of
" generally, that breaches of tbe peace and petty offenses, and these statutes are not sup-
re certain minor posed to conflict with the constitutional provisions securing to the
citizen a trial by jury.' "
Owens, Anaheim- Upon a prosecution for violation of an oleomargarine statute imposing
IS to the seminars.
,urts Section of the
\ a penalty of $50, Mr. Justice Brewer, writing the opinion in Schick v.
to the Conference.
United States (1903) 195 U.S. 65, 67 and 70, said: "So small a penalty
Metropolitan News,

titutional Guaranty
l for violating a revenue statute indicates only a petty offense. It is not
one necessarily involving any moral delinquency. Tbe violation may
:ries, § 77; 31 Am.
99; Fisher, Vehicle
(1957) pp. 13-14,
and 1932 Supple-
I have been the result of ignorance or thoughtlessness . . .," and cited
with approval the reference made in the Callan case to the" many deci-
sions of state courts, holding that the trial of petty offenses was not
e 75 L.Ed. annota-
the following rule within any constitutional provision requiring a jury in the trial of
rial in a1l criminal crimes. "
; which, in various
strued in the light In a reckless driving case, the Supreme Court in District of Colum-
'6adopted, and the
cases which, at the ( bia v. Colts (1930) 282 U.S. 63, citing both the Callan and Schick
on, were triable by I cases, said that the constitutional guaranty of jury trial of all crimes
l883) 64 Cal. 266;
ng (1895) 106 Cal. I " . . . is to be interpreted in the light of the common law, according to
) 188 Cal. 281. See which petty offenses might be proceeded aga.inst summarily before a
'1895) 110 Cal. 8;
1 Chevrolet (1951)
tria] of all crimes,
( magistrate sitting without a jury .... That there may be many offenses
called' petty offenses' which do not rise to the degree of crimes within
jury in all criminal
h according to the
75 L.Ed. 183. For
n of petty offenses,
I the meaning of Article III, and in respect of which Congress may dis-
pense with a jury trial, is settled." 39 Continuing, the court said:
4-tional Guaranty 0/
llllAt 72-73. See A.nno.: 75 L.Ed. 177-221.

--_.~--------- .n_T
:38 ,)1]]))C[,IL COUOiC1L OJ' CAL!FOR~IA

"IVhether a given offcuse is to be classed as a c:rime, so as to require ment for pE


a jury tri<11, or as a pdty offense, triable summarily without a jury, de- passed prio
pends primarily UpOll the llili lHP of the offense, The oircllse here or sh"rt]v ,
dWl'ge(] is not lllerely malum prohibitum, but in its wry nature is punishment
ma]'11l1 in se," ,HI [j "ii",] with aJ'prllva] lhe di,tindiolllllaclf.' by the New 1110re, And
,Terse,i' CalIri of ErrOl'S auri Appea]s ill Siale r, Rod!!CI's (K,T. 1917) 102 six months,
AU, 4:33, "beliwcll traffic (,ffcu,es (If a petti' character, subject to sum- "Tilthc.
mHry jJl'lJ':eeclinc:, wilh>ltlt il1l]idmellt aud tria] b~- jl1r~', and those of a da\' pena1t:
~rril)US (·li;:ILWt.Pl'. al1l()Ullj-jl1.~' to, IHluJie ll11i:.:ances j]]dictable at COlnnlon do~s not c(
]il\\,;, ," 4] Till' .'-:UpJ'f'I'IC ('ollrt pointccl Ollt tbat the defendant was ilr:Jopte
in the Colts c"';e iI'a, "Ilot t'harg'('clmcre]y with the compal'ftiii'eJ.v slight ing the COl
oll'eu'p of px~ee(]ing the 23 mile ~Jlecd limit, , , " 01' merely ,,,ith driv- affeeterl u,
iug rp(']dp"l~-, ,; lmi w'ith the grilYP offellse of lUJ\'illg chinn at the , 11 t " 43
ng >

f'lrbir1deli rate of speed anri l'pc-klr,ss]y, 'so as to ellclan,Q'er property and 'l'hus, a~
indi\'j(]uals! " and aecordingl,i- JI('I(ll1lat sueh an offell.'ie is sllbject to by jn n' al
lht' ('oJhtitntiolla] ~'l!(1t·(111t~· nf l),jc-ll by ,i nr :'i·.-:l2 in tIle ,all'
Tn Disll'let of ('o7/1lllln'a 1', ('lale(/1/s (J0T7) :;00 U,S, G17, respondent even ",he>1'
i"as ('('Ili-ided uf the st,ltlliol',\- offense of eJl~aging in a second~hand busi- mary COil"
n,'s>, ,,'itho!]t a lieemc anri sentenced to ]1il~- a fine of ;j;:300 and to be portance c
eOJlfinrd ill j<!il for (iO c]a~-s, rnder a District of CO]llJnbia statute no
,illr,i' tTial "'II> pl'm'iclrd fol' such pro;;Ulltious ex(:ept iu e'tses where the California
fine c0111d be more tkln :);:l(JO or the term of imprisllnlllent more than Section
90 (lays, TIIP statute llll(]"I' whiell the resj)(l]}(lellt ,,-as c(ll1i'icted pro- (, rrhe rig]
\'ided for a maximum PllllislllllPnt of ;j;:](J0 tille and 00 c1ays in jail. The , late," Tn
)'esj)nnr"[(>nt ll(ld (lenHlJlc1e(l and \\'ns 1'(:'['11.,,('(1 A .int',Y 1 rial. nlllillg' on the I person ('a
iSSl18 the c-oud helc] that nIl' dcmand fflJ' jmT trial '''~s rig-llil" denied, h\' a
In the opinion for the Cflud, :\Il', .lllslice StOlle citee] its prior opin- 0;
bya [1]
ions whieh lwd sptilcc] that the right <If jnr,v trial seemed by the Be('(11.1S
Unitee] States C'oll"titntion d<lcs not c~t(,lld tl) eYPl'~' criminal proceeding, tntionaJ '
H,' ('a liN] aHclltion to the fnd that 8t the time of the acln]ltion of the Supreme
COllstitution 11lll1lCrOnS petty offenses "('I'C trice] sllll1l1lari]~- v:ithnut a for snlllll
jury b,i- ,iustices of thp pe'lCC in Englallel alJC] hy poli"p lIla~'i"trates or so triab],
t"'l'rpspoll(]ing' ,inclical omt'rt's in the Co]ollies an(] pllnishpc] by cOJllmit~ clared b)
mell! tn jail, workhouse. 01' hOllse of c'onrction, i]nd saiel tllat were it within tl
not for the seveI'd," of the pnnishmcnt, nIP ofJ'emler <'onld not, under braced i'
thc Court's decisions, c1c:im a trial by jllr,V ai'; of J'ig'ht, 1'nrnillg to the \Ya~ l?ntil
qupstion whether tile DO (1H~-s jail wnalty is ;31lfljc-jent to bring it i"ithin to nHllll<
the class of ma,ior (lffellse" for i\'hich a j t1l'Y trial llJay bc demanded, ize' the ~
padiclllarJ,'- i"here lilt' ,st;Itlltc nUoi\'s no ap1)(',tl as of rig'ht, he said: of. tlw)'
"If i\e look to the staJl(]a1'(] il'1lieh ]l1'('nlilcd at the timp -of the adop- the offen
tioll of the COllstitlltioJl, "'e find that cOllfinenwJlt for il periu,] of ninet)' the legi<
(la,'-s or more ,,'as llot an llllllsual pUliishmcnt fur pdt,- ofrenses, tried sneh a c
,,'illtOlit a ;illJ'y, La~-ing asicle iltosr fur ,,'hielt the punishment was of a J nstice :
t,i'pC no luugcr eommonl)' ('lnp]"yed, Stll,ll 11S ,dlippin~, cunfinement in I think
~iocks <l11(] th" ]i!;,', all'] uth"I'S, pl111isltetl ],,'- (,01l1l1litJlll'1I1 for an indefi- tiOliS fOJ
nite ppriod, we !;llOi\' titat th"l''' iI-en' petty ulf'''IISCS, triahle summarily hut sole
under EllgJish statutcs, ,,-hich caniefl possiule sentences of imprison- ViSlOll~ I

101d_ at 73. III a '


n fl,irl. State v. Ho(1gcrs llf'Jd t113t the OfrCllSC (if Ilriying nn :lutomnbl\E- ,'idlile under boa n1 0
the iJlfluell(,(, 'If intDxir'atillg liquor clops llut rc'ql1il'(,' a jury tri<-ll ull'ler the con-
~tituUfm. nnd in the Jatpr c'ast- of L8til1ler '1/. \\'il.'-'on (.\i.J. 1026) 134 Atl. 750, !3 At f;2:;~
this \\":1$ held to bi..' :;:.n even tll('I1;.:.11 the so:>ntclll'e nllthorizcd upn!1 summary con~ «l~.S. \".
victivn \\as nelt l,~ss than 3() d<l~'s 11('1" nl'!1'(, 1.11;111 !-;ix nl011tlls in jail. :-,~\ F
H District of Columhia v. Colts (1':J32) 282 U.S. B3, 72. l~ Sl-(' t.:a·
~'J Tayl;,r

i
L
"

) as to require
l
)
)
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE

ment for periods from three to twelve months. At least sixteen statutes,
39

out a jury, de. passed prior to the time of the American Revolution by the Colonies,
e offense here or shortly after by the newly created States, authorized the summary
very nature is punishment of petty offenses by imprisonment for three months or
,de by the New more. And at least eight others were punishable by imprisonment for
N.J. 1917) 102 six months.
mbject to sum- "In the face of this history, we :find it impossible to say that a ninety
and those of a day penalty for a petty offense, meted out upon a trial without a jury,
ble at common does not conform to standards which prevailed when the Constitution
the defendant was adopted or was not then contemplated as appropriate notwithstand-
lratively slight iog the constitutional guaranty of a jury trial. This conclusion is un-
rely with driv- affected by the fact that respondent is not entitled to an appeal as of
~ driven at the righ t. " 43
~ property and Thus, as stated in these opinions, certain petty offenses not triable
;e is subject to by jury at the time of the adoption of the Constitution may be tried
in the same way under the authority of Congress and the legislatures,
17, respondent even where three months' or more imprisonment is provided upon sum-
ond-hand busi- mary conviction. Recent federal court opinions have emphasized the im-
;300 and to be portance of the exercise of legislative authority in applying the rule. 44
,bia statute no
ases where the California
ent more than Section 7 of Article 1 of the California Constitntion declares that
convicted pro- "The right of trial by jury shall be secured to all, and remain invio-
.ys in jail. The late." In addition, the Penal Code provides in Section 689 that "No
Ruling on the person can be convicted of a public offense unless by verdict of a jury,
rightly denied. ... by a finding of the court in a case where a jury has been waived,
its prior opin- or by a plea of guilty."
ecured by the Because of Section 689 there are no holdings squarely on the consti-
1al proceeding. , tutional question in California, but there are dicta by the California
doption of the 1 Supreme Court recognizing the authority of the legislature to provide
for summary proceedings without a jury of petty offenses of the type
.rily 'without a
magistrates or l so triable at common law.' 5 In the case of an ordinance violation de-
.ed by commit- I clared by statute to be a misdemeanor and found by the court to fall
, within the common-law notion of crime or misdemeanor and to be em-
d that were it
aId not, under
rurning to the
bring it wi thin
l braced in the state criminal code, the court held that the defendant
, was entitled to a jury trial. 46 It was noted by the court with reference
to municipal ordinance violations that" 'The legislature may author-
be demanded,
~ight, he said:
( ize' the summary trial without a jury, of the above class of cases spoken
of, they not being embraced in the criminal legislation of the state; but
e of the adop- the offense charged here is declared by statute to be a misdemeanor, and
lriod of ninety
offenses, tried
ment was of a
~onfinement in
I
!,
the legislature of this state has not attempted to authorize the trial of
such a case witbout a jury, unless a jury be expressly waived." Chief
Justice Beatty concurred in that opinion, in his words, " ... not because
I think the constitution secures the right of trial by jury in prosecu-
; for an indefi- I tions for petty misdemeanors created by statute or municipal ordinance,
.ble summarily but solely upon the ground that the right seems to be conferred by pro-
s of imprison- I visions of the Penal Code."
In a prosecution for practicing medicine without a certificate from a
obIle while under board of examiners, a statutory offense punishable by a $500 fine and one
11 under the con-
26) 134 AU. 750,
r
)n summary con· (1950 )
In jail.
\
(

---J.z--------- ZIliiZ_ _IiifliiiiiR. .


