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118948 HS - Smoking in a vehicle in the presence of a minor

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  • 118948 HS - Smoking in a vehicle in the presence of a minor

    118948(a)HS - 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.

    118949 HS - A law enforcement officer shall not stop a vehicle for the sole purpose of determining whether the driver is in violation of this article.

    I interpret 118949 HS to mean that a traffic stop cannot be performed when 118948(a)HS is the only violation observed. With that being said, do you think it would be a lawful detention if the vehicle in question were parked and occupied with an adult occupant (not necessarily seated in the driver's seat) smoking in the presence of a minor?

    I'm looking for the opinions of other cops.

  • #2
    Ive cited for this before on a mover, great section. And no, it would not be PC to detain on either a vehicle in motion or a parked car if this is the only violation you have. You can't cite this section in a private parking lot either. Best option would be to initiate a consensual contact to advise the person of the law and go from there, or find some other PC to detain.

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    • #3
      So why cant you cite in a private parking lot?? Last I checked you can.
      I'd rather be judged by 12 rather carried by 6.

      It should be noted that any and all post that are made are based on my own thought and opinions. And are not related or implied to represent the department I work for.

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      • #4
        My interpretation is that you could not stop somebody parked or drivinjg (detain them) if you saw a suspected violation but aren't sure such as the age of the minor isn't clear. That being said I don't know why you couldn't walk up and do a consensual contact on a parked vehicle and then cite if you developed the cause.

        I've been using this section for our 18 year old high school seniors who have medical medical marijuana cards and are smoking out with their juvenile buddies in the car. They are all proud to spout off that they have their card until I tell them I'm they're still getting a ticket.

        Also my take on 118949 HS is that you could make a stop if the violation was obvious (mom smoking with a little kid in the car). You are not stopping to determine a violation, the violation is clear and takes no investigation after the stop occurs. You couldn't stop if it wasn't obvious such as a case where you see an older teen in the car but aren't sure whether they are under 18 or not.

        These are just my opinion. I looked this up inthe Peace Officer Legal Sourcebook and it isn't addressed yet.

        Citycop21. I don't see any reason why this wouldn't apply on private property. The HS code applies anywhere in the state unless stated otherwise. If the language of the section said "on the highway" or some other language we would be restricted to violations on the street but it doesn't say that.
        If you see me running try to keep up!

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        • #5
          Originally posted by moparfan View Post
          So why cant you cite in a private parking lot?? Last I checked you can.
          Depends on the CVC section.....the vast majority of CVC sections do NOT apply on private property.....DUI, and the myriad of 14601 sections being an obvious exception.....

          Also, all entrances to the lot (or property) must be marked with a sign that has a very specific verbage to the effect that the CVC will be enforced on the property AND all of the regulatory signs (stop signs ect) must also match what the CVC requires for those.....private parking lots with those signs are very common in some areas and non existent in others.....I have seen them in the East San Gabriel Valley area; but they don't exist for the most part in the NW area of LA County...
          The posts on this forum by this poster are of his personal opinion, and his personal opinion alone

          "Politicians are like diapers. They need to be changed often and for the same reason"

          "We fight not for glory; nor for wealth; nor honor, but only and alone we fight for freedom, which no good man surrenders but with his life"

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          • #6
            It's a secondary offense, so you could not initiate a stop on a moving vehicle solely to investigate a possible violation. There would be nothing to prevent you from making consensual contact with a stopped vehicle and proceeding from there however.
            Today's Quote:

            "The difference between stupidity and genius is that genius has its limits."
            Albert Einstein

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            • #7
              Originally posted by LeeRoy View Post
              Also my take on 118949 HS is that you could make a stop if the violation was obvious (mom smoking with a little kid in the car). You are not stopping to determine a violation, the violation is clear and takes no investigation after the stop occurs. You couldn't stop if it wasn't obvious such as a case where you see an older teen in the car but aren't sure whether they are under 18 or not.
              This was something about the verbiage that stood out to me as well.

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              • #8
                Originally posted by moparfan View Post
                So why cant you cite in a private parking lot?? Last I checked you can.
                You are absolutely right my mistake

                Comment

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