Please clarify this statement: "...a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance."
What procedure is utilized to confirm that the noise level exceeded 85, specifically as it relates to a vehicle's radio? Is this presumption made pre or post rendering of a citation?
From a practical standpoint, i.e., what really happens when a police officer decides to cite, or even arrest someone for a DOC Unreasonable Noise violation, I think the answer is a familiar one: often times, it is left up to the officer to decide whether or not the person is in violation of the statute.
I’m sure there are times when officers have actually measured the noise from a party, for example, using one device or another. In those cases, if the case went to trial, the prosecutor would certainly have better evidence to argue that they had proven their case beyond a reasonable doubt.
Most of the time, however, it’s probably just the officer’s testimony about his “training and experience” that would bolster the state’s case at trial.
This is a good example of the difference needed for a police officer to cite or arrest someone for an offense, and for the prosecutor to convict that person at trial. As a practical matter, most DOC tickets in Austin can probably be disposed of by way of deferred disposition, and eventual dismissal, rather than full-blown jury trial.
As far as the “prior notice from a magistrate or peace officer” part of it, this does not mean that you always get a second chance before receiving a ticket for DOC - Unreasonable Noise. The presumption simply makes it easier, again at the trial level, for the state to prove the defendant was guilty. Again, in Austin, when it comes to loud parties, it has been my experience that the police will usually issue a warning first, and then come back and check on the noise level from the party later.
As far as car radio noise levels are concerned, my guess is that since an officer knows he’s unlikely to see the person in the car again anytime soon, and certainly won’t have a fixed address to come back and check on the radio, that probably increases the chances that he will issue the citation, even though there has been no prior notice. Of course, they always have discretion to “just issue a warning”.
On that note, let me end this discussion for now with a quote from my letter to the UT Daily Texan Firing Line a few months ago on a similar subject:
Police have great discretion as to what to charge someone with, and even whether to charge them with anything at all. Very often the difference between being issued a minor Class C Noise Ordinance violation, instead of being arrested for a Class A Misdemeanor or even a felony, is your attitude when you talk to and interact with the police.