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.

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 daemons 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.

California Government Code Sections 27700-27709 require a county’s public defender to provide legal representation for indigent persons in certain circumstances.  These California statutes are really just a restatement of the requirements the US Supreme Court set for 5th Amendment Rights in the famous 1963 case of Giddeon vs. Wainright.  And in most counties, the public defender heads the county law office which fulfills this obligation in the most cost effective manner.

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 Deal with Proof of Insurance Violations (Vehicle Code 16028)

One of the most common and most expensive traffic tickets a driver can get is a failure to have proof of insurance while when asked by a police officer. In California, the violation is technically known as a Vehicle Code section 16028 infraction, and nearly all states have a very similar law. The typical fine for a Veh Code 16028 violation is about $1200 once court costs and “penalty assessments” are added. But there is a way to save big $$.

If you received one of these citations, you are probably very interested in reducing or getting out of the fine. After 12 years of handling these violations for clients, I have some good tips for saving money, and here is what you need to know.

I. The Violation is for Not Having Proof of Insurance With You While Driving, Not for a Lack of an Insurance Policy.

Nearly every day I get emails from drivers stating something to the effect of:

“I have a VC16028 violation, but I had insurance at the time.!”

Well, the bad news is that having insurance is not a complete defense to the charge. If you did not show proof to the officer when he / she asked for it, you are guilty. So a trial is rarely a good idea. The better option is to talk the judge into dismissing or reducing the fine without a trial.

II. If You Had Valid Insurance at the Time of the Citation, Show Proof in Court.

The ideal way to get an insurance ticket dismissed is to appear in court with your proof of insurance (covering the date of the violation), show it to the judge, and ask for a dismissal. If you want to sound really smart, ask for the dismissal in the interests of justice under authority of Penal Code section 1385. Technically, the court does not have to accept proof of insurance in court, but almost all judges will. The best way to ask for a dismissal is to say “I just could not find the paper before the officer wrote the citation.”

To get the insurance violation dismissed correctly, you need to appear in court prior to the date listed on the bottom of the citation next to your signature. Do not wait for the court to send you anything!! They are not required to send you a courtesy notice. Go to court and ask for an “Arraignment” prior to the date on the ticket. You may have to go in at 8 am and ask for a walk in court appearance.

In most courts you cannot get an insurance violation dismissed by mail without unreasonable difficulty. The best way to do it without frustration and wasted time is to appear in court in person. At some courts, it can be done at the court clerks window, but either way, you have to go in person to get it done right.

There may be a “dismissal fee” that you have to pay in person. See California Vehicle Code section 16029(e), and VC40611 for more details on the dismissal of insurance violations.

III. If You Did Not Have Insurance at the Time of the Ticket, Get It ASAP!

If you did not have insurance at the time of the citation, but got it before the date on your citation, you are eligible for the minimum fine. [See California Vehicle Code section 16029(e)(1)]

But to get that minimum fine, you must appear in court and ask for it.  You cannot do it by mail.  The correct what to get the minimum fine on an insurance violation is to appear at the courthouse prior to the date on the traffic ticket (by your signature) and ask for an Arraignment.  Once in the courtroom, and your case is called, tell the judge “I have proof of valid insurance that I got after the citation and I would like to ask the court to accept it and give me the minimum fine in accordance with CA Vehicle Code section 16029(e)(1).

By following this procedure this procedure, even if you are fully guilty, you will save yourself about $900 - which is far more than the cost of insurance.  So get insurance!  I recommend using the insurance link above to get a quality set of quotes for auto insurance within 2 minutes.

And aside form saving money on the fine, auto liability insurance is always worth the money (See my article on What Happens If You Get Into An Accident Without Auto Insurance.

(See also: http://www2.courtinfo.ca.gov/cjer/courses/traffic/stats/vc_2.htm#16028 )

And it never hurts to ask for a dismissal under penal code section 1385 even if you got an auto liability policy late - all they judge can say is no.

IV.  If The Court Gives You a Hard Time, There May Be a Good Issue for a Trial.

In my 12 years as a defense Attorney, I have noticed that over and over again, police officers give out traffic tickets with only one violation listed - the insurance violation.  But the law actually states that it is illegal for an officer to stop someone solely for the purpose of checking your insurance.

If the only violation on the traffic ticket is listed as a VC 16028, and you want a trial, your best defense if that the officer pulled you over illegally just to check your insurance.  Once in court, the officer is bound to make up a reason for the stop, such as “I saw her speeding”.  But you can effectively counter this statement by simply asking the officer:  “You did not note a [speeding] violation on the ticket, did you?  Then in your final argument, tell the judge there is no reliable evidence the stop was legal - the only reliable evidence is the ticket, which mentions only a VC16028 violation.

