 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Larocca4/26/1983
California Appellate Department, Superior Court
Crim. A. No. 1061
192 Cal.Rptr. 624, 1983.CA.40850
April 26, 1983
THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
CARL VINCENT LAROCCA, DEFENDANT AND RESPONDENT
Municipal Court for the San Bernardino County Judicial District, Victorville Division, No. TVI-16603, Carol S. Koppel, Judge.
Dennis Kottmeier, District Attorney, and Matthew J. Kerrigan, for Plaintiff and Appellant.
Riley B. Thompson for Defendant and Respondent.
Before Ziebarth, P. J., Turner, J., and Rouse, J.
The Court
Penal Code section 853.6, provides a procedure whereby a person arrested for a misdemeanor may be released on a written notice to appear. In pertinent part section 853.6, subdivision (e)(3) provides that the duplicate notice to appear can be filed by the police officer with the prosecuting attorney who must file a complaint within 25 days after the arrest. Failure to comply with this 25-day rule bars further prosecution of the charges contained in the notice to appear.
We must decide in this appeal whether the procedure outlined in section 853.6, specifically the 25-day-limitation period, is applicable to this case. We have concluded that it is not.
Facts
The facts are not in dispute. Mr. Larocca, the defendant, was arrested on December 4, 1981, for driving under the influence of alcohol in violation of
Vehicle Code section 23102, subdivision (a); hit and run (Veh. Code, § 20002, subd. (a)); and driving while license was suspended (Veh. Code, § 14601, subd. (a)). Defendant at the time of his arrest was not cite/released. Defendant did not sign a notice to appear; rather, he was booked into the county jail where he spent four to five hours. After which time he secured his release by posting bail.
The arresting officer filed "a complaint which had been okayed by the District Attorney's office on" January 18, 1982; a period of 45 days after the arrest.
Defendant made a motion to dismiss which the lower court granted. The lower court reasoned that defendant was given a notice to appear, that said notice came within the provisions of section 853.6, and that the 25-day rule was not met. The People have appealed from the lower court's order which dismissed this action.
Discussion
The People contend that section 853.6 envisions a procedure wherein the arrested person is required to sign the notice to appear and is then released from custody. The People are quick to point out that defendant was not allowed to sign the notice to appear: rather, defendant was booked into jail, and he later secured his release by posting bail.
We believe that two subdivisions of section 853.6 indicate that the notice to appear promulgations of that section do not apply to cases such as this where the arrestee is released on bail and not by notice to appear. Those subdivisions are (h) and (j). Subdivision (h) states: "A peace officer may use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847." Nothing in that subdivision requires
Page 1 2 3 4 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|