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How to Write A Petition to Vacate Civil Assessment Under Penal Code Sec 1214.1

Trying to Beat a Civil Assessment and the court is telling you to fill out a Petition to Vacate Civil Assessment Form? Here is what you need to do.

What is a Penal Code section 1214.1 Civil Assessment?

Many California Traffic Courts are electing to change the way they deal with people who miss the court date listed on the bottom of traffic tickets.

In the old days, they would issue a bench warrant, and add a misdemeanor failure to appear charge under Vehicle Code section 40508(a).

Now some courts are trying to save money and increase revenue by shifting their Failure to Appear procedure to suspending the defendant’s drivers license under Vehicle Code section 40509.5, and then adding an automatic $300 “Civil Assessment” penalty to the case under authority of California Penal Code section 1214.1.  The Civil Assessment then gets treated as a civil judgement, not criminal penalty, which limits a defendant’s legal rights to challenge the penalty.

Some courts are now stream lining the process by skipping legal requirements and telling defendants the only way to challenge this automatic judgement is to fill out a local “Petition to Vacate Civil Assessment Form”.  The form only provides 2-3 lines of space to present your factual or legal challenge to the judgement, and is designed to totally restrict a person’s right to challenge the Civil Assessment..

It is my professional legal opinion that the courts that operate this way are violating the law.  Examples would include Fresno County Traffic Court, Solano County Traffic Court and Alameda County Traffic Court.  Specifically, they are violating the law in 2 main ways.

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First, Penal Code section 1214.1(b) requires that the court gives a person a 10 day “Warning Notice” to their last known address before imposing the “Civil Assessment”. Most courts are either ignoring, or not maintaining proper proof that they satisfied this requirement. Secondly, Penal Code section 1214.1(d) requires the defendant have the same Due Process hearing rights that attach to “Civil Judgements” generally, which to means the right to an evidential hearing (Trial) on whether or not the Civil Assessment can be legally imposed. By requiring defendants to use their limited local form, and by denying the defendant an in person hearing on the Civil Assessment, the court is violating this legal requirement.

How to Challenge a Penal Code section 1214.1 Civil Assessment

My research indicates that the strongest legal argument in favor of a Petition to Vacate Civil Assessment is the following:

1) The Court failed to mail a Penal Code sec 1214.1(b) Warning Notice to the correct address. 2) Defendant did not have actual knowledge of the Penal Code sec 1214.1(b) Warning. 3) Defendant demands a Due Process hearing to challenge legal application of the 1214.1(a) civil judgement as required by Penal Code section 1214.1(d).

By putting those specific words in your Petition to Vacate a Civil Assessment you will give yourself the best legal chance to win teh petition and then strong legal grounds for an appeal of a denial of the petition.

Make sure you file Petition to Vacate Civil Assessment in person at the Clerks Office and leave with a copy that has a “Filed” stamp on it. You can demand the court clerk give you proof you filed it.

FREE OFFER FOR APPEAL HELP

If you are a Defendant in this situation who follows these instructions, I will provide free help with an appeal on the issue(s). Just contact me by email at cdort@dortlaw.com

What to Worry About for a Pre Employment Background Check.

Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to Do Your Own On Line Background Check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not apply to pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. It’s in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant immediately. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

But some employers will give an applicant some time to clear a warrant problem once discovered.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court appearance is made, the court can recall the warrant.

In most misdemeanor cases, an Attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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How Can You Get a Case Transfered to Another Court?

If you got a traffic ticket or criminal court case far from home, and are trying to find a way to get it transferred to another county or court, you can stop looking.  There is no way to do it. You have to deal with the case in the county where it happened. If a police officer told you differently, he was flat out wrong.

The reason is this:  in California, criminal and traffic courts are all part of the Superior Courts, which are organized county by county.  Each county has its own Superior Court, and each one does things differently.  There is no common state wide court system where cases or files are transferred between them. Each County Superior Court is independent of the others.

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There is no law that allows a defendant to get a case transferred to another county Superior Court. There is no form to do, there is no person to call to get it done.

And there is a practical reason why it cannot be done - if a trial is required, the witnesses for the trial are in the county where the incident happened.  And witnesses (such as police officers) cannot be required to go to a different county to testify. There is no legal mechanism for getting a police officer to go from San Diego to Shasta County to testify in a traffic court or DUI trial.

There are some very limited exceptions.  For example, if a case gets an extreeme amount of pulicity, like Michael Jackson’s child molestation trial, the defense Attorney can make a motion for a “Change of Venue” based upon the idea that a fair trial cannot happen where all the publicity occurred.  But in reality, those motions almost never get granted.

One other very limited exception is in juvenile cases, a court can send a case for sentencing only to the offender’s home county - but only after the defendant has been convicted. I have seen this happen, but it is super rare.