40 JUDICIAL COUNCIL OF CALIFOR IA

year imprisonment, the court held that the defendant 'I"as entitled to a time nor per
jury trial thr offense being ulle so triable at <-ommon law, but in its dic- offensrs. 5~
tnm said "thr gnaranties in the various state constitutions of the rio-ht 'fhat thes
of jury trial do not prohibit the Irg'islature from providing for st~m­ recognized c.
marc- pr\lf'erdings without a jury, in cascs or such petty offenses as are label [or Ih(
ennl1lpratcd in said English statutes, or in rascs where the offenses so offenses, 07 I
lll'alt with arp illtrinsi('alIv of the Silll1/" nilture and deo-ree
0 as those
. men- public reg 1
violations,G4
o •

tir)11r(] ill said statnjrs." 47


Oil a petition for writ of habeas corpus, denied for the reason that ticulal' refe
the r01'nsnl of a .iury trinl in a rase not amounting to a felony was merely fenses,6' di,
PITOr and not jlll·jsdie-tional, the. coud SI1Paking on the kinds of offenses While no
the legislature is empowere(] to except from the right to trial by jury and grant
said: "Yagrancc- is, 'I"C think, one of those offcllses, and the legislature proof of w
might proyicle bc' a general law for the summary trial without a jury of theless, thE
persons charged with saicl offense; bnt we agree with thc snperior court conc1 uet J1(
of IJos Angeles county sitting in bank, whose learned opinion on the sub- destrueti ye
jed was presentee] to liS at the argunwnt here, that there is no valid stat- That the
utory proyision for such a trial without a jury. " 48 is unjust i,
On the basis of the historical provision for summary trial of petty give a jail
offensps, the distinction made by the United States Supreme Court alternative
between offenses mala in se and mala prohibita, and the recognition " "Vithout
giwn by the California Supreme Conrt to the power of the legislature without pI
in such cases, it is clear that manc' "moving" violations of the Vehicle evidenced
Code could lw ell1ssifled by statllte as infraetions triable without a adopted a
j ury 4a the cleposi
most mino
Noncriminal Classification of Minor Offenses
62 Wechsler,
The union of act and wron~ful intent" is an im-ariable element of :>3 Ibid.; ChiE
Kot Re
every crime unless exclnded e~pressly or by necessary implication_" 50 Local (
As noted by Chicf Justice Traynor in People v. l' ogel, some offenses Olfellce
(1952)
are exelnded from this rule: "Under many statntcs enacted for the 100-10~
Crimi'"
protection of the public health and safety, e.!!., traffic and food and the MI
drug regulations, criminal sanctions are relied upon even if there is several
La10yc J
no wrongfnl intent. These offenses usually involve light penalties and (1.963)
&t Perkins 0
no moral obloq lly or damage to reputation. Although criminal sanctions f>5 18 U.S.C,~
6G Public To
are relied upon, the primary pm'pose of the stautes is regulation rather 67 S'ayre, p~
than pllnishment 01' correction. 'l'he offenses are not crimcs in the ortho- lVcl.fw
68 1 Bl. Can
dox scnse, and wrongful intent is not required in the interest of en- M.l Regina v.
forcement." 51 Professor 'Wechsler has pointed out that there is neither 60
l:lt
Morissett
Hamlnon
fl2 KirchheiJ
H b:x parte '''Tong You Ting, supra note 38 at 300-301; 31 Am. Jur., JW"Y, § 12 at 603 Fitzgeral
19-20.
48 10 re Fife, S1t1n-a note 38 at 9-10. _ .. Devlin
49S ee ('ali/oMlia Traffic flaw Ad.ministnttion (1960) 12 Stan. L.Rev. 3S8. 41<>; DIVI-
Stroud
III Model 1'4
sion 11 of the Vehicle Corle, Rules of the Road, except Chapter ]2. conlaio!ng 6.'; Fisher, V
seriollS offenses such as drunk driving, recl\less drivillg', sp(>en contests, throwmg
at 42-
substances at vehicles ami the prohibited u:'>e of a vehicle by })('t"sons addicted Illino;
to or under the inOuence of drugs,
fill Gausewi
rLJChie( Justice Roger J. Traynor, (hen Associate Justict', in Pc-ople Y. Vo~el (1956)
46 CaI.2d 198, fn. 2 at 801, citing Pen. C0de § 20 and noting the code com- ( 193"
missioner's quotation of Bishop (1 Bishop's Crim. Law, § 227) that "It is, thcre- sup'"a
ror~, a principle of our leg'a} sYS1Pm, :1S probahly pvery othc-r, that the essence " § 1.202. F
f!8 State v.:
of the offense is the wrongful intent, withollt "'hiclt it cannot f'xist." &9 § 155. K.
iii People v. Vogel, 81tJ)1'(L note 50 at SOl, fn. 2, citing Say,-e, Public 11·rlf(l,re. Offenses,
70 Lord De
33 Colum. L.Rev. 55, 72-75: Hall, Prologomc11U to (I, Scir1tce (If Cnmmal Law.
n Sayre. 81
89 U. Pa. L.Rev. 549, 568-569; \Vechsler, 7'he Amen',can La.w Institute: So?ne 72 WechsJe
ObSC1"Vatiolls 01/ Its MorIel Penal Code, 42 A,B.A,J, 321, 32·\. See also, Pel"kms
on Criminal Law, p, 693. nJl(1 D
7ll Perkins
74 Cal. Rul
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 41

was entitled to a time nor personnel to litigate the issue of wrongful intent in these minor
offenses.52
.w, but in its dic-
tions of the right That these regulatory offenses are not true crimes 53 has long been
widing for sum_ recognized and is evidenced by the persistent search for an appropriate
ty offenses as are label for them,54 such as petty offenses, 55 public torts, 56 public welfare
'e the offenses so offenses, 57 prohibitory laws, 58 prohibited acts, 59 regulatory offenses,60
ree as those men- public regulations,61 administrative misdemeanors,62 quasi-crimes,"3
violations,64 ordinance violationS,65 and civil offenses."6 With more par-
r the reason that ticular reference to trafTIc law violations they are called su=ary of-
clony was merely fenses,67 disorderly offenses 68 and trafTIc infractions. 69
kinds of offenses While no moral obloquy attaches or should attach to such offenses,7o
; to trial by jury and granting the practical need for retaining liability without
1d the legislature proof of wrongful intent in cases occurring in such volume,71 never-
without a jury of I theless, the imposition of criminal classification and sanctions upon
he superior court
Jinion on the sub- l conduct not proved to be criminal has been said to be unjust and
destructive of respect for the law. 72
That the imposition of jail for a first minor trafTIc offense ordinarily
'e is no valid stat-
is unjust is evidenced by the fact that judges in California almost never
ry trial of petty give a jail sentence in such cases. The usual sentence is stated in the
Supreme Court alternative, "'l'en dollars or two days." As pointed out by Perkins,
I the recognition "Without doubt judges usually have avoided imposing imprisonment
of the legislature without proof of the normal mens rea requirement." 73 It is further
ns of the vehicle evidenced by the fact that the Uniform Bail Schedule for California,
riable without a adopted after a survey of the schedules in each county, provides for
the deposit of bail to be ten or fifteen dollars for a first offense on
most minor trafTIc violations,74 the practice being that bail in such cases
5:l Wechsler. supra note 51.
riable element of 53 Ibid " Chief Justice Traynor, supra note 50; 1 Witkin, California Crimes, Offenses
Not Requiring Criminal Intent, § 62-63 at 66-68; Justice of the Peace and
I' implication." 50 \ Local Government Review, Sep't. 11, 1965, Vol. 129, p. 594; Newkirk, Motoring
/el, some offenses ) Offences (October I, 1965) 115 Law Journal 655; Perkins, The Civil Offense
(1952) 100 U. Pa. L.Rev. 832; Fisher, Vehicle Traffic Law, supra note 38 at
: enacted for the
fic and food and
l. 100-102; Gausewitz, Reclassification of Certain Offenses As Civil Instead of
CriminCLl (1937) 12 Wis. L.Rev. 365; Perkins on Criminal Law, p. 701, citing
the Model Criminal Code, Blackstone, Gausewitz, Pound, and decisions in
even if there is [ several states; Associate Justice, Whittaker, (ret.) U.S. Supreme Court,
Lawyers, Laymen and Traffic Courts: Concerted Effort Needed for Improvement
iht penalties and (1963J 49 A.B.A.J. 333. .
:riminal sanctions [, U Perkins on Criminal Law, supra note 53.
M18 U.S.C.A. § 1; District of Columbia v. Clawans (1937) 300 U.S. 617.
~Public Torts (1922) 35 Harv. L.Rev. 462.
regulation rather , fi7 Sayre, Public Welfare Offenses (1933) 33 Colum. L.Rev. 55; California's Public
imes in the ortho-
i
Welfare Offenses (1962) 35 So. Cal. L.Rev. 423; Wechsler, supra note 51.
liS 1 Bl. Comm. Sec. 58.
1e interest of en- W Regina v. Prince (1875) L.R. 2 Cr. Cas. Res. 154, 163.

~t there is neither 60 Morissette v. U,S. (1952) 34,2 U.S. 246.


