Op. Atty. Gen. 494a-1 ( 1993 )

CRIMINAI_. LAW: UNIFORM TRAFFIC TICKE'I``: Issuance for violation not committed or
attempted m presence of oft``icer. Superceding Op. Atty. Gen. 494a-1, March 14, 1967.
an. Stat. §§ 169.91, 169.92, 169.99, 629.34.
494a- l
April 15, 1993
laurel M. Hersey
Minnetonka City Attorney
14600 Minnetonka Boulevard
Minnetonka, MN 55345-1597
Dear Ms. Hersey:
In your letter to Attorney General Hubert H. I-Iumphrey II.I, you present substantially
the following:
FACI``S
An accident occurred as a result of an individual’s failure to maintain
vehicle control contrary to Minn. Stat. § 169.14 which is a rnisderneanor.
Although the officer did not personally observe the violation, he subsequently
acquired information sufficient to establish probable cause and shortly
thereafter issued a citation to the driver of the vehicle.
You ask the following:
QUESI'ION
Is is lawful for an officer to issue a traffic citation together with a notice
to appear for a misdemeanor traffic violation not occurring in the officers’
presence?
OPINION
As qualified below, we answer your question in the affirmative
Minn. Stat. § 629.34, subd. 1(c)(1) (1992) provides:
A peace officer, constable, or part-time peace officer who is authorized under
paragraphs (a) or (b) to make an ages; without a warrant may do so under the
following circumstances
(1) when a public offense has been committed or attempted in the
officer’s or constable’s presence.
(Emphasis added.)
Laurel M. llersey
Page 2
Once a lawful warrantless misdemeanor arrest has been made, a citation may be
issued in lieu of custodial arrest. Minn. R. Crim. P. 6.01, subd. 1(1)(3) provides:
Law enforcement officers acting without a warrant, who have decided to
proceed with prosecution, shall issue citations to persons subject to lawful
arrest for misdemeanors unless it reasonably appears to the officer that arrest
or detention is necessary to prevent bodily harm to the accused or another or
further criminal conduct, or that there is a substantial likelihood that the
accused will fail to respond to a citation. The citation may be issued in lieu of
an arrest, or if an arrest has been made, in lieu of continued detention.
(Emphasis added.)
The rule is silent as to whether citations may also be issued to individuals not subject
to a warrantless arrest because the misdemeanor occurred outside of the officers’ presence.
Specifically, the rule does not address whether it is proper for an officer to issue a citation
to a person suspected of committing a misdemeanor who has not been arrested. Rather,
Rule 6 governs pre-trial release, incorporating the opinion that a person should not be
taken into custody for an offense for which the person could not be incarcerated even if
found guilty. Comment to Minn. R. Crim. P. 6. Thus, the rule does not require that an
arrest precede or be a condition precedent to the issuance of a citation. The rule only
addresses the procedures to be followed when a warrantless arrest has been made for a
misdemeanor violation.
Similarly, Minn. Stat. § 169.91 (1992) only addresses the procedures to be followed
when a person is M for violation of Minnesota’s Motor Vehicle Code. The statute
does not preclude the issuance of a citation for a misdemeanor traffic offense, when the
person is not subject to arrest because the offense occurred outside the officer"s presence.
On the other hand, Minn. Stat. § 169.99, subd. l(a) (1992) provides for the issuance of
a citation for Qy violation of Minn. Stat. ch. 169 or an ordinance in conformity thereto. lt
does not require that the suspect be arrested as a pre-condition to issuing a citation.
Laurel M. I-lersey
Page 3
lndeed, many violations of chapter 100 are petty misdemeanor offenses Ordinarily, the
commission of a petty misdemeanor does not justify a custodial arrest. See, e.g., State v.
Martin, 253 N.W.Zd 404 (Minn. 1977); Minn. R. Crim. P. 6.01. subd. l(l)(a). Minn. Stat.
§ 169.99 further provides that the citation shall "have the effect of a summons and
ll
complaint By having the effect of a summons and complaint. the uniform traffic ticket
may be used as a substitute for a formal complaint in traffic matters. §§ Comment to
Minn. R. Crim P. 6. Minn. Stat. § 169.99 does not, howevert condition the use or effect of
the citation upon the occurrence of an arrest.
We have opined on this issue before and concluded that "a defendant cannot be
legally brought into court and charged under the uniform traffic ticket for an offense not
committed in the presence of the arresting officer." Op. Atty. Gen. 494a-l, March 14, 1967.
