Opinion Number

Dear Chief Cooper:

Thank you for your recent request for an Attorney General's Opinion. Your questions as I appreciate them are as follows:

1. Must a copy of every traffic citation issued be recorded with the state?

2. Can a mayor void a traffic ticket?

The law specifically addresses the appropriate method of disposition of traffic tickets. The Louisiana Revised Statutes provide in R.S. 32:398.2 as follows:

A. Each traffic enforcement officer upon issuing a traffic citation to an alleged violator of any provision of the motor vehicle laws of this state or of any traffic ordinance of any city or town shall deposit the original citation or a copy of such traffic citation with a court having jurisdiction over the alleged offense or with the appropriate traffic violations bureau.

B. Upon the deposit of the original citation or a copy of the traffic citation with a court having jurisdiction over the alleged offense or with the traffic violations bureau as set forth herein, the original citation or copy of such traffic citation shall be disposed of only by trial in the court of proper jurisdiction or any other official action by a judge of the court, including forfeiture of the bail, or by the deposit of sufficient bail with the traffic violations bureau or payment of a fine to said bureau by the person to whom such traffic citation has been issued.

C. It shall be unlawful for any traffic enforcement officer or any other officer or public employee to dispose of a traffic citation or copies thereof or of the record of the issuance of the citation in a manner other than as required herein.

D. The chief administrative officer of each traffic enforcement agency in the state shall require all traffic officers under his supervision to return to him a copy of every traffic citation which was issued by the officer for the violation of a traffic law or ordinance, and in addition shall require the return of all copies of every traffic citation which has been spoiled or upon which an entry has been made without having issued the citation to the alleged violator.

E. The chief administrative officer shall also maintain or cause to be maintained in connection with every traffic citation issued by an officer under his supervision a record of the disposition of the charge by the court or its traffic violations bureau in which the original or a copy of the traffic citation was deposited.

F. Nothing herein shall be construed as prohibiting or interfering with the authority of a district attorney or other prosecuting attorney to dismiss a traffic citation or charge by entry of a nolle prosequi.

This law requires the officer issuing the citation to file either the original citation or a copy thereof with a court of proper jurisdiction or the traffic violations bureau. Once the citation has been deposited, this section outlines possible methods of disposition. The ticket may only be disposed of by trial in the court of proper jurisdiction, or by any other official action by a judge of the court, by payment of bail or fine by the person to whom the citation was issued, or by dismissal by entry of a nolle prosequi by the district attorney or other prosecuting attorney.

It is the opinion of this office that a mayor may not dismiss charges on a traffic violation, regardless of the consent of the Board of Aldermen. The law includes a penalty provision for any person who unlawfully disposes of a traffic citation. Violation of this law constitutes a misdemeanor punishable by a fine of not more than five hundred dollars or imprisonment for not more than six months or both. (R.S. 32:398.3 (A)).

In conclusion, R.S. 32:398.2 specifies the manner of disposition of traffic citations. And that law requires a copy of each citation to be returned to the chief administrative officer of the respective traffic enforcement agency. Additionally, a public official (including a mayor) who disposes of traffic citations in a manner other than those specified in this statute is subject to the penalties therein.

Thank you again for your inquiry. If I may be of further assistance to you on this or another matter, please do not hesitate to contact me.

With kindest regards, I am

Sincerely,

William J. Guste, Jr. Attorney General

By: Rene I. Salomon Assistant Attorney General

Office of the Attorney General State of Louisiana

Opinion No. 81-215 May 5, 1981

70 Motor vehicles — control and Regulation LSA-R.S. 32:398.2 and 32:398.3

The voiding of traffic tickets by the municipal chief of police or disposition by a procedure other than the procedure Mandate by state law is illegal.

Honorable Tom Anderson Mayor P.O. Box 1059 Hammond, Louisiana 70404

Dear Mr. Manuel:

You requested an opinion from this office on behalf of the Mayor of the Town of Cottonport concerning the dismissal of citations. Your request posed two questions:

(1) In a town with a Mayor-Town Counsel form of government, with an elected chief of police and an appointed magistrate, who can dismiss or nolle porosequi citations?

(2) When, after issuance of the citation, may it be dismissed or "Nolle Prosequied"?

The first question has been addressed previously in Attorney General Opinion Number 91-542 and Attorney General Opinion Number 89-665. The authority to dismiss citations which have been issued is principally an exercise of prosecutorial power and is within the prosecutor's discretion. The prosecutor of a mayor's court may dismiss for any reason or no reason at all. The power to dismiss citations is secondarily an exercise of judicial power which allows a magistrate to dismiss a citation only if a legal defect exists in the proceedings or after trial for legally insufficient evidence.