~ Hammond v, King (Iowa 1908) 114 N.W. 10G2, 10G3.
I. Jur" Jury, § 12 at I 6ZKirchheimer, Criminal Omissions (1942) 55 Harv. L.Rev. 615, 636.
es Fitzgerald, Real Crimes and Quasi Crimes (1965) 10 Natural Law Forum 21; Lord
DeVlin, The Enforcement of Morals (1965) pp. 26-42, Oxford University Press;
Rev. 388, 415; Divi-
lapter 12, containing
I Stroud, Mens Rea 11 (1914) ; State v. Laird (N. J, 1957) 135 AtI.2d 859, 862.
04 Model Penal Code, § 1.04 (5); Proposed Penal Law of New York, § 15.15.
61; Fisher, Vehicle and Traffic Law, supra note 38 at 452-455; 31 Am. Jur., supra note 38
~d contests, throwing ( at 42-43; 50 C.J.S. supra note 38 at 783-784; A.B.A. Courts Trying Traffic Cases in
by persons addicted
Illinois (1958), Report for the Illinois Traffic Study Commission.
ople v. Vogel (1956) I ee Gausewitz, supra note 53; Gausewitz, Considerations Basic to a New Penal Code
(1936) 11 Wis. L.Rev. 346; Perkins, The Civil Offense, sUp"a note 53; Witkin,
oting the code com-
7) that "It is, there~ supra note 53; Perkins on Criminal Law, pp. 702-710.
her, that the essence ~ § 1202, Pa. Veh. Code. 1958.
os State v. Shoopman (N.J. Hl53) 94 At1.2d 493-494.

I
not exist,"
Ilfj § 155, N.Y. Veh. and Traffic Law.
lie 1Velfare Offenses,
ce oj Cr,j,minal Law, 70 Lord Devlin, The Enforcement of Morals (1965) pp. 26-42, Oxford University Press.
Law Institute: Some '11 Sayre, supra note 57.
24. See also, Perkins 72 Wechsler, supra note 51; Gausewitz, supra note 53; Johnston, A Plea for the Bearing
and Deciding of Traffio Cases, 33 North Carolina L.Rev. 1, 2.

I 78 Perkins on Criminal Law, supra note 53 at 708.


U Cal. Rules of Court, Rule 850; see Twentieth Biennial Report (1965) 50.
42 JUDICIAL COUNCIL OF CALIFORNIA

is forfeited without further proceedings.75 Thus, while California law could he charged wi
authorizes jail as an immediate sandion for a first offense, the practice but it does not appel
is otherwise and the alternative jail sentence is used merely to assure has shown a wilful 0
payment of the fine. , a heavy fine nor jai.J
In view of the weight of authority that such offenses are not properly, tion, so that the ml
classifiable as crimes and of the fact that criminal sanctions are not unnecessary as a pr8
used, it seems desirable that both the criminal classification and the Also it may be q
immediate sanction of jail be eliminated and an appropriate cla.'5sifica· tions for a fourth
tion and sanctions be provided which conform to the noncriminal nature making a fourth in:
of minor traffic regulations and to the enforcement needs and practices viction for an infra
in such cases. $250 fine or a 90·(
usually imposed. F\
Classification of Repetitive Offenses
could result in rev
Assembly Bill No, 845, introduced in the 1965 Regular Session to Motor Vehicles,78 s
create a system of noncriminal traffic infractions, by an amendment license is revoked t
made on May 6, 1965, added the proviso "that exclusive of violations alty of $500 fine I
relating to the standing or parking of an unattended vehicle and those double that upon a
enumerated in Section 21962, each traffic infraction or combination Further, classify
thereof in excess of three within the immediately preceding twelve would reduce to se
months period shall constitute a misdemeanor to which the provisions of tions system for co
this section shall not apply." The merits of such a provision is question. For these reaSOD
able, and it was deleted from the bill by a subsequent amendment. 76 12 months should t
'l'reating a violation as a more serious otIense by reason of prior vio-
lations is not unique. For example, petty theft with a prior conviction New York Law on Tr'
is treated as a felony instead of a misdemeanor, However, making a New York is the
criminal offense a more serious one by reason of a prior is different than fractions and decl
treating as a crime what would otherwise be a noncriminal matter. " thatNewYork'si
The reasons for classifying these kinds of violations as noncriminal reg- examine its provis
ulatory offenses and for removing them from the criminal law still The violation '
apply, or of any law, or
Another objection that has been raised is that a defendant might
prefer to pay the fine rather than contest an infraction charge even
though he may be innocent. On a fourth violation such a defendant
1
which is not decll
the state to be a
not a crime. 80 Fo
could be charged with a misdemeanor and subject to imprisonment, as misdemeanors,
with the punishment actually based upon all four violations but with- formation need b
out the right to a jury trial on the first three. 77 This possibility bureau or when
troubles those interested in preserving the jury trial for cases leading cused is entitled
to j ail as a sanction. fense with which
Treating a fourth or subsequent infraction as a misdemeanor can be > the same exactne:
criticized on other grounds. It appears that the main reason for treat- • The defendant
J,

ing a repetitive violator as a misdemeanant is the belief that the record the effect of a p:
of priors indicates a wilful or negligent disregard of traffic laws. Fre· whether the violl
quently, however, a driver cited for a traffic violation may be charged code, however, re
with more'than one violation on the same citation, such as failure to
make a full stop at a stop sign, failure to display the vehicle registra·
'I'
'18 Veh. Code §§ 1335!
'" Veh, Code § 14601;
so N.Y. Vehicle and.
tion and failure to have proper lighting equipment. If convicted of all 81 People v. Karnow,
People v. Nagel
three infractions, the driver on his second citation within 12 months 8'.1 § 155 supra note 8
83 Peopie v. SZyman~
75Veh. Code § 40512. Forfeiture of ban is equivalent to a conviction (Veh. Code § 1803). & People v. Bell (19
Seventy·three percent of the nonparking traffic filings and more than 90% of the as People v. Pier (19
parking filings were handled by ball forfeitures in the municipal courts last year, IlO People v. Mortice
(See Annual Report of the Administrative Office of the California Courts (1966) McKinney's Co-
50,106,) 87 People v. Duell ('
711 Amendment of May 28, 1965.
'17 Letter of October 13, 1966, from Mr. Ernest Besig, Executive Director of the AmerIcan
Civil Liberties Union of Northern Cal1fornia, to Mr. Ralph N. Kleps.
- -----------

Llifornia law
Ii 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE

could be charged with a misdemeanor and be entitled to a jury trial,


43

th e practice \ hut it does not appear that a driver with this kind of record necessarily
lly to assure
l has shown a wilful or negligent disregard of the law. Moreover, neither
a heavy fine nor jail would normally he imposed upou the second cita-
not properly tion, so that the misdemeanor charge and jury guaranty would seem
ions are not unnecessary as a practical matter in such a case.
.ion and the Also it may be questioned whether criminal classification and sanc-
Lte classifica- tions for a fourth infraction would serve a useful purpose. Without
ninal nature making a fourth infraction a misdemeanor, a third or subseuqent con-
.nd practices viction for an infraction within a year would authorize imposition of a
$250 fine or a gO-day license suspension, well above the punishment
usually imposed. Furthermore, a fourth or subsequent moving violation
could result in revocation of a driver's license by the Department of
I' Session to Motor Vehicles,78 subjecting a person who continues driving after his
amendment license is revoked to a misdemeanor charge, carrying a maximum pen-
of violations alty of $500 fine and six months in jail upon a first conviction and
~le and those double that upon a second conviction within seven years. 79
combination Further, classifying the fourth infraction as a misdemeanor probably
,ding twelve would reduce to some extent the relief otherwise offered by an infrac-
provisions of tions system for court congestion.
1 is question- For these reasons it does not appear that a fourth infraction within
Iment. 76 12 months should be classified as a misdemeanor.
of prior vio-
)1' conviction New York Law on Traffle Infractions
'1', making a New York is the only state which has designated traffic offenses as in-
ifferent than fractions and declared them not to be crimes. While it is not proposed
Linal matter. that New York's infractions law be copied in California, it is useful to
,riminal reg- examine its provisions.
nal law still The violation of any provision of the Vehicle and Traffic Law,
\
"
or of any law, ordinance, order, rule, or regulation regulating traffic
ndant might which is not declared by the Vehicle and Traffic Law or other law of
charge even \, the state to be a misdemeanor or felony is a traffic infraction and is
a defendant not a crime 80 For procedural purposes, trafiic infractions are treated
nprisonment,
ns but with-
s possibility
,ases leading
I
I
as misdemeanors,81 except that no jury trial is allowed 82 and no in-
formation need be filed when a fine is paid through a traffic violations
bureau or when an information is waived 83 Unless waived, an ac-
cused is entitled to a written information clearly stating the exact of-
fense with which he is charged,B4 although it need not be stated with
eanor can be ( the same exactness as an information charging a misdemeanor 85
on for treat- The defendant has a right to be arraigned and to be informed as to
at the record \ the effect of a plea of guilty.B6 The statutory warning must be given,
Ic laws. Fre- whether the violation be an infraction, misdemeanor or a felony 87 The
y be charged r code, however, relieves the court of the duty of informing the defendant
as failure to i "Veh. Code §§ 13359, 12809,12810.
.icle registra-
lvicted of all I "Veh. Code § 1460l.
BON.Y. Vehicle and TraffIc Law § 155; People v. Malmud (1957) 164 N.Y.S.2d 204.
81 People v. Karnow (1953) 123 N.Y.S.2d 53; People v. Wilson (1957) 168 N.Y.S.2d 391:
n 12 months ( People v. Nagell (1960) 206 N.Y.S.2d 654.
8lI § 155. supra note 80.
,. Code § 180,). 83 People v. Szymanski (1959) 188 N.Y.S.2d 707.

han 90 % of the "Peoplev. Bell (1914) 148 N.Y.S. 753.


