AGO 80-071.

• Case Date: March 19, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-071. Superceded by N.D.A.G. 82-1 LETTER OPINION March 19, 1980 (OPINION) OPINION 80-71Mr. Dwight F. KalashAssistant City Attorney City Hall Grand Forks, North Dakota 58201 Dear Mr. Kalash: This is in response to your letter of February 28, 1980, wherein you state the following:

This letter is written at the request of James Clague, Chief of Police of the City of Grand Forks. The purpose of our letter is to request the opinion of the office of the Attorney General on the legality of police officers issuing a summons to appear in court to citizens using the uniform traffic complaint and summons form when the violation is a noncriminal traffic offense.

Central Legal Research at the University of North Dakota provided its opinion No. 256 to Judge Thomas Davies, Municipal Judge in the City of Fargo, relative to the subject on February 1, 1980. I have enclosed a copy of that memorandum for the convenience of your office. The memorandum very specifically relates to the issuing of a summons when it is lawful to arrest a citizen with or without a warrant and concludes that an officer may issue a summons whenever it would also be proper for him to arrest with or without a warrant. In misdemeanor cases, it is only proper for an officer to arrest without a warrant when the violation takes place in his presence, as we understand the law. Our specific question is, "Is it improper for a police officer to issue a summons to a citizen when the suspected violation relates to a noncriminal traffic offense as opposed to a misdemeanor crime?"

Could you also please have the Central Legal Research opinion reviewed and provide us with your opinion as to whether or not a police officer may not use a summons unless he is also authorized to make an arrest for conduct that would constitute a misdemeanor. The views of your office on these questions will be most beneficial to the administrator of city court here in Grand Forks.

Your letter of inquiry concerns those actions which must be taken by a police officer in response to violations of state traffic laws and city traffic ordinances. In reviewing your letter along with the memorandum, as prepared by Central Legal Research of the University of North Dakota School of Law, it would appear that there are two basic questions which need to be answered. First, what is the statutory authority which allows a police officer to issue a summons to a violator of state traffic laws or city traffic ordinances? Second, in what situations can a police officer issue a summons to a violator? Authority for a police officer's issuance of a summons can be found in Section 39-07-07 of the North Dakota Century Code. That section states as follows:

39-07-07. HALTING PERSON FOR VIOLATING TRAFFIC REGULATIONS - DUTY OF OFFICER HALTING. Whenever any person is halted for the violation of any of the provisions of chapter 39-01 through 39-13, 39-18, 39-21, and 39-24, or of equivalent city ordinances, the officer halting such person, except as otherwise provided in section 39-07-09, may:

1. Take and name and address of such person;

2. Take the license number of his motor vehicle; and

3. Issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice.

Subsection 3 of Section 39-07-07 authorizes a police officer to issue a summons to a person who is halted...