The mayor retains no authority to dismiss citations once a magistrate has been appointed. La. R.S. 33:441.8 states, in pertinent part, that: "[w]henever the magistrate is so designated by the mayor to preside over the mayor's court, he shall exercise the powers and authority of the mayor over said court." Additionally, the chief of police may not dismiss a citation after it has been issued. This would constitute a violation of La. R.S.32:398.2(C) which states that "[i]t shall be unlawful for any traffic enforcement officer or any other officer . . . to dispose of a traffic citation . . . in a manner other than as required herein." The statute requires the officer issuing the citation to deposit such or a copy thereof with a court having jurisdiction over the traffic violation or with the traffic violations bureau. Once the citation is deposited with either the court or the traffic violations bureau, the citation "shall be disposed of only by trial in the court of proper jurisdiction or any other official action by a judge of the court . . . or by the deposit of sufficient bail with traffic violations bureau or payment of a fine to said bureau" by the traffic offender. La. R.S. 32:398.2(B). Therefore, the mayor, who has appointed a magistrate, and the chief of police are prohibited from dismissing traffic citations.

Regarding the second question, citations may be dismissed at the discretion of the prosecuting attorney. La.C.Cr.P. art. 691 states that "[t]he district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court." If the prosecuting attorney dismisses the citation prior to the first witness being sworn at trial, then a subsequent prosecution may be instituted on the same charges if the prosecuting attorney chooses to pursue such. If the prosecuting attorney dismisses the citation after the first witness is sworn, but with the defendant's consent, then subsequent prosecution of the same charges is not barred. La.C.Cr.P. art. 693. However, if the dismissal is entered without the defendant's consent after the first witness is sworn at trial, then such dismissal acts as an acquittal and bars subsequent prosecution for the charge dismissal. La.C.Cr.P. art. 693(1).

Thus, in summation, it is the opinion of this office that the power to dismiss citations is granted primarily to the prosecuting attorney and secondarily to the court. The court can only dismiss a citation if a legal defect exists in the proceedings or after trial for legally insufficient evidence. A mayor who has appointed a magistrate to preside over the mayor's court relinquishes all authority to dismiss citations. A chief of police may not dismiss a citation once it has been issued. Once a citation has been issued, it can be dismissed or "nolle prosequied" at the sole discretion of the prosecutor. If the citation is dismissed prior to the first witness being sworn at trial or if the citation is dismissed after the first witness is sworn at trial but with the defendant's consent, then subsequent prosecution for the charges dismissed is not barred. Upon consent of the defendant, the prosecutor may dismiss the citation even after the first witness is sworn.

I hope this opinion sufficiently answers your questions. If our office may be of any further assistance, please do not hesitate to contact us.

Sincerely,

Richard P. Ieyoub Attorney General

By: Donald W. North Assistant Attorney General

Dear Mr. Johnson:

Your request for an Attorney General Opinion has been forwarded to me for research and reply. In particular, you have asked the following questions:

1) Whether the Alexandria City Marshal has the independent authority to amend or dismiss traffic citations which would prosecuted within the jurisdiction of the Alexandria City Court?; and

2) Whether such amendments or dismissals would constitute malfeasance?

These questions have been addressed by previous opinions from this office. I have attached Attorney General Opinions 81-215, 84-515 and 93-313 for your review. In short, however, the disposition of traffic citations is addressed by La. R.S.32:398.2 which provides:

§ 398.2. Disposition of traffic citations; unlawful acts; records

A. Each traffic enforcement officer upon issuing a traffic citation to an alleged violator of any provision of the motor vehicle laws of this state or of any traffic ordinance of any city or town shall deposit the original citation or a copy of such traffic citation with a court having jurisdiction over the alleged offense or with the appropriate traffic violations bureau. However, a citation for a violation of R.S. 32:80(A) shall be deposited only with a court and not with a traffic violations bureau.

B. Upon the deposit of the original citation or a copy of the traffic citation with a court having jurisdiction over the alleged offense or with the traffic violations bureau as set forth herein, the original citation or copy of such traffic citation shall be disposed of only by trial in the court of proper jurisdiction or any other official action by a judge of the court, including forfeiture of the bail, or by the deposit of sufficient bail with the traffic violations bureau or payment of a fine to said bureau by the person to whom such traffic citation has been issued. However, a citation or its copy alleging a violation of R.S. 32:80(A) shall be disposed of only by trial or acceptance of a plea in open court.

C. It shall be unlawful for any traffic enforcement officer or any other officer or public employee to dispose of a traffic citation or copies thereof or of the record of the issuance of the citation in a manner other than as required herein.

D. The chief administrative officer of each traffic enforcement agency in the state shall require all traffic officers under his supervision to return to him a copy of every traffic citation which was issued by the officer for the violation of a traffic law or ordinance, and in addition shall require the return of all copies of every traffic citation which has been spoiled or upon which an entry has been made without having issued the citation to the alleged violator.

E. The chief administrative officer shall also maintain or cause to be maintained in connection with every traffic citation issued by an officer under his supervision a record of the disposition of the charge by the court or its traffic violations bureau in which the original or a copy of the traffic citation was deposited.