ourts last year.
Courts (1966)
[ "People v. Pier (1953) 121 N.Y.S.2d 342; People v. Osborn (1958) 175 N.Y.S.2d 705.
8ISPeople v. Mortice (1957) 167 N.Y.S.2d 512; DeLynn v. MacDuff (1953) 305 .Y. 501;
McKinney's Code of Criminal Procedure § 335-a.
'" People v. Duell (1955) 145 N.Y.S.2d 690.
)f the American
44 JUDICIAL COUNCIL OF CALIFORNIA 1967 REPOl

as to the effect of a plea of guilty where a sufficient statement of the' The Model Penal C
effect is printed on the ticket or summons. S8 tion" shall not giv
Among the acts or omissions constituting traffic infractions under' on conviction of a
the Vehicle and Traffic Law are those pertaining to speeding, disobeying' Proposals for re,
signs and signals, violating rights of way, improper turning, passing, California would
parking violations, improper operation of bicycles and play vehicles, attendance at a sel
and pedestrians' rights and duties. 89 Operating a motor vehicle while ties or legal disadv.
one's ability to operate such motor vehicle is impaired by the con- fraction would be ;
sumption of alcohol is an infraction, whereas reckless driving and' Department of Mo
operating a motor vehicle while intoxicated are misdemeanors. 9o of a negligent operl
The purpose of the legislature in denominating a traffic law viola- The New York I
tion as an infraction was to prevent the offender from being adjudged gests the possibilit
and treated as a criminal. 91 The Vehicle and Traffic Law, however, a witness in New 1
permits arrest without a warrant in the case of a traffic infraction, a traffic infraction
which is deemed a crime for such purpose. 92 This is in contrast to thel tection, however, f
lack of such police power in the case of other petty offenses, except in this state is COl
vagrancy, fortune telling and breach of the peace. 93 The majority of poses, the Model I
procedural safeguards afforded a criminal are available to the offender, to be required in
however, except that he is triable summarily,94 and as recently held by conviction of a tr
the New York Court of Appeals, a defendant on a traffic infraction therefor or from
need not be advised of his right to counsel and has no right to an criminal offense. ]
assignment of counse1. 95 wise employed as
The penalties provided for most traffic infractions are a maximum'. thereby be ineligil
of $50 or 15 days in jail for a first offense, $100 or 45 days in jail for tlons of rules of
a second offense within 18 months, and $250 or 90 days in jail for a than on the basis'
third or subsequent offense within 18 months of the first, or in each. is no suggestion tl
instance by both such fine and imprisonment. 96 For violations of the tion violations as i
basic speed law the possible penalty is double that above for other While the requ
infractions. 97 >
Penal Code prov:
Disabilities '7~ and treatment for
in the same way
The New York law provides: " .A traffic infraction is not a crime and, '[ arise when anoth'
the punishment imposed therefor shall not be deemed for any purpose . on one convicted
a penal or criminal punishment, and shall not affect or impair the, . infractions in Cal
credibility as a witness, or otherwise, of any person convicted thereof "98 '. provided that a '
88 McKinney's Code of Criminal Procedure § 335-a. . : ; ~. imposed therefor
8ll N.Y. Vehicle and Tramc Law, Title VII, §§ 1100-1236.
"N.Y. Vehicle and Traffic Law § 1192. See Columbia v. Colts (1930) 282 U.S. 63.
. .jfY
' I,',
nal punishment.'
"Squadrlto v. Grlebsch (1956) 154 N.Y.S.2d 37. I ". some kind of pul
9!1 N.Y. Vehicle and Traffic Law § 155. This section was amended in 1959 to provide for r offense or otherw.
arrest without a warrant upon an infraction as held in the Squadrito case. It would 1
appear that a general statutory provision making all provisions of law relating to .. 1 state to state. "P
misdemeanors applicable to infractions would include authority to arrest, search,
seize and the like. unsettled conditi
.. People v. PhlJ1ps (1940) 284 N.Y. 235 : Code of Crim. Proc. §§ 894 and 900. than conflict of 18
~ Nek~~§~ f80&n:~~uJ~8~'C'";;ie~~. ~~~de~(~1cJ~)a~~5~~~~~~~~\l8~5~~8~~:;r:aiA~~ t ( It would be di
of New York (1954) 136 N.Y.S.2d 111: People v. Bevilacqua (1958) 170 N.Y.S.Zd· ~. [.
4.23, reversed on other grounds in 182 N.Y.S.2d 1&. See supra note 38, and text for ~. included in the :
U.S. Supreme Court and state decisions upholding summary proceedings in petty ~: other jurisdictio:
offenses. '~.J
"People v. Letterlo and People v. Kohler (1965) ·16 N.Y.2d 307 and 266 N.Y.S.2d 368, ',' Supra, p. 34.
citing article 18-B of the Code of Criminal Procedure (L. 1965, ch. 878), expressly F- $9
100 Supra, p. 31.
excepting those charged with traffic infractions from the class included under the 101Veh. Code §§ 1280!
new statutory scheme for providing counsel to indigent defendants. and citing Mc- ~ Fortner v. Bruhn
Donald v. Moore (5th Cir., 1955) 353 F.2d 106, to the effect that Federal Courts tained in Evid. (
recognize the possibility of a rule limiting the implementation of the right to coun- 103 Conviction as Di.
selin the prosecution ot petty offenses. Another Jurisdil
.. N.Y. Vehicle and Traffic Law, § 1800. 101 Supra, note 98.
er § 1801.a. supra note 96. UlG 11 Cal.Jur.2d. C011
os Vehicle and Traffic Law § 155.
l' 1967 REPORT TO THE GOVERNOR AND 'l'HEl LEGISLATURE 45
at of the The Model Penal Code similarly provides that conviction of a "viola-
tion" shall not give rise to any disability or legal disadvantage based
us under on conviction of a criminal offense. 99
isobeying Proposals for reclassifying minor traffic violations as infractions in
passmg, California would provide as penalties a fine, license suspension or
vehicles, attendance at a school for traffic violators. lOo The only other" disabili-
cle while ties or legal disadvantages" resulting from a conviction for a traffic in-
the con- fraction would be those specifically provided, e.g., the authority of the
ving and Department of Motor Vehicles to refuse to renew the driver's license
:S.90 of a negligent operator. lOl
aw viola- The New York provision concerning the credibility of a witness sug-
adjudged gests the possibility that in the absence of such a provision in its law
however, a witness in ew York could be impeached upon proof of conviction of
Ifraction, a traffic infraction. A witness in California would need no such pro-
1st to the tection, however, for the only conviction serving to impeach a witness
's, except in this state is conviction of a felony.102 Thus, for domestic law pur-
tjority of poses, the Model Penal Code and New York provisions do not appear
offender, to be required in California, where the only disabilities flowing from
y held by conviction of a traffic infraction would be those specifically provided
.nfraction therefor or from its character as a traffic violation rather than as a
~ht to an criminal offense. For example, a taxi driver, truck driver or one other-
wise employed as a chauffeur might be refused a necessary permit and
maXImum thereby be ineligible for employment as a result of convictions of viola-
n jail for tions of rules of the road indicating negligent driving habits, rather
jail for a than on the basis that such violations may be public offenses, and there
I' in each is no suggestion that this effect would be modified by reclassifying cer-
ns of the tion violations as infractions.
for other While the requirements of domestic law are met without the Model
Penal Code provision, it is possible that a noncriminal classification
and treatment for lesser traffic violations in California might not apply
in the same ,vay outside the state. A conflict of laws question could
~rime and arise when another jurisdiction, considering imposition of a disability
y purpose
I
> on one convicted of a public offense, has before it convictions of traffic
npan the infractions in California. loa For example, only New York has expressly
,ereof. " 98 I,, provided that a "traffic infraction is not a crime and the punishment
, imposed therefor shall not be deemed for any purpose a penal or crimi·
.s. 63. nal punishment." 104 Elsewhere, a traffic violation may be classified as
r some kind of public offense, whether designated a misdemeanor, petty
provide for
.se. It would offense or otherwise, and the consequences of conviction may vary from
relating to
I
rest, search, state to state. "Perhaps no branch of the law is in a more formative or
unsettled condition, or presents questions of a more complex nature,
:onservation than conflict of laws. " 105
uage v. City It would be difficult, however, to justify a provision similar to that
l70 N.Y.S.2d
included in the Model Penal Code solely un the basis of its effect in
and text tor
ngs in petty I other jurisdictions. If a court in another state looked to the law of
l.Y.S.2d 368,
:), expressly
~d under the
! tl9
100
Supra, p. 34.
Supra, p. 31.

I
d citing Mc- 101 Veh. Code §§ 12809 and 12810.
deral Courts l~ Fortner v. Bruhn (1963) 217 CaLApp.2d 184, 190; Code Civ. Proc. § 2051, now con-
19ht to coun- tained in Evid. Code § 788.
lOS Conviction as Disqualification (1948) 175 A.L.R. 784; Witnesses-Conviction in
i Another Jurisdiction (1917A) L.R.A.1138.
104 Supra, note 98.

(, 100 11 Cal.Jur.2d. Conflict of Laws § 3 at 39.


46 JUDICIAL COUNCIL OF CALIFORNIA

California it would find that a California traffic infraction would not a lawyer, cannot be as~
be a crime and no disability or legal disadvantage would accrue from him. This seems to u:

I
a conviction except such as is expressly provided by law, i.e., loss of state and federal, quitl
the driving privilege. If the state chose to apply its own law regard- lish machinery to try
ing the classification of the offense and the effect of a conviction for ecute are everwhere d
such an offense, the addition of the Model Penal Code provision to the est in an orderly socie1
Council's proposal would have no effect. with crime, few indee
get to prepare and pre
Moreover, if such language were added California courts might give
it an unintended meaning. For example, a court might hold that it
\ yers to prosecute and
was added to prevent the Department of Motor Vehicles from taking to defend are the stro
administrative action based on a conviction for a traffic infraction. lawyers in criminal co
For these reasons it does not appear that such a provision should be one charged with crin
included in any California proposal. and essential to fair t
the very beginning, ou
Infractions Procedure
laid great emphasis on
The traffic infractions system discussed herein contemplates that, in \ to assure fair trials
general, misdemeanor procedures would apply but there would be no fendant stands equal'
right to a jury trial. 106 In addition to the elimination of jury ized if the poor man
trials, however, there are other procedural modifications that should without a lawyer to a
be considered in an effort to provide a simplified but effective system conviction of a felony
for such cases. eral times of the rigl
For most persons it is not economically feasible to make several life or liberty is at st
visits to court to be heard on a traffic ticket or to hire connsel in these cases involved f
snch a case. .Any system for traffic infractions should, wherever pos- Black's opinions covei
sible, incorporate simplified procedures consistent with the needs in demarcation between
such cases. For example, it may be possible to modify procedures on Mr. Justice Clark in
bail, arraignment, plea and sentencing, as well as to relax rules of teenth .Amendment 1"
evidence, to improve the opportunity to be heard in infractions cases. 'liberty' just as for. i
.Among the procedural modifications that have been considered are: .. ally be a difference ~I
1. Right to Counsel supposed difference l~
concurring in the dec1
The Sixth .Amendment of the United States Constitution provides, matically impose an
"In all criminal prosecutions, the accused shall enjoy the right . . . but Mr. Justice Dou!
to have the assistance of counsel for his defense." This provision ". . . rights protectel
has been construed "to mean that in federal courts counsel must be of the Fourteenth .An
provided for defendants unable to employ counsel unless the right is the Bill of Rights gu:
competently and intelligently waived." 107 In Gideon v. Wainwrigh-t 108 " On the scope of the
this requirement was held to apply to the states also under the due the United States 81
process clause of the Fourteenth .Amendment. indicating a line oj
.A basic question not yet clearly resolved by the United States Su- ·charges.ll 5 :Mr. J us~j(
preme Court is whether the Fourteenth .Amendment requires a state "; tices in Btde v. IUt'll
to appoint counsel to defend an accused charged with a minor offense. prison as a penalty is
The Gideon case involved a felony, but the court spoke of indigents ments. It might not 1
"charged with crime" rather than indigents charged with felonies. 109 .~." where between that
Mr. Justice Black in the court opinion in Gideon wrote: " ... reason .f
and reflection require us to recognize that in our adversary system of ~1 of a parking ordin,;n
criminal justice, any person haled into court, who is too poor to hire the former but not III
110 Gideon v. Wainwright,;
106 Supra, p. 31. ,. ill Johnson v. Zerbst, 8upre
107 Gideon v. Wainwright (1963) 372 U.S. 335, 340, citing Johnson v. Zerbst (1937) 304 l.U Gideon v. Wainwright,;
U.S. 458; for a recent annotation on the subject, see Accused's Right to Assistance 113 ld. at 352.
of Counsel at or Prior to Arraignment (1956) 5 A.L.R.3d 1269; see also Annotation 11"' ld. at 347. . .
references to Miranda v. Arizona (1966) 384 U.S. 436. 16 L.Ed.2d 694. us Supra note 109, Clbng
t.:l8Notel07, supra. Illinois (1948) 333 U.
109 9 L.Ed. 2d Anno. 1260-1261 ; Anno. 93 A.L.R.2d 750-761; Constitutional Guaranty of
Right to Appear by Counsel as Applicable to Mi8demeanor Case, Anno., 4'2 A.L.R.
1157.
.
would not
1 )
1967 REPORT TO THE GOVERNOR A 'D THE LEGISLATURE