One final recommendation - GO TO YOUR COURT DATE EVEN IF YOU DON’T HAVE INSURANCE!

If there is no way you can get insurance before the date on your citation, go to court anyway and ask for more time.

The court will almost always give you more time to fix an insurance issue. The trick to staying out of trouble is to show up on time to ask for more time.

The worst thing you can do is to blow off your court date - that will only increase the severity of the problem.

C. Dort, Esq.

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What Happens If You Get Into An Accident Without Insurance in California?

Auto Insurance? We don’t need no stinking auto insurance! Right? Wrong.

Aside from the danger of getting a very expense ticket (about $1200), there are other real dangers for driving without insurance - including the fact that your life can be ruined in an instant if you are unlucky enough to get into an accident without insurance, even if its not your fault.

Danger #1: Big Fine

Every person with a California Drivers License is required to have auto liability insurance to comply with the Auto Financial Responsibility Law officially known as Vehicle Code section 16028.

Section 16028 also requires drivers to carry proof of liability insurance with them at all times while driving. A driver who has insurance, but fails to carry proof with them is actually in violation of the law and faces a fine of about $1200. Although many judges will give people a break if they show up in court with proof of insurance that covers the date of the incident, the judge is not required to do so. Some Judges are hard asses, and will give no one a break.

Danger #2: Drivers License Suspended Automatically for 6 Months

When a person gets into an auto accident with damages more than $500 (just about every accident), they are required by law to notify the Department of Motor Vehicles of the accident within 10 days, regardless of whose fault it was. DMV has a standard form for these notices, and it requires the driver to tell DMV their insurance policy number. DMV then uses the form to contact the insurance company and verify that there was a valid policy.

If the DMV cannot verify the insurance, (or if there is no report), there is an automatic Drivers License Suspension for 6 months that cannot be challenged. The suspension applies regardless of who was at fault for the collision.

Many people get caught up in this 6 month suspension because although they think that they have proof of insurance, when the DMV goes to the insurance company to verify it, they discover the policy was canceled for a failure to pay. Just having the paper is not good enough. The policy must be valid or the drivers license is suspended.

People caught driving on a suspended license face criminal charges (Vehicle Code section 14601.1), 2 points on their driving record (same as a DUI), arrest, and impoundment of the car for 30 days.

Danger #3: No One Will Help You If You Injure Someone and Get Sued:

Auto Accidents that result in injuries often produce lawsuits. Whoever is injured will normally sue the other driver (and any other owners of the car) for damages in court, including:

1) medical bills, 2) pain and suffering, 3) lost wages; 4) loss of enjoyment of life; 5) property damages, etc.

Even in a small accident, these “Damages” can be thousands or tens of thousands of dollars. If you lose one of these lawsuits, the court will issue a judgment that may be executed against your bank accounts, your wages (current and future), your house, and even your personal property way in the future.

When you buy an auto insurance policy, you get 2 very valuable protections against this problem that most people do not understand. They are called:

1) Defense and 2) Indemnification.

These protections become very important if you are unlucky enough to be at fault in an accident.

“What? What does that mean? I thought that insurance means they pay for my damage?”

A. Indemnification.

“Indemnification” means that the insurance company is required to pay for any damages you are responsible for up to the policy limits if the court says you must pay. That is what “Indemnification” means. The insurance company must pay for the damages the law says you are responsible for.

But if the damages exceed the policy limits, then you have to pay out of your own pocket. This is why policy limits are important.

If you do not have this indemnification protection from auto insurance, and the court says you must pay, you will have to pay out of your own pocket, even if it takes 20 years. And worse yet, if an injured person gets a judgment against you for an auto accident, the Dept. of Motor Vehicles will suspend your drivers license until the entire bill is completely paid off, even if it takes 20 years.

B. Defense Protection (Insurance Defense Attorneys).

If you get sued because of an auto accident for personal injuries, you will need help. There will be lawyers working very hard to make sure their damages are as high as possible, and to make sure they find all of your assets and money to collect. A person not trained as a trial attorney trying to deal with this alone has no chance of stopping the train. It will run you over.

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And if you have to hire a defense attorney to protect you from an auto accident lawsuit, they are going to charge you by the hour. A normal hourly rate for a defense attorney would be $150-200 per hour. And if the case drags on for 3 years (like one I have now) it would be a necessary expense that would completely bankrupt most people.

But if you have auto liability insurance, the worries are over from the start. The law requires the insurance company to hire defense attorneys for you, and pay for them.

