By Robert Phillips  

Deputy District Attorney (ret.)  

California’s Law on Tinted Windows 

Vehicle Code sections 26708 and 26708.5 set out the law on tinted windows in motor vehicles in California. In a nutshell, tinted windows are illegal if the tinting applied to a vehicle’s windows “alters the color or reduces the light transmittance of the windshield or side or rear windows.” (V.C. § 26708,5(a))  

The Vehicle Code provides for a complicated and nearly incomprehensible list of exceptions (28 of them) as described in V.C. § 26708, subdivisions (b), (c), (d) & (e). (E.g., (b)(4) “Side windows that are to the rear of the driver.” (b)(8) “The rear window or windows, if the motor vehicle is equipped with outside mirrors on both the left- and right-hand sides of the vehicle...”)  

But generally, tinted windows must have a minimum visible light transmittance of 88% to be lawful. (V.C. § 26708(d)(1)), or at least a “minimum light transmittance of 70 percent (with an) abrasion resistance of AS-14 glazing, as specified in” the Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205) (V.C. § 26708(d)(2)), whatever that means.  

An officer in the field cannot possibly conclude, or testify in court, as to whether these standards have been met. Ultimately it requires an expert to actually analyze the vehicle’s windows at issue and be ready to testify in court as to his or her findings. From an enforcement standpoint, however, an officer only needs a “reasonable suspicion” of a violation to make a traffic stop, and “probable cause” to cite for it.  

But whether an officer’s observation of tinted windows supplies the necessary reasonable suspicion or probable cause is the subject of some conflict. Even so, the weight or authority tends to lean toward the conclusion that such a traffic stop, and subsequent citation, is lawful. Here is all the case law I’ve been able to find on this issue, in chronological order: 

Klarfeld v. State of California (1983) 142 Cal.App.3^rd 541: In a civil suit, plaintiffs included car owners and an auto glass coating business. Together, they contested the constitutionality of V.C. §§ 26708 and 26708.5, attempting to enjoin California from enforcing these statutes by issuing traffic citations using motor vehicles with transparent window coatings. Plaintiffs argued that the statutes were overly broad and vague, seeking a restraining order preventing the state from enforcing them. The trial court entered judgment for the state. On appeal, the Second District Court of Appeals (Div. 3) affirmed this ruling, holding that the statutes and regulations were not unconstitutional. It was also ruled that plaintiffs failed to show any facts entitling them to affirmative relief. In a nutshell, enforcing these statutes was lawful. 

People v. Butler (1988) 202 Cal.App.3^rd 602, 606-607: The defendant, convicted of transporting cocaine and possession for the sale of cocaine, sought review of his convictions in the Superior Court of Monterey County, California. He argued that his detention and subsequent body search were invalid as a violation of the Fourth Amendment. He was a passenger in a vehicle stopped for illegally tinted windows. In reversing the conviction for transporting cocaine, California’s Sixth District Court of Appeals held that tinted windows were not necessarily unlawful, rejecting the People’s argument that “the mere ‘observation of tinted glass justifies an inquiry about its legality.’” The officer, therefore, did not have the necessary reasonable cause to detain the occupants of the vehicle. Specifically, the court stated at page 607: “We disagree with the People’s suggestion that seeing someone lawfully driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon the type of speculation which may not properly support an investigative stop.”  

People v. Niebauer (1989) 214 Cal.App.3^rd 1278: The defendant challenged a decision of the Municipal Court for the El Cajon Judicial District of San Diego County, California, which convicted him of driving with dark tinting material on the side windows of his truck, in violation of V.C. § 26708(a). A majority of the appellate department of the Superior Court affirmed the trial court’s decision and certified the matter to the Fourth District Court of Appeals (Div. 1) to obtain uniformity of decision for what it perceived to be a direct conflict with People v. Fink (1985) 168 Cal.App.3^rd Supp. 15. (Fink is not discussed here in that it was a case alleging only that California’s tinting statutes violate the U.S. Constitution’s “Commerce Clause,” the defendant being an Arizona resident.) Even though also a Commerce Clause case, the court here affirmed the trial court’s decision, holding that the defendant had not only failed to show any burden on interstate commerce, but also that V.C. § 26708(a) was not unconstitutionally applied to him. The court further held that there was sufficient evidence in the record from which any reasonable fact finder could have found that defendant was unlawfully driving with tinting material applied to the windows of his truck, a violation of V.C. § 26708(a).  

