The DMV is Required to Publish a Driver’s Handbook that Includes Citizen’s Civil Rights During a California Police Stop

Amid the profusion of increasing claims of civil rights violations during California traffic stops, on September 23, 2018, Governor Jerry Brown signed into law Assembly Bill 2918, Chapter 723, that requires the Department of Motor Vehicles to include in their Driver’s Handbook a car operator’s and their passengers’ rights when a police officer pulls over a vehicle.

AB2918 already required the California Department of Motor Vehicles to provide a Driver’s Handbook with information regarding rail safety, abandoning or dumping an animal on a highway, and respecting the right-of-way of others. An officer will be required to give the new Driver’s Handbook to a driver he stops. Because of AB2918, the Driver’s Handbook will state the extent and limitations of a police officer’s authority during a traffic stop and the legal rights of drivers and passengers, including, but not limited to, the right to file complaints against a police officer and how to do it.

The information to be included in the handbook shall be developed by the civil rights section of the Department of Justice in collaboration with the Department of Motor Vehicles, the Department of the California Highway Patrol, the Commission on Peace Officer Standards and Training, and civil rights organizations.

Although the public does not yet know what the revised Driver’s Handbook will specifically address, these are some of the rights California drivers will be advised of when stopped by police.

We have rights under the 4^th Amendment to the United States Constitutions to be free from unreasonable searches and seizure.   Police Officers are obligated to follow the law.  

For example, police are limited in conducting “stop-and-frisk” of California drivers and passengers. A lawful police stop-and-frisk refers to a brief, non-intrusive stop of a driver suspected of a crime including traffic violations such as for speeding. But before stopping a driver for any reason, the police must have a reasonable suspicion that a crime is being or has been committed by a suspect. For instance, a police officer may not stop a driver simply because they are African American also known colloquially as “driving while black.”  A recent study shows that the Los Angeles Police Department has been stopping black drivers in disproportionate numbers.

If an officer pulls you over for a minor traffic violation and gives you a ticket but then tells you to wait until a K-9 drug dog arrives to sniff your car, such an extensive detention is illegal.   However, it is best not to say anything except to the police and, if you do, speak respectfully. Ask “am I free to go” and, if you don’t receive permission, ask, “am I being detained.”  If a Police Officer is not detaining or arresting a person, that person is free to leave.

In the Supreme Court case Terry v. Ohio, it was held that a police officer’s stop-and-frisk must comply with the 4^th Amendment, meaning that a pat down search r is warranted if an Officer reasonablyt  believes their safety or that of others is endangered. However, if a police stop unreasonably exceeds the time required to handle the reason the stop was made such as for issuing a traffic violation ticket only because an officer is hoping that they will uncover another crime, that is a 4^th Amendment violation.

In another Supreme Court case, Rodriguez v. United States, a police officer illegally prolonged a stop beyond what was reasonable so a K-9 could be brought to the scene to perform a sniff search on a driver without a warrant or reasonable cause, a distinct violation of the driver’s 4th Amendment rights. Because of the K-9 sniff search, the driver was found to be in possession of illegal drugs and subsequently charged with a crime. But during trial, the district attorney could not enter the drug possession charges due to the exclusionary rule.  In an illegal search and seizure, the exclusionary rule doesn’t allow prosecutors to use evidence gathered in violation of the Constitution. 

In another Supreme Court ruling, Brown v. Illinois held that evidence obtained by the exploitation of an illegal arrest is not admissible and used a three-factor test regarding the admissibility of evidence as follows:

1. The “temporal proximity” between the initially unlawful stop and the search with the court favoring the admissibility of evidence when it was found within a short period of the initial stop.
2. The presence of “intervening circumstances” such as a valid warrant issued before the stop and is unconnected with the stop.
3. The “purpose and flagrancy” of the police officer’s unlawful conduct, including when there was no indication that the stop was part of any systemic or recurrent police misconduct.

As for the police’s legal right to search you or your property, an officer cannot do so without your permission, probable cause, or a valid search warrant. Even if the police officer has what he believes is a valid reason to search your vehicle, you can lawfully refuse.  Without speaking in an angry or threatening tone of voice, to refuse a search, politely say, “I am not resisting. But I do not consent to this search.” Because police are not permitted to detain you beyond what is reasonable, if the officer continues to detain you, you should ask if you are being detained or if you are free to go. If the officer doesn’t answer, you should calmly repeat your question until the officer answers. But if he doesn’t answer, do not attempt to leave or you may be arrested for resisting arrest.

Further, in California you are permitted to record a traffic stop. California law with some exceptions makes it legal to record police but only when they are on duty. While recording them, though, you can’t interfere with their official duties. If you are recording the stop, you shouldn’t interfere with an investigation they’re conducting. If you are in the presence of or near a police officer, you should be respectful, and for your own safety, never abruptly pull out your phone so it doesn’t appear that you may be pulling out a weapon. In some cases, police have confiscated cameras from witnesses and observers and, in some cases, destroyed their video equipment. Unless you’re interfering in police business or an investigation, they do not have any right to confiscate your camera. If they do, they will have to justify the confiscation by charging you with a crime.

Citing the United States Constitution’s 5^th Amendment, should a traffic stop escalate to more serious criminal charges, you are not required to make any statement to police other than that you would like to have an attorney present before you answer any questions. The 5^th Amendment states:

“No person … shall be compelled in any criminal case to be a witness against himself …” In other words, you do not have to answer police questions and are entitled to have a lawyer present during any questioning.

For three decades, V. James DeSimone Law has represented thousands of individuals whose civil rights have been violated. Through our successful representation, we’ve won multi-million-dollar settlements for many of our clients. With a solid reputation for vigorous representation of those whose civil rights have been denied, the experienced, skilled Los Angeles law team at V. James Desimone has the skills, experience, and resources to fight against civil rights’ violations.

If your case qualifies, Attorney DeSimone will provide you with a free, no obligation, respectful consultation to determine whether you have a violation of civil rights case in Los Angeles, Orange County, San Bernardino County, and throughout Southern California and he or one of his team of lawyers will meet with you personally in his Marina del Rey office.

To see if your case is right for a personal meeting with attorney DeSimone, call 310.693.5561 today. Or if you prefer, send a confidential message on his contact form. Either way, you’ll receive a prompt, courteous response.

V. James DeSimone

Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.