There is a way to get a court case transferred from a remote courthouse to another within in the same county if it is sent to the county seat.  For example it is possible to get a Barstow courthouse case sent to downtown San Bernardino Courthouse. But that is an Intra-County transfer, not an Inter-county transfer. And it only works if the case is going to the county seat, which is the location of the county’s government.

So unfortunately, if you live in Contra Costa County, but get a traffic ticket in San Diego, you have to deal with it there.  A court appearance may not be mandatory, but if you want a trial, you have to go back to where the incident happened.

The good news?  Penal Code section 977 allows an attorney to go to court for a defendant who does not have to go for most misdemeanor and all traffic court problems.  For example, if you got arrested for a DUI far from home, and just want to plead guilty, you can hire an attorney to do the work for you.

C. Dort

DortLaw.com

Who is GC Services and AllianceOne? They Are Not Court Employees.

If you are one of the thousands of people with outstanding traffic citations in California who has tried to take take of it only to run into a nightmarish mess of useless automated customer “service”, long lines, inaccurate information, and unfriendly court collection employees, chances are you have had the great pleasure of meeting either the GC Services or the AllianceOne Collection Agency.

After years of dealing with them at www.TrafficCourtPros.com, we’ve done our best to figure out who they are, how best to deal with them, and most importantly, how to avoid them. Here’s what we’ve learned:

When you miss a court date or fail to pay a fine on time, the court can do a number of things, including adding a new misdemeanor charge of failure to appear, issue an arrest warrant and suspend your drivers license under authority of California Vehicle Code section 40509.5.

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But increasingly, courts are doing all of that and more. They are also sending the bill for the full bail on a citation to a collection agency. The two most common collection agencies we run into most frequently are GC Services and AllianceOne. In practice, it is very difficult to distinguish between the two, but we do know that GC Services presently has the contract for LA County Superior Court, and AllianceOne is the agency for San Diego County Superior Court.

The task of these collection agencies is to collect the overdue fines on the citations, in exchange for taking a percentage as a collection fee. Because of this arrangement, they are very resistant to cooperating with the court staff to help you deal with the problems of a drivers license suspension, or warrant. If you solve your problem with the court, they don’t get paid.

At the courthouse, these collection agencies present an image of being court employees, and as the only option for dealing with a citation once the deadline has passed. They have their own window in many clerks officers, and their own employee cubicles. Frequently, the easiest way to find the collection window is to look for the longest line at the court clerks office.

But in reality, employees of GC Services and AllianceOne are not court employees. Everyday thousands of people wait in court clerk lines at courthouses only to get to the court clerk telling them that they need to stand in the (longer) collection agency line.

Collection agency employees are not trained by the courts. Frequently, they have no formal training on the court’s procedures and rules at all, and do not have full access to the court’s files. Because of these characteristics, their knowledge about your problem and know to fix it is very limited.

If you’ve searched for their web site in an effort to get help, or tried to call their TOLL FREE customer “service”, you’ve already discovered that they are not interested in providing on line access to your account, on line help, or real live trained personnel to answer your questions. As far as we can tell, it is their goal to limit your options and to frustrate you to the point where just paying in full - preferably after waiting in line for a long time - is your only option.

IS THERE ANYTHING YOU CAN DO IF YOUR CASES ARE IN “COLLECTIONS”?

Yes!

Just because your case was sent to a collection agency does not mean it is over. The court does not lose control over your case when it is sent to collections (if the collections agency tells you cannot go to court, they are not telling you the truth).

You can still demand a court date, and appear in court to defend the case(s), or ask the court for an extension based upon a special circumstance. As long as you have not plead guilty, you can even have a trial if you want one. You are still entitled to have a court appearance and to request that your fines be reduced or spread out over time. If you qualify for traffic school, you can still request a referral to protect your driving record.


WHAT HAPPENS IF YOU JUST PAY THE COLLECTION AGENCY?

In most failure to appear cases a court appearance is required. But in some cases a collection agency such as GC Services or AllianceOne will claim you have to pay them the “full bail” on the case to end it.

If you just pay the collection agency the full amount they claim you owe, you will end your case. But:

• You are admitting guilt and will be convicted of everything in the file (including the failure to appear charge);
• You will lose any chance you had to get the case dismissed completely;
• You must pay all of the full bail amount at once, before the license hold is cleared;
• Your drivers license will not clear until the agency gets around to processing the case and notifying DMV;
• You will lose the opportunity to attend traffic school and protect your driving record from “negligent driver points”

Because of this, my opinion is that paying the collection agency is the slowest and most expensive way to get convicted of everything.

If you do speak with a GC Services or Alliance One representative - here are some key questions to ask:

1) do I still have the right to a court date;
2) do you set court dates over the phone (they do);
3) what is the citation number that you claim I owe for; and
4) are you sitting in a US or foreign cubicle?

But don’t accept what they tell you as true. The best way to deal with a collections case is to go to the court clerks office in person and ask for a court appearance. Get there early - 8 am is the best at most courts. Calling the court clerk and asking if you can have a court date is also a good way to double check the info the collection agency gives you.