a lawyer, cannot be assured a fair trial unless counsel is provided for


47

:crue frOI11 him. This seems to us to be an obvious truth. Governments, both


.e., loss of state and federal, quite properly spend vast sums of money to estab-
LW regard- lish machinery to try defendants accused of crime. Lawyers to pros-
fiction for ecute are everwhere deemed essential to protect the public's inter-
iion to the est in an orderly society. Similarl.v, there are few defendants charged
with crime, few indeed, who fail to hire the best lawyers they can
llight give get to prepare and present their defenses. That government hires law-
,ld that it yers to prosecnte and defendants who have the mO'ney hire lawyers
om taking to defend are the strongest indications of the widespread belief that
·action. lawyers in criminal courts are necessities, not luxuries. 'l'he right of
should be one charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but it is in ours. From
the very beginning, our state and national constitutions and laws have
laid great emphasis on procedural and substantive safeguards designed
es that, in to assure fair trials before impartial tribunals in which every de-
,uld be no fendant stands equal before the law. 'rhis noble ideal cannot be real-
: of jury ized if the poor man cbargcd with crime has to facc his accusers
tat should without a lawyer to assist him." 110 In an earlier opinion involving a
i"e system conviction of a felony in a federal court Mr. Justice Black spoke sev-
eral times of the right to counsel applying in behalf of one whose
ke several life or liberty is at stake in a criminal prodeedingyl While both of
)ounsel in these cases involved felony prosecutions, the language in lVIr. Justice
rever pos- Black's opinions covers all criminal prosecutions without any line of
needs in demarcation between serious and minor offenses. As pointed out by
:edures on Mr. Justice Clark in his concurring opinion in Gideon, "Thc Four-
{ rules of teenth Amendment requires due process of law for the deprival of
Ions cases. 'liberty' just as for deprival of 'life', and there cannot cOllstitntion-
lered are: ally be a difference in the quality of the process based merely upon a
supposed difference in the sanction illvolved." 112 Mr. Justice Harlan,
concurring in the decision, expressed his view that G,:deon did not auto-
provides, \ matically impose an entire body of federal laws on the statcs,"3
right ...
prOVISIon \ but Mr. Justice Douglas, in a concurring opinion disagreed, saying,
" . . . rig-hts protected against state invasion by the Due Process Clause
I must be
Ie right is of the Fourteenth Amendment are not watered-dmYlI versions of what
Iwright lOS
the Bill of Rights guarantees." 11-1
l' the due On the scope of the right to counsel in the federal courts opinions of
the United States Supreme Court before Gideon contained language
3tates Su- indicating a line of demarcation between serious and nonserious
es a state charges l l " Mr. Justice Douglas, speaking for the four dissenting jus-
or offense. tices in BlIte v. Illinois said, "A man who suffers up to 20 years in
indigents prison as a penalty is undergoing one of the most serious of all punish-
'elonies. 109 ments. It might not be nonsense to draw the Betts v. Brady line some-
... reason where between that case and the case on one charged with violation
system of of a parking ordinance, and to say the accused is entitled to counsel in
or to hire the former but not in the latter. " The test, he thought, was the need for
110 Gideon v. Wainwright, supra note 107 at 344.
: (1937) 304 m Johnson v. Zerbst, supTa note 107.
112 Gideon v. Wainwright, supra note 107 at 349.
Q A 8s1stance
I Annotation mia. at 352.
114 ld. at 347.
ill Sup"U note 109, citing Uveges v. Pennsylvania (1948) 335 U.S. 437 and Bute v.
Guaranty of \) Illinois (1948) 333 U.S. 640.
l., 42 A.L.R.

__..1 ... =-=5=""""'


..
48
counsel" .
JUDICIAL COUNCIL OF CALIFORNIA

measured by the nature of the charge and the ability of


T
I

seem that in
the avemge man to face it alone, unaided by an expert in the law." 1I6 lawyers than
In Evans v. Rives,117 which involved a prosecution on a federal mis- students, wh(
demeanor charge, the Court of Appeals for the District of Columbia Justice plans
held that failure to advise the defendant on arraignment that he had Recent sta'
the right to the assistance of counsel violated his constitutional right to counsel in
to counsel, and refused to accept the suggestion that the right applies right to COUD
only to serious offenses. On that point the court said: "No such differ- \. fenses." 124 ,
entiation is made in the wording of the guaranty itself, and we are Gideon doctl
cited to no authority, and know of none, making this distinction. The meanor cases
purpose of the guaranty is to give assurance against deprivation of As noted b
life or liberty except strictly according to law. The petitioner would of the rigbt 1
be as effectively deprived of his liberty by a sentence to a year in jail he asks, "be
for the crime of non-support of a minor child as by a sentence to a year where the p'
in jail for any other crime, however serious. And so far as the right to I that the SUI
the assistance of counsel is concerned, the Constitution draws no dis- misdemeanor
tinction between loss of liberty for a short period and such loss for a \ It should
long one. " 118 a felony, mi:
Quoting the above language, the Court of Appeals for the Fifth
Circuit in Harvey v. State of Mississippi recently applied this rule to a
state misdemeanor prosecution 119 The defendant had been sentenced by
I convicted de:
The New'
\ sel did not
a Justice of the Peace to pay a $500 fine and serve 90 days in jail on the even where
charge of illegal possession of whiskey. On the question of the applica- three other
tion of the Evans v. Rives rule to state prosecutions the court said:
"While the rule as thus stated has never been expressly extended
t to pay a fin
in jail, plus
to misdemeanor charges in state tribunals, it has been argued that such sentenced to
a principle is implicit in the Supreme Court's decision in Gideon v. days in the
Wainwright. Be this as it may, the reasoning in Evans along with license suspe
I
other recent right-to-counsel decisions persuades us that we should \ New York
apply that rule in the present case." 120 fractions ar
\ Legislature
The same court followed Harvey in a subsequent case involving a
fractions ff<

I
state misdemeanor prosecution in which the appellant had entered pleas
of guilty without being advised of her right to counsel on charges of providing c
illegal possession and sale of whiskey and was sentenced to pay a found no st
fine of $250 or serve six months in jail on each charge." 21 While holding infraction 0:
that the defendant had a right to counsel in the case before it, the that the rig]
considered
court stated: "It seems unlikely that a person in a municipal court
charged with being drunk and disorderly, would be entitled to the i Moore 131 f(
implemental
services of an attorney at the expense of the state or the municipality. l offenses. 132
]
Still less likely is it that a person given a ticket for a traffic violation
would have the right to counsel at the expense of the state. If the
Constitution requires that counsel be provided in such cases it would I are, historic
, disposition.
i of miscond\
110 Supra note 115 at 682.
m 126 F.2d 633 (1942). ( l.22[d. at 108-0'
llll [d. at 638. See also Rule 44(a) of the Federal Rules of Criminal Procedure as 123 City of TaCt
amended by the Supreme Court effective July I, 1966, which provides as follows: State of ~
"44 (a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel
shall be entitled to have counsel assigned to represent him at every stage of the pro-
[ 124 In re Caraf
u:; Fish v. Slat

l
ceedings from his initial appearance before the commissioner or the court through Ull Tucker, Tnt
appeal, unless he waives such appointment." The Advisory Committee Notes aC- 173-74.
companying this revision of the rules commented with reference to Rule 44. "Like 127 Ibid.
the original rule the amended rule provides a right to counsel which . .. extends to l2B People v. LE
petty offenses to be tried in the district courts . .. .. (Proposed Rules of Criminal l.ZI People v. LE

~
Procedure (1966) 39 F.R.D. 168, 202.) inal Proe
no 340 F.2d 263 (1965). 130 Citing Han
120 [d. at 27l. 131 Supra. note
W McDonald v. Moore (1965) 353 F.2d 106. 182 The MeDon
sustain 01
l
1
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 49
ld the ability of seem that in many urban areas there would be a requirement for more
in the law." 116 lawyers than could be ·made available. Even with the assistance of law
n a federal mis- students, whose services may be requested under some of the Criminal
ict of Columbia Justice plans, the demand might come near exceeding the supply." 122
ent that he had Recent state court decisions have been divided concerning the right
,titutional right to counsel in cases other than felonies. Some courts have held that the
he right applies right to counsel applies to misdemeanors 123 and to "quasi-criminal of-
'No such differ- fenses." 124 The Florida Supreme Court, however, has limited the
elf, and we are Gideon doctrine to felonies and denied the right to counsel in misde-
distinction. The meanor cases. 125
deprivation of As noted by one writer, where the line will be drawn for application
letitioner would of the right to counsel awaits future determination 126 "Must counsel,"
;0 a year in jail he asks, "be assigned to assist an indigent accused of a traffic offense,
ntence to a year where the punishment can be fine or imprisonment? . . . It may be
r as the right to that the Supreme Court will refuse to draw a line between felonies,
n draws no dis- misdemeanors and other offenses. " 127
such loss for a It should be noted that in all of the above cases, whether involving
a felony, misdemeanor, petty offense or quasi-criminal proceeding the
, for the Fifth convicted defendant could be sentenced to imprisonment.
ed this rule to a The New York Court of Appeals recently held that the right to coun-

