And do they need one to ride?

By Rick Bernardi

On October 13, an Oregon State University student named Genesis Hansen was arrested in Corvallis, Oregon after a routine traffic stop for riding her bicycle on the left side of the street. But Hansen wasn’t arrested for riding on the wrong side of the street; instead, she was arrested for not showing the officer her ID when he demanded to see an ID.

But there’s no law in Oregon requiring a cyclist to show ID on a traffic stop, and it was perfectly legal for Hansen to question the officer about his authority to demand an ID. The bottom line: The arrest was unlawful, the District Attorney dropped all charges, and Hansen has hinted that she may be pursuing an action for unlawful arrest.

While that’s the law in Oregon, this arrest raises the question—is this the law for cyclists everywhere? If a cyclist is stopped for a traffic violation in other states, can the cyclist refuse to identify themselves to police?

Not necessarily. This question is highly dependent on state law. While it’s legal for cyclists to passively resist identifying themselves to police in Oregon, in some states, you can be arrested for failing to identify yourself.

And California is one of those states where not identifying yourself will result in your arrest.

Let’s take a closer look at California to see why. First, let’s consider a basic question: Do cyclists need a driver’s license to ride a bike in California?

No.

The law is very clear in California. Operators of motor vehicles are required to have a valid driver’s license in their possession. Cyclists, on the other hand, are not required to have a driver’s license to ride a bike.

Think about it as a purely practical matter—if a driver’s license was required, then children would not be eligible to ride a bike. And what societal benefit would be accomplished by keeping kids off bikes? Or even by keeping adults off bikes, for that matter? Licensing requirements exist for one reason, and one reason only: Motor vehicles are so dangerous that the states decided early in the 20th century that drivers had to be licensed.

Cyclists, on the other hand, like pedestrians, have never been required to be licensed, for one simple reason: While cyclists were sometimes scorned as “scofflaws,” they have never caused the kind of carnage on our roads that led to the state laws requiring drivers to be licensed. So, just like you don’t need a license to walk, you don’t need a license to ride your bike.

But while cyclists aren’t required to be licensed, they are still required to obey the law, just like everybody else is required to obey the law, and can be ticketed for violations of the law, just like anybody else. This doesn’t mean that the laws for motorists and cyclists and pedestrians should always be exactly the same, and it doesn’t mean that laws are written in stone and shouldn’t ever be changed. It only means that if you break the law, even one you disagree with, you can be ticketed.

Which leads to an interesting conundrum—if you are stopped by police for a traffic violation in California, do you need to show ID? And if you are required to show ID, does that mean you need to have a driver’s license when you ride your bike?

First, let’s tackle this question of ID: If you are stopped by police for a traffic violation in California, do you need to show ID? Yes. To understand why, let’s take a look at an arrest in California.

On June 19, 1999, Richard McKay was observed by a Los Angeles County Deputy Sheriff riding on the wrong side of the road on a residential street. The Deputy made a traffic stop, intending to write a ticket. See CVC 21650.1, Driving on the right side. The Deputy asked for identification, but McKay replied that he didn’t have any identification with him. Instead, he told the Deputy his name and date of birth. The Deputy then arrested McKay for riding on the left side of the road, pursuant to McKay’s failure to “to present his driver’s license or other satisfactory evidence of his identity for examination.” See CVC 40302(a), Arrests.

While conducting a search incident to arrest, the Deputy found a baggie in McKay’s sock containing an off-white substance the Deputy believed to be methamphetamine. The Deputy then entered McKay’s name and date of birth into his mobile computer, and received an address match to McKay’s information, along with a general description that was consistent with McKay’s appearance.

McKay was charged with possession of methamphetamine, and was alleged to have a prior strike conviction. McKay motioned to have the evidence suppressed because he had already given the Deputy his name and date of birth before he was arrested pursuant to his failure “to present his driver’s license or other satisfactory evidence of his identity for examination.” The motion was denied, and McKay pleaded guilty and admitted the prior strike conviction. He was sentenced to 32 months incarceration.

