Why you need a bicycle license in CA, Part II

March 5, 2017 § 43 Comments

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.

  1. 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.
  2. 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.
  3. 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.

END

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§ 43 Responses to Why you need a bicycle license in CA, Part II

  • Alan Stoddard says:

    One bright day on the Esplanade my small group was detained for failing to yield to a traffic control device, also known as “…you ran that stop sign, quit arguing with me.”
    One of the riders not carrying any id was informed that they could be arrested and detained until suitable identification could be produced that informed the police who they were, which I viewed as a handy piece of information to know.
    Regardless of how you feel about it, it makes good sense to carry it, along with a Road Id, when you ride. It could save your life one day.

  • Bruce says:

    McKay was riding in the street, according to the Court’s ruling. I point that out only because riding on the sidewalk may not be covered by the CVC.

    • fsethd says:

      Atwater allows the arrest for any infraction of any law, no matter how minor. 40302(a) allows arrest if you cannot provide ID. Bottom line? You are subject to arrest all the time.

      Fun times.

  • the old diesel says:

    With all the facial recognition technology now available, I wonder when ID will become pointless and asking for it considered harassment?

    • fsethd says:

      Never. The police state will never relinquish one tool for control simply because better ones also exist.

    • channel_zero says:

      Every indication is it depends on the local police department’s budget and level of paranoia and the level of State support. Here’s an example where the State of California WAS paving the way for CA DMV to share photos with local law enforcement to identify local faces.

      https://www.eff.org/deeplinks/2015/03/dmv-photo-sharing-facial-recognition-nixed-california-strategic-plan

      Google the words: los angeles police department “facial recognition” collection Another one to google: los angeles police department facial recognition

      It’s the wild west for identity collection right now. Right to privacy laws, related to your American right to be left alone, are being very narrowly interpreted to permit wholesale identity collection.

  • Todd says:

    Do you think a photo of your ID on your phone would be sufficient?

  • leo_d says:

    But does the tandem stoker need to produce ID?

    Always see cop reality show where passengers in pulled over car, or even peeps just standing around get asked for ID, searched to find warrants weed etc. and then arrested. what’s up w that?

  • TomH says:

    On a few days per year, you could say you’re biking to the voting booth, since “blue” state gov’ts believe you shouldn’t have an ID to vote — it’s sooo hard to get an ID and besides, it’s “racist” to ask for IDs.
    :sarc:

  • channel_zero says:

    A note: there is some conflation between a CA driver’s license as “valid ID” and “valid ID.”

    You can get a California State-issued identity card that isn’t a driver’s license that qualifies as “valid identification” because it’s a State-issued identity document.

    I only know this because a child of mine needed a “valid ID” for something she wanted to do and wasn’t of driving age. Make an appointment at the DMV and bring with you an original, or OFFICIAL copy of your birth certificate. A photocopy will not do.

  • Gary Cziko says:

    By the same logic, couldn’t one say you need a pedestrian license in CA, too? At least if you are crossing streets and might do something evil like starting to cross a street AFTER the pedestrian countdown has begun?

  • Alan says:

    …and then there’s the butt balm thing. So hilarious, been thinking about it all day. Do you have no limits?

  • Rab says:

    This nearly guarantees I will start carrying my DL when biking, forget to transfer back into my wallet at some point which will immediately become evident the next time I drive and promptly get pulled over.
    I can imagine the conversation: “I left my DL in my bike bag/jersey”. Officer: “why do you carry your DL while biking? You don’t need to have a license/carry ID while biking.”
    Me: “seriously? Fuckingseriously??” (I’ll keep this to myself most likely)

    • fsethd says:

      Much legal advice, when followed, results in something other than what was intended.

    • Peter says:

      Option 1: Carry your wallet when you ride. Personally, I do this because of the “what-if” situations. I could get away, probably, with a credit card, some cash, and my Driver’s License, but why bother with the hassle of transferring everything back and forth? Just carry the wallet and, this way, if I want to stop for a lemonade or a tire gets trashed or, heaven forbid, I do something illegal or get into a collision, I have some ID.

      Option 2: Consider a second ID. For example, if you have an expired driver’s license that’s still reasonably accurate (eg, same address), carry that. I’ve actually gone through airport security with an old expired license–no problem. Take your second ID, a $100 gift card, wrap it with a $20 bill and carry that.

      • Rab says:

        Was thinking a second ID may be the way to go, the basic state ID type card that I can just leave in the bike pouch I use to carry phone, some cash, and a business card with basic emergency contact info. Assuming you can have both a state issued DL and General ID card? Will have to check this out…

        Timely post since I’m in the process of relocating to OC CA, thanks!

      • BobK says:

        I keep my expired CA DL in my saddle bag. When I got pulled over with the FDR group a few weeks ago, I produced this ID. The cop took it, but when she gave it back she told me it is illegal to have 2 copies of your DL. You must destroy the old one when you get the new one. I don’t know if that is actually true, but she seemed pretty certain about it.

