Pulled over and ticketed for smoking in car with minor present.

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larry827

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I was pulled over and issued a ticket for smoking while my 17yr old daughter was in the car. From what I have read from various sites including DMV, this is supposed to be a secondary offense and I would of had to commit some other infraction to be lulled over. Am I completely wrong on this? 475$ for this seems excessive. Any help would be appreciated.
 
Oh my badness, California, what a very restrictive state.

Anyway, here is the law, verbatim.

I don't see it listed as a "secondary" offense.

I don't believe that is a valid defense.

That said, you're free to try it.

The good news is, the maximum fine is ONLY $100.

But, with fees and the like, it could very well be $475!!!

Why not plead NOT GUILTY and see if your theory holds water?

California Health and Safety Code Section 118948

Health and Safety Code
California Health and Safety Code Section 118948

(a) It is unlawful for a person to smoke a pipe, cigar, or
cigarette in a motor vehicle, whether in motion or at rest, in which
there is a minor.
(b) For the purposes of this section, "to smoke" means to have in
one's immediate possession a lighted pipe, cigar, or cigarette
containing tobacco or any other plant.
(c) A violation of this section is an infraction punishable by a
fine not exceeding one hundred dollars ($100) for each violation.

http://law.onecle.com/california/health/118948.html
Click to expand...



Here is an article by the Chief of Police de Werk of Ceres, CA PD, and his take on this particular law.

I think your cite about secondary offense could be URBAN LEGEND.

I'm sure some of our regular contributors, who happen to be CA law enforcement officers will weigh in soon!

March 12, 2008 No smoking in vehicles with minors

On January 1, 2008, California Health and Safety Code Section 118948 became law. This new law prohibits persons from smoking in a motor vehicle with minors present. The law applies to all occupants of motor vehicles - including cars and trucks, whether the vehicle is stopped, parked or moving.

This new code section uses the term "minors," which is intended to apply to persons under the age of 18 years. The legislative intent appears to be the protection of young peoples' health. This law also states that smoking tobacco (in cigarettes, cigars and pipes) or smoking any other plant is subject to its control. In other words, persons who smoke anything at all, whether it is a tobacco product, marijuana or other substances, simply may not light up in the vehicle in the presence of a person under 18. To be clear, the "smoker" need not be actively inhaling or exhaling to violate this law; he or she need only to have a lit product in their possession in order to be in violation. Minors themselves are also subject to being cited for this offense.

Studies show that the exposure to smoked products inside a vehicle is up to 10 times greater than what the federal government states is hazardous. The fact that the interior of a vehicle is enclosed tends to concentrate smoke much more so than in the open air. And the act of smoking in a vehicle not only exposes passengers to the harmful effects of the smoke, but it also sets the example for young people who grow to see this behaviour as normal and expected. They are therefore more likely to adopt the smoking habit.

The penalty for violation H&S Code Section 118948 is $100, enforceable by any California peace officer. To some, this new law may seem like just another example of the government extending its power into our personal lives. But given what is at stake for our youngsters, this law not only makes sense, but is quite necessary for their health. According to a 2006 Surgeon General's report, "The debate is over. The science is clear. Second-hand smoke is not a mere annoyance but a serious health hazard." I fully support this new law and, as is likely the case with other law enforcement chiefs in this state, I will ask the officers to rigorously enforce this law.

http://www.ci.ceres.ca.us/weeklyarticle/20080312.html
Click to expand...
 
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The STOP cannot be for the smoking ... but, the offense for which the vehicle was stopped does not have to be cited, only articulated. It is possible that the officer made the stop for some other reason but chose to cite only for this offense.

118947. This act shall be known, and may be cited, as the Marco
Firebaugh Memorial Children's Health and Safety Act of 2007.

118948. (a) It is unlawful for a person to smoke a pipe, cigar, or
cigarette in a motor vehicle, whether in motion or at rest, in which
there is a minor.
(b) For the purposes of this section, "to smoke" means to have in
one's immediate possession a lighted pipe, cigar, or cigarette
containing tobacco or any other plant.
(c) A violation of this section is an infraction punishable by a
fine not exceeding one hundred dollars ($100) for each violation.

118949. A law enforcement officer shall not stop a vehicle for the
sole purpose of determining whether the driver is in violation of
this article.
 
