_________________________ 

________________________________________________________________________ 

 

 

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:
 

OPINION : No. 87-802
 

:
 

of : MARCH 1, 1988 

:
 

JOHN K. VAN DE KAMP :
 

Attorney General :
 

:
 

Rodney O. Lilyquist :
 

Deputy Attorney General :
 

:
 

THE HONORABLE J. E. SMITH, COMMISSIONER, DEPARTMENT OF THE 

CALIFORNIA HIGHWAY PATROL, has requested an opinion on the following questions: 

1. Does a peace officer have the authority to release a person arrested for 

driving under the influence of an alcoholic beverage by issuing to the person a notice to appear 

in court and accepting the person's written promise to appear? 

2. Where a person is arrested for driving under the influence of an alcoholic 

beverage and released upon a written promise to appear in court, would the arresting officer be 

liable for injury caused by the person after the release? 

CONCLUSIONS 

1. A peace officer has the authority to release a person arrested for driving 

under the influence of an alcoholic beverage by issuing to the person a notice to appear in court 

and accepting the person's written promise to appear. 

1 

87-802
 
 

 

 

 

 

 

 

 

 


 


 

2. Where a person is arrested for driving under the influence of an alcoholic 

beverage and released upon a written promise to appear in court, the arresting officer would not, 

without additional facts being established, be liable for injury caused by the person after the 

release. 

ANALYSIS 

Section 23152 of the Vehicle Code1 states in part: 

"(a) It is unlawful for any person who is under the influence of an 

alcoholic beverage or any drug, or under the combined influence of an alcoholic 

beverage and any drug, to drive a vehicle. 

"(b) It is unlawful for any person who has 0.10 percent or more, by 

weight, of alcohol in his or her blood to drive a vehicle." 

The two questions presented for analysis concern the arrest of a person for 

"driving under the influence," a misdemeanor violation of section 23152. May the arresting 

officer release the person withoʺut taking him or her to a magistrate, and would the officer be 

liable for an injury caused by the person after the release? 

1. Authority to Release 

For the vast majority of Vehicle Code violations, the person arrested is not taken 

to jail or to court. Rather, the officer prepares a written notice to appear (i.e., a citation or 

"ticket") and releases the violator after the latter has given a written promise to appear in court. 

(§§ 40300-40604; see People v. Superior Court (1972) 7 Cal.3d 186, 199-200; People v. Yniguez 

(1971) 15 Cal.App.3d 669, 671-672; People v. Mercurio (1970) 10 Cal.App.3d 426, 430.) 

Certain serious misdemeanor offenses, however, require that the person arrested 

be brought "before a magistrate," a judge of one of the courts (Pen. Code § 808). Section 40302 

provides: 

"Whenever any person is arrested for any violation of this code, not 

declared to be a felony, the arrested person shall be taken without unnecessary 

delay before a magistrate within the county in which the offense charged is 

alleged to have been committed and who has jurisdiction of the offense and is 

nearest or most accessible with reference to the place where the arrest is made in 

any of the following cases: 

"(a) When the person arrested fails to present his driver's license or other 

satisfactory evidence of his identity for examination. 

1 All references hereafter to the Vehicle Code are by section number only. 

2 

87-802
 
 

 

 

 

 

 

 

 

 


 


 

"(b) When the person arrested refuses to give his written promise to 

appear in court. 

"(c) When the person arrested demands an immediate appearance before a 

magistrate. 

"(d) When the person arrested is charged with violating Section 23152." 

(Emphases added.) 

Section 40302 mandates the taking of the person to a magistrate under the specified 

circumstances, including when the person is arrested for driving under the influence. (People v. 

Superior Court, supra, 7 Cal.3d 186, 199-201, 208-210; People v. Pringle (1984) 151 

Cal.App.3d 854, 858: People v. Yniguez, supra, 15 Cal.App.3d 669, 673; People v. Superior 

Court (1971) 14 Cal.App.3d 935, 945; People v. Mercurio, supra, 10 Cal.App.3d 426, 430; 

People v. Salinas (1980) 111 Cal.App.3d Supp. 27, 31.) If the magistrate is unavailable, the 

officer is required to take the person either to the magistrate's clerk or to "[t]he officer in charge 

of the most accessible county or city jail . . . ." (§ 40307.) The person is not to be "booked"2 by 

the officer (People v. Superior Court, supra, 7 Cal.3d 186, 208-210; Agar v. Superior Court 

