Do you DRIVE?
Are you a DRIVER?
Is your car a MOTOR VEHICLE?
Have you BAILED your property to the DMV?
Take the test by answering the following 12 questions and determine for yourself: Are you a “driver”? Do you “drive”? How can you tell?
The Vehicle Code of 1935.
“An act to establish a Vehicle Code, thereby consolidating and revising the law relating to vehicles and vehicular traffic, and to repeal certain acts and parts of acts specified herein.” (Stats. 1935, Ch.27, p. 93, in effect September 15, 1935).
The activity licensed by state DMVs and in connection with which individuals must submit personal information to the DMV- the operation of motor vehicles-is itself integrally related to interstate commerce.
…state activities integrally related to commerce, and acted within its sphere of power to afford “security * * * to the rights of the people” by preventing the States from releasing personal information that they require individuals to submit as a condition of engaging in activity – owning and operating a motor vehicle – that is integrally related to commerce generally…
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. CHARLIE CONDON, ATTORNEY GENERAL FOR THE STATE OF SOUTH CAROLINA, ET AL.,
In the Supreme Court of the United States, (Jan. 12, 2000)
No. 98-1464
[Emphasis added]
1. Is “driving” an activity that is commercial in nature? Yes _____ No _____
CALIFORNIA COMMERCIAL CODE
§9109. Classification of Goods: “Consumer goods”; “Equipment”; “Farm Products”; “Inventory”
Goods are (1) “Consumer goods” if they are used or bought for use primarily for personal, family or household purposes;
(2) “Equipment” if they are used or bought for the use primarily in business (including farming or a profession) or by a debtor who is a nonprofit organization or a government subdivision or agency or if the goods are not included in the definitions of inventory, farm products, or consumer goods.
California Code Comment
By John A. Bohn and Charles J. Williams
Prior California Law
1. The classification of goods in this section is new statutory law. The significance of this classification is described in Official Comment 1.Although goods cannot belong to more than one category at any time, they may change their classification depending upon who holds them and for what reason. Each classification is mutually exclusive but the four classifications described are intended to include all goods.
Official Comment 2.
“The term ‘automobile’ is the generic name which has been adopted by popular approval for all forms of self-propelled vehicles for use upon the highways and streets for general freight and passenger service.”
Vol.1-2, Huddy, Cyclopedia of Automobile Law (1932), p. 140.
Title 18, United States Code, Sec. 31
PART I – CRIMES
CHAPTER 2 – AIRCRAFT AND MOTOR VEHICLES
Sec. 31. Definitions
When used in this chapter the term –
”Motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo;
CALIFORNIA VEHICLE CODE
SECTION 15210(i)(4)
In the absence of a federal definition, existing definitions under this code shall apply.
“Section 465.4 Classification as Pleasure Cars or Commercial Vehicles
“A classification of motor vehicles, based on whether they are used for business or commercial purposes, or merely kept for pleasure or family use, a license being imposed in one case and not in the other, is a proper one. [27. La.–Gulf States Utilities v. Traigle, 1975, 310 So.2d. 78. Ohio.–Fisher Bros. Co. v. Brown, 146 N.E. 100, 111 Ohio St. 602. Or.–Kellaher v. City of Portland, 110 P. 492, 112 P. 1076, 57 Or. 575. Tenn.–Ogilvie v. Hailey, 210 S.W. 645, 141 Tenn. 392. Vt.–State v. Caplan, 135 A. 705, 100 Vt. 140.] “Thus a county ordinance levying a tax for the privilege of using the county roads, and fixing no license tax on an automobile used by the owner or his family for other than commercial purposes is not unreasonable and arbitrary in the imposition of the tax on vehicles used for commercial purposes. [28 Ala.–Hill v. Moody, 93 So. 422, 207 Ala. 325.]”
Blashfield, AUTOMOBILE LAW AND PRACTICE 3d Ed (1998):
Ch. 465 CLASSIFICATION OF MOTOR VEHICLES
2. Is the term “motor vehicle” a term used to describe a device or thing used in commercial activity?
Yes _____ No _____
DRIVER. One employed...
Bouvier’s Law Dictionary, 1856
DRIVER— one employed in conducting a coach, carriage, wagon, or other vehicle…”
BOUVIER’S LAW DICTIONARY, (1914)p. 940.