F. Nothing herein shall be construed as prohibiting or interfering with the authority of a district attorney or other prosecuting attorney to dismiss a traffic citation or charge by entry of a nolle prosequi.

Accordingly, the Alexandria City Marshal is without authority to amend or dismiss traffic citations because all such citations "shall be disposed of only by trial in the court of proper jurisdiction or any other official action by a judge of the court.."

As to your second question regarding malfeasance, such conduct is prohibited by La. R.S. 14:134 which makes it unlawful for any public officer or any public employee to, "intentionally perform any such duty in an unlawful manner." As demonstrated above, it is unlawful for anyone to dispose of traffic citations in contravention of La. R.S. 32:398.2. Therefore, it may be malfeasance for a public official to dispose of traffic citations in an unlawful manner.

I hope that this opinion has fully answered your questions and proves helpful. If I can be of any further assistance to you, please do not hesitate to call upon me at your convenience. Until then, I am

Sincerely,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ___________________________ James L. Piker Assistant Attorney General

Date Received:

Date Released:

JAMES L. PIKER
ASSISTANT ATTORNEY GENERAL

Office of the Attorney General State of Louisiana

Opinion No. 84-515 July 17, 1984

MOTOR VEHICLES ............ 70 R.S. 32:398.2
(1) Mayor does not have authority to void traffic citations. (2) A copy of every traffic citation issued must be recorded with the state.

Honorable Louis S. Cooper, Jr. Chief of Police Town of Merryville P.O. Box 506 Merryville, Louisiana 70653

Dear Mr. Anderson:

In a recent letter you asked for an opinion from this office concerning the legality of the voiding of municipal tickets by the city's Chief of Police. Specifically, you asked if certain traffic tickets may be held by the Chief of Police before being processed in the city court and prosecuted by the city attorney.

The disposition of traffic citations is addressed in LSA-R.S. 32.398.2. It provides, in part, as follows:

`A. Each traffic enforcement officer upon issuing a traffic citation to an alleged violator of any provision of the motor vehicle laws of this state or of any traffic ordinance of any city or town shall deposit the original citation or a copy of such traffic citation with a court having jurisdiction over the alleged offense or with the appropriate traffic violations bureau.'

`B. Upon the deposit of the original citation or a copy of the traffic citation with a court having jurisdiction over the alleged offense or with the traffic violations bureau as set forth herein, the original citation or copy of such traffic citation shall be disposed of only by trial in the court of proper jurisdiction or any other official action by a judge of the court, including forfeiture of the bail, or by the deposit of sufficient bail with the traffic violations bureau or payment of a fine to said bureau by the person to whom such traffic citation has been issued.'

`C. It shall be unlawful for any traffic enforcement officer or any other officer or public employee to dispose of a traffic citation or copies thereof or of the record of the issuance of the citation in a manner other than as required herein.'

`F. Nothing herein shall be construed as prohibiting or interfering with the authority of a district attorney or other prosecuting attorney to dismiss a traffic citation or charge by entry of a nolle prosequi.' (Emphasis added.)

Furthermore, LSA-R.S. 32:398.3 provides, in pertinent part, as follows:

`A. Any person who cancels or solicits the cancellation of any traffic citation, in any manner other than as provided in this Part, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than five hundred dollars or imprisoned for not more than six months or both.'

LSA-R.S. 32:398.2 mandates that a traffic enforcement officer, upon issuing a traffic citation to alleged violators of traffic ordinances, deposit the original traffic citation or a copy of the citation with a court (or traffic bureau) having jurisdiction over the matter. It can then be disposed of by the court or by the entry of a nolle prosequi by the prosecuting attorney. Disposition in any other manner inconsistent with this would be in violation of state laws.

Thus, it is the opinion of this office that the voiding of traffic tickets by the Chief of Police, or disposition by any procedure other than the procedure mandated by state law is illegal.

Sincerely,

William J. Guste, Jr. Attorney General

By: Cassandra A. Simms Staff Attorney

Office of the Attorney General State of Louisiana

Opinion No. 93-313 August 6, 1993

71 MUNICIPALITIES 77 OFFICERS — Local Municipal; Selection Qualifications de Tenure; Vacancies La. R.S. 32:398.2 La. R.S. 33:441.8

Power to dismiss citations is granted primarily to the prosecuting attorney and secondarily to the court. Prosecuting attorney may dismiss at his discretion before jeopardy attaches and with the consent of defendant after jeopardy attaches. Mayor who appoints magistrate to preside over mayor's court has no authority to dismiss citations. Magistrate can only dismiss citation if legal defect exists or for legally insufficient evidence. Chief of Police has no authority to dismiss citation once citation has been issued.

Mr. Keith W. Manuel Attorney for Town of Cottonport 113 East Ogden Street Marksville, LA 71351