McKay appealed, arguing that his “custodial arrest for a fine-only offense, such as a traffic infraction, violates the Fourth Amendment prohibition on unreasonable seizures.People v. McKay, 27 Cal. 4th 601, 604 (2002). McKay also argued that “in the event the Fourth Amendment does not bar such arrests categorically, that his custodial arrest nonetheless violated the federal Constitution by the deputy’s failure to comply with…the state statute that governs the arrest procedure for this infraction.McKay, 604.

McKay’s first argument failed, because in a case in which a driver was arrested for not wearing a seat belt, the Supreme Court had already decided that probable cause was all that was necessary to justify an arrest. McKay, 607, citing Atwater v. Lago Vista, 532 US 318 (2001).

That left his second argument—that by giving the Deputy his name and date of birth, he had identified himself, and that the arrest was therefore not valid under California law. On this point, the Court concluded “that so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest–even one effected in violation of state arrest procedures–does not violate the Fourth Amendment.McKay, 618.

The Court also concluded that while McKay had verbally identified himself, the officer has the discretion whether to accept the verbal identification, and noted “Here, of course, defendant was not arrested merely because he failed to produce a license. He was arrested because he violated the Vehicle Code. At that point, the need to obtain reliable evidence of identification and ensure compliance with a promise to appear is equally great for a bicyclist as for a driver of a motorized vehicle. Although only the latter is obligated to have a license in his or her possession at all times while driving on the road (§ 12951, subd. (a)), both are required to produce satisfactory evidence of identity for examination when stopped for a violation of the law.McKay, 625.

The Court held “that an officer has broad discretion to effect a custodial arrest under section 40302(a) unless the offender has presented a current and valid driver’s license or other reliable documentary evidence of identification,” further elaborating “that at least one category of identification qualifies as “other satisfactory evidence of . . . identity”–those forms of documentary evidence that are the functional equivalent of a driver’s license. This would include a state-issued identification card (§ 13005) and other current, reliable documentary evidence of identity that, like a driver’s license, bears the person’s photograph, physical description, current mailing address, and signature, and is serially or otherwise numbered. (See Veh. Code, § 12811; cf. Civ. Code, § 1185, subd. (c) [defining ” ‘satisfactory [27 Cal. 4th 621] evidence’ ” to identify the person acknowledging an instrument before a notary].)McKay, 620.

So in California, the law is if you are stopped by a law enforcement officer for a minor traffic violation, the officer has the discretion whether to accept a verbal identification, or to require a driver’s license or its “functional equivalent.” And if you don’t have ID when the officer demands an ID, you can be arrested.

There’s more. In McKay, Justice Brown observed in her dissent that “the same rules apparently apply to those who walk, bicycle, rollerblade, skateboard, or propel a scooter. Probable cause is ubiquitous. Given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, the probable cause requirement is so diluted it ceases to matter, “for … there exists ‘a power that places the liberty of every man in the hands of every petty officer,’” precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.McKay, 633.

When cyclist Genesis Davis asked an Oregon State Trooper to show her the law that requires her to show him her ID on a minor traffic stop, she was asserting her rights under Oregon law. Without those rights, this is where the slippery slope leads—in California, you can be arrested for any minor traffic violation if you are not carrying a driver’s license or its “functional equivalent,” even if you are not driving a car. Even if you are walking.

Does that mean you need to have a driver’s license to ride your bike in California?

No. You do not need a driver’s license or any other form of license or ID to ride a bike in California.

But if you are riding your bike in California and are stopped by police for a traffic violation, you’d better have a driver’s license or its “functional equivalent”—meaning a current government-issued ID with your photograph, your physical description, a serial ID number, your current address, and your signature—in your possession or you can be arrested, at the officer’s discretion.

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