DRIVER. One employed…
Black’s Law Dictionary, 4th Ed, 1951
Corpus Juris Secundum §151. – Chauffeur or Operator
A distinction is recognized between an operator and a chauffeur under some licensing regulations, “chauffeur” referring to one who is paid for driving an automobile.
60 C.J.S. MOTOR VEHICLES §§ 150 – 151, p. 797 ( also see “Tests”(1) and (2))
The California Appellate Court in 1948 defined what types of licensing is required to operate a “motor vehicle:
“Section 250 . . . “(a) It is a misdemeanor for any person todrive a motor vehicle upon a highway unless he then holds a valid operator’s or chauffeur’s license . . . ..” . . . .driving privileges–of which the license is but evidence (People v. Noggle (1935), 7 Cal.App.2d 14, 17, [45 P.2d 430, 432]) People v. Higgins (1948) 97 Cal.App.2d Supp. 938, 939, 941; 197 P.2d 417.
The foregoing court citation clearly shows that the “operator’s license” permits engagement in commercial activity.
Section 1. (b) The word “operator” shall include all persons,firms, associations and corporations who operate motor vehicles upon any public highway in this state and thereby engage in the transportation of persons or property for hire or compensation, but shall not include any person, firm, association or corporation who solely transports by motor vehicle persons to and from or to and from attendance upon any public school or who solely transports his or its own property, or employees, or both, and who transports no persons or property for hire or compensation… Section 2. Each operator of a motor vehicle within this state who transports or desires to transport for compensation or hire persons or property upon or over any public highway within this state shall apply to and secure from the board of equalization of the State of California a license to operate each and all of the motor vehicles which such operator desires to operate or which such operator from time to time may operate.”
Stats. 1925, ch 412, p. 833. Approved by the Governor May 23, 1925.
CARRIERS, contracts. There are two kinds of carriers, namely, common carriers, (q.v.) who have been considered under another head; and private carriers. These latter are persons who, although they do not undertake to transport the goods of such as choose to employ them, yet agree to carry the goods of some particular person for hire, from one place to another.
2. In such case the carrier incurs no responsibility beyond that of any other ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. 2 Bos. & Pull. 417; 4 Taunt. 787; Selw. N. P. 382 n.; 1 Wend. R. 272; 1 Hayw. R. 14; 2 Dana, R. 430; 6 Taunt. 577; Jones, Bailm.
121; Story on Bailm, Sec. 495. But in Gordon v. Hutchinson, 1 Watts & Serg. 285, it was holden that a Wagoner Who carries goods for hire, contracts, the responsibility of a common carrier, whether transportation be his principal and direct business, or only an occasional and incidental employment.
3. To bring a person within the description of a common carrier, he must exercise his business as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business; not as a casual occupation pro hac vice. 1 Salk. 249; 1 Bell’s Com. 467; 1 Hayw. R. 14; 1 Wend. 272; 2, Dana, R. 430. See Bouv. Inst. Index, b. t.
3. Are you a “driver”, “operator, or “carrier”?
Yes _____ No _____
The activity licensed by state DMVs and in connection with which individuals must submit personal information to the DMV- the operation of motor vehicles-is itself integrally related to interstate commerce.
…state activities integrally related to commerce, and acted within its sphere of power to afford “security * * * to the rights of the people” by preventing the States from releasing personal information that they require individuals to submit as a condition of engaging in activity-owning and operating a motor vehicle-that is integrally related to commerce generally…
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. CHARLIE CONDON, ATTORNEY GENERAL FOR THE STATE OF SOUTH CAROLINA, ET AL.,
In the Supreme Court of the United States, (Jan. 12, 2000)
No. 98-1464
[Emphasis added]
4. When you use your car, are you engaged in the activity the DMV regulates?
Yes _____ No _____
Vehicle Code (1935),
“Section 4.: Pending Proceedings and Accrued Rights. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by the provisions of this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.”
CALIFORNIA VEHICLE CODE (1998)
Pending Proceeding and Accrued Rights
4. No action or proceeding commenced before this code takes effect, and no right accrued , is affected by the provisions of this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.
Constitution of the State of California, 1849 Sec. 1.
All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty: acquiring, possessing and protecting property: and pursuing and obtaining safety and happiness.
Sec. 10.
The people shall have the right freely to assemble together,
Sec. 21.
This enumeration of rights shall not be construed to impair or deny others, retained by the people.