It is important to note that some courts will transfer a citation to the Franchise Tax Board for collection. That is a different path altogether, and the above does not apply to the Franchise Tax Board cases. We’ll have more on that in a later posting.

For more information on how using professional help rather than paying the collection agency makes sense, Get a Free Case Review from Traffic Court Pros.com.

Related Articles:  Kangaroo Court? No Consistency in How Traffic Courts Deal with Old Tickets |  How to Fight a Civil Asessment

What is a Speed Trap Defense? Take a look at California Veh. Code 40802(a)

In California traffic court, evidence of speeding gathered from a “speed trap” is not admissible to prove a person was speeding. This fact is the source of the “Speed Trap” defense. If it applies, you win.

In summary, the defense is this:

The government has the burden to prove at trial that your speeding citation was not based on a speed trap, as defined by California Vehicle Code section 40802. “Burden” means the officer or prosecutor must prove it first, before the defendant has to say anything.

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If the government cannot meet their burden, then the evidence of the defendant’s speeding is not admissible, and the citation should be dismissed.

If they can’t prove it was not a speed trap, then the defendant does not have to do anything but ask for a dismissal.

As speed trap is defined by Vehicle Code section 40802(a) as:

40802. (a) A “speed trap” is either of the following:

(1) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.

(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance . . ., if that . . . speed limit is not justified by an engineering and traffic survey conducted within five years . . ., and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

Most commonly, the speed trap defense is used when the officer who testifies at trial cannot produce a timely engineering report to establish that the posted speed limit was justified. If the report is missing, or not timely, it’s a speed trap citation.

Practice Note: This defense does not apply to local, residential streets.

Practice Note # 2: A speed trap defense will not work for a failure to appear charge. It’s not legal justification for not appearing in court on the date listed on your citation.

Practice Note #3: You must plead not guilty and have a trial to use this defense.  You cannot get a speed trap dismissal at the first court date, which is known as the “Arraignment”.

Questions?  Leave a comment and we will try to respond with quality legal self help for free.  Really, for free.

What’s The Problem With A Traffic Ticket “Bust” Guarantee?

Can a web company really Guarantee that they can get your traffic ticket dismissed? Sounds to good to be true doesn’t it?

Here is a breakdown of what web sites like www.trafficticketbust.com and www.2fixyourtrafficticket.com actually promise to do, and what they can’t do.

It’s Really Just Simple Trial By Declaration Help.

The real secret to those “fight your ticket” services is they help a defendant have a “Trial By Declaration”, which is a way to fight a traffic infraction by paperwork.

However, there are real limitations to what can be done in a trial by declaration, and when you read the small print on a bust your ticket guarantee, you see is too good to be true for most people.

Can you fight a ticket on paper? Yes, if it is only a simple infraction.  To have a “Trial by Declaration”, a defendant must file a “Request for Trial By Declaration” with the court clerk, and then later a “Declaration”.

The defendant must also pay the court in advance for the citation (”bail”), and if they win, the defendant gets the bail money back from the court.  A Request for Trial by Declaration must be made with payment of bail prior to the date listed on the bottom of the ticket. There is a standard Judicial Council Form for a Request for Trial By Declaration (TR-205) and it is available free, on-line with instructions.

For more information on how to Do Your Own Trial By Declaration, see our blog article on the subject.

Trials by Declaration are a good way to start fighting a traffic infraction if the deadline has not passed.  It gives a defendant an opportunity to try to win on paper, and if a defendant loses, they can request a new trial in court with a Commissioner.  It is like a free bite at the apple when fighting an infraction.

But TBDs do not work well on most types of Vehicle Code violations, including VC16028 (insurance violation), VC4000(a), illegal lane change, driving without a valid license, etc.  And they are not available at all on misdemeanor charges, such as VC23252 or Health and Safety Code 11357. And a TBD will not be available to you if you are not willing to pay for the fine (”bail”) in advance.

Do You Need Legal Help, or Just Document Preparation Services?

Most virtual “fight your ticket” companies that claim to be able to dismiss a traffic citation are not licensed Attorneys with law degrees offering professional legal services.  They haven’t passed a state bar exam.  They cannot go to court for you if an appearance is necessary, and they cannot help with misdemeanors, such as Vehicle Code section 12500(a) or Veh Code 14601.1 cases.

Instead, they are legal assistants, offering Document Preparation Services, much like a Do It Yourself Divorce office. They give you the forms, help you fill them out, and tell you how to get them to the court. For this work, they usually charge a flat fee around $150 and a “filing fee” - which is their fee for delivery of documents to court.

The law prohibits document preparation services from offering legal advice but does allow them to help a defendant fill out forms. In the fight your ticket world, this means they charge your for helping you fill out the TBD forms.

Because TBDs do not require a court appearance, and almost no legal thought, document preparers can do nearly all the work.

