Can a Minnesota police officer issue a traffic citation for a misdemeanor traffic offense that the officer did not personally see, but learned about later from investigation?

Plain-English summary

An accident occurred in Minnetonka. The driver had failed to maintain vehicle control, a misdemeanor under Minn. Stat. § 169.14. The investigating officer did not see the accident but later gathered enough information to establish probable cause, then issued a traffic citation. Minnetonka City Attorney Laurel M. Hersey asked the AG whether that was a lawful citation.

The AG answered yes, with an important distinction. The "in-presence" requirement of Minn. Stat. § 629.34 governs custodial arrest. It controls when an officer may take a misdemeanor suspect into custody without a warrant. It does not, the AG concluded, control whether an officer may instead issue a uniform traffic citation requiring the suspect to appear in court.

The opinion explicitly superseded the AG's 1967 opinion (also Op. Atty. Gen. 494a-1, March 14, 1967), which had said the opposite. That older opinion had read § 169.91 as treating the traffic ticket as substituting for an arrest, and reasoned that a citation could not issue where no arrest could be made. The 1993 opinion explained why that reading no longer holds.

Three reasons. First, the legislature amended §§ 169.91 and 169.92 in 1988, removing the requirement that a driver sign a promise to appear in order to be released. Section 169.99 was amended at the same time to drop the "receipt in lieu of bail" function of the driver's signature. After 1988, the traffic citation no longer functions as a substitute for arrest; it functions as a charging instrument on its own.

Second, in State v. Studdard, 352 N.W.2d 413, 415 (Minn. 1984), the Minnesota Supreme Court held that § 629.34's in-presence requirement does not apply to police investigatory conduct short of an arrest. The citation, where no arrest follows, is investigatory and charging conduct short of arrest.

Third, the Rules of Criminal Procedure recognize multiple charging methods. Rules 4.02 and 10.01 expressly allow a "tab charge" to initiate a criminal proceeding. Rule 5.01 recognizes citation as a separate appearance mechanism. The Minnesota Supreme Court in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 833 n.5 (Minn. 1991), called the ticket "the functional equivalent of a complaint." Because the rules expressly recognize multiple charging methods beyond a sworn complaint, the old AG opinion's premise (that the citation only works as a substitute for arrest) no longer holds.

The bottom line: an officer with probable cause may issue a uniform traffic ticket for a misdemeanor traffic offense not committed in the officer's presence, as long as the officer does not also arrest the person.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the AG concluded

The earlier 1967 AG opinion had read the in-presence requirement of Minn. Stat. § 629.34 as a structural limit on the traffic citation itself. Under the 1967 view, the citation served as a substitute for the arrest the officer could have made, and so it followed that the citation could only issue where the arrest could have been made.

The 1993 opinion took the framework apart. Several things had changed since 1967:

1. The 1988 amendments to §§ 169.91 and 169.92 ended the requirement of a signed promise to appear. The citation no longer secured release in lieu of custody; it stood independently as a charging instrument.
2. Section 169.99 was amended at the same time, removing the function of the driver's signature as "a receipt in lieu of bail." The citation became an instrument with its own charging force.
3. The Rules of Criminal Procedure had been adopted and now governed procedural questions, taking precedence over inconsistent statutes (citing State v. Florence, 239 N.W.2d 892 (Minn. 1976), and Minn. Stat. § 480.059, subd. 7 (1992)). Rule 6.01 expressly recognized the use of uniform traffic tickets. Rules 4.02 and 10.01 expressly allowed tab charges. Rule 5.01 recognized the citation as a separate appearance mechanism.
4. State v. Studdard, 352 N.W.2d 413 (Minn. 1984), narrowed the reach of § 629.34's in-presence requirement to actual arrests, not to all investigatory conduct.
5. Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 833 n.5 (Minn. 1991), described the traffic ticket as the "functional equivalent of a complaint." A traffic ticket sworn before an officer with probable cause stands as a charging document on its own, and the rules expressly allow charging documents beyond the magistrate-sworn complaint contemplated in the old Minn. Stat. § 629.42 (1965) the 1967 opinion had relied on.

