Does a Traffic Stop Count as an Arrest for Your Criminal History Score?

A traffic stop that ends with a summons (an order to show up in court) is not an "arrest" when counting your criminal history under the federal Sentencing Guidelines. That is what the Third Circuit held in United States v. Ley (2017). This matters because it can lower your criminal history score.

Under the Guidelines, your past record is turned into points. More points put you in a higher criminal history category, which raises your recommended sentence range.

How Prior Sentences Are Counted

The U.S. Sentencing Guidelines (USSG) give points for each prior sentence. So it matters whether two old cases count as one sentence or two.

Is a Traffic Stop an Arrest for Sentencing Purposes?

A prior sentence is "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense."

Under USSG § 4A1.2(a)(2), prior sentences always count separately if the offenses were separated by an intervening arrest, meaning you were arrested for the first offense before committing the second. If there was no intervening arrest, sentences imposed on the same day are generally treated as one.

United States v. Ley: A Traffic Stop and Summons Is Not an Arrest

John Ley pleaded guilty to being a felon in possession of a gun. Two of his prior offenses came from traffic stops on back-to-back days. Each time, police let him go and said the case would proceed by summons. He was sentenced for both on the same day.

The district court counted them separately, which gave him seven points and put him in Category IV. Counted as one, he would have had six points and been in Category III, with a lower range.

Ley appealed. He argued the traffic stops were not intervening arrests, so the two sentences should count as one.

The Third Circuit agreed with Ley. It looked at how the Supreme Court has separated a formal arrest from less serious police encounters, such as a "roadside encounter," when deciding whether Miranda rights apply. (The original article cited Thompson v. Keohane for this point.) Looking at the ordinary meaning of "arrest" and "summons," it held that "a traffic stop, followed by the issuance of a summons, is not an arrest." The court noted that if the Sentencing Commission wanted summonses to count as arrests, it knew how to say so. It also rejected the idea that something like a jaywalking ticket could be an arrest. The court sent the case back for resentencing.

Other circuits are split. The Ninth Circuit, sitting en banc, reached the same result in United States v. Leal-Felix (2011). According to the original article, the Sixth and Eleventh Circuits also agree that a traffic stop is not an intervening arrest. The Seventh Circuit went the other way in United States v. Morgan, calling a traffic stop an "arrest" in "federal parlance." The Third Circuit rejected that view and noted that the Seventh Circuit is in the minority.

Checking Your Criminal History Score

Ley helps defendants in the Third Circuit and courts that follow the same view. It is a positive development for defendants. Counting a traffic stop as an arrest can add points and push your range higher, with devastating effects on how long you must serve. The more federal courts adopt this view, the better the chance that minor incidents will not be used to increase sentences.

Mistakes in criminal history scoring do happen, so review this part of your presentence report closely. For each prior case, gather the dates of the offense, the arrest or summons, and the sentencing. Written objections to the draft report are due within 14 days after you receive it (Fed. R. Crim. P. 32(f)).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.