Only licensed attorneys are allowed to appear in court for a defendant, speak for the defendant in court, make requests to the court, and to make legal recommendations to a defendant.  For example, an Attorney can tell you how to fight an illegal arrest or whether to accept an offer from a prosecutor, but a non licensed document prep service cannot offer that kind of advice.

If you need anything more than help filling out a form, a document prep service cannot help you. If you need someone to go to court for you, only a licensed Attorney can help.

To determine if you are viewing an ad offering Attorney services, or non licensed document preparation services, view the “about us” or similar section of the site to see if they are a law firm or attorneys offering services.  Attorneys are required to disclose their full and true name in their advertisements.

If there is no name of an Attorney or law firm listed, they are prohibited by law (and by lack of knowledge) from providing real legal advice and representation. Neither www.2fixyourtrafficticket.com and www.trafficticketbust.com are law firms or attorneys offering services.  Because they are not lawyers, these companies can offer no help at all with anything other than a trial by declaration.

Fine Print Drastically Limits “Fight Your Ticket” Promises.

When you look carefully at what the two companies we profiled promise, here is what we see:

At www.trafficticketbust.com, they Guarantee your ticket will be dismissed or they will pay it for you (Cite Link).

But the fine print states that it only applies to speeding tickets - and get this - only where the claimed speed is 10 mph or less above the speed limit.  Who gets a speeding ticket for going 9 mph over the limit? It almost never happens.  At this company, if you are accused of following too closely, not having insurance, or an illegal lane change, there is no guarantee.  And if you have a civil assessment problem, or are facing a drivers license suspension, they cannot help.

At www.2fixyourtrafficticket.com, we found:

“The most common of the traffic infractions . . . , are speeding tickets and red light camera tickets. We can get these type of citations dismissed for you”. (Cite Link)

They do not make any representations about other more common violations like no proof of insurance violations, expired registration, driving on a suspended license, missed court dates, following too close, etc.

In essence, their promises are very limited to helping a defendant complete a trial by declaration on simple infractions such as VC22350 and red light photo cases. They do not promise to get all tickets dismissed, and do not even suggest they can help with serious or complicated cases.

Traffic Court Pros.com Provides Real Attorney Case Reviews, Not Document Services

www.TrafficCourtPros.com is not a “fight your ticket” service.  We cannot guarantee we can bust your ticket.

In fact, we actually discourage most people from fighting simple traffic infractions, because it is rarely worth the time and cost. Who wants to pay for a fine in advance, and then pay someone $189 to try to get the money back?

Our approach on simple infractions when hired is usally more like:  1) disqualify commission to get to real judge; 2) start with trial by declaration; 3) demand trial in person if necessary; 4) make pre trial motions to exclude evidence; 5) handle in person trial for client; 6)appeal as many issues as possible.

Here, we usually put in hard work on bigger problems that require legal advice and court representation.  Cases where court appearances are mandatory (arraignments, trials, etc) and cases where warrants are pending are our bread and butter.  If you have a serious traffic court problem, DUI warrant, probation violation, or a trial by declaration alone is not a great option for you, request a free case review from www.trafficcourtpros.com.

All of our local sponsors are Attorneys, licensed to practice law and appear in court for a defendant.  When possible, we provide detailed case reviews with options, recommendations, quotes for legal services, and instructions on how to deal with a case with or without an Attorney.

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How to Get a Public Defender Appointed on a Criminal Case.

Broke and in big trouble? You may be entitled to have the Judge appoint a Public Defender to help you if you are charged with a misdemeanor or felony.

And when a Public Defender is appointed for a defendant, it is usually a great value. The Public Defender’s help is free or nearly free, and most Public Defenders are excellent Attorneys who know the court well. But there are some limitations to having and getting a Public Defender. Here is how they are appointed.

What Is a Public Defender?

In a land far far away, a long, long time ago, a great Supreme Court ruled that all criminal defendants have a right to a “competent defense” which means attorneys help.  Now, anyone charged with a misdemeanor or felony crime has the right to an attorney and if the person cannot afford to hire a private Attorney, the law requires that the court appoint one to help the defendant at the public’s expense. When the Court appoints an attorney to help a broke defendant, they are called “Public Defenders”.

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Public Defenders are real Attorneys, and are generally very good at what they do.  I spent three years with the Santa Cruz County Public Defenders office my self, and can say they do consistently provide great legal work and fight to protect rights.  Those defense deamons are in court everyday helping defendants in trouble, getting evidence suppressed, and they usually know the ins and outs of each courtroom, each judge, and every prosecutor.

Every county has its own Public Defers Office, or a contract with a private law firm to do the assigned work. Sometimes it is a division of the county, as in Santa Clara County. In other counties, such as Santa Cruz, the county has a contract with a law firm to provide Public Defender Services. In Riverside, the court just appoints private attorneys from an approved panel. Most of the time, the offices of the Public Defender are at or near the courthouse.