CALIFORNIA VEHICLE CODE
17451. The acceptance by a nonresident of the rights and privileges conferred upon him by this code… 17453. The acceptance of rights and privileges under this code…
5. Are the “rights and privileges” offered by the DMV “accrued” rights?
Yes _____ No _____
DEFINITIONS AND SOURCES OF LAW. 22 – 22.2
CIVIL CODE
SECTION 22-22.2
22. Law is a solemn expression of the will of the supreme power of the State.22.1. The will of the supreme power is expressed:
(a) By the Constitution.
(b) By statutes.22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.
6. Is the VEHICLE “CODE” the law?
Yes _____ No _____ If, so, why didn’t the Legislature avoid any confusion or question by authorizing CIVIL CODE SECTION 22.1, to read in the following way?:
22.1 The will of the supreme power is expressed:
(a) By the Constitution.
(b) By statutes.
(c) By the codes.
Constitution of the State of California, 1849
Article III: Distribution of Powers.
The powers of Government of the state of California shall be divided into three separate departments: the Legislative, the Executive, and Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases hereinafter expressly directed or permitted.
7. Do judges have discretion to expand the meaning of ANY code section by adding words the Legislature elected to leave out?
Yes _____ No _____
“[T]he Legislature, either by amending (section 1382) or otherwise, may not nullify a constitutional provision.”
Rost v. Municipal Court of Southern Judicial Dist., County of San Mateo(1960) 85 A.L.R.2d 974, 979 Headnote 5.
“A state cannot impose restrictions on the acceptance of a license that will deprive the licensee of his constitutional rights”.
Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d. 325, 144 ALR 839
8. Does the Legislature have the authority to enact legislation compelling the waiver of constitutionally secured rights in favor of acceptance of inferior government granted taxable and revocable privileges?
Yes ____ No _____
“A license is in the general nature of a special privilege, entitling the licensee to do something that he would not be entitled to do without the license”.
51 Am. Jur.2d., LICENSES AND PERMITS, PART ONE, GENERAL PRINCIPLES, I. GENERAL, §1. Generally, p. 7.
9. Are the unalienable rights and immunities secured by the Constitution “special privileges”?
Yes _____ No _____
10. Predicated on the foregoing authorities, are you engaged in the activity the DMV regulates?
Yes ____ No _____
11. Does the Legislature possess the authority to compel you to apply for and pay and annual fee for a license when you don’t do what the license permits?
Yes _____ No _____
12. Does the Legislature possess the authority to compel you to transfer an interest in your private property to any agency of State government?
Yes _____ No _____
Terms found in the CALIFORNIA VEHICLE CODE and associated with the DMV and applied to those persons who do what the DMV regulates:
COMMERCIAL. Relating to or connected with trade and traffic or commerce in general. “Zante Currents”, C.C.Cal.,73 F. 189. Occupied with commerce. Bowles v. Co-Operative G. L. F. Farm Products, D.C.N.Y., 53 F. Supp. 413, 415.
Black’s Law Dictionary, 4th Ed., p. 337
INTERSTATE COMMERCE. Traffic, intercourse, commercial trading, or the transportation of persons or property between or among the several states of the Union, or from between points in one state and points in another state; commerce between the states, or between places in different states.
It comprehends all the component parts of commercial intercourse between different states.
[Cites omitted]
Black’s Law Dictionary, 4th Ed., p. 955
TRAFFIC. Commerce; trade; sale or exchange of merchandise, bills, money, and the like. The passing of goods or commodities from one person to another for an equivalent in goods or money. Senior v. Ratterman, 44 Ohio St. 673, 11 N.E. 321; Fine v. Moran, 74 Fla. 417, 77 So. 533, 538; Bruno v. U.S., C.C.A.Mass., 289 F. 649, 655; Kroger Grocery and Baking Co. V. Schwer, 36 Ohio App. 512, 173 N.E. 633. The subjects of transportation on a route, as persons or goods; the passing to and fro of persons, animals, vehicles, or vessels, along a route of transportation, as a long a street, canal etc. United States v. Golden Gate Bridge and Highway Dist. of California , D.C.Cal., 37 F. Supp. 505, 512.
Black’s Law Dictionary. 4th Ed., p. 1667
TRANSPORTATION. The removal of goods or persons from one place to another, by a carrier. Railroad Co. v. Pratt, 22 Wall. 133, 22 L.Ed. 827; Interstate Commerce Com’n v. Brimson, 14 S.Ct. 1125, 154 U.S. 447, 38 L.Ed. 1047; Gloucester Ferry Co. v. Pennsylvania, 5 S.Ct. 826, 114 U.S. 196, 29 L.Ed. 158
Black’s Law Dictionary, 4th Ed., p. 1670
BAILEE, contracts. One to whom goods are bailed.