In that opinion we relied in part on Minn. Stat. § 169.91, subd. 3 (1965) which we felt
provided for the issuance of tickets "in lieu of an arrest." We then interpreted Minn. Stat.
§ 169.91, together with the misdemeanor presence requirement contained in Minn. Stat.
§ 629.34 (1965), as limiting the use of citations to cases where immediate arrest is
employed or available Upon revisiting that opinion. we no longer believe that it
adequately distinguishes the procedures to be followed upon arrest from those procedures
available for charging a suspect with a misdemeanor offense. Furthermore, subsequent
statutory and decisional law have further defined the function of the uniform traffic ticket
in ways which further negate any implied nexus between issuance of citations and the need
for actual custodial arrest.
In 1988, Minn. Stat. §§ 169.91 and 169.9?_ were amended so that a person is not
required to sign a promise to appear to secure release without being taken into custody and
immediately taken before a judge. Minn. Stat. § 169.99 was also amended in 1988 to
remove the requirement that a driver’s signature of the ticket act as "a receipt in lieu of
Laurel ;\/i. flersey
Page 4
bail." Thus. a signature is no longer required to secure release and a driver receiving a
traffic citation need not be placed under custodial arrest.
Furthermore. since our 1967 opinion. The Minnesota Supreme Court has indicated
that the "in-presence" limitation of Minn. Stat. § 629.34 does not apply to police
investigatory conduct short of an arrest. State v Studdard, 352 N.W.Zd 413, 415 (Minn.
1984). Thus, it does not appear that a consistent reading of Minn. Stat. §§ 169.91and
629.34 requires the issuance of tickets only in cases where an arrest is authorized
Our 1967 opinion was also based upon Minn. Stat. § 629.42 (1965).l We concluded
that for a misdemeanor traffic offense committed outside an officer’s presence "the best
procedure in order to effect proper jurisdiction is by complaint and warrant in accordance
with Minn. Stat. (1965) § 629.42." However. Minn. Stat. § 629.42 (1965) has been
superseded by the Rules of Criminal Procedure. S_eg, g._g;, State v Florence, 239 N.W.Zd
892 (Minn. 1976); Minn. Stat. § 480.059. subd. 7 (1992). ln matters of procedure rather
than substance, the Rules of Criminal Procedure take precedence over statutes to the
extent that there is any inconsistency State v. Keith, 325 N.W..'Zd 641 (Minn. 1982).
Rule 6.01 expressly recognizes the use ot`` uniform traffic tickets. Furthermore,
Rules 4.02 and 10.01 now expressly provide for a tab charge as a method to initiate a
criminal proceeding Rule 5.01 also recognizes service of a citation as a separate
1- Minn. stat § 629.42 (1965) provided
Upon complaint made to any such magistrate that a criminal offense has been
committed, he shall examine, on oatb, the complainant and any witnesses who
shall appear before him, reduce the complaint to writing, and cause it to be
subscribed by the complainant; and, if it shall appear that such offense has
been committed, he shall issue a warrant, reciting the substance of the
complaint, and requiring the officer to whom it is directed to forthwith bring
the accused before him, or some other court or magistrate of the county, to be
dealt with according to law, and in such warrant require him to summon the
witnesses therein named to appear and give evidence on the examination
Laurel M. Hersey
Page 5
mechanism, apart from arrest and service of a formal summons. to require appearance of a
misdemeanor defendant. "The ticket or tab charge is the functional equivalent of a
complaint.“ Friedman v. Commissioner of Public Safety, 473 N.W.Zd 828, 833 n.5 (Minn.
1991). In such cases, a formal complaint would be filed if the judge orders one or if the
person charged requests one. Minn. R. Crim. P. 4.02, subd. 5(3). Because the rules
expressly recognize charging methods other than a complaint sworn to before a magistrate
our conclusion today is that our prior opinion is no longer controlling.
We, therefore, conclude that an officer may, upon probable cause, issue a uniform
traffic ticket for a misdemeanor traffic violation not occurring in the officers’ presence
where the officer does not subject the person charged to an arrest. Op. Atty. Gen. 494a-1,
March 14, 1967, is superseded to the extent inconsistent with this conclusion.
Very truly yours,
HUBER'I`` H. HUMPHREY III
Attorney General
JEFFREY S. Bll_CIK
Special Assistant
Attorney General
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