I
·en sentenced by sel did not apply in behalf of one charged with a traffic infraction,
ys in jail on the even where imprisonment was imposed. 128 For seven speeding and
l of the applica- three other "moving" violations one defendant had been sentenced
the court said: to pay a fine of $1,030, or in default of payment to serve 135 days
ressly extended in jail, plus 42 days' imprisonment, and another defendant had been
rgued that such sentenced to pay a fine of $100, or in default of payment to serve 30
m in Gideon v. days in the workhouse, plus 10 days' imprisonment and six months'
'ans along with license suspension on a speeding violation.
that we should New York is the only state which has designated traffic offenses as in-
fractions and declared them not be crimes. In 1965 the New York
ase involving a Legislature further expressly excepted persons charged with traffic in-
ld entered pleas fractions from the class included under the new statutory scheme for
:1 on ch arges of
mced to pay a
~ providing counsel to indigent defendants 129 The court accordingly
found no statutory duty to inform a defendant charged with a traffic
1 While holding I, infraction of his right to counseL While the majority opinion recognized
e before it, the that the right to counsel ordained by the Federal Constitution had been
nunicipal court \ considered to extend to misdemeanor cases,130 it cited McDonald v.
entitled to the Moore 131 for its recognition of the possibility of a rule limiting the
le municipality. implementation of the right to counsel in the prosecution of petty
traffic violation offenses. 132 In support of the decision the majority opinion said: "There
le state. If the are, historically, certain minor transgressions which admit of sUIDmary
l cases it would disposition. New York has long deemed traffic infractions as a form
of misconduct distinguishable from more serious breaches of the law,
12'Jld. at 108-09,
lina! Procedure as 1~ City of Tacoma v. Heater (Washington, 1966) 409 P.2d 867,869. See also Manning v.
rovides as follows: State of Maryland (965) 206 A.2d 563.
,Ie to obtain counsel 12. In re Garafone (1'\.3, 1963) 193 A.2d 398, 405-06.
ry stage of the pro- ", Fish v. State (1964) 159 So.20 866.
r the court through 128 Tucker, The Supreme Court and the Indigent Defendant (1964) 37 So. Cal. L.Rev. 151,
,rnmittee Notes ac-
e to Rule 44, "Like
173-74.
127 Ibid.
hlch . .. extends to 128 People v. Letterio and Kohler (1965) 213 N.E.2d 670, 16 N.Y.2d 307, 266 N.Y.S.2d 368.
~ Rules of Criminal 12llPeople v. Letterio and Kohler, supra note 128, citing Article 18-B of the Code of Crim-
) inal Procedure (L. 1965, ch. 878).
uo Citing Harvey v. State of Mississippi, supra note 119.
I 131 Supra note 121,
.\ 1.32 The McDonald opinion, however, pointed out that such a rule would be difficult to
sustain on any legal ground. Supra .. note 121 at 109.
!
J
____ifn _
·-·-t' - ~ . _ ' - - - - - ~ _ ~ ~ __ = ~ .......
, _

50 JUDICIAL COUNCIL OF CALIFORNIA

or crimes (Penal Law, § 2; Vehicle and Traffic Law, § 155). While a defendant in c
not controlling, we believe that this time-honored distinction support" lissignment of co"
our conclusion that a traffic court need but assure the defendant a compensation of a
fair forum in which to be heard. As a practical matter, the traffic court fender 140
Judge often sits as prosecutor, defense counsel, and Judge. Neither The California
this triune function, nor the failure of a traffic court Judge to advise constitutional rig]
the defendant that he may have counsel, is so unfair as to require the ceedings is, in C:
result urged by the dissenters." 133 equally guaranteE
After pointing out that the Vehicle and 'l'raffic Law expressly pro- paloI' other infer
vides that" [a] traffic infraction is not a crime and the . . . puniSh- fendant had been
ment imposed therefor shall not be deemed for any purpose a penal court collectively
or criminal punishment . . . " Judge Bergan in his concurring opinion assignment of COl
said: "A traffic violation in New York carries a penalty, therefore, pleas to five counl
but it is not a criminal penalty even though the procedural forms of other Vehicle Coe
law followed in criminal courts are, as a matter of judicial convenience, other cases had ]
also employed in traffic cases (Vehicle and Traffic Law, § 155). The sentences of 180 e
penalty is something in the nature of a community sanction or civil a total of 900 da)
penalty but it is not in any respect punishment for a crime. There may The record conta:
be a fine and, in extreme but very rare cases, a jail sentence, but these waived his right·
too are similar to certain civil compulsions which the law exerts. do not specify th
",Ve should not, therefore, as a matter of consistence, apply to the fendants of their
noncriminal class of offense all the weight and the solemn constitutional fast rule will ace
procedural mechanisms that we have learned to apply to criminal cases. ment courts the ~
The distinctions that have been carefully spelled out by the Legislature collectively but I:
in this class of offense render it unwise as a matter of policy to treat affirmative ShOWi'1
traffic offenders as we treat persons charged with crime. " 134 defendant being
In a dissenting opinion Chief Judge Desmend called attention to a a valid waiver, ]
rule adopted by the Supreme Court of Massachusetts in 1964 requiring somewhat less st:
that a defendant be told about his right to counsel and assignment of misdemeanor case
counsel, whenever charged with any crime for which a sentence of im- tions, adverted t.
prisonment may be imposed. 135 In his view the possibility of imprison- ants of their rigl
ment imposed under a criminal procedure was more meaningful than that the typical!;
the statutory noncriminal designation in determining whether the de- urgent problems
fendant was entitled to the constitutional guaranty of the right to is particularly tJ
counsel 136 Supporting his view is the position taken by the drafters of called upon to de
the Model Penal Code, that if, as in New York" . . . a sentence of im- cases, vagrancies
prisonment is authorized (as an immediate sanction upon conviction impairment of th
rather than merely to coerce the payment of a penalty) it is an inad- however minor b
missible semantic manipulation to declare that the offense is not a of valid ways to
crinle. " 137 constitutional rig
California the court should
The California Constitution provides in Article 1, Section 13: "In the vast majorit)
criminal prosecutions in any court whatever, the party accused shall the judge's inter
have the right ... to appear and defend, in person and with counsel," selves sufficientl)
ances in the firs'
and Article 1, Section 8, protects the right at the preliminary examina-
such defendant a
tion 138 Supplementing the Constitution, statutes provide for advising
of defending hirr
las Supra note 128 at 672. Compliance with
13~ Supra note 128 at 672-73.
1~5 Citing 347 Mass. 809.
189 See Pen.Code § § €
1Sll Sup1'a note 128 at 674 and 676.
137 See supra, p, 34.
3 A.L.R.3d 1003-
140 Pen. Code § 987a, (
ISS See Witkin, California Criminal Procedure (1963) p. 354. For articles on the right to
Atty. Gen. 33 (l
counsel in California, see Witkin at pp. 130-132, 347-385, and 631-34; 14 CaI.Jur, 141 In re Johnson (19
2d, Criminal Law, §§ 146 et seq,; D'uty to Advise of Right to Counsel, 3 A.L.R.2d
1003, 1033; The Right to Couns-eZ in Misderneanor Cases (1960) 48 Cal.L,Rev.
501-505.
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 51
, § 155). While a defe'ndant in criminal prosecutions of his right to counsel and to
inciion supportl:; assignment of counsejl39 In addition, statutory provision is made for
the defendant a compensation of assigned counsel and representation by the public de-
the traffic court. fender. Ho
Judge. Neither The California Supreme Court has declared "that the fundamental
Judge to advise constitutional right to the assistance of counsel at all stages of the pro-
is to require the ceedings is, in California at least, not limited to felony cases but is
equally guaranteed to persons charged with misdemeanors in munici-
w expressly pro- paloI' other inferior courts." 141 In that case (In re Johnson) the de-
the . . . punish- fendant had been one of a large number of defendants in the traffic
purpose a penal court collectively advised by the judge of their right to counsel and to
lCUHll1g Opll11On assignment of counsel. Without counsel the defendant entered guilty
nalty, therefore, pleas to five counts of driving with a revoked license, plus a number of
~edural forms of other Vehicle Code violations. After being required to wait until the
cial convenience, other cases had been concluded he was sentenced to five consecutive
aw, § 155). The sentences of 180 days on each count of driving with a revoked license,
sanction or civil a total of 900 days, plus suspended sentences on the remaining counts.
rime. There may The record contained no declaration that the defendant had expressly
o.tence, but these waived his right to counsel. Emphasizing that the statutory provisions
,wexerts. do not specify the precise manner in which courts are to apprise de-
Ice, apply to the fendants of their right to counsel and pointing out that no hard and
nn constitutional fast rule will accommodate the diverse problems facing the arraign-
to criminal cases. ment courts the court upheld the judge in his advising the defendants
y the Legislature collectively but held that there was no valid waiver of the right, an
,f policy to treat affirmative showing of an intelligent and understanding waiver by the
" 134 defendant being required. With respect to the showing required for
~d attention to a a valid waiver, however, the court in its dictum indicated that "a
n 1964 requiring somewhat less stringent rule might be constitutionally permissible in
1 d assignment of misdemeanor cases" than in felony cases, saying: "Practical considera-
1 sentence of im- tions, adverted to earlier in discussing methods of informing defend-
Jity of imprison- ants of their rights, loom still larger at this point. We must recognize
meaningful than that the typically crowded arraignment calendars of our courts pose
whether the de- urgent problems in the administration of justice in California. This
of the right to is particularly true of those courts in large municipalities which are
y the drafters of called upon to deal with an unending stream of traffic violations, drunk
a scntence of im- cases, vagrancies, and similar petty offenses. While there can be no
upon conviction impairment of the fundamental constitutional rights of any defendant,
y) it is an inad- however minor his crime, in certain situations there may be a choice
offense is not a of valid ways to implement these rights. Where such is the case-and
constitutional rights are respected-the convenicnce of the parties and
the court should be given considerable weight. For example, probably
Section 13: "In the vast majority of citizens haled into court on traffic violations share
rty accused shall the judge's interest in prompt dispositiun of their cases, feeling them-
d with counsel," selves sufficiently inconvenienced by having to makc personal appear-
minary examina- ances in the first place. To require the judge to orally examine each
,ide for advising such defendant at length for the purpose of determining his capability
of defending himself would seem to be an idle and time-wasting ritual.
Compliance with the spirit of the constitutional mandate that an in-
'so See Pen. Code §§ 686, 858, 858.5, 859, 859'a, 859b, 860, 866.5, 087, 1018. See also Anno.
3 A.L.R.2d 1003-1033.
uOPen.Code § 987a, Gov.Code § 27706. See 47 Ops. Cal. Alty. Gen. 50 (1966),43 Ops. Cal.
rtlcles on the right to Atty. Gen. 33 (1964),36 Ops. Cal. Atty. Gen. 85 (1960).
I 631-34; 14 Cal.Jur. lU In re Johnson (1965) 62 Ca1.2d 325, 329.
Counsel, 3 A.L.R.2d
1960) 18 CaI.L.Rev.
o-~·~~~~------------------T