2. His duties are to act in good faith he is bound to use extraordinary
diligence in those contracts or bailments, where he alone receives the
benefit, as in loans; he must observe ordinary diligence of those bailments,
which are beneficial to both parties, as hiring; and he will be responsible
for gross negligence in those bailments which are only for the benefit of
the bailor, is deposit and mandate. Story’s Bailm. Sec. 17, 18, 19. He is
bound to return the property as soon as the purpose for which it was bailed
shall have been accomplished.
3. He has generally a right to retain and use the thing bailed,
according to the contract, until the object of the bailment shall have been
accomplished.
4. A bailee with a mere naked authority, having a right to remuneration
for his trouble, but coupled with no other interest, may support trespass
for any injury, amounting to a trespass, done while he was in the actual
possession of the thing. 4 Bouv. Inst. n. 3608.
The “number plates” and or “emblems” are the EVIDENCE that the “license” has been acquired.
The License Tax Act of 1933 was enacted as a step in the second line, that of certain acts and constitutional provisions which were primarily revenue measures, designed to secure for the state a fair return for the use of the public highways of the state in transporting persons or property for compensation. (Stats. 1923, p. 706; Stats. 1925, p. 833; Stats. 1927, p. 1708; Stats.1927, p. 1742; California Const., art. XIII, sec. 15; Pol. Code, sec. 3664aa; Stats.1933, p. 928.) These enactments have been before the courts of this state in the following cases: Bacon Service Corp. v. Huss, 199 Cal. 21 [248 Pac. 235]; In re Schmolke, 199 Cal. 42 [248 Pac. 244]; Los Angeles etc. Transp. Co. v. Superior Court, 211 Cal. 411 [295 Pac. 837]; Alward v. Johnson, 208 Cal. 359 [281 Pac. 389]; People v. Duntley, 217 Cal. 150 [17 Pac. (2d) 715]; People v. Lang Transp. Co., 217 Cal. 166 [17 Pac. (2d) 721]. An analysis of the legislative history discloses the fact that all the statutes dealing with the regulation of transportation agencies refer to persons in the business of transportation of persons or property upon the public highways for hire or compensation….
We are satisfied that the purpose of the enactment of the License Tax Act of 1933 was to secure a fair return to the state for the use of its public highways not only from carriers, both common carriers and private contract carriers, but also from the larger class of persons who fairly answer to the description of “operator” therein defined as taxable and who receive compensation, either directly or indirectly, from the use of the public highways.
[Empahsis and italics added]
CALIFORNIA COMMERCIAL CODE
(former section) §9109. Classification of Goods: “Consumer goods”; “Equipment”; “Farm Products”; “Inventory” Goods are
(1) “Consumer goods” if they are used or bought for use primarily for personal, family or household purposes;
(2) “Equipment” if they are used or bought for the use primarily in business (including farming or a profession) or by a debtor who is a nonprofit organization or a government subdivision or agency or if the goods are not included in the definitions of inventory, farm products, or consumer goods.
California Code Comment
By John A. Bohn and Charles J. Williams Prior California Law
1. The classification of goods in this section is new statutory law. The significance of this classification is described in Official Comment 1.Although goods cannot belong to more than one category at any time, they may change their classification depending upon who holds them and for what reason. Each classification is mutually exclusive but the four classifications described are intended to include all goods.
Official Comment 2.
Do you use your car in the way “Equipment” is defined, or do you use your car as the term “Consumer goods” is defined?
The license permits activity that would be illegal without the license.
Licenses authorizes the exercise of privileged activity. The privilege to be exercised is inferior to unalienable or fundamental rights secured by both State and federal Constitutions.
“Moreover, a “distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance or permission.”
Packard v Banton, 264 US 140, 145.
“…(its object) is to confer right or power which does not exist without it and exercise of which, without license would be illegal.”
Inter-City Coach Lines v Harrison, 157 SE 673,676.
“A permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or a corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police power.”
Rosenblatt v California State Bd. of Pharmacy, 158 P. 2d 199, 203.
The term “license” implies a divestiture of right or title, by the licensee, to the property which is subject to the “license.” A “license” is a mere revokable “privilege” to do An act (or series of acts) upon land, and excludes the right or Title thereto.