That’s right - the insurance company would have to hire attorneys to defend you, even if the accident was your fault. Even better, the insurance company must pay for them until the end of the case, even if it takes 3 years. And these defense costs are not deducted from the policy limits. There is essentially no limit on how much the insurance company must pay to defend you in a law suit.

Bottom line here is that Auto Insurance is prepaid legal fees for personal injury lawsuits against you. And when you understand that, you understand that the cost of auto insurance is always, always worth the money.

Danger #4: You Cannot Get Paid If Someone Injures YOU, Unless You Have Insurance.

Even if some rear ends you at 90 mph and paralyzes you, you cannot get paid for your pain and suffering, nor lost wages if you did not have valid insurance at the time of the accident.

This is because Prop 213, also known as California Civil Code Section 3333.4 restricts drivers injured in a motor vehicle accident from recovering non-economic losses for compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages if the injured person was not insured at the time of the accident.

It’s really a cruel law in my opinion, but if you are injured without insurance, you are on your own.

So even if the accident was not your fault, but in an instant you are severely injured, a failure to simply buy auto insurance as the law requires can ruin your life and bankrupt you and your family.

I hate to be so blunt about it, but in the opinion of this trial attorney, Auto Insurance is always, always, worth the money. When you buy auto insurance you are not only complying with the law, but you are paying someone else to take a risk that you cannot afford.

If you have those moments (like we all do nowadays) where you say to yourself “I cannot afford auto insurance” - take a deep breath and think for a second. In reality, you cannot afford to not have it. A lack of auto insurance can ruin your life in seconds.

Questions? Leave a comment, we try to answer them all.

Injured in an auto accident? Give me a call or email (800) 256-5983 or cdort@dortlaw.com. I accept personal injury cases with no fees unless you get paid.

-Attorney Christopher Dort

Can’t Pay Your Fine? Try a Penal Code 1385 Motion to Dismiss.

If you are going to court without any defense, and you need an argument to get your misdemeanor or traffic court case dismissed, use California Penal Code section 1385. No mater what the facts are, a defendant can ask a judge to dismiss a case or suspend a fine in the “Interests of Justice” using PC 1385.

Penal Code section 1385 is the law that allows a judge to use discretionary power to make a fair ruling.  It is a way to ask the judge for what is technically called “Equitable Relief”.  Lawyers use a PC 1385 request or “Motion”, to get rid of traffic citations, misdemeanor cases, and even felony strike charges.  It is a common motion - or request to the judge.

And get this:  We made an EZ Form for the Motion! Here is how it works:

California Penal Code section 1385 states:

(a) The judge or magistrate may, either of his or her own
motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.  The reasons
for the dismissal must be set forth in an order entered upon the
minutes. 

This statute allows a Judge to dismiss a case “in the interests of justice”, but the statute does not describe what factors qualify as “the interests of justice”.  It’s a very subjective standard, and this means if you can talk the judge into a PC 1385 dismissal, it will work.

Just talk the judge into it.  That’s all you have to do.

A Penal Code section 1385 dismissal is most often used to get rid of overlapping charges, charges that just don’t make sense, or as in one example we recently observed - when a defendant is on active military duty and shipping to a combat zone.

A defendant can make a section 1385 request for a dismissal, or even to delete or suspend a fine, verbally or in writing.

Technically, the statute does not allow a Defendant to make the motion.  It states the judge or the prosecuting attorney can make the motion.  But nearly all judges in real courtrooms will listen to a request.

[Practice Tip: If you run into a judge that gives you a hard time, you can make a motion for the judge to make a PC1385 Motion.]

You can make a 1385 motion orally at a court date by telling the judge:

Your honor, I’d like to ask for a Motion for dismissal in the interests of justice under Penal Code 1385 for the following reasons: [insert reasons].

But you should do it in writing and verbally.  I strongly recommend that you use the Penal Code section 1385 Motion form I created for Self Help Use. But you can write your own motion if you wish.

You can download the fillable “.pdf” Motion Form with Instructions now for $19.99 at my www.DortLaw.com Legal Forms Store:

http://store.payloadz.com/go?id=826938

A Penal Code section 1385 motion will not always work, but it will give you an argument when there is nothing else to hang your coat on.  It works great when there is a special circumstance or unique hardship you can point out. Death, loss of job, successful drug recovery, etc.

It can be done - should be done - in just about every traffic or criminal case and on top of what ever other arguments you have.

-Christopher Dort, Esq.

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Failure to Appear Case in West LA Courthouse? Call Before You Go.

DON’T ASSUME THE LA TRAFFIC COURT WEB SITE IS CORRECT!         G4GB6YