Posted by New Kid on September 09, 1998 at 21:19:46:
In Reply to: Re: Peace vs. Police posted by a friend whos been there on September 08, 1998 at 06:47:43:
: Welcome to the new territory 'Friend'. I have missed your discertation's from the old place. I am sorry it died an untimely death.
As to the issue of notice, I must confess, that I did not give notice to the DMV, nor the STATE. I did give notice in writing to the officer who arrested me. Pursuant to the Statutes of California, the legislature has defined as 69.1 in the DMV code a driver's license is a chauffer's license and an operator's license. In 1961, the definition of license was change to 310 as'a driver's license is a license that is issued under this code.'[paraphrased]. The legislative intent to the best of my research has not been change. In Volume 1, Statutes of California, 1956 and 1957, page 1514 Chapter 482, the legislature added to the Vehicle Code:
"Section 69.1 ‘Driver’s License.’ ‘Driver’s license’ includes both an operator’s and a chauffeur’s license."
While the common understanding of a chauffeur is a person who’s occupation is to transport persons or property for hire, in other sections of the California Statutes, this definition is held to be consistent with the common meaning The Supreme Court of California upheld this as a regulatable activity. As to the ambiguity of an operator, the intent was made clear in, Volume 2 Statutes of California 1954 and 1955 page 3515 Chapter 1905. Here the legislature amended §9603 of the Revenue and Taxation Code relating to the motor vehicle transportation license tax. Under the heading, "’Operator’ includes:" §(a) states:
"(a) Any person engaging in the transportation of persons or property for hire or compensation by or upon a motor vehicle upon any public highway in this State, either directly or indirectly."
Then under the heading, "’Operator’ does not include any of the following," §(a) states:
"(a) Any person transporting his own property in a motor vehicle owned or operated by him unless he makes a specific charge for the transportation. This subdivision does not in any way limit any other execption granted by this section." [emphasis added]
The Supreme Court of California upheld this legislative intent as follows:
"The vehicle code reflects the legislature’s occupation of the field of traffic regulation, and being intended to cover the whole of such subject, any local ordinance on the subject in conflict with it’s provisions would be void." Borum v. Graham, 4 Ca2d. 331, 40 P2d 866. [See: Traffic in Black's 5th which essentially states, traffic is commerce.]
However, under the C.V.C., California law, and Federal law, only certain types of vehicles are required to be registered. This being clearly stated within the CVC, and restated several times by the Supreme Court of California. C.V.C. §16028(a) is only applicable to "every person who drives upon a highway a motor vehicle required to be registered". [16028 requires proof of financial responsibility to be shown to an officer when demanded]
Vehicles of a type required to be registered:
C.V.C. 260. (a) A "commercial vehicle" is a vehicle of a type required to be registered under this code used or maintained for the transportation of persons for hire, compensation, or profit or designed, used, or maintained primarily for the transportation of property.
(b) Passenger vehicles which are not used for the transportation of persons for hire, compensation, or profit and housecars are not commercial vehicles. This subdivision shall not apply to Chapter 4
(commencing with Section 6700) of Division 3.
(c) Any vanpool vehicle is not a commercial vehicle.
(d) The definition of a commercial vehicle in this section does not apply to Chapter 7 (commencing with Section 15200) of Division 6.
CVC 260 identifies a type of vehicle required to be registered. A survey of the California Codes reveals that the legislative intent to regulate is consistently focused on commercial and foreign vehicles. This code is consistent with several court rulings defining who is and who is not subject to legislative control upon the highways of the state. The following court cases clarify as those subject to registration and/or regulation, and those who are not.
"It is not the type of vehicle, but the peculiar nature of the business conducted upon and over the public highways, that justifies the classification of the statute for licensing purpose." In re Schmolke, 199 Cal 44
"It is obvious that those who operate motor vehicles for the transportation of persons or property for hire enjoy a different and more extensive use other public highways. They are thereby enabled to engage in business on the public highways and to provide for themselves a livelihood, particularly because of the existence of the public highways and the facilities thereby afforded. Such extraordinary use constitutes a natural distinction and a full justification for their separated classification and for relieving from the burden of the license tax those who merely employ the public highways for the transportation of their own property or employees." Bacon Service Corporation v. Huss 199 Cal 21
"Users of the highway for transportation of persons and property for hire may be subjected to special regulations not applicable to those using the highway for public purposes." Richmond Baking co. v. Department of Treasury 18 N.E. 2d 788
These are some of the things I gave written notice to the officer when he demanded to see my driver's license. So to that effect, I did give notice. These items are in operation, some in the code itself, some California Supreme Court decisions. As I closly examine the code, it seems to reflect that the only time an officer can make arrest is when there is a tort damage. See: CVC 40300-40311, and 40600-40610. These sections authorize an officer to make an arrest [40300, et seq.] for a violation of the code when a traffic accident has occured, or the officer suspects you are under the influence of a controlled substance. It is written in mandatory terms, so the officer has no discretion. 40600, et seq. gives the officer discretion to issue a written notice to appear instead of taking you to a magistrate only after a traffic accident investigation and the officer concludes that the code violation was instrumental in causing the accident. I cannot find authority neither in the Penal code nor the Vehicle code for an officer to arrest after having 'probable cause' to make a stop without a traffic accident occuring, or the suspect's behavior is such as to give rise to supect being under the influence.
There was no evidence to show that I was involved in any form of commerical activity when I was arrested.
'Friend' as you know, I am just a New Kid on the Block, so if my research is failing me, please point out it's deficits.
Thanks,
New Kid