Eastman v Piper, 229 P. 1002, 1003;
Gravelly Ford Canal Co. v Pope and Talbot Land Co., 178 P. 155, 163;
Howes v Barmon, 81 P. 48, 49, Rodefer v Pittsburgh, 74 NE 183, 186.
“A license… is no more than a temporary permit to do that which would otherwise be unlawful…”
Rawson v Dept of Licenses, 15 Wn.2d 364, 371 (1942).
“The only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are (1) that the state must not exact of those it permits to use the highways for hauling for gain that they shall surrender any of their inherent U.S. constitutional Rights as a condition precedent to obtaining permission for such use…”
Riley v Lawson, 143 SO. 619; Stephenson v Binford, 287 US 251, 87 ALR 721, 736.
Predicated on the foregoing, the following terms represent “commercial activity”, which is a privilege to engage in and regulated by the DMV:
Transportation
Transport
Carrier
Motor Vehicle
Vehicle
Automobile
License
Driver
Operator
Passenger
Driving Privilege
If you do not engage the commercial activity that the word “driving” represents, can you be required to apply for a “driver license” and declare that you engage in commercial activity?
If you’re not a “General Contractor” can you be forced to get a license permitting “general contracting”?
If you’re not an attorney, can you be forced to get a license to practice law?
If you do not hunt or fish can you be forced to get a hunting or fishing license?
Is it possible you mis-classified your car?
Did you use the proper definition to describe your car?
The word “car” merely describes an amalgam of different components. The words “motor vehicle” also describes an amalgam of different components. There is a distinction in “USE” the amalgam of different components the words “car” and “motor vehicle” describe, this is reasonably deduced from the foregoing court citations and codes. One term is a designation of the amalgamated components being for commercial use or application. The other term is a colloquial definition of amalgamated components used to merely travel form point A to point B for private personal reasons of a non- commercial nature.
It can be reasonably argued the terms “covered wagon” and “car” mean the same thing, a device used to go from point A to point B. And it can be further argued that like the covered wagon, the private car is not an item the Legislature has any authority to compel the owner to register unless it was used for purposes which the Legislature had legitimate authority to regulate under the police powers of State government.
Does the Legislature have authority to compel the people to convey an interest in their private property to any government institution?
Government is instituted for the protection, security and benefit of the people;…
Article I, Section 2, Constitution of the State of California, 1849
If the Legislature does not have absolute authority to compel the owner of a car to register it, then there must necessarily be CONDITIONS and the TERMS used and published somewhere so that one can come to an accurate determination that the REGISTRATION REQUIREMENTS apply or not to their property which they use to travel from point A to point B.
The following Attorney General Opinion will shed light on the issue of you car as “bail” and who is the bailor and bailee and the relationship thereof.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION
No. 97-202
of June 9, 1997
DANIEL E. LUNGREN
Attorney General
CLAYTON P. ROCHE
Deputy Attorney General
THE HONORABLE DICK MONTEITH, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following question:
When the owner of a vehicle has been arrested for driving without a
valid license and the vehicle has been impounded, may the owner be found guilty of grand theft for removing the vehicle from the impounding agency’s custody without permission or authority prior to the expiration of the 30-day impoundment period?
CONCLUSION
When the owner of a vehicle has been arrested for driving without a
valid license and the vehicle has been impounded, the owner may be found guilty of grand theft for removing the vehicle from the impounding agency’s custody without permission or authority prior to the expiration of the 30-day impoundment period.
ANALYSIS
Vehicle Code section 14602.6 Footnote No. 1 provides:
“(a) Whenever a peace officer determines that a person was
driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a license, the peace officer may either immediately arrest that person and
cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision,
cause the removal and seizure of the vehicle, without the necessity of arresting the person . . . . A vehicle so impounded shall be impounded for 30 days. The impounding agency, within two working days of impoundment, shall send a notice by certified mail, return receipt requested, to the legal owner of the vehicle, at the address obtained from the department, informing the owner that the vehicle has been impounded. Failure to notify the legal owner within two working days shall prohibit the impounding agency from charging for more than 15 days’ impoundment when the legal owner redeems the impounded vehicle.
“(b) The registered and legal owner of a vehicle that is removed
and seized under subdivision (a) or their agents shall be provided the opportunity for a storage
hearing to determine the validity of, or consider any mitigating circumstances attendant to, the storage . . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
We are asked whether the owner of a vehicle that has been impounded pursuant to section 14602.6 may be found guilty of grand theft if he or she removes the vehicle without permission or authority from the custody of the impounding agency before the expiration of the impoundment period. We conclude that a person may be found guilty of grand theft in such circumstances.