The AG concluded by holding that an officer with probable cause may issue a uniform traffic ticket for a misdemeanor traffic violation not occurring in the officer's presence, as long as no arrest follows. The 1967 opinion was "superseded to the extent inconsistent with this conclusion."

The opinion does not address the threshold for probable cause for a traffic misdemeanor. Probable cause is judged under the usual Fourth Amendment standard. An officer relying on witness statements, vehicle damage, and physical evidence at the scene of an accident generally has enough to support a ticket once the investigation is complete.

Common questions

Q: Does this opinion let an officer cite for any misdemeanor at all, not just traffic offenses?
A: The opinion is specific to "misdemeanor traffic violations" and the uniform traffic ticket. It does not directly answer whether a similar logic applies to non-traffic misdemeanors. The reasoning about the Rules of Criminal Procedure recognizing tab charges and other charging mechanisms suggests parallel analysis might apply, but the opinion does not say so.

Q: What happens if the officer also takes the person into custody?
A: Then the in-presence requirement of Minn. Stat. § 629.34 does apply. A custodial arrest for a misdemeanor not committed in the officer's presence is unlawful absent some other exception. The opinion's conclusion is limited to citation without arrest.

Q: Can the cited person refuse to come to court?
A: The traffic ticket is the functional equivalent of a complaint and requires appearance. Failure to appear has the usual consequences (warrant for arrest, additional charges).

Q: Is there a probable cause threshold the officer must meet before writing the ticket?
A: Yes, the AG's conclusion is expressly conditioned on probable cause. Without probable cause, the ticket is not lawful.

Q: What about petty misdemeanors? Many chapter 169 violations are petty misdemeanors.
A: The opinion notes that petty misdemeanors typically do not justify custodial arrest under State v. Martin (1977) and Rule 6.01, and that Minn. Stat. § 169.99 authorizes citations for "any" violation of chapter 169. So the citation-without-arrest framework applies even more clearly to petty misdemeanors than to ordinary misdemeanors.

Q: Has the statutory framework changed since 1993?
A: The traffic-citation statutes in chapter 169 and the criminal procedure rules have been amended multiple times. Anyone applying this opinion today should pull the current text of §§ 169.91, 169.92, 169.99, and 629.34, and verify any later Minnesota Supreme Court decisions on warrantless misdemeanor charging.

Background and statutory framework

Minnesota's traffic enforcement framework distinguishes between:
- Custodial arrest (governed by Minn. Stat. § 629.34, which includes the in-presence requirement for misdemeanors); and
- Citation (governed by Minn. Stat. §§ 169.91, 169.92, 169.99, and Minn. R. Crim. P. 6.01).

Before 1988, the two were closely tied. The citation form contained a signed promise to appear that functioned as a substitute for the bail that would otherwise be required to secure release from custodial arrest. The 1988 amendments broke that tie. A driver no longer needed to sign a promise to appear to be released, and the signature no longer functioned as "a receipt in lieu of bail."

The Rules of Criminal Procedure post-1988 explicitly recognize three separate charging mechanisms: complaint, tab charge, and citation. Rule 5.01 recognizes service of a citation as a distinct way to require appearance. Rule 4.02 governs tab charges. The 1993 AG opinion read all of this together to conclude that the citation now stands on its own, independent of the custodial-arrest framework.

The opinion is signed by Special Assistant Attorney General Jeffrey S. Bilcik on behalf of AG Hubert H. Humphrey III.

