VC 26708
Vehicle Code section 26708 states in relevant part, ": (a) (1) A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows.
(2) A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle that obstructs or reduces the driver's clear view through the windshield or side windows.
(3) This subdivision applies to a person driving a motor vehicle with the driver's clear vision through the windshield, or side or rear windows, obstructed by snow or ice.
(b) This section does not apply to any of the following:
(1) Rearview mirrors.
In People v. White, an officer observed a tree-shaped air freshener hanging from the rearview mirror and ticketed the driver for violating Vehicle Code section 26708, subdivision (a)(1). (People v. White (2003) 107 Cal.App.4th 636 ("White").) Section 26708, subdivision (a)(1), prohibits the placement, display, installation or affixing of any "object or material ... upon the windshield or side or rear windows." The Court of Appeal explained that the driver had not violated this code section because the air fresher was hanging from the rear view mirror, not affixed to the window. (See U.S. v. King (9th Cir. 2001) 244 F.3d 736, 740 [the word "upon" in a similar Anchorage Municipal Code section requires "placement on or in direct contact with the windshield"].)
In White, the court rejected the state’s argument that the air freshener violated section 26708, subdivision (a)(2), which provides: "No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver's clear view through the windshield or side windows." The court explained that the statute does not flatly prohibit hanging any object on a rearview mirror. Also, the officer never testified that he believed the air freshener obstructed the driver's view. Nor did the officer testify to other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded.
But in another case, the Court of Appeal found that an air freshener violated section 26708, subdivision (a)(2). In People v. Colbert (2007) 157 Cal. App. 4th 168 ("Colbert"), the item hanging from the rear view mirror was a flat air freshener shaped like a tree, hanging from a string or thread, 4.75 inches tall, had a base of 1.75 inches, and was 2.75 inches wide at its widest point. In that case, the officer, through personal experience, knew that an object of this size could obstruct the driver's view because the officer had found it necessary to remove a similar-sized object that he had hung from the rear view mirror in his personal vehicle because it obstructed his view. He had discovered that, due to the proximity of the hanging object to the driver's face, "it actually obstructs the view of larger objects such as vehicles or pedestrians" despite the hanging object's small size. Under those facts, the Court of Appeal upheld the traffic stop for the Vehicle Code violation.
But Vehicle Code section 26708, subdivision (b)(1), now specifically states that this section does not apply to rear view mirrors.
If you have already received a traffic ticket for this violation, you can argue that your case is more like the White case than it is like the Colbert case. Point to no evidence of impaired driving, or impaired view and that your hanging object was smaller than the one found to be obstructive in Colbert if this is true. Also, point out that Vehicle Code section 26708, subdivision (b)(1), specifically states that this section does not apply to rear view mirrors
VC 26708 fine
A violation of Vehicle Code section 26708, subdivision (a)(2), is an infraction punishable by fine only. Generally, it will not add any points to your DMV record.
In 2016, the base fine is $25. but that is not what you will be asked to pay because each county adds penalty assessments to the base fine that vary. The fine with penalty assessments added will be about $197 but your fine could be more or less depending on your county's added fees. If you decide to pay the ticket and not contest it in court, do so before the deadline. Vehicle Code section 40310 requires the imposition of a late charge of 50 percent of any traffic penalties not paid within 20 days.
Methods of Challenging the Traffic Ticket
You can challenge a traffic ticket violation by either appearing in court or request a Trial by Declaration, which is stamped on the back of your traffic ticket. If the court finds for you, the court can dismiss your case. Additionally, if the officer does not appear in court, or respond to your Trial by Declaration, if you challenge the ticket in writing, your case can be dismissed. If you lose your trial by declaration, you have a limited time to request a trial de novo, a new court trial, but you must request this before the deadline. Check the California Supreme Court website under traffic tickets for more information.
Also, you can hire an experienced traffic ticket lawyer to make the argument for you in court. Traffic ticket attorneys know the courts and are experienced at arguing for dismissal of Vehicle Code violations. Good luck.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
Disclosure: If you click on the Amazon link today and make a purchase, we may receive a very small commission that will not raise your purchase price. If you are in California, Fight Your Ticket and Win in California is recommended for having helpful information. But if you are in another state, Beat Your Ticket is recommended. We have not received anything from the author or publisher for recommending these books. Good luck.
Last updated: August 2016
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