Penal Code section 487 defines “grand theft” as follows:
“Grand theft is theft committed in any of the following cases:
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“(d) When the property taken is an automobile, firearm, . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
Penal Code section 489 prescribes the punishment for grand theft:
“Grand theft is punishable as follows:
“(a) When the grand theft involves the theft of a firearm, by
imprisonment in the state prison for 16 months, 2, or 3 years.
“(b) In all other cases, by imprisonment in a county jail not
exceeding one year or in the state prison.”
The key statute requiring our analysis is Penal Code section 484, which defines “theft” as follows:
“(a) Every person who shall feloniously steal, take, carry, lead, or
drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
In the circumstances presented for consideration, the owner of a
vehicle has removed the vehicle from an impounding agency’s custody without permission or authority prior to the expiration of the statutory impoundment period. The owner has not contested the seizure or impoundment of the vehicle through the storage hearing procedure established by the Legislature. (§14602.6, subd. (b).) Rather, the owner has taken the vehicle at a time when he or she has no right to possession.
While the taking of a vehicle may ordinarily be considered grand theft
(Pen. Code, § 487, subd. (d)), is the vehicle in these circumstances “the personal property of another” (Pen.Code, § 484, subd. (a)) so as to constitute “theft”? In other words, may a person be found guilty of stealing his or her own automobile?
The answer to that question has been settled in California for well over
100 years. In the early case of People v. Stone (1860) 16 Cal. 369, the possession of certain personal property was given by the owner to his creditor until his debt was paid. The Supreme Court ruled that the owner could be found guilty of larceny (“feloniously go away with the personal property of another”) if he took back the property without the consent of the creditor prior to the time the debt was paid. (Id., at p.372.) The Supreme Court ruled similarly in the cases of People v. Thompson (1868) 34 Cal. 671, 672 (“If a man takes his own goods from the possession of his bailee, without his knowledge and consent, the taking may . . . be larceny”) and Jones v. Jones (1886) 71 Cal. 89, 92 (“A man may steal his own property”). In People v. Cain (1907) 7 Cal.App. 163, 167, the court declared:
“. . . The phrase, `personal property of another,’ as used in section 484 of the Penal Code, correctly interpreted, means property in the possession of another who is entitled as bailee, or otherwise, to retain possession thereof for some benefit or profit to himself to the exclusion of all others, rather than the absolute ownership defined by section 679 of the Civil Code. Our conclusion is that the taking of property by the general owner thereof from the possession of one who rightfully holds it as bailee or otherwise for benefit to himself, with the intent to charge such bailee with the value thereof, or deprive him of such benefit, constitutes larceny.” Footnote No. 2
In People v. Photo (1941) 45 Cal.App.2d 345, 351, the court reaffirmed that the phrase “personal property of another” may refer to someone who has rightful custody of the property but not absolute ownership:
“The allegation in the information that appellants `took the personal property of another,’ as that term is used in section 484 of the Penal Code, means property in the possession of another who is entitled as bailee, lien claimant, or otherwise, to retain possession thereof for some benefit or profit to himself to the exclusion of all others, rather than the absolute ownership, defined in section 679, Civil Code. . . .”
Here, we are given that the owner of the vehicle has no right of possession at the time of the taking of the vehicle from the custody of the impounding agency. We believe that the foregoing cases support the conclusion that one may be prosecuted for taking his or her own property from another’s lawful possession. A charge of grand theft may thus be proved under the limited facts we have been given. (See People v. Stone, supra, 16 Cal. at 373; People v. Photo, supra, 45 Cal.App.2d at 353.)
We realize that the taking of a vehicle from the lawful possession of another may constitute different crimes depending upon the circumstances, especially upon the intent of the person taking the vehicle. (See § 10851; Pen. Code, § 459; Civ. Code, § 3070, subd. (b); People v. Morales (1993) 19 Cal.App.4th 1383, 1392-1393; People v. Pater (1968) 267 Cal.App.2d 921, 923-924.) Also, “[a] settled rule of statutory construction precludes prosecution under a general statute when a more specific one describes the conduct involved. [Citations.]” (Finn v. Superior Court (1984) 156 Cal.App.3d 268, 271; see In re Joiner (1959) 180 Cal.App.2d 250, 253.) Footnote No.3 However, we do not have facts establishing an offense under any other criminal statute. (See, e.g., People v. Curtin (1996) 22 Cal.App.4th 528, 531 [discussion of crimes of larceny by trick and device and obtaining property by false pretenses].) Accordingly, the general statute making grand theft a crime (Pen. Code, § 487) would be applicable here. Footnote No. 4
We thus conclude that when the owner of a vehicle has been arrested for driving without a valid license and the vehicle has been impounded, the owner may be found guilty of grand theft for removing the vehicle from the impounding agency’s custody without permission or authority prior to the expiration of the 30-day impoundment period.
