Criminal Defense Lawyer

Is "Secondary Enforcement" an Oxymoron?

At its core, criminal law is all about punishment and deterrence. Legislators enact laws and proscribe punishments so that mature individuals (who generally do not like to pay fines or go to jail) will adjust their behavior accordingly. These underlying theories are why the enforcement and punishment of certain crimes, like DUI, have received so much public attention and public funding over the past several years.

The problem with the foregoing premise is that most people, including clients, neighbors, relatives and friends, simply do not believe that they will ever get caught. This is why most of us detest photo traffic enforcement. Cameras can, and will, catch every single speeder and every single red light violation. Technology that removes our ability to escape detection drives us absolutely bonkers.

Legislators who want people to always obey the law - just because it is the right thing to do - have not helped their cause with the invention of “secondary enforcement” laws. Primary enforcement laws allow police officers to cite or arrest without any other criminal offense taking place. Secondary enforcement laws can only be enforced if a primary offense has occurred. For example, Arizona statutes declare that seatbelt use is mandatory. The police can only enforce a seatbelt violation, however, if they first observe you speeding. It is kind of like “Illegal Lite.”

Secondary enforcement laws are the equivalent of a mom telling her teenage daughter she must always keep her bedroom clean, but she will only be punished for a dirty bedroom if she gets caught drinking alcohol. The lunacy of secondary enforcement is not limited to minor traffic violations. Whether local law enforcement should have primary or secondary jurisdiction over illegal immigrants was a hotly debated issue for the now infamous Arizona Senate Bill 1070.

Because secondary enforcement contradicts the very rationale for criminal punishment, many jurisdictions refuse to enact secondary enforcement laws. Most of our surrounding states only have primary enforcement traffic laws. As such, prior to doing any out-of-state driving, I highly recommend you consult the Governor’s Highway Safety Association website at www.ghsa.org. That way, you will know beforehand exactly what safety laws your vacation route and destination have imposed. For example, in addition to seatbelt use, this website will also tell you that thirty states prohibit texting while driving, yet (amazingly so) in four of those states, that ban is secondary in nature.

Finally, please be aware that, in most cases, tribal police can enforce tribal traffic laws on state roads that pass through Native American lands. Careful attention to road signs is critical on these roadways because what might be secondary under Arizona law is probably primary, with a huge fine, under tribal law.