Citations and references

Statutes:
- Minn. Stat. § 169.14 (basic misdemeanor traffic violations)
- Minn. Stat. § 169.91 (1992) (procedure on arrest for traffic violations)
- Minn. Stat. § 169.92 (1992) (releasing on signed promise)
- Minn. Stat. § 169.99 (1992) (uniform traffic ticket)
- Minn. Stat. § 480.059, subd. 7 (1992) (Rules of Criminal Procedure take precedence over inconsistent statutes)
- Minn. Stat. § 629.34 (1992) (warrantless arrest authority)
- Former Minn. Stat. § 629.42 (1965) (predecessor complaint-and-warrant procedure, superseded by rules)

Cases:
- State v. Studdard, 352 N.W.2d 413 (Minn. 1984)
- State v. Florence, 239 N.W.2d 892 (Minn. 1976)
- State v. Keith, 325 N.W.2d 641 (Minn. 1982)
- State v. Martin, 253 N.W.2d 404 (Minn. 1977)
- Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991)

Rules:
- Minn. R. Crim. P. 4.02 (tab charge)
- Minn. R. Crim. P. 5.01 (service of citation)
- Minn. R. Crim. P. 6.01 (release of misdemeanor defendants)
- Minn. R. Crim. P. 10.01 (charging documents)

Other AG opinions referenced:
- Op. Atty. Gen. 494a-1, March 14, 1967 (superseded)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/494a1-19930415.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CRIMINAL LAW: UNIFORM TRAFFIC TICKET: Issuance for violation not committed or attempted in presence of officer. Superseding Op. Atty. Gen. 494a-1, March 14, 1967. Minn. Stat. §§ 169.91, 169.92, 169.99, 629.34.

494a-1
April 15, 1993

Laurel M. Hersey
Minnetonka City Attorney
14600 Minnetonka Boulevard
Minnetonka, MN 55345-1597

Dear Ms. Hersey:

In your letter to Attorney General Hubert H. Humphrey III, you present substantially the following:

FACTS

An accident occurred as a result of an individual's failure to maintain vehicle control contrary to Minn. Stat. § 169.14 which is a misdemeanor. Although the officer did not personally observe the violation, he subsequently acquired information sufficient to establish probable cause and shortly thereafter issued a citation to the driver of the vehicle.

You ask the following:

QUESTION

Is it lawful for an officer to issue a traffic citation together with a notice to appear for a misdemeanor traffic violation not occurring in the officer's presence?

OPINION

As qualified below, we answer your question in the affirmative.

Minn. Stat. § 629.34, subd. 1(c)(1) (1992) provides:

A peace officer, constable, or part-time peace officer who is authorized under paragraphs (a) or (b) to make an arrest without a warrant may do so under the following circumstances:

(1) when a public offense has been committed or attempted in the officer's or constable's presence.

(Emphasis added.)

Once a lawful warrantless misdemeanor arrest has been made, a citation may be issued in lieu of custodial arrest. Minn. R. Crim. P. 6.01, subd. 1(1)(a) provides:

Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation. The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention.

(Emphasis added.)

The rule is silent as to whether citations may also be issued to individuals not subject to a warrantless arrest because the misdemeanor occurred outside of the officer's presence. Specifically, the rule does not address whether it is proper for an officer to issue a citation to a person suspected of committing a misdemeanor who has not been arrested. Rather, Rule 6 governs pre-trial release, incorporating the opinion that a person should not be taken into custody for an offense for which the person could not be incarcerated even if found guilty. Comment to Minn. R. Crim. P. 6. Thus, the rule does not require that an arrest precede or be a condition precedent to the issuance of a citation. The rule only addresses the procedures to be followed when a warrantless arrest has been made for a misdemeanor violation.

Similarly, Minn. Stat. § 169.91 (1992) only addresses the procedures to be followed when a person is arrested for violation of Minnesota's Motor Vehicle Code. The statute does not preclude the issuance of a citation for a misdemeanor traffic offense, when the person is not subject to arrest because the offense occurred outside the officer's presence. On the other hand, Minn. Stat. § 169.99, subd. 1(a) (1992) provides for the issuance of a citation for any violation of Minn. Stat. ch. 169 or an ordinance in conformity thereto. It does not require that the suspect be arrested as a pre-condition to issuing a citation.