(1971) 21 Cal.App.3d 24, 27-28; Carpio v. Superior Court, supra, 19 Cal.App.3d 790, 793-794; 

People v. Mercurio, supra, 10 Cal.App.3d 426, 431; rather, he or she is entitled to an immediate 

release from the magistrate, clerk, or jailer either upon his or her own recognizance upon a 

written promise to appear or upon the posting of bail. (§§ 40306, 40307.) The only exception to 

an immediate release is "in cases in which a temporary detention is necessary to permit a 

motorist to recover from alcoholic or narcotic intoxication sufficiently to be released with safety 

to himself and to the public." (People v. Superior Court, supra, 7 Cal.3d 186, 209, fn. 17; see 

People v. Yniguez, supra, 15 Cal.App.3d 669, 673; Evans v. Municipal Court (1962) 207 

Cal.App.2d 633, 636.)3 

The mandatory nature of section 40302 is to be contrasted with section 40303 and 

other statutes involving less serious offenses that give the officer the option of taking the person 

to a magistrate or releasing the arrestee upon a written promise to appear. Section 40303, for 

example, provides in part: 

"Whenever any person is arrested for any of the following offenses and 

the arresting officer is not required to take the person without unnecessary delay 

before a magistrate, the arrested person shall, in the judgment of the arresting 

2 "To 'book' signifies the recordation of an arrest in official police records, and the taking by 

the police of fingerprints and photographs of the person arrested, or any of these acts following 

an arrest." (Pen. Code, § 7, subd. 21; see People v. Superior Court, supra, 7 Cal.3d 186, 208; 

Carpio v. Superior Court (1971) 19 Cal.App. 3d 790, 793.) 

3 A motorist may also be detained for up to two hours in order to verify his or her identity 

pursuant to section 40307. 

3 

87-802
 
 

 

 

 

 

 

 


 


 

officer, either be given a 10 days' notice to appear as provided in this section or be 

taken without unnecessary delay before a magistrate within the county in which 

the offense charged is alleged to have been committed and who has jurisdiction of 

the offense and is nearest or most accessible with reference to the place where the 

arrest is made: 

"(a) Section 10852 or 10853, relating to injuring or tampering with a 

vehicle. 

" . . . . . . . . . . . . . . . . . . . . . . . 

"(o) Section 21200.5, relating to riding a bicycle while under the influence 

of an alcoholic beverage or any drug." 

If the provisions of the Vehicle Code were the only statutes at issue, we would 

have no difficulty in answering the question. The arresting officer would be prohibited from 

issuing a notice to appear when the person is charged with violating section 23152. A different 

result, however, is compelled by the language of Penal Code section 853.6. 

The general provisions of Penal Code section 853.6 apply where the person is 

arrested for a misdemeanor. In relevant part, the statute provides: 

"(a) In any case in which a person is arrested for an offense declared to be 

a misdemeanor, including violation of any city or county ordinance, and does not 

demand to be taken before a magistrate, that person shall, instead of being taken 

before a magistrate, be released according to the procedures set forth by this 

chapter. If the person is released, the officer or superior shall prepare in duplicate 

a written notice to appear in court, containing the name and address of the person, 

the offense charged, and the time and place where and when the person shall 

appear in court. If pursuant to subdivision (i), the person is not released prior to 

being booked and the officer in charge of the booking or his or her superior 

determines that the person should be released, the officer or superior shall prepare 

a written notice to appear in a court. 

" . . . . . . . . . . . . . . . . . . . . . . . . . 

"(d) The officer shall deliver one copy of the notice to appear to the 

arrested person, and the arrested person, in order to secure release, shall give his 

or her written promise so to appear in court by signing the duplicate notice which 

shall be retained by the officer. Thereupon the arresting officer shall immediately 

release the person arrested from custody. 

" . . . . . . . . . . . . . . . . . . . . . . . 

4 

87-802
 
 

 

 

 

 

 

 

 

 


 


 

(g) The officer may either book the arrested person, as defined in 

subdivision 21 of Section 7, prior to release or indicate on the citation that the 

arrested person shall be booked. In the event it is indicated on the citation that the 

arrested person is to be booked, the magistrate shall, before the proceedings are 

finally concluded, order the defendant to be booked by the arresting agency. 