\
52 JUDICIAL COUNCIL OF CALIFORNIA

telligent waiver of counsel must affirmatively appear in the record may priate in a crimina
be efficiently achieved in such cases in a variety of acceptable ways. "142 cases involvlllg n~
The defendant in the Johnson case, however, was not one of the there be no deprn
vast majority of citizens haled into court on traffic violations. The except upon propel
charges were serious; his case was specially held for sentencing after right to counsel an
the others were completed and he was sentenced to two and one-half traffic infraction h
years in jail. The Supreme Court accordingly held that" In veiw of law. HG
the multiplicity and potential seriousness of the charges the court 2. Bail and Fines
should have made a reasonable effort, hefore accepting petitioner's The most comma
pleas of guilty, to determine whether he understood his predicament for the appearanCl
and was capable of representing himself effectively at all stages of the ticle I, Section 6 I
proceedings. " 143 sureties, unless fo
Subsequently in a very recent case involving a charge of driving 53 presumption grea\
miles per hour in a 25 mile zone, a decision of the Court of Appeal Penal Code states:
apparently obliterated any legal distinction insofar as waiver of coun- or magistrate tha
sel is concerned between serious violations such as were involved in '1 " 148
upon b a1.
Johnson and the run-of-the-mill traffic cases. The court held: "Yet, "The sole purp'
even though the offense is a minor one, constitutional rights of a de- attendance of the
fendant may not be diminished or forgotten. The critical question here ance may be lawj
is whether respondent's conviction may be upheld where he has prop-
of revenue to the!
erly been told of his right to counsel, hut the record is silent upon the
In traffic cases
question of waiver of that right. In Carnley v. Cochran, 369 U.S. 506,
pearance. 150 For·
516, the court declared that' Presuming waiver from a silent record is
impermissible. The record must show, or there must be an allegation purpose, with ba
and evidence which show, that the accused was offered counsel but forfeiture used t,
intelligently and understandingly rejected the offer. Anything less As provided by t
is not waiver.' upon his written
ized to receive a \
"Although most cases in which the courts have declined to presume
a waiver of the right to counsel when the record is silent are felony ise, he may dep\
cases involving serious crimes, the court in Johnson applied the rule court and penal1
of Cal"nley v. Cochran in a misdemeanor traffic case. It is true that raignment the cc
Johnson may readily he distinguished from the instant case. Obviously further proceedi]
the cumulative sentences totaling 900 days in jail imposed in Johnson this use of bail :
are much more severe than the one day jail sentence given to respond- does not necessar
ent here. Nevertheless we hold that where, as here, loss of personal He Such defendants ~
written promise
liberty may, and actually does, result upon conviction, even though the I nizance. See Ve
offense be classified as a mere misdemeanor, the record must affirma- lease Upon PrOT
tively show that the accused was notified of the right to counsel and I 1n Witkin, Californi.
148 Pen Code § 1268.
Pen. Code §§ 1:
expressly wavied that right. " 144
r ferior courts.
1411 Sawyer v. BarbO'

Conclusion 129 Cal.App.2d


(1961) 55 Cal.
Bail in Califon
The purpose of the right to counsel is to assure that no defendant
in a criminal case shall be deprived of life or liberty without the aid of \ t50Veh. Code § 4051:
luI Cal. Traffic Law
lGJ Witkin, supra no
counsel unless the right is competently and intelligently waived. This I declare the bai
,., Veh. Code § 40.0
purpose does not require the assignment of counsel under a system in I
ldi Veh. Code § 4051
which minor traffic violations are classified as noncriminal infractions \ '''Veh. Code §§ 420
1;;(1 Veh. Code § 4051
that do not carry the sanction of jail. Many procedures necessary to 151 Supra notes 147
protect the right to counsel in a criminal case may be dispensed with, 'I feiture may b
specified excer
including the requirements of cases such as Miranda v. A,"izona 145
relating to when the right arises. While these procedures are appro- I poses of the I
bail to traffic
(1961) p. 43.
lU at 336.
[d.
H31d. at 337.
lH Blake v. Municipal Court (1966) 242 A.C.A. 857, SGI-62.
I
145 Supra note 107.
\
I

1
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 53

ord may priate in a criminal case, they appear inappropriate for traffic ticket
lays. "142 cases involving no threat to liberty. In order, however, to assure that
~ of the there be no deprivation of liberty without the assistance of counsel
ms. The except upon proper waiver, provision should be made for advice on the
ng after right to counsel and for assignment of counsel when a defendant on a
one-half traffic infraction has been arrested and 'not released as provided by
veiw of law. 146
1e court 2. Bail and Fines
.i tioner's
Jicament The most common meaning of bail is the security, cash or bond given
~s of the
for the appearance of a prisoner. 147 The California Constitution in Ar-
ticle I, Section 6 provides: "All persons shall be bailable by sufficient
sureties, unless for captial 0fi'ense5 when the proof is evident or the
'iving 53
, Appeal presumption great. Excessive bail shall not be required, . . . " The
of coun- Penal Code states: "Admission to bail is the order of a competent court
olved in or magistrate that the defendant be discharged from actual custody
J.. "Yet, upon bail. " 148
of a de- "The sole purpose of bail in criminal cases is to ensure the personal
tion here attendance of the defendant on the court at all times when his appear-
,as prop- ance may be lawfully required . . . . There should be no suggestion
upon the of revenue to the government nor punishment to the surety." 149
0.S.506, In traffic cases bail is also theoretically intended to insure court ap-
record is pearance. 'OO For minor traffic violations, however, it serves a different
.Uegation purpose, with bail fixed in the amount intended as the fine,151 and
.nsel but forfeiture used to dispose of the case without a court appearance. '52
ling less As provided by the Vehicle Code, the arrested person may be released
upon his written promise to appear in court or before a person author-
presume ized to receive a deposit of bai1.'53 Thereafter, when he keeps his prom-
'e felO'IlY ise, he may deposit bail,'54 plus a sum to cover any required night
the rule court and penalty assessments.'55 Upon his failure to appear for ar-
rue that raignment the court may forfeit the entire amount and order that no
)bviously further proceedings be held in thp. case. '56 It has been pointed out that
Johnson this use of bail is inconsistent with its purpose in criminal cases and
respond- does not necessarily provide a final disposition.' 57
personal WI Such defendants would include those who have been arrested and not released on their
ough the written promise and who have not posted bail or been released on their own recog-
nizance. See Veh. Code §§ 40300-40311, Procedure on Arrests, §§ 40500-40517, Re-
; affirma- lease Upon Promise to Appear; see also Pen. Code §§ 858.858.5,859.
14, Witkin, California Criminal Procedure (1963) § 148.
IUsel and l.s Pen. Code § 12£18. The statutory provisions for bail in criminal cases are contained in
Pen. Code §§ 1268-1317, and § 1458 makes the general provisions applicable to in-
ferior courts.
Ull Sawyer v. Barbour (1956) 142 Cal.ApP,2d 827,833; see also People v. Calvert (1954)
129 Cal.App.2d 693, 698; People v, Wilcox (1960) 53 Cal.2d 651, 656: In re Newbern
(1961) 55 Ca1.2d 500, 504; 7 CaI.Jur.2d, Ba.il and Recognizance, 538; Gustafson,
lefendant Bail in California (1956) 44 Cal. L.Rev, 815.
uioVeh. Code § 40511.
he aid of 151 Cal. Traffic Law Administration (1960) 12 Stan.L.Rev. 388.
1[;2 Witkin. suprct note 147. Veh. Code § 40512 permits the magistrate in his discretion to
ved. This declare the bail forfeited and order that no further proceedings be had in the case.
;ystcm in 11;3 Veh. Code § 40504.
1:H Veh. Code § 40510.
Ifractions '"' Veh. Code §§ 42006. 42051.
essary to I~ Veh. Code § 40512.
15T Supro, notes 147 and 151. Pen. Code §§ 1305~1307 provide that within 180 days a for-
sed with, feiture may be set aside and bail reinstated. Veh. Code §§ 1803 and 13103, with
'rizona 145 specified exceptions, treat bail forfeitures as convictions for the administrative pur-
poses of the Department of Motor Vehicles. For a criticism of this application of
re appro- bail to traffic Violations. see Economos, Traffic Court Procedure and Application
(1961) p. 43.

,
___1 _
54 JUDICIAL COUNCIL OF CALIFORNIA 1967 REPOR'

In California the municipal and justice court judges in each county, He could be further
are required to adopt a schedule of bail for all misdemeanor offenses 158. either in person or,
and in an effort to promote uniformity in traffic cases the Judicial ance is required. U,
Council has adopted the Uniform Traffic Bail Schedule indicating the· raignment, plea, bai
amount of bail and the offenses requiring a court appearance. '59 While tinuance for plea,
the Uniform Bail Schedule is not mandatory and the counties can defendants who wisl
differ in specifying which offenses require a court appearance, which for those who do not
may be concluded by bail forfeiture and the amounts required as bail, 3. Burden of Proof
most counties have adopted schedules in substantial conformity witb In a criminal cas
the Judicial Council schedule. I tablish guilt beyon
Under the Model Rules Governing Procedure in Traffic Cases a proof by a prepon
motorist may appear at the traffic violations bureau to sign an "Ap- The reasons for the
pearance, Plea of Guilty and Waiver" form whereby he agrees to law presumes inno(
pay the prescribed penalty.'60 '1'he Rules require that he first be in-' overcome the legal
formed of his right to stand trial, that his signature to a plea of ciently strong to cc
guilty will have the same effect as a judgment of court, and that the that the defendan
record of conviction will be sent to the Department of Motor Vehicles. I where a loss might
When the motorist signs the required form the violations clerk is au- should cast it u'por
thorized to accept payment of the fine. This procedure is provided for' loss, by proof establ
miJior moving violations in which a court appearance is not required. l6l While prosecutia
With appropriate modification the above procedure could be included crime, neither waD
as part of a traffic infractions system in cases not requiring a court prosecution would
appearance. At the time a motorist receives a citation he could be in-' relating to misder
formed in writing that he has the right to appear in court with or for prosecuting inj
without an attorney, and that in cases not requiring court appearance thermore, the time
l:!e may plead "no contest" and pay the prescribed fine to a person lessened, if at all,
authorized to receive a deposit of bail. He would also be informed as' chief effect would 1
to the effect of a "no contest" plea. '62 A "no contest" plea would, Presumptions ar
provoke less discussion with the traffic violations clerk than the guilty, cution can establis
plea and would not be an admission of guilt which could be used as sumption of inno(
evidence in a civil action~163 " In most parking
In addition, provision could be made that the fine for a traffic infrac- difficult to establi
tion upon such plea would be in the amount fixed in a schedule of' sumption. Conside
fines adopted by the municipal and justice court judges in each county. his car or knows
The schedule would not be binding in cases where the defendant must ciples 170 and serv,
or wishes to appear in court. As with bail, a nonmandatory uniform enforcement. Sim:
fine schedule could be adopted by the Judicial Council to promote sub- person shall drive
stantial uniformity in a manner consistent with local needs. established standI
certain conditiom
, Such a system for payment of fines and bail, however, should be fenda'llt to show t
integrated with revised arraignment, plea and court appearance pro-
cedures for traffic infractions to provide a simplified system. In order 1e~ Pen. Code § 1096;
Jur.2d, Evidence.
to simplify arraignment procedures, at the time a person receives a 1.ll5 20 Am.Jur., Eviden
Code § 115.
traffic ticket he could be informed by written statement of his rights. leeHolt v. United State
1~7 20 Am.Jur., supra n
'58 Pen. Code § 1269b. 168 Cf. Conway, 'Is Cri'l'
158 Cal. Rules of Court, Rule 850. (1959) Wis.L.Re
180Rule 1 :3-7. The Model Rules were drafted by the National Conference of Commis· make a precise di
sianers on Uniform State Laws and approved in 1957. See Economos, Traffic Court a reasonable doul
Procedure and Administration, Appendix B. tinction In the la'
1&11bid. cases there is no
1«3 New York Code of Criminal Procedure § 335-a provides that printing the effect of a that he can avoic
plea of guilty on a traffic citation in bold red type constitutes compliance with the U'9 Yeh. Code §§ 4110~
code requirements that the defendant be so informed at the time of his arraign- 170 18 Ca1.Jur.2d, Evid
ment. In receiving the plea at a clerk's window a rubber stamp could be used to 111 Veh. Code § 22350.
stamp the plea and waiver with space for a signature directlY on the court copy 112 Yeh. Code § § 22352
of the citation.
1&3 See The Effect of a Plea of Guiltv or Forfeiture of Bail in Traffic Offenses (1963) 14
Hastlngs L.J. 454.
, .
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 55