      • fsethd says:

        CA ID.

  • Midland says:

    As a road biker who also ride’s BMX street and skateparks I am well aware of this.

  • Chris says:

    And the worst thing is to give the wrong info. On the SGV Sat ride (you know which one I mean) the group got stopped in Glendora for a traffic control violation and a particular guy was asked for ID but didn’t give one, gave an invalid one. Group started down the road, 5 minutes later, the LEO all came back red light and siren and gave the guy a private ride! I don’t think they even wound up writing a ticket.

  • Greg says:

    The first and last time I got a traffic ticket on a bicycle in Redondo Beach, I said I couldn’t produce my ID. The cop told me he would give me 1 more chance to produce an ID, or he would arrest me and keep me in jail until I could be identified. I found my ID PDQ.

  • Matt says:

    If you’re the wrong color and don’t have ID, they might even deport you…

  • EricW says:

    Does my “old Geezer” Metro card count as ID? It’s got my picture on it (and it’s a dandy one). County agency issue with no address.

    PS – I bike w/my wallet, so I can stop an buy stuff… or take Metro home!

    • fsethd says:

      CA ID or CDL recommended.

      • EricW says:

        That is exactly what I am trying to avoid, the car DL. Ya know, I these ID cards from a bunch o’ local data centers, which also have a name, a pix, and an a corporate affiliation. Maybe that’s the ticket? Though one would think a county ID was good enough (and you do have to show a CDL with an address in LA county to get one.)

        Of course I’ll have to become a road cycling weight weenie to worry about the extra weight from not caring the wallet in the bike trunk/bag. Was kinda thinking the rack is too much weight anyhow.

      • fsethd says:

        CA or CDL if you’re really concerned. Fact is, white guys on expensive bikes rarely if ever get taken to jail for lack of proper ID. Black/brown types going to work in the morning or coming home in the evening … whole different story.

  • TomH says:

    After re-reading all the above comments, I just started riding with a color photocopy of current CA drivers license.
    I also carry a small card with emergency contacts info, critical medical info (NKA, NKDA), and “wears contacts lenses” notice.
    I suppose a slight risk because it’s not “official” DL but wallet is too bulky and full of credit cards & cash & spare car keys — major headache if lost.
    I dont want to mess with moving DL back & forth, and end up with no DL when I’m driving – -that’s a guaranteed big $$ ticket or worse.
    All my critical ride essentials are a transparent pouch from Daiso Japan (thx Seth for the tip!) & it’s always ready.

    • Mario Obejas says:

      I’m with Tom H on this one for all the same reasons. Right down to the Daiso bag. 🙂

      This hits the sweet spot of “be truthful and verifiable” to the cop, mitigates the “oh shit, left the DL in the Daiso bag” risk, and only incurs a very minor risk of the Cop being a Letter of the Law person. Most cops are persuaded when you are quite clearly making an effort to cooperate.

  • Andrew Rice says:

    Great analysis. I’ll simply add that the law doesn’t require you to show a driver’s license. It requires you to show an ID. So, it’s not requiring a “bicycle license.” Which is good because there are lots of people (kids particularly) who don’t have drivers licenses. Technically, you could be showing a passport, a student ID, or some other non-vehicle-related ID.

    I’ve been pulled over without an ID and the cop, though a total wanker for citing me for a slow-rolling right on red, was perfectly willing to accept my word on who I was. I’m pretty sure he called in my details and had someone at the office check if someone of my name and address really existed in the database.

  • UstaBeFit says:

    Back in the late 90’s I missed Telo due to a cold and instead went out for a Strand cruise on my MTB. While heading south thru the walk zone of the Redondo Beach Pier while un clipped & pushing my bike with my right foot on the left side a Cop reached out & grabbed my bars pulling me to a stop. He grabbed a Tri geek too & proceded to tell us we were going to be ticketed for riding in the walk zone. Now I was already feeling pissed & guilty for missing Telo sonI decided since Inhad nothing on me I was going to lie & give him a fake name. So after whining about the stop the Cop turns to me & asks me my name…I answer ” Fred Rider”. He then asks if the model of my bike is a Barracuda as it’s written all over it. I tell him no that’s just my nickname. Cop is young & frustrated as we both provide no id & are stubborn. Long story short he never called in my bogus name or address & somewhere in my file I have a ticket written to a Fred Rider!

    • fsethd says:

      They could totally locate you using that name, BTW.

    • Andrew Rice says:

      This reminds me of the time in college in Isla Vista my friend got pulled over riding a beach cruiser, model name “Ferrari.” When she got to court the ticket had been turned into a motor vehicle violation and the judge wondered why this spoiled young college girl was driving her Ferrari through stop signs.

      It all got figured out in the end with NO fine paid, but not before a few laughs on everyone’s part.

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