* * * * *
Footnote No. 1
All references hereafter to the Vehicle Code are by section number only. Return to text
Footnote No. 2
Civil Code section 679 provides:
“The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws.”
Footnote No. 3
If inconsistencies exist in the punishment for similar offenses under different statutes, it is for the Legislature to consider and address. (Finn v. Superior Court, supra, 156 Cal.App.3d at 271.)
Footnote No. 4
In In re Joiner, supra, 180 Cal.App.2d 250, the court found that the grand theft statute was inapplicable on facts somewhat similar to those present here, since a specific statute covered the actions of the defendant. The Legislature has changed the statutory language examined in Joiner, and it would no longer cover the limited circumstances we have been given. Hence, sections 484 and 487 remain applicable to our situation.
Can one of the sovereign people be compelled to divest themself of absolute dominion of their unalienable rights and immunities by a municipal government employee without a court order? Can one of the sovereign people be compelled to waive their unalienable rights and immunities suffering under the auspices of metus? Can one be compelled to divulge information that my be used to incriminate themself as a condition of due process of law?
Once the accused exercises their right to remain silent and notifies the arresting officer of the exercise of secured rights at Section 8 of the Constitution of the State of California, 1849, can the arresting officer compel an admission or confession?
“We begin with the fundamental premise that the objective of statutory interpretation is to
ascertain and effectuate legislative intent.” In determining the Legislature’s intent, we are to “look first to the language of the statute, giving effect to its `plain meaning.’” ( Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209.) “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) Finally, “reports of legislative committees and commissioners are part of a statute’s legislative history and may be considered when the meaning of a statute is unclear.” (Hutnick v. U.S. Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7.)
“…the well-established principle that “[t]he courts must give statutes a reasonable construction which conforms to the apparent purpose and intention of the lawmakers.” (Clean Air Constituency v. California Air Resources Bd. (1974) 11 Cal.3d 801, 813.)
93- 418 – TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
Vehicle Code (1935),
“Section 81. “Street” or “Highway.” “Street” or “highway” is a way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel.”
“As a matter of right”, not “sufferance” which = “government permission”. The exercise of constitutionally secured inalienable rights DOES NOT REQUIRE the party wishing to exercise such rights to ASK for government permission which permission is evidenced by the “driver license”. The “driver license” is merely EVIDENCE you ASKED for and are in POSSESSION of something belonging to the State and CONSENTED to be regulated by the terms and conditions found within the VEHICLE CODE.
Even as late as 1950, the California Supreme Court said:
“Fundamentally it must be recognized that in this country “Highways are for the use of
the traveling public, and all have … the right to use them in a reasonable and
proper manner, and subject to proper regulations as to the manner of use.” (13
Cal.Jur. 371, sec. 59) “The streets of a city belong to the people of the state, and the
use thereof is an inalienable right of every citizen, subject to legislative control or such
reasonable regulations as to the traffic thereon or the manner of using them as the
legislature may deem wise or proper to adopt and impose.” (19 Cal.Jur. 54, sec. 407)
“Streets and highways are established and maintained primarily for purposes of travel
and transportation by the public, and uses incidental thereto. Such travel may be for
either business or pleasure … The use of highways for purposes of travel and
transportation is not a mere privilege, but a common and fundamental right, of
which the public and individuals cannot rightfully be deprived …[A]ll persons have an
equal right to use them for purposes of travel by proper means, and with due regard for
the corresponding rights of others.” (25 Am.Jur. 456-457, sec. 163; see, also, 40
C.J.S. 244-247, sec. 233.)”
Escobedo v. State of California (1950), 35 Cal.2d. 870, 875-876.
If you do not engage in commercial activity that the word “driving” represents, can you be required to apply for a “driver license” and declare that you do engage in the commercial activity the term “driving” represents?