" . . . . . . . . . . . . . . . . . . . . . . . 

"(i) Whenever any person is arrested by a peace officer for a 

misdemeanor, that person shall be released according to the procedures set forth 

by this chapter unless one of the following is a reason for nonrelease, in which 

case the arresting officer may release the person, or the arresting officer shall 

indicate, on a form to be established by his or her employing law enforcement 

agency, which of the following was a reason for the nonrelease: 

(1) The person arrested was so intoxicated that he or she could have been 

a danger to himself or herself or to others. 

(2) The person arrested required medical examination or medical care or 

was otherwise unable to care for his or her own safety. 

(3) The person was arrested under one or more of the circumstances 

listed in Sections 40302 and 40303 of the Vehicle Code. 

". . . . . . . . . . . . . . . . . . . . . . ." 

(Emphases added.) 

Not only does Penal Code section 853.6 allow for the booking of the arrested person, it 

authorizes the officer to release a "person arrested under one or more of the circumstances listed 

in Sections 40302 and 40303 of the Vehicle Code." The language "in which case the arresting 

officer may release the person" was added to section 853.6 in 1984. (Stats. 1984, ch. 952, § 1, p. 

3306.) Such language was not part of the legislative bill as originally introduced but was 

contained in the author's amendment of May 15, 1984. The committee report of the Assembly 

Committee on Criminal Law and Public Safety described the purpose of the author's amendment 

as follows: 

"Peace Officer Flexibility Preserved. As amended May 15, 1984, the 

flexibility of a peace officer to release a person even when one of the technical 

nonrelease provisions set forth in paragraphs 1 through 9, on pages 4 and 5 

applies, is preserved. As peace officer representatives have pointed out, 

numerous circumstances may arise when, though a person is not technically 

eligible for release, it would be desirable to release them (no satisfactory evidence 

of ID but the officers recognize the individual, an outstanding warrant exists for a 

5 

87-802
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


 

very minor offense, the person is intoxicated but someone is willing to care for 

them, etc.)" 

The committee report of the Senate Committee on Judiciary similarly provided: 

"Peace officer flexibility preserved. AB 2858 would preserve the 

discretion of a peace officer to release a person even when one of the technical 

non-release provisions listed in Comment 4 did not apply. As peace officer 

representatives have pointed out, numerous circumstances may arise when though 

a person is not technically eligible for release, it would be desirable to release him 

—e.g., (no satisfactory evidence of ID but the officers recognize the individual, an 

outstanding warrant exists for a very minor offense, the person is intoxicated but 

someone is willing to care for them, etc.)" 

It is clear, therefore, from the legislative history of the amendment of section 853.6 in 1984 that 

the Legislature intended to authorize an arresting officer to release a person arrested for driving 

under the influence of an alcoholic beverage by issuing to the person a notice to appear in court 

and accepting the person's written promise to appear. 

As interpreted by the courts, section 40302 gives the arresting officer no option 

when the charge is a violation of section 23152. He or she must take the arrested person to a 

magistrate and is prohibited from issuing a notice to appear. On the other hand, Penal Code 

section 853.6 expressly authorizes the officer to release the arrested person under the 

circumstances described in section 40302. 

We find "'no rational basis for harmonizing the two potentially conflicting 

statutes.'" Dew v. Appleberry (1979) 23 Cal.3d 630, 636.) While it is true that "when a special 

and a general statute are in conflict, the former controls" (Agricultural Labor Relations Bd. v. 

Superior Court (1976) 16 Cal.3d 392, 420), section 40302 cannot be said to be more specific 

than Penal Code section 853.6 since the latter expressly refers to the former. 

