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Bob Ferguson

AGO 1951 No. 74 - Jun 19 1951
Attorney General Smith Troy


A reasonably strict interpretation should be given the phrase "in his presence" and a citation may be issued only when an officer is apprised by his senses that a violation or offense is at that time being committed.

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                                                                   June 19, 1951

Honorable Charles O. Carroll
Prosecuting Attorney, King County
Seattle, Washington                                                                                                                Cite as:  AGO 51-53 No. 74

Attention:  Mr. John E. Prim

Dear Sir:

            This is to acknowledge receipt of your letter of June 13, 1951, in which you requested our opinion concerning the interpretation to be accorded the phrase "in his presence" found in section 1, chapter 175, Laws of 1951.

            In this connection you asked:

            "* * * whether or not in your opinion the officer must be physically present or whether or not a liberal construction of this provision may be had so that the Highway Patrol officers may issue citations without getting into any great amount of difficulty."

            Our conclusion may be stated as follows:

            A reasonably strict interpretation should be given the phrase "in his presence" and a citation may be issued only when an officer is apprised by his senses that a violation or offense is at that time being committed.

             [[Orig. Op. Page 2]]


            Section 1, chapter 175, Laws of 1951, provides in part:

            "* * * Provided, That an officer shall not serve or issue any traffic citation or notice for any offense or violation except when said offense or violation is committed in his presence."

            The proviso quoted above, though not part of our criminal code, is, nevertheless, a portion of a statute relating to crimes, and thus we must take into consideration at the outset the rule that such statutes are to be accorded a strict interpretation.

            We have examined many of the cases involving phrases like the one here involved and those very similar to it.  Very few of these cases, however, concern statutes involving traffic violations.  Most of them concern the power of an officer to make an arrest without a warrant when a misdemeanor was committed in his presence.  In most of the cases, no definition was given to the phrase "in his presence."  The Washington cases on this subject appear to fall in this category and thus our search uncovered no case where our court stated what is meant by "in his presence."

            One of those cases involving a traffic violation that does spell out what is meant by "in his presence" is that of Cowan v. Commonwealth, 308 Ky. 842, 215 S.W. (2d) 989.  In this case Cowan was convicted of carrying a concealed weapon which was discovered upon his arrest for reckless driving.  The arrest for reckless driving was based on the fact that Cowan's car and skidmarks indicated there had been a traffic violation.  The actual offense or violation occurred shortly before the officers arrived.  Cowan contended that his arrest for reckless driving was unlawful because the purported violation was not committed in the presence of the arresting officer.  The court agreed.

            In citingKennington-Saenger, Inc. v. Wicks, 161 Miss. 566, 151 So. 549, the court laid down the following rule to which we subscribe:  An offense is committed in "presence" or "view" of an officer within the rule authorizing arrest without a warrant, when the officer sees an act constituting it, though at a distance, or when he hears a disturbance created thereby and proceeds at once to the scene, or when the offense is continuing and not fully consummated at the time of the arrest.

             [[Orig. Op. Page 3]]

            A slightly different statement of the test is found in Barfield v. State, 68 Okla. 445, 99 P. (2d) 544, wherein the court concluded:  An offense is committed or attempted in the presence of an officer when such officer is apprised by any of his senses that a misdemeanor is being committed.  (Underscoring Supplied).

            We feel the expressions of the above two cases indicate what the legislature intended by the words "in his presence."  Traffic violations are of such nature that they generally can only be detected by actually seeing them occur.  Seeing or hearing what would appear to be the result of a violation, such as an accident or skidmarks, does not constitute an offense committed "in his presence."  Cowan v. Commonwealth,supra.  Accordingly, it is our opinion that an offense or violation is committed "in his presence" only when the officer's senses apprise him that a violation is at that time being committed.

Very truly yours,

Attorney General

Assistant Attorney General