All that happend is I pulled up next to the officer as we both were making a left hand turn with a smoke.in my hand, lit of course. When I made the turn he came in behind me and made the stop. He asked me do I know why I was stopped and I looked at my still lit smoke and said ohh smoking? He shook his head yes and asked my daughter how old she was. After she told him he went back to the car and ran everything and came back with a ticket and that's it.
 
You need his report, in hand and on record, prior to making the illegal stop argument. Otherwise, you leave the door open for him to conveniently interject a reason for the stop, thus rendering the ticket conditions valid.
 
disagreeable said:
You need his report, in hand and on record, prior to making the illegal stop argument. Otherwise, you leave the door open for him to conveniently interject a reason for the stop, thus rendering the ticket conditions valid.
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There will be no "report," per se.

The OP can make a discovery request for the officer's notes or any documentation he generated as a result of the contact ... this is usually just the notes on the back of the citation.
 
CdwJava said:
There will be no "report," per se.

The OP can make a discovery request for the officer's notes or any documentation he generated as a result of the contact ... this is usually just the notes on the back of the citation.
Click to expand...

I misspoke. Thanks for correcting me.
 
This officer was a dope. There is probably a good chance he won't come to court if you challenge this. If he does come you will have an excellent opportunity to embarrass him. Actually, the judge will likely handle that for you.
 
mightymoose said:
This officer was a dope. There is probably a good chance he won't come to court if you challenge this. If he does come you will have an excellent opportunity to embarrass him. Actually, the judge will likely handle that for you.
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Unless he did have another reason for the stop.
 
What about perfume, car emission's, factory emissions etc...etc... when is it going to end? Ban guns and thief's will use knifes.. Ban knifes thiefs will use bats... Ban bats..... well you get the point. When is all the BS going to end?
 
Disabled Vet said:
What about perfume, car emission's, factory emissions etc...etc... when is it going to end? Ban guns and thief's will use knifes.. Ban knifes thiefs will use bats... Ban bats..... well you get the point. When is all the BS going to end?
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Apples and oranges ...

This one had to do with adults smoking while there are young children in the car. Not really BS to me.
 
mightymoose said:
If he had another reason for the stop he should have cited for it to support this one.
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That does not always happen, as you know. It is often mentioned on the citation (at least that is how the CHP seems to be trained to do it, and how they have tended to do it where I have worked) but it is not required. It may be in the notes on the back of the cite.

From the OP's post it sounds as if the officer made the stop solely for that reason, but, that may not be the case. If it is, then it will be an easy win.
 
I appreciate all of your responses. The last question I have is how do I plead on this? I am guilty of smoking in the car but I don't think the officer had the righr to stop me just for that. Do I plead not guilty or no contest or will I be given a chance to explain the situation? I have only had 1 ticket in the last 22 years and that was for speeding. I have never been to.court before and do not know how to go about it.
 
CdwJava said:
Apples and oranges ...

This one had to do with adults smoking while there are young children in the car. Not really BS to me.
Click to expand...

I just don't see it... did you see the report this week that bacon causes cancer? Hotdogs? Donuts? French Fries?

I smoke.... I have smoked in the truck with my kids but only with the window down. I have a smoking room in the house with a exhaust fan installed. To much government imo... next they will start removing more kids because parents are over feeding them.

Good luck OP I hope you beat this..
 
I would plead not guilty. Then seek discovery to get the officer's notes, and when the matter goes to trial you might ask in cross examination why he pulled you over. If he admits that he pulled you over solely for smoking, then you can always produce a copy of the code section and make a motion to dismiss based on a lack of reasonable suspicion for the detention pursuant to the relevant H&S section.
 
You need to get discovery. If the officer does not list the act of stopping you for another violation in his notes, any testimony to the contrary in court, can be objected to. Remember, no other citation was issued.
 
You will want to enter a not guilty plea. The court will explain the procedure to you. You will have to come back on a different date to have the matter heard. If the officer shows up then he will have to explain his reason for stopping you, and you can bring up that it is a secondary offense. If the officer fails to show then your case will be dismissed.
You will want to find out about "discovery" procedures so that you can get a copy of any notes or reports the officer wrote, that way you don't go blindly into court and there are no surprises. Essentially, the notes will tell you if there was in fact another reason for the stop.
Personally, since he only cited you on a secondary violation and nothing else, I suspect you might get it dismissed even if he shows.
 
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