First, some background …
I have a friend named FXH. He is a cop. He is hopelessly confused about things like gun control and the effectiveness of incarceration.
Unfortunately, he is one of the smartest people I know, so smart in fact that, after a couple of hours of withering cross-examination by him I occasionally wonder whether it’s he who is confused or I. More importantly, he is incredibly knowledgeable about criminal law.
He doesn’t make things up.
He doesn’t bullshit.
If he says it, he can back it up.
So several months ago when he told me that you can be arrested in California if you are pulled over for a bicycle infraction and fail to produce ID, I expressed polite incredulity.
“Oh, shut the fuck up,” I said, or something like that. To which FXH simply repeated a provision of the California Vehicle Code, Section 40302(a).
In the interim, although I had forgotten the code section, I did start riding with my California driver license, something I’d never done in the past because hey, there’s no bicycle license law in CA and The Man can kiss my ass. Having FXH advise me that failure to produce ID when stopped could result in an arrest made an impact on me. The Man can kiss my ass, but once I’m under arrest he and his minions can beat it, too.
So time went by and I decided to write about it, and I did so here. My legal reasoning was that Section 12951(b) of the vehicle code requires a driver license, and that Section 21200 makes other provisions of the vehicle code applicable to cyclists, so you are therefore required to have some form of identification if you got stopped.
This unleashed a storm of protest, some pointing out that 12951(b) has nothing to do with bicycles, and some pointing out that there are all kinds of limits on what the police can and cannot require you to do when stopped. In sum, a great many people argued convincingly that I was wrong, although I cited to cases that strongly supported my position.
However, it wasn’t until FXH provided me with a chronology and the relevant statute that I returned to my initial position, unequivocally, that carrying ID while cycling isn’t simply a good idea, it’s a legal requirement.
Here’s the argument.
- The police can arrest you for even minor infractions that carry only fines as penalties. The landmark case for this is Atwater v. City of Lago Vista, a city in Texas that has a famous road race and also, apparently, a 14-carat asshole of a cop. However, the Supreme Court ruled, and has never reconsidered or overturned, that the police can arrest you if you break any law, no matter how minor, as long as they have probable cause to make the arrest. So for all the people out there in California-land who think that there is no authority to be cuffed and stuffed for riding your bike without a light, I give you Atwater.
- It is the policy of the state of California not to arrest people for minor offenses, including bicycle infractions. The state has codified this in the vehicle code, section 40302(a). The purpose of this statute is to allow defendants in minor cases to avoid custodial arrest by showing a driver’s license or other satisfactory evidence of identity and an unobstructed view of the full face for examination. The state recognized that it would be a waste of resources to allow law enforcement to take everyone to jail on a whim, even though Atwater specifically allows them to do so. So 40302(a) gave everyone an out, even bicyclists. The unfortunate consequence is that if you are stopped for a bicycling infraction and cannot or will not provide satisfactory ID, you may be arrested. Field testing suggests that if you are a dick to the cop, you will be.
- Finally … one day a fellow was riding his bike the wrong way down a street. A cop stopped him for breaking the law prohibiting such conduct, demanded to see his ID, and arrested him when he failed to produce it. The case went all the way to the California Supreme Court, and the court concluded that a bicyclist stopped for an infraction must produce documentary ID if the cop asks for it or face custodial arrest. The case is People v. McKay. Please read it before getting back to me about how you don’t ever have to carry ID when cycling. Among the many things that McKay noted, is the existence of CVC 12951(b), the provision I initially cited as a statute applicable to bicyclists. Although the court didn’t use my reasoning, i.e. CVC 21200 makes CVC 12951(b) applicable to bikes, it did say that the licensing requirement of CVC 12951(b) is relevant to the inquiry of whether or not a bicyclist must show ID when stopped. So, as they say in law school, nyah-nyah-nyah-nyah-nyah-nyah.
Of course the main complaint by bicyclists, including me, is that this ID requirement amounts to a bicycle riding license. Even though there’s no law requiring a “license,” if you are stopped while cycling you can be arrested if you fail to provide satisfactory ID. What better definition of a license than, “That without which you can be arrested for failing to produce.”
By extension, this logic means that any person, bicyclist or not, must carry an ID at all times or face the risk of arrest when stopped for breaking the law, no matter how minor. If you think this means we live in a police state, and that the 4th Amendment of the U.S. Constitution is now effectively a fiction, you’d be in complete agreement with the dissent in McKay, and with me.
Read the dissent, please, and weep.
And after drying your eyes and applying plenty of Wanky’s Butt Balm, go ride yer bike. And carry a fuggin’ ID.
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