When you signed your name on the application for privileges at the DMV, you did so under penalty of perjury that the foregoing information you placed on the application and other documents was true and correct. Predicated on the foregoing, have you committed perjury? Predicated on the foregoing have you declared to be true that which isn’t true?
“A contract may be rescinded by the act of a party entitled and desiring to rescind.”
McNeese v. McNeese, (1923) 190 Cal. 402, 213 P. 36.
A contract obtained under any element of fraud such as non-disclosure, misrepresentation, withholding of
pertinent facts can be rescinded by serving a notice of rescission.
Prewitt v. Sunnymead Orchard Corp., 189 Cal. 723. [Emphasis mine]
“A writing is ‘void ab initio’ in the case of fraud in the inception, and it need not be formally rescinded as a
prerequisite to right of avoidance”.
Bonacci v. Massachusetts Bonding Ins. Co., (1943) 58 CA 2d 657,664.
CIVIL CODE
SECTION 1619-1633
1619. A contract is either express or implied. 1620. An express contract is one, the terms of which are stated in words.
1621. An implied contract is one, the existence and terms of which are manifested by conduct.
1622. All contracts may be oral, except such as are specially required by statute to be in writing.
VEHICLE CODE
17453. The acceptance of rights and privileges under this code or any operation of a motor vehicle anywhere within this state as specified in Section 17451 shall be a signification of the irrevocable agreement of the nonresident, binding as well upon his executor or administrator, that process against him which is served in the manner provided in this article shall be of the same legal force and validity as if served on him personally in this state.
[Emphasis added]
CIVIL CODE
SECTION 1688-1693
1688. A contract is extinguished by its rescission. 1689. (a) A contract may be rescinded if all the parties thereto consent.
(b) A party to a contract may rescind the contract in the
following cases:
(1) If the consent of the party rescinding, or of any party
jointly contracting with him, was given by mistake, or obtained
through duress, menace, fraud, or undue influence, exercised by or
with the connivance of the party as to whom he rescinds, or of any
other party to the contract jointly interested with such party.
(2) If the consideration for the obligation of the rescinding
party fails, in whole or in part, through the fault of the party as
to whom he rescinds.
(3) If the consideration for the obligation of the rescinding
party becomes entirely void from any cause.
(4) If the consideration for the obligation of the rescinding
party, before it is rendered to him, fails in a material respect from
any cause.
(5) If the contract is unlawful for causes which do not appear in
its terms or conditions, and the parties are not equally at fault.
(6) If the public interest will be prejudiced by permitting the
contract to stand.
(7) Under the circumstances provided for in Sections 39, 1533,
1566, 1785, 1789, 1930 and 2314 of this code, Section 2470 of the
Corporations Code, Sections 331, 338, 359, 447, 1904 and 2030 of the
Insurance Code or any other statute providing for rescission.
IF you have determined that you erred by declaring true that which isn’t true, you have an obligation to NOTIFY the other party to the contract so that steps can be taken to correct the fraud. There is no statute of limitations on fraud and an agreement does not become valid over the course of time when there are elements of fraud found in the inception of the agreement.
It can be easily demonstrated that fraud existed at the time the contracting parties first met. 1. The party wanting the benefits/privileges offered by the DMV was unaware that the DMV participated in the regulation of interstate commerce. 2. The party wanting benefits/privileges from the DMV was unaware that the term “driver” represented one engaged in government regulated commercial/traffic activity. 3. The party wanting benefits/privileges from the DMV was unaware that the term “motor vehicle” described a device used for commercial purposes. 4. The party wanting benefits/privileges from the DMV was unaware that the license issued by the DMV authorizes engagement in privileged government regulated commercial activity. 5. The party wanting benefits/privileges from the DMV was unaware that in order to receive such benefits/privileges, they would have to waive their constitutionally secured inalienable rights. 6. The party wanting benefits/privileges from the DMV was unaware that in order to get the benefits/privileges offered by the DMV they must first alter their primary citizenship acquired at birth to that of a second class citizen without acces to their fundamental rights. 7. The party wanting benefits/privileges from the DMV must first enter a federal government welfare program, social security. 8. The party wanting benefits/privileges from the DMV was unaware that they were about to enter an “irrevocable agreement”. 9. The party wanting benefits/rpivileges from the DMV THOUGHT they were required to get a license before they could LAWFULLY use thier property on the streets and highways they pay for in legitimate taxes. 10. The party wanting benefits/privileges from the DMV was unaware they could not be compelled to transfer an interest in their private property to the DMV.