What is significant is that the mandatory language of section 40302 was part of 

the statute when it was enacted in 1959 (Stats. 1959, ch. 3, pp. 1774-1775), while the express 

discretionary language of Penal Code section 853.6 concerning section 40302 was added by the 

Legislature in 1984. It is well-recognized that "when two laws upon the same subject, passed at 

different times, are inconsistent with each other, the one last passed must prevail." (Canteen 

Corp. v. State Bd. of Equalization (1985) 174 Cal.App.3d 952, 960; see In re Thierry S. (1977) 

19 Cal.3d 727, 744; Woodward v. Southern Cal. Permanente Medical Group (1985) 171 

Cal.App.3d 656, 664.) "[T]he arresting officer may release the person . . . arrested under . . . the 

circumstances listed in Sections 40302 . . . ." constitutes the latest expression of the will of the 

Legislature, and as such controls our conclusion.4 

4 We understand that the basis for the question is the recent lack of detoxification, detention, 

jail, and court facilities necessary to accommodate the temporary custody of all persons arrested 

6
 

87-802
 
 

 

 

 

 

 

 

 

 

 

 

 

 


 

In answer to the first question, therefore, we conclude that a peace officer has the 

authority to release a person arrested for driving under the influence of an alcoholic beverage by 

issuing to the person a notice to appear in court and accepting the person's written promise to 

appear. 

2. Liability for Injury 

In determining whether a peace officer or law enforcement agency would be 

liable for an injury caused by a person released after being arrested for driving under the 

influence, the threshold issue to be resolved is whether any duty of care is owed to the injured 

party. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202; Harris v. Smith 

(1984) 157 Cal.App.3d 100, 104; Whitcombe v. City of Yolo (1977) 73 Cal.App.3d 698, 706; 68 

Ops.Cal.Atty.Gen. 250, 255 (1985).) 

With respect to this issue, however, it has been stated that "[a]s a general rule, one 

owes no duty to control the conduct of another nor to warn those endangered by such conduct." 

(Bonds v. State of California ex rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 314, 318; see 

Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750-758; 68 Ops.Cal.Atty.Gen. 250, 255 

(1985).) 

In Jackson v. Clements (1983) 146 Cal.App.3d 983, police officers investigated a 

party where alcoholic beverages were being served; they detained a person named Clements for 

about one-half hour during the investigation. They knew that Clements was too intoxicated to 

drive but did not prevent him from leaving the party in his automobile. Clements thereafter 

killed three people while driving under the influence.5 The court concluded that the officers had 

no duty of care in these circumstances: 

"Plaintiffs cite no authority, nor has any been found, to support their claim 

that a police officer's observation of a citizen's conduct which might foreseeably 

create a risk of harm to others, or the officer's temporary detention of the citizen, 

creates a special relationship which imposes on the officer a duty to control the 

citizen's subsequent behavior. The case law is to the contrary." (Id., at p. 987.) 

In Harris v. Smith, supra, 157 Cal.App.3d 100, the officer stopped a motorist for 

speeding. He detected the odor of alcohol on the driver's breath, but the driver passed three field 

sobriety tests and was released. About one-half hour later the driver was in an accident in which 

two persons were killed. His blood alcohol level was .17. Under these facts the court concluded 

that the officer owed no duty of care to the persons killed: 

for driving under the influence. 

5 These were the allegations of the complaint accepted as true on the appeal from the 

dismissal of the complaint. 

7 

87-802
 
 

 

 

 

 

 

 

 

 


 


 

"Officer Kreps did not create the peril to plaintiff; he took no affirmative 

action which contributed to, increased or changed the risk that otherwise existed; 

he did not voluntarily assume any responsibility to protect plaintiff; and he made 

no statement or promise to induce plaintiff's reliance. Assuming, arguendo, 

plaintiff or any other member of the motoring public was a reasonably foreseeable 

victim, that fact alone is not enough to establish a special relationship with Officer 

Kreps imposing on him a duty to use due care." (Id., at p. 105.) 

With respect to whether the failure to stop a person from acting dangerously constituted an 

affirmative act increasing the risk of harm to others, the court observed: 

"However, the facts of Davidson demonstrate that a police officer does not 

act affirmatively to increase the risk of harm simply by failing to stop a citizen 

from acting dangerously. There, police had solid information that a suspect in a 

laundromat was dangerous. They failed to intercede or to warn another citizen in 

the laundromat, whom the suspect later stabbed. The Supreme Court found no 

special relationship, no duty of care toward the victim, and no negligence. 

(Davidson, supra, 32 Cal.3d at p. 209.) The court said, '[The officers'] conduct 

did not change the risk which would have existed in their absence. There is 

simply no reason to speculate that anyone—Yolanda or Blackmun, victim or 

assailant—would have acted differently had the officers not placed the laundromat 

under surveillance.' (Id., at p. 208.) Similarly, in the instant case the conduct of 

Officer Kreps did not alter any risk which already was present." (Id., at p. 107.) 