each county He could be further notified that he may enter his plea with the clerk
)1' offenses 158
either in person or, where feasible, by mail except where court appear-
the Judicial ance is required. Under an infractions system such provisions for ar-
ldicating the raignment, plea, bail and fines would eliminate the provision for con-
nce. 159 While tinuance for plea, reduce the number of visits usually required of
counties can defendants who wish to appear in court and provide a final disposition
.rance, which for those who do not.
Ilired as bail, 3. Burden of Proof
Eormity with In a criminal case the burden of proof is on the prosecution to es-
tablish guilt beyond a reasonable doubt,164 whereas in a civil case
lffic Cases a proof by a preponderance of the evidence is all that is required. 165
ign an "Ap. The reasons for the difference are that under our system of justice the
he agrees to law presumes innocence in all criminal prosecutions and in order to
, first be in. overcome the legal presumption the evidence must be clear and suffi-
co a plea of ciently strong to convince the trier of fact beyond a reasonable doubt
and that the that the defendant is guilty,166 whereas "between man and man,
,tor Vehicles. where a loss might fall upon one or the other, it is right that the law
: clerk is au- should cast it upon him who is shown to have been the cause of the
provided for loss, by proof establishing reasonable probability of the fact." 67
c required.!61 While prosecution for an infraction would not be prosecution for a
1 be included crime, neither would it be litigation "between man and man." The
ring a court I prosecution would still be brought in the name of the state, the law
)
could be in- relating to misdemeanors would provide the procedural framework
JUrt with or ,\ for prosecuting infractions and penalties would still be imposed. Fur-
c appearance thermore, the time required to conduct a trial would not be materially
to a person lessened, if at all, by such a change in the burden of proof and the
informed as chief effect wop.ld be to eliminate the presumption of innocence 168
. plea would Presumptions are now stated in the Vehicle Code whereby the prose-
m the guilty cution can establish a prima facie case sufficient to overcome the pre-
i be used as sumption of innocence for parking and some speeding violations.!69
In most parking violation cases the driver is not present and it is
.raffic infrac-
schedule of
l• difficult to establish his identity without the assistance of the pre-
sumption. Considering the probability that the owner usually drives
each county.
endant must
ory uniform
I
\
his car or knows who does, the presumption is based on sound prin-
ciples 170 and serves the goals of effective and convenient parking law
enforcement. Similarly, where the Legislature has declared that no
\
promote sub- person shall drive faster tban is reasonable and prudent 171 and has
r) established standards of speed which it considers reasonable under
certain conditions,172 it is not unfair to place the burden on a de-
1',should be \
fendant to show that his speed in excess of that standard was, never-
earance pro-
lm. In order Pen. Code § 1096; Evid. Code ~ 501; 48 Cal.Jur.2d, Trial, §§ 481-82, 486; 18 CaL
16.1.
1, Jur.2d, EVidence, §§ 112-13; 20 Am. Jur., Evidence, § 1256.
n receives a 16G 20 Am.Jur., EVidence, §§ 1248 et seq.; 18 Cal.Jur.2d, EVidence, §§ 103-07, 110; Evid.
I Code § 115.
,f his rights. 166Holt v. United States (1910) 218 U.S. 245.
I 1~7 20 Am.Jul'.) supra note 165 at 1100.
168 Cf. Conway, Is Criminal or CIvil ProcedU?'e Pt'oper for Enforcement of Traffic Laws r
(1959) Wis.L.Rev. 418. Conway points out that triers of fact do not necessarily
lee of Commis- make a precise distinction between preponderance of the evidence and proof beyond
s, Traf"fie Court a reasonable doubt. While this may be true, nevertheless, the statement of this dis-
'J tinction in the law is based on valid principles under our legal system, and in close
cases there is no question but that. the trier of fact is supported by the knowledge
. the effect of a that he can avoid a possible injustice upon what he deems to be a reasonable doubt.
,liance with the la9Veh. Code §§ 41102, 22351(b).
of his arraign- 170 18 Ca1.Jur.2d, Evidence, § § 65 et seq.
)uld be used to 171 Veh. Code § 22350.
the court copy 172 Veh. Code §§ 22352 et seq.

mses (1963) 14

,
56 JUDICIAL COUNCIL OF CALIFORNIA

theless, reasonable and prudent at the time, place and under the condi- necessary elE
tions then existing 173 applying thE
It is interesting to note the position taken by the British Council the statute,
of the Law Society in its recomme'ndation for the establishment of a Jeither P
category of noncriminal offenses to be designated as "improper use a criminal s:
of the road," The Council considered 'whether a diminished standard sumption, VI
of proof should be required in such cases but determined that in gen- character an
eral tbe criminal standard should apply. The Council, however, did imposing ci\
recommend that" where evidence is adduced in a Traffic Court that a The Calif,
road incident has occurred involving injury or damage to a road user, view that 110
or to a person or property on or adjoining a road, under circum-
presumption
stances where had ordinary care and skill been employed in the use of
ment to the:
the road it was unlikely to have occurred, tbat should afford prima
and, consiste
facie evidence of improper, unreasonable or imprudent use of the
be required
road against any person who appears to have been involved in such
criminal san,
occurrence, whether as a driver, cyclist or pedestrian, "174
continue to
4. P1'eSllmption of Negligence as infractiOl
Under existing case law a presumption of negligence may arise from Revision COl
a violation of a statute, ordinance or administrative regulation, includ- Uil Prosser, Tort
Rest., Torts:
ing violations of provisions of the Vehicle Code regulating the opera- 182
183 Ibid.; Prossl
tion of motor vehicles 175 The statute is held to prescribe what is proper 1S4
Cal.2d 581,
8 Cal. Law F
conduct of a reasonable person in a particular situation and conduct 1851d,atlI7.
falling below the standard is said to be negligence per se 17G
,A question has been raised as to whether the presumption of negli-
gence would apply to traffic violations reclassified as noncriminal in-
fractions, These doubts result from language in some cases that seems
to indicate that the presumption applies only when the statute carries
a criminal sanction I77 It would appear, however, that the cases that
include such a statement are the exception rather than the rule,178 and
the language may be interpreted as a reference to the facts of the
particular case before the court rather than the enunciation of a general
requirement for all cases. \
In other cases the presumption has been invoked despite the lack of
a criminal sanction for the violationY9 Moreover, a number of cases
not involving violations of the Penal or Vehicle Code or otber clearly
penal statutes or ordinances do not even discuss wbether the statute
l
involved provided a criminal sanction. ISO If a criminal sanction were a
173 Veh. Code § 22351 (b) ; Speed Laws and Burden Of Proof (1963) 14 Hastings L.J. 451.
l7t Council of the Law Society, Motoring Offenses (June 1965) 7.
17:> Alarid v. Vanier (1958) 50 Ca1.2d 617; 2 Witkin, Summary of Cal. Law (1960),
Torts, §§ 230-232,
170 Witkin, SU1Jra note 175 at § 230. However,liability is dependent upon a showing that
there was a duty owed to persons in plaintiff's class; that the harm was the type
which the statute was designed to prevent and that the violation was the proximate
cause of the Injury. \Vitkin, supra at §§ 234-235.
In E.g., Richards v. Stanley (1954) 43 Ca1.2d 60, 62; Tossman v. Newman (1951) 37
Ca1.2d 522, 525.
178 Among the cases in which no such statement was made are Alarid v. Vanier, supra
note 175; Witt v. Jackson (1961) 57 Ca1.2d 57, 63; Nunnelley v. Edgar Hotel
(1950) 36 Cal.2d 493; Roddiscraft, Inc, v, Skelton Logging Co, (1963) 212 Cal.
App.2d 784, 804.-5; Cowan v. Bunce (1963) 212 Cal.App.2d 48; Williams v. Lam-
bert (1962) 201 Cal.App.2d 115, 118-19, and see cases cited in notes 179 and 180,
infra.
170 Forbes v. Los Angeles Ry. (1945) 69 Cal.App.2d 794, 796. See Cary v. Los Angeles
Ry. (1910) 157 Cal. 599, 603-04. cr. Clinkscales v. Carver (1943) 22 Ca1.2d 72;
Hopper v. Bulaich (1945) 27 Ca1.2d 431.
11lO Finnegan v. Royal Realty Co. (1950) 35 Ca1.2d 409, 416; Harris v. Joffe (1946) 28
Cal.2d 418; Hanna v. Lederman (1963) 223 Cal.App.2d 786, 792; Mason v. Case I
(l96Z) 220 Cal.App.2d 170,
,
\
1967 REPORT TO TIlE GOVERNOR AND THE LEGISLATURE 57
:be condi- necessary element for application of the rule it would appear tbat when
applying the presumption the court would discuss the penal nature of
I Council the statute.
lent of a Neither Prosser 181 nor the Restatement 182 makes the imposition of
:oper use a criminal sanction a necessary element of the application of the pre-
standard sumption. What they say is that the fact tbat a statute is penal in
It in gen-
character and carries a criminal sanction does not prevent it from also
ever, did imposing civil liability.ls3
Irt that a
The California Law Revision Commission apparently is also of tbe
'oad user,
: Clrcum- view that no criminal sanction is or should be necessary to invoke the
he use of presumption of negligence. IS' The Commission is proposing an amend-
rd prima ment to the Evidence Code that would codify the existing presumption
;e of the and, consistent with its view of existing law, no criminal sanction would
I in sucb be required under the proposed legislation. ls5 It seems clear that no
criminal sanction is now required and the presumption would therefore
continue to apply to those traffic violations that would be reclassified
as infractions whether or not the legislation proposed by the Law
rise from Revision Commission is enacted.
[1, includ- 181 Prosser, Torts (2d ed. 1955) § 34.
he opera- 182 Rest., Torts 2d, §§ 286-287.
183Ibid.~· Prosser, supra~' see also Satterlee v. Orange Glenn School Dist. (1947) 29
is proper . Ca1.2d 581, 594-95 (concurring opinion).
1&4 8 Cal. Law Revision Commission Rep., Rec. & Studies (1967) 109.
l conduct ISS/d. at 117.

of negli-
minal in-
ltat seems
te carries
~ases that
le,178 and
ts of the
a general
(,
Ie lack of
. of cases
er clearly I
Ie statute
m were a
Igs L.J. 451.

aw (1960),
'lowing that
'as the type
e proximate
, (1951) 37
lnier, supra
:dgar Hotel
3) 212 Cal.
ms v. Lam-
79 and 180,
:"05 Angeles
Cal.2d 72;
, (1946) 28
son v. Case

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