But a potential client cannot just walk in and ask for a Public Defender’s help. A defendant must first get the Judge to appoint the public defender after a showing that the defendant cannot hire his or her own private Attorney.

How To Get A Public Defender

To get a Public Defender, a defendant must appear in court first, and request a court appointed Attorney after the judge calls their case. Once the request is made, the judge is required to find out if the defendant is truly broke, and whether or not they can afford a private Attorney. In short, the court will check to see if the defendant qualifies for a public defender.

Every county handles these qualifications differently, and there is no single rule on how much you can earn or have before you do not qualify for the Public Defender. In some counties, if you are unemployed, you qualify. In others, the requirements are stricter, and you must have no property to sell.
In some counties, such as Santa Cruz, the qualification procedure is relatively simple. The defendant, once in court, makes a request, and the judge will ask several questions with the defendant under an oath to tell the truth.

The questions will include whether or not the defendant is employed, owns their own house and car, etc. Thereafter, the judge just makes a decision whether or not the defendant can come up with the money for a private Attorney.

In most counties, employment is enough to disqualify a defendant.  The court expects the cost of an attorney hurt.

If the judge decides to appoint the Public Defender, he or she just tells the public defender in the courtroom to take the case and talk to the new client.

In other courts, such as Riverside, or on felony cases, the process is more complicated. In some courts, the defendant must fill out an application form and prove what their income is, and a decision to appoint a Public Defender is made at another time. Then a meeting between new client and court appointed attorney is done at a later date.

But no matter what court a defendant is in, the process is basically this: the defendant must go to court, make a request for a Public Defender, and then provide evidence that they qualify for a Public Defender because they cannot afford to hire a private Attorney.

Some Public Defenders Offices will answer simple questions from a potential client in advance of a court date, but generally they do not give detailed advice before being appointed.

Most county Public Defenders do have web sites with good information, with one of the best being the Los Angeles County Public Defenders Office.

While Public Defenders are a great value and help to an indigent defendant, they do have limitations.

Some courts will charge a defendant for the Public Defenders worth according to what they can afford (as determined by the court). In some cases, this charge can range from $100, to $10,000.

Public Defenders are also restricted to helping only on the case the court appoints them for, so if a defendant have multiple cases in different courts, several Public Defenders may be needed, instead of one private attorney. And generally, Public Defenders will not help with DMV problems or hearings.

For Defendants without outstanding warrants, Public Defenders present a problem because they cannot be appointed until the defendant appears in court. This means the defendant must first be arrested, or get their own court date before getting help.

Usually, if a court denies the appointment of a Public Defender because the judge rules the defendant can afford to hire an Attorney, the court will give the defendant time to shop for a private Attorney.

If you need to ask for a Public Defender, I recommend explaining to the court why it is impossible for you to hire a private attorney.

Public defenders are not available on infraction only cases, such as speeding tickets.  Most of the time, they are not available for appeals.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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How to Fight a Civil Assessment Fine in Traffic Court When You Can’t Get a Court Date

Are you stuck with an unfair civil assessment on a traffic ticket where you had no opportunity for a trial?  Had to deal with a court clerk who tells you that you cannot have a court date because the case is in “Collections” even though you just discovered the ticket?

Screw them! I think the courts that do this are illegally denying the defendant a trial and therefore, Due Process of Law as required by the United States Constitution.  And after doing some real legal work in the last few days, I believe there is a solution if you are willing to put in a little effort.

Here is my best, updated,  professional legal advice on how to demand a court date, and how to prepare for an appeal if you get screwed out of a court date.  It has links to the applicable laws, and free and nearly free recommended forms.

Related Articles:  How to Fill Out a Petition to Vacate Civil Assessment Form (Penal Code section 1214.1) |  How to Appeal a Traffic Court Case

The Problem:  Court Sends a Case to a Collection Agency and Denies Defendant a Court Date, Because the Case is “In Collections”

There is wide variation on how California’s traffic courts treat a failure to appear (or a claim that you failed to appear) on a traffic citation.  Some courts will issue a warrant and a failure to appear charge under Vehicle Code section 40508a.  Others will suspend a person’s drivers license (using Vehicle Code section 40509.5) until there is an Arraignment for the defendant to enter a “guilty” or “not guilty” plea to the charges.

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But some courts skip the presumption of innocence part and suddenly decide a defendant is guilty after a missed deadline that they invent.  In traffic courts such as Santa Clara, Solano, Fresno, and others, if the defendant misses the date on a citation, they send the fine bill to a collections agency and refuse to provide the defendant their day in court. They give the file to a collection agency such as GC Services, and for the defendant to talk with that company about payment. And by refusing the Defendant an arraignment on teh case, they take away teh defendant’s right to a trial.

Technically, there is a way for the courts to find a defendant guilty of infractions on a citation if the defendant does not appear in court.  The procedure is listed in Vehicle Code section 40903(a), which allows a court to “deem a failure to appear as a request for trial by declaration”.