In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, the 

Supreme Court ruled that police officers had no duty to control a person arrested and released 

even though they knew of the person's potential for violence against a specific victim. (Id., at p. 

444; see also Davidson v. City of Westminster, supra, 32 Cal.3d 197, 205; Thompson v. County 

of Alameda, supra, 27 Cal.3d 741, 752, 756.) 

A finding of a duty of care would require the showing of a "special relationship" 

described in Jackson v. Clements, supra, 146 Cal.App.3d 983, 988, as: 

". . . . (1) where there was a voluntary assumption by the public official of 

a duty toward the injured party [citation], (2) where the police had induced the 

victim's reliance on a promise, express or implied, that they would protect him 

[citation], or (3) where the victim was dependent upon the police or other public 

official for protection because the official either created the peril [citation] or 

increased or changed the risk which would have otherwise existed, 'as by lulling 

the injured parties into a false sense of security and perhaps preventing other 

assistance from being sought.' [Citations.]" 

While these various special circumstances give rise to a duty of care (see Williams v. State of 

California, (1983) 34 Cal.3d 18, 23-25; Davidson v. City of Westminster, supra, 32 Cal.3d 197, 

8
 

87-802
 
 

 

 

 

 

 

 


 


 

203; Duffy v. City of Oceanside (1986) 179 Cal.App.3d 666, 671-672; Harris v. Smith, supra, 

157 Cal.App.3d 100, 105; Bonds v. State of California ex rel. Cal. Highway Patrol, supra, 138 

Cal.App.3d 314, 318; 68 Ops.Cal.Atty.Gen. 250, 255 (1985)), the injured party must necessarily 

also prove in order to recover damages: (1) a breach of such duty, (2) a proximate causal 

connection between the conduct and injury, and (3) an actual loss or damage (Harris v. Smith, 

supra, 157 Cal.App.3d 100, 104). Moreover, the police officer and law enforcement agency may 

have an immunity from liability even assuming all elements of a cause of action are established 

by the injured party. 

In some states "police officers and governmental entities which employ them may 

be held liable if an officer who has initially stopped an intoxicated driver negligently allows him 

to continue driving." (Hucko v. City of San Diego (1986) 179 Cal.App.3d 520, 523; see Irwin v. 

Town of Ware (1984) 392 Mass. 745 [467 N.E.2d 1292, 1303-1304]; Huhn v. Dixie Ins. Co. 

(Fla.App.1984) 453 So.2d 70.) Such, however, is not the case in California. While peace 

officers may have a duty to enforce the provisions of the Vehicle Code, they do not act as "an 

insurer of safety on the highway." (Bonds v. State of California ex rel. Cal. Highway Patrol, 

supra, 138 Cal.App.3d 314, 320; see Williams v. State of California, supra, 34 Cal.3d 18, 24.) 

The Legislature has provided public entities and public officials with numerous immunities, 

including an immunity for the "failure to enforce any law" (Gov. Code, § 818.2), for the 

"exercise of the discretion vested in him, whether or not such discretion be abused" (Gov. Code, 

§ 8202.2), for the "failure to enforce an enactment" (Gov. Code, § 821), and for "determining 

whether to parole or release a prisoner" (§ 845.8). With specific regard to the release of arrested 

persons, Government Code section 846 provides: 

"Neither a public entity nor a public employee is liable for injury caused 

by the failure to make an arrest or by the failure to retain an arrested person in 

custody." 

Government Code section 846 would give the arresting officer immunity from liability for injury 

caused by a person arrested for drunk driving and released upon a written promise to appear in 

court. (See Hucko v. City of San Diego, supra, 179 Cal.App.3d 520, 521-524; Truong v. James 

(1985) 168 Cal.App.3d 833, 835; see also Bonds v. State of California ex rel. Cal. Highway 

Patrol, supra, 138 Cal.App.3d 314, 322.) 

In answer to the second question, therefore, we conclude that where a person is 

arrested for driving under the influence of an alcoholic beverage and released upon a written 

promise to appear in court, the arresting officer would not, without additional facts being 

established, be liable for injury caused by the person after the release. 

***** 

9
 

87-802