As much as I hate to disagree with Steve, the fact that Judge Roberts has followed in the footsteps of an absolutely atrocious opinion by Justice Souter in Atwater (police can arrest you for any legal violation, such as not wearing a seatbelt, even if the law doesn't allow an arrest for the violation), is not a point in his favor.
Finding a way to distinguish it - Now, that would have been impressive.
Just remember folks, thanks to Justice Souter it's constitutional to arrest you upon actions for which you cannot be arrested.
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I think Ken is expressing an opinion shared by a number of my collegues on the defense side of things that if incarceration is not allowed as a punishment for the offense, then neither should custodial arrest be allowed. In my state the zero jail offenses tend to be minor in possession of alcohol or tobacco cases.
The thing is, just because a court can't lock you up on conviction, it doesn't mean you can't be held pending a bond hearing or identification. Nor, for that matter, does the fact of an arrest mean you are automatically going to jail for the night.
Following an arrest based on probable cause, once the officer has identified you to his satisfaction, and determined you are not in possession of illegal weapons or other itmes, he (or she) is free (depending on the State) take a cash bond, issue a citation with an order to appear, or just cut you lose entirely.
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