But it is definitely not an automatic process.  Before a defendant can be found guilty, the court must actually have the trial by declaration without the defendant, and notify the defendant of the result of the trial.

Section 40903 requires the court to provide a 10 day warning of this election, and then Vehicle Code section 40902 requires the Court to provide the defendant a written “Statement of Decision” on the Trial by Declaration in absentia on an official California Legal Form, named Judicial Council Form #TR-215.

The problem is that some courts are very sloppy with their collection happy procedures, and they routinely violate the law by ignoring the requirement for a trial.  I have seen it over and over again in many courts.

Specifically, the courts with the flawed procedure commit 3 legal errors:

1) they fail to make the required “election” (choice) to deem the Failure to Appear a “Request for Trial By Declaration”;

2) they do not provide a 10 day warning of the election;  and/or

3) they do not provide the required notice of a decision on the trial, and

4) they fail to respect the deendant’s right to demand a Trial De Novo after losing a trial by declaration.

Instead, the offending courts skip the trial and arbitrarily treat the unproven allegations on a photo copied ticket as proven. No Trial.  No presumption of innocence.  No Proof the Defendant had actual notice of anything.

In these courts, once an arbitrary deadline passes, the court assumes guilt and calculates a fine amount based upon a guilty finding to a collection agency such as GC Services.  Then, in an attempt to prevent the rights of criminal due process from attaching, they call the fine a “civil judgement”.

And to make matters worse, they add a “Civil Assessment” of $300+, claiming authorization under penal code section 1214.1.

When an unfortunate defendant eventually discovers this sort of problem, the court clerk will tell the defendant (through the collection agency) that there is no choice but to pay the collection agency for the fine, civil assessment, and any fees the collection agency invents. The defendant’s right to a trial is lost.  The court clerk took it away.

The end result in these cases is that the late defendant never gets a trial on the original charges, and never gets a Due Process Hearing where they can challenge the “civil assessment”. They get screwed, and $25 correctable fix it tickets turn into $1200 collection agency bills that everyday people cannot pay.

Innocent people get screwed in these courts, especially in cases where the Defendant may have been the victim of identity fraud, or may not have actual notice of the court dates because they were away for, ummmmm, lets say active military duty.  Soldiers coming back from combat to find a 2 year old traffic citation in collections for a ticket they could not have possibly received???? It happens.

Sound familiar? It is a crazy but true aspect of the California Traffic Court universe.

The Solution: How to Fight a Civil Assessment Ticket When the Court Will Not Give You a Court Appearance.

Step 1: Demand Entry of Not Guilty Plea and Setting of Court Trial.

Recommended Form:  I have drafted a properly formatted, detailed and well cited form for exactly this step called “Not Guilty! Demand for Trial”. You can buy it for $9.99 as a down loadable “.pdf”, and it includes a Demand for Not Guilty Plea, Demand for Trial Setting, Supporting Declaration by Defendant, and instructions from me.

But you can write your own.  Here is an explanation of how the Demand for Entry of Not Guilty Plea works if you want to draft your own:

In most courts where this refusal of the right to trial happens, the defendant has not had an Arraignment, and technically, there has been no plea entered at all.  Thus, it stands to reason the Defendant should be allow to enter a “not guilty plea”.  A natural Consequence of a not guilty plea is the sitting of a trial date. In fact, a not guilty plea is a prerequisite for a trial.

Entry of a plea - whether it be guilty or not guilty -  usually happens at an Arraignment.  But if the court will not let you have an arraignment, you need to enter your plea by filing a document with the court clerk.

There has to be a trial, or you are presumed innocent.  The presumption of innocence is a fundamental pillar of our legal system and denial of it, on any level is something that can be appealed 2, 3, 4, maybe even 10 times all the way to the US Supreme Court if you are really obsessed with working on your case.

And the 5th and 14th Amendments to the US Constitution require Due Process, which the courts have ruled means a trial, before the State can Take your life, liberty, or property (including cash - which is just as good as money).  And even more to the point, Penal Code section 1214.1(d) explicitly requires that a Defendant be allowed Due Process to defend against a “civil assessment”.

So how do you Demand Entry of a Not Guilty Plea and Trial Setting if the court will not give you a Court date?  On Paper.  You have to write down the demand and present it to the court clerk for filing in the case.  Once in the court’s file, they have to either accept or reject your not guilty plea.

What if the court refuses to accept the Written Demand for Not Guilty Plea? Well, the court clerk you run into probably will have very little, or zero experience filing court documents such as motions, declarations, and other papers that are common in bigger cases.  And they are train to put up objections to everything.  There are not going to be happy about someone trying to file a document in a traffic court case.  But you have to be persistent and demand to speak with a supervisor if they give you trouble.  If you have a legitimate document to file in a pending legal case, the court clerk cannot prevent you from getting it filed (so long as it meets local rules).  It’s up to the judge (not the court clerk who never went to law school) to deny, allow, or ignore your filing.

