Opinion No. ( 1989 )

The Honorable Ralph (Buddy) Blair, Jr. State Representative 5220 Highland Avenue Fort Smith, AR 72903

Dear Representative Blair:

This is in response to your request for an opinion on the following question:

Is it lawful for a police officer to inquire whether a driver has liability insurance in a collision accident and issue a citation if proof of insurance is not tendered at the scene?

The United States Supreme Court's ruling in the case of Berkemer v. McCarty, 468 U.S. 420 (1948) must be initially considered in response to this question. The Court concluded therein that the procedural safeguards enunciated under the "Miranda doctrine" must be extended to a suspect accused of a misdemeanor traffic offense when that person is subjected to custodial interrogation.468 U.S. at 434. If the suspect is not informed of his constitutional rights at that juncture, his subsequent admissions cannot be used against him. Id.

The Court went on to state, however, that the roadside questioning of a motorist detained pursuant to a routine traffic stop should not be considered "custodial interrogation" for purposes of Miranda. 468 U.S. at 440. But the Court did continue to point out that a motorist will be entitled to the Miranda protections if, having been detained pursuant to an ordinary traffic stop, he is then subjected to treatment that renders him "in custody" for practical purposes. Id.; see also Snyder v. State, 15 Ark. App. 277692 S.W.2d 273 (1985).

It may reasonably be concluded from the foregoing that the officer may ask the driver whether he has insurance, that a citation may properly issue, and that any self-incriminating response may be used against the driver, so long as there has been no "custodial interrogation" in the absence of the required Miranda warnings.

We should point out, however, that the person is not obligated to respond, and that the failure to maintain proof of insurance in the vehicle will in all likelihood not, in itself, form a sufficient basis for a successful prosecution of the case. (This office has previously stated that failure to maintain proof of liability insurance within the motor vehicle does not constitute a violation of the act which renders unlawful the operation of a motor vehicle by one who is not covered by a certificate of self-insurance. See Op. No. 87-311, enclosed herein.) Thus, if the driver refuses to answer, or answers in the affirmative, and the officer nevertheless issues a citation, practical problems may be encountered in the prosecution of the case.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

ENCLOSURE: Opinion No. 87-311

August 27, 1987

Mr. Don A. Zimmerman Executive Director Arkansas Municipal League P.O. Box 38 North Little Rock, AR 72115

Dear Mr. Zimmerman:

This is in response to your inquiry regarding Act 442 of 1987 which is entitled "An Act to Require Mandatory Motor Vehicle Liability Insurance; and For Other Purposes." You have asked for clarification of the municipalities' responsibility for enforcement of the Act.

Section 1 of Act 442 provides in pertinent part as follows:

It shall be unlawful for any person to operate a motor vehicle within this State unless such person is covered by a certificate of self-insurance. . .

Section 2 states:

Any person who operates a motor vehicle within this State in violation of this Act shall be fined no less than two hundred and fifty ($250.00) nor more than one thousand dollars ($1,000.00), and such minimum fine shall be mandatory.

Section 3 requires satisfactory proof that the requirements of the Act have been met as a condition to issuance or renewal of a motor vehicle license plate by the Department of Finance and Administration. Section 5 states that the provisions of the Act are "supplemental to, and cumulative to, Act 347 of 1953, the Motor Vehicle Safety Responsibility Act."

While the General Assembly has not clearly designated violation of this Act as an "offense" within the Criminal Code, the language of Section 1 and Section 2 arguably supports this conclusion. The term "offense" is defined under Ark. Stat. Ann. 41-111 (Repl. 1977) as "conduct for which a sentence to a term of imprisonment or fine or both is authorized by statute." An offense is a "violation" if the statute defining the offense provides that no sentence other than a fine is authorized. See Ark. Stat. Ann. 41-114(2) (Repl. 1977).

Ark. Stat. Ann. 75-1053 (Repl. 1979) should also be noted in this regard. This provision states as follows:

Any moving traffic law violation not enumerated in Sections 2, 3 and 4 of this Act (75-1054 — 75-1056), shall henceforth be known as a violation as defined in the Arkansas Criminal Code, Sections 41-111 and 41-114 and punishable as provided under Section 41-1103(3)(a).

It seems reasonable to conclude that violation of Act 442 of 1987 constitutes a "moving traffic law violation." Ark. Stat. Ann. 75-1039 (Cum. Supp. 1985) indicates, moreover, that conviction of a moving traffic violation consists of a "conviction arising out of operation of a motor vehicle in violation of municipal ordinances and/or laws of this State." It therefore follows, under 75-1053, that violation of Act 442 constitutes a "violation" as defined in the Arkansas Criminal Code since it is not otherwise enumerated in 75-1054 to 75-1056.

It may be concluded, based upon the foregoing, that municipalities' general authority to enforce the laws of the State, including those pertaining to the unlawful operation of motor vehicles, extends to the provisions of Act 442 of 1987. See Ark. Stat. Ann. 19-1705, (Repl. 1980); Meyers v. State, 253 Ark. 38,484 S.W.2d 334 (1972).

It should be noted in conclusion, however, that failure to maintain proof of liability insurance within the motor vehicle does not constitute a violation of Act 442. The municipalities' authority and responsibility would therefore not appear to extend to imposing such a requirement.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.