Are Police Officers in Cal. "Eniteled to Administer Oaths?"

[MrCalfiornia]

I was wondering if a police officer has he power/entitlement to administer oaths?

Can a cop validate an affidavit in the same way a notary can?

I am asking from a California view point.

Thank you

 

[CdwJava]

CA Peace Officers are not notaries. That being said, I do know a couple that are, but when you figure I know several hundred cops in the state and I can only think of a couple that are notaries, that ought to tell you just how common that is.

- Carl

 

[MrCalfiornia]

Do any of the police you supervise issue "notice to appears"? If so how do they survive the fact that the officer did not sign it in front of a notary?

 

[CdwJava]

Do any of the police you supervise issue "notice to appears"? If so how do they survive the fact that the officer did not sign it in front of a notary?

Because a citation is not required to be notarized to be valid under CA law. It is a signed promise to appear in lieu of appearing before a magistrate.

If this is what you seek to base a defense upon, knock yourself out ... it won't fly. Though you could try a demurrer if you wish, that might work depending on the circumstances and the offense. (you can check PC 853.5 et seq for further, if you wish.)

- Carl

 

[MrCalfiornia]

If this is what you seek to base a defense upon, knock yourself out ... it won't fly. Though you could try a demurrer if you wish, that might work depending on the circumstances and the offense. (you can check PC 853.5 et seq for further, if you wish.)

I have hardly posted any opinion of my own yet. Here is what the law says.

PENAL CODE
SECTION 853.9

853.9. (a) Whenever written notice to appear has been prepared,
delivered, and filed by an officer or the prosecuting attorney with
the court pursuant to the provisions of Section 853.6 of this code,
an exact and legible duplicate copy of the notice when filed with the
magistrate, in lieu of a verified complaint, shall constitute a
complaint to which the defendant may plead "guilty" or "nolo
contendere."
If, however, the defendant violates his or her promise to appear
in court, or does not deposit lawful bail, or pleads other than
"guilty" or "nolo contendere" to the offense charged, a complaint
shall be filed which shall conform to the provisions of this code and
which shall be deemed to be an original complaint; and thereafter
proceedings shall be had as provided by law, except that a defendant
may, by an agreement in writing, subscribed by him or her and filed
with the court, waive the filing of a verified complaint and elect
that the prosecution may proceed upon a written notice to appear.
(b) Notwithstanding the provisions of subdivision (a) of this
section, whenever the written notice to appear has been prepared on a
form approved by the Judicial Council, an exact and legible
duplicate copy of the notice when filed with the magistrate shall
constitute a complaint to which the defendant may enter a plea and,
if the notice to appear is verified, upon which a warrant may be
issued. If the notice to appear is not verified, the defendant may,
at the time of arraignment, request that a verified complaint be
filed.

So I say from the above that a Notice to Appear becomes a complaint. And none of this seems to have anything to do with my "promise to appear". Now the above does not state that the ticket turned into complaint will automatically be valid.

And the rules for the sufficiency of the complaint are found here:

PENAL CODE
SECTION 959

959. The accusatory pleading is sufficient if it can be understood
therefrom:
1. That it is filed in a court having authority to receive it,
though the name of the court be not stated.
2. If an indictment, that it was found by a grand jury of the
county in which the court was held, or if an information, that it was
subscribed and presented to the court by the district attorney of
the county in which the court was held.
3. If a complaint, that it is made and subscribed by some natural
person and sworn to before some officer entitled to administer oaths.
4. That the defendant is named, or if his name is unknown, that he
is described by a fictitious name, with a statement that his true
name is to the grand jury, district attorney, or complainant, as the
case may be, unknown.
5. That the offense charged therein is triable in the court in
which it is filed, except in case of a complaint filed with a
magistrate for the purposes of a preliminary examination.
6. That the offense was committed at some time prior to the filing
of the accusatory pleading.

So is a cop for some reason exempt from the above?

 

[CdwJava]

The written promise to appear (or "notice to appear", if you prefer) IS sufficient to constitute a complaint per PC 853.9. And PC 853.6 provides direction as to where the notice is to go after issuance.

Section PC 959 covers "accusatory pleadings" which are not necessary under the notice to appear which is covered by 853.9.

Now, if you wish to argue that you have found a loophole that the rest of the state defense bar has failed to find for decades, go right ahead. I have heard this angle pursued here and on other forums, and it is a non-starter. But, you are welcome to give it a go. If you have no other defense, you might as well go for it.

- Carl