AG Rokita issues opinion on law enforcement’s authority to arrest & detain individuals, including illegal aliens, driving without a license

Submitted by Office of AG Todd Rokita

Indiana Attorney General Todd Rokita has issued an official opinion clarifying that law enforcement officers have the authority to arrest and detain individuals, including illegal aliens, who are caught driving without a valid driver’s license.

The opinion, requested by Jackson County Prosecutor Jeff Chalfant, addresses a critical public safety issue amid growing concerns about illegal immigration and its impact on Indiana’s roads.

Rokita

“Hoosiers deserve safe streets, and that starts with ensuring those who break our laws face consequences,” AG Rokita said. “This opinion gives our law enforcement guidance to hold accountable anyone, especially illegal aliens, driving without a license, a crime that puts our communities at risk.”

The opinion states that driving without a license is a Class C misdemeanor under Indiana Code § 9-24-18-1, and law enforcement officers may arrest and process offenders at a county jail. Unlike other traffic-related misdemeanors, individuals arrested for this offense cannot be released simply by signing a written promise to appear in court because they lack a valid driver’s license number – a statutory requirement for release under Indiana Code § 9-30-2-5. AG Rokita said the statute thus ensures that those who have never been licensed, including many illegal aliens, can be detained and brought before a court promptly.

The opinion discusses law enforcement’s general authority to arrest all individuals who drive without a license and book such individuals at a county jail, instead of immediately releasing them. But the opinion has particular importance for law enforcement’s encounters with illegal immigrants – who are not permitted to obtain a driver’s license under Indiana law and whose out-of-state licenses, if they possess any, are not valid in Indiana. Illegal aliens operating motor vehicles pose unique and serious safety risks.

Further, booking an illegal alien at a county jail for driving without a license will ensure that federal authorities are notified of the arrest and able to make arrangements to apprehend the alien if they choose to do so.

“Illegal aliens cannot drive on Indiana roadways because they are barred from obtaining valid licenses, but they do it anyway because they don’t respect our laws,” AG Rokita added. “This opinion should provide clarity on law enforcement’s ability to detain these offenders, ensuring they face justice rather than being released back onto our streets.”

The opinion emphasizes that such arrests are both permitted by state law and comply with the Fourth Amendment, citing U.S. Supreme Court precedents like Atwater v. City of Lago Vista (2001), which allows arrests for minor criminal offenses, and County of Riverside v. McLaughlin (1991), which permits detention for up to 48 hours pending a judicial probable cause determination. Under state law, if an arrest is made and the offender cannot sign a valid promise to appear in court, as will always be the case with individuals arrested for driving without a license, law enforcement is required to take the offender to court promptly.

For many decades, the office of attorney general has issued advisory opinions like this one. They serve an essential function and provide public officials a correct, legal interpretation of the law. Additionally, a question may be presented to assist a state official in determining a policy choice or future course of action. They also help protect public officials from legal liability and lawsuits that could result from an incorrect interpretation of the law.