What if they still refuse?  Well, it’s very unlikely that they will completely refuse to file your document.  But I can see it happening in some of the worst courts.

In the case of a complete refusal to accept your filing,  I recommend a 2 step process to force the court clerk to take action on it and to preserve your right to appeal on the issue:

1) Drop it of at the clerks office in person and get a “Proof of Service” form signed (by the person who drops it off); and then

2) Mail 2 copies to the court clerk with proof of delivery requested - request filing and return of a copy with a “Filed” stamp - and finally fill out and sign a “Proof of Service by Mail” form.

By keeping a signed “Proof of Service Form” you have legal proof that you “Served” the court with the document and then it can be the subject of an appeal if they ignore it.  It is always best to have someone besides the Defendant do the service part and sign the Proof of Service”.

Once you have gotten the Demand for Not Guilty Plea to the court clerk, they have to do one of 3 things:  1) ignore it; 2) reject it by sending it back to you with an explanation; and 3) tell you that you have lost the right to a trial. It is very important that you get proof that you got the request to the court clerk, because you may need it for the appeal if necessary.

If the court does give you a trial date, you have won - stop here.  Note:  they may require you to post “bail” in the amount of the fine, but there is nothing you can do about that if it happens.

Step 2: Demand a Trial De Novo.

If the court does anything besides give you a Trial date:

1) File a “Request for Trial De Novo” form and ask for a new trial.

A Trial De Novo (which means new trial) is possible and should be granted if you are denied entry of a not guilty plea, because they only way to deny entry of a not guilty plea is to claim there has already been a trial by declaration in absentia under authority of California Vehicle Code section 40903.

The law states that after being notified of a decision after a trial by declaration:

“if the defendant is dissatisfied with a decision of the court . . . , the defendant shall be granted a trial de novo.” (Vehicle Code section 40902(d).)

There is a standard state wide form for a “Request for Trial De Novo” that makes such a request easy.

A timely request should be granted because the court has treated the case as a trial by declaration, and made a decision of guilt.  The law states that once this happens, a defendant has a right to a new trial in person if they want one.

The catch is that you only have about 20 days to request a trial de novo after the court clerk MAILS the decision.  But they never send out a notice of decision in any form and worse yet,  Vehicle Code section 40902(a)(2) requires that the Court use the Official Judicial Council Form for that notice of decision (it is #TR-215 “Decision and Notice of Decision”). The clock starts running from the date they mail that form, but if they never send it, the clock and deadline to file a Request for Trial De Novo never starts running.

A defendant who did not receive notice on TR-215 from the court of the decision on a trial by declaration, but who got a civil assessment, should write on the form:

“Decision and Notice of Decision on Judicial Council Form TR-215 not sent and/or not received as of today”.

Once a request for trial de novo form has been filed with the court clerk (sent to the court clerks office with proof of delivery is best), the court must make a ruling on it.

If they refuse to file it - use the rocedure outlined above wherein you drop off a copy in person, and then mail and get proof of service forms for each delivery.

Generally there are only 2 options for the court:  1) grant the request for a new trial; or 2) state that it was filed late, and provide the date of mailing of the decision Form TR-215.  If the court denies the request, it is a decision that can be appealed, again with a standard Notice of Appeal Traffic Court Form from the Judicial Council.

2) Assuming the Request for Trial De Novo fails, a civil assessment victim defendant in Santa Clara traffic court can file their local form called a “Petition to Vacate Civil Assessment”, which gives the defendant one more chance to get a review of the case.

On this form, the Defendant can argue: a) notice of the TBD was not proper; b) they are innocent and did not have an opportunity to be heard; and/or c) there is some other reason that the civil assessment should be removed and/or a court date allowed.

(Many other courts have a similar local petition form).

If the Petition to Vacate Civil Assessment is denied, that too may be the subject of an appeal.

A defendant with a traffic citation and civil assessment can use this process to force the court to look at it several times - and with a little justice - can beat the completely unfair imposition of a civil assessment without proper notice or justification.

But if none of this orks for you, you will have a perfect record for appealing several issues, including:  Denial of right to arraignment; denial of trial and due process; violation of the right to be presumed innocent, etc.

Appeals of traffic court cases are free, and the forms are free.  See my related article on How to Appeal a Traffic Court Case.

If you need to appeal after following this procedure, I will try my best to answer your questions for free help you get it done right.

If you want help filling out these forms, and advice on the best strategy, I offer affordable one hour attorney conferences for $89, and will answer general questions for free.  cdort@dortlaw.com

-Christopher Dort

When Pleading “Not Guilty” Do Not “Waive Time” or Give Up Your Right to a Speedy Trial.

Defendants who plead “not guilty” to a traffic violation in California have the right to a court trial within 45 days.  But in most courts, they will try to trick defendants into giving it up.  I recommend that Defendants do not give up or “waive” this right.

Here is how to make sure you protect your right to a speedy trial.

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Why a Defendant Should Not Give Up the Right to a Speedy Trial In a Traffic Court Case.