United States v. Wallace (9^th Cir. 2000) 213 F.3^rd 1216, 1217-1218, 1220-1221: Mistakenly believing that any tinting of a vehicle's front windows was illegal, a police officer conducted a traffic stop of the defendant’s car. The tinting was in fact illegal, but for a different reason. As later proven in court, it was over twice as dark as the law allows. In court, the officer testified that the tinting made it more difficult to see the driver than was normal. Although the officer misunderstood the tinting law, as it turned out, he was correct that the tinting he did see was illegal, and accordingly, he had probable cause to stop the car. The officer’s subjective belief’s as to the elements of the charge was held to be irrelevant (citing Whren v. United States (1995) 517 U.S. 806.). The resulting consent to search (recovering some 130 pounds of marijuana) was therefore lawful, reversing district court on this issue. Citing People v. Niebauer, supra, the court tells us: “We don’t call upon the officers to be scientists or carry around and use burdensome equipment to measure light transmittance, nor do we expect them to discuss the sufficiency or insufficiency of the light transmittance as if they were an expert witness on the subject. [⁋] Rather a common-sense approach to the enforcement of this statute was envisioned by the legislature. If an officer forms an opinion in a common-sense examination of a vehicle that...light is obstructed in the fashion contemplated by the statute, such evidence will be sufficient to support conviction.” The Wallace court (at pg. 1219) further held that it is irrelevant that the traffic stop was a “pretext stop,” the officer having subjective motivations other than the window tinting for wanting to contact the defendant, again citing, Whren v. United States, supra.)  

United States v. Caseres (9^th Cir. 2008) 533 F.3^rd 1064, 1069: An officer noting that a person’s vehicle windows were tinted, believing that the windows might have been tinted in violation of V.C. § 26708(a)(1) (i.e., after-factory), does not constitute a reasonable suspicion of a violation absent other evidence tending to support this belief. “Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon the type of speculation which may not properly support an investigative stop.” “(E)ven if (the officer) had noticed that Caseres’ windows were tinted, he would have had no way of knowing that the tint was not factory-installed, legally tinted safety glass.” (Citing People v. Butler (1998) 202 Cal.App.3^rd 602.) Note: The court here does not even note the United States v. Wallace decision, let alone attempt to distinguish it on the facts. 

People v. Carter (2010) 182 Cal.App.4^th 522, 528-529: In a trial for second-degree robbery, a Los Angeles trial court denied a defendant’s motion to suppress evidence obtained as a result of a traffic stop. The Second District Court of Appeals (Div. 8) affirmed, holding that the trial court did not err. The court held that the traffic stop was not unlawful because the arresting officer’s testimony concerning his observation of tinted windows on the defendant’s car constituted substantial evidence that the stop was supported by a reasonable suspicion of a Vehicle Code violation. As noted: “When a police officer sees a vehicle with tinted front and side windows, the officer may stop the car and cite the driver for a violation of Vehicle Code section 26708, subdivision (a).” The officer’s “testimony constituted substantial evidence that the traffic stop was supported by a reasonable suspicion of a Vehicle Code violation.”  

Conclusion: Only People v. Butler and United States v. Caseres hold that an officer’s simple observation of tinted windows is insufficient to justify a traffic stop and a subsequent citation for the violation. As a Ninth Circuit decision, state law enforcement officers are not bound by Caseres. Also, cases subsequent to both Caseres and Butler argue for a different rule. But even considering these two cases, the better argument (in this author’s never-to-be-so-humble opinion) is that needing only a reasonable suspicion of a violation, a traffic stop based upon what an officer reasonably believes is excessive tinting, is legally sufficient. Probable cause then supports the citing of the driver for the violation. The majority of the above cases — federal and state — appear to support that conclusion. Providing expert testimony in court on the issue, establishing proof beyond a reasonable doubt, then becomes the responsibility of the prosecutor.