Indeed, many violations of chapter 169 are petty misdemeanor offenses. Ordinarily, the commission of a petty misdemeanor does not justify a custodial arrest. See, e.g., State v. Martin, 253 N.W.2d 404 (Minn. 1977); Minn. R. Crim. P. 6.01, subd. 1(1)(a). Minn. Stat. § 169.99 further provides that the citation shall "have the effect of a summons and complaint." By having the effect of a summons and complaint, the uniform traffic ticket may be used as a substitute for a formal complaint in traffic matters. See Comment to Minn. R. Crim P. 6. Minn. Stat. § 169.99 does not, however, condition the use or effect of the citation upon the occurrence of an arrest.

We have opined on this issue before and concluded that "a defendant cannot be legally brought into court and charged under the uniform traffic ticket for an offense not committed in the presence of the arresting officer." Op. Atty. Gen. 494a-1, March 14, 1967. In that opinion we relied in part on Minn. Stat. § 169.91, subd. 3 (1965) which we felt provided for the issuance of tickets "in lieu of an arrest." We then interpreted Minn. Stat. § 169.91, together with the misdemeanor presence requirement contained in Minn. Stat. § 629.34 (1965), as limiting the use of citations to cases where immediate arrest is employed or available. Upon revisiting that opinion, we no longer believe that it adequately distinguishes the procedures to be followed upon arrest from those procedures available for charging a suspect with a misdemeanor offense. Furthermore, subsequent statutory and decisional law have further defined the function of the uniform traffic ticket in ways which further negate any implied nexus between issuance of citations and the need for actual custodial arrest.

In 1988, Minn. Stat. §§ 169.91 and 169.92 were amended so that a person is not required to sign a promise to appear to secure release without being taken into custody and immediately taken before a judge. Minn. Stat. § 169.99 was also amended in 1988 to remove the requirement that a driver's signature of the ticket act as "a receipt in lieu of bail." Thus, a signature is no longer required to secure release and a driver receiving a traffic citation need not be placed under custodial arrest.

Furthermore, since our 1967 opinion, The Minnesota Supreme Court has indicated that the "in-presence" limitation of Minn. Stat. § 629.34 does not apply to police investigatory conduct short of an arrest. State v. Studdard, 352 N.W.2d 413, 415 (Minn. 1984). Thus, it does not appear that a consistent reading of Minn. Stat. §§ 169.91 and 629.34 requires the issuance of tickets only in cases where an arrest is authorized.

Our 1967 opinion was also based upon Minn. Stat. § 629.42 (1965). We concluded that for a misdemeanor traffic offense committed outside an officer's presence "the best procedure in order to effect proper jurisdiction is by complaint and warrant in accordance with Minn. Stat. (1965) § 629.42." However, Minn. Stat. § 629.42 (1965) has been superseded by the Rules of Criminal Procedure. See, e.g., State v. Florence, 239 N.W.2d 892 (Minn. 1976); Minn. Stat. § 480.059, subd. 7 (1992). In matters of procedure rather than substance, the Rules of Criminal Procedure take precedence over statutes to the extent that there is any inconsistency. State v. Keith, 325 N.W.2d 641 (Minn. 1982).

Rule 6.01 expressly recognizes the use of uniform traffic tickets. Furthermore, Rules 4.02 and 10.01 now expressly provide for a tab charge as a method to initiate a criminal proceeding. Rule 5.01 also recognizes service of a citation as a separate mechanism, apart from arrest and service of a formal summons, to require appearance of a misdemeanor defendant. "The ticket or tab charge is the functional equivalent of a complaint." Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 833 n.5 (Minn. 1991). In such cases, a formal complaint would be filed if the judge orders one or if the person charged requests one. Minn. R. Crim. P. 4.02, subd. 5(3). Because the rules expressly recognize charging methods other than a complaint sworn to before a magistrate, our conclusion today is that our prior opinion is no longer controlling.

We, therefore, conclude that an officer may, upon probable cause, issue a uniform traffic ticket for a misdemeanor traffic violation not occurring in the officer's presence where the officer does not subject the person charged to an arrest. Op. Atty. Gen. 494a-1, March 14, 1967, is superseded to the extent inconsistent with this conclusion.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

JEFFREY S. BILCIK
Special Assistant Attorney General