A waiver of the right to a trial within 45 days gives the court, and the police more flexibility in setting the trial date.  If a defendant waives the right to a speedy trial, the court can give the police officer more time to appear, and may be able to grant a continuance if the oficer does not show up for the first trial date.

This flexibility for the court hurts the defendant in many ways. For example, if there is a waiver of the right to a speedy trial, the court may grant a continuance to help the officer, and the defendant will not be able to request a dismissal because the case did not have a trial within 45 days.

But if the defendant demands a speedy trial within 45 days, the court will not be able to grant a continuance to help the police or government prove its case.

How The Court Tricks Defendants Into Waiving Their Right to a Speedy Trial.

I’ve seen it in many courthouses, and it hurts me as a lawyer every time. In my opinion, here is how the scam works:

A defendant appears in court at the arraignment, the judge will ask how they plead - “Guilty” or “Not Guilty”.  Then, the second question comes in hot and fast -  and in secret code - the Judge or “Commissioner” will ask:

“Do You Waive Time?“.

What that question really means is:  “Do you give up your right to have a trial within 45 days?” The term “WAIVE” is secret court code for “Give Up”.

Generally, the court will ask this question in a leading way, that makes it sound like the correct answer is “Yes”.  And they look at you like you have no choice.

In the rare instance where a defendant questions why that is necessary, the most common response I have witnessed is that the court will insinuate that it will help the defendant because it will allow the court to work around their schedule.

But you do not have to agree.  Screw them and their full schedule / work furlow / no budget / laying off employees / closed on Wednesdays problems! The law says they have to set the trial within 45 days.  You can demand that they do it.

And in general - my rule #1 of Defense is Never Agree to Give Up Any Rights Unless You Have a Really Good Reason For It.

Most people who are not trained in handling Arraignments and in the law have no idea at all what “Waive Time” means.  And most people standing there at the podium in court to plead not guilty are scared, and nervous.  Some defendants pee their pants trying to get a trial date.

By asking the question in code, and suggesting that the correct answer is “Yes” without adequately explaining what it means to the defendant, the court is taking advantage of the person in my opinion.

How To Plead Not Guilty and Protect Your Right to a Speedy Trial

I recommend that Defendants in traffic court who wih to plead guilty and NOT WAIVE their right to a speedy trial state their plea in this way:

“I plead not guilty to all allegations and DO NOT WAIVE my right to a speedy trial”.

And do not let the judge talk you into “Waiving Time”.

Questions?  Leave a Comment and I will do my best to respond in detail.

When does an Officer have to show up in Court? At the Trial.

So what happens if you show up on the date listed on a traffic ticket, but the cop does not show up?  Whohoo! The ticket goes away!!! Right? No, That Is Wrong.

From the many questions we get at Traffic Court Pros.com I can surmise that some people believe that if you show up in court on the date listed on a ticket, and the officer does not show up, your ticket will be dismissed.  Don’t fall into this frustrating trap! The officer who wrote the citation does not have to show up unless there is a trial.

When a person receives a ticket or citation, it starts a process that has several steps. The first step (the first court date)  is the “Arraignment”, where you can plead “guilty” or “not guilty”. If a defendant pleads Guilty, the case ends and the cop never has to appear.  If the defendant pleads “not guilty”, then the court will schedule a trial.

If you pay a fine by mail, you are in effect pleading guilty and there will be no trial.  The officer does not ever have to show up at all if you choose to pay the fine, rather than have a trial.

A defendant must ask for a trial if they want one by pleading not guilty.  There are generally 2 ways to plead not guilty:  1) post bail (the amount of the fine as a deposit with the court); or 2) appear in an arraignment in person and tell the judge in person that you plead not guilty (no bail required).

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If there is a trial, that is where evidence is presented by the officer, and you have the opportunity to present a defense or testimony on your side.

If you show up in court on the date listed on the citation, this first date will generally be your Arraignment. The only thing that happens on a traffic ticket arraignment is that you get to tell the judge guilty or not guilty. No evidence is taken at the arraignment, and the court will not make any rulings.

Because of the nature of the Arraignment, the officer does not need to be present, and the court will not be interested in hearing your side of the story. So don’t bother bringing any witnesses to the first court date.

Because there must be evidence presented at the Trial in order to find you guilty, the court requires the officer to show up at the Trial. In most cases, it is only at the Trial date that the officer must appear and present evidence to support the citation.

If you go through the work of setting a trial date, and the officer does not show for the Trial, then you’re lucky.  You should tell the court that you wish to make a motion to dismiss the case, based upon the fact that there is no testimony to verify the allegations (violations on the citation).

But beware! This is not always a winner - the court has the power to continue the Trial to a later date when the officer is available. If this happens, make an objection to protect your right to appeal. THe grounds for the objection is a “denial of due process and the right to a speedy trial”.

Questions on when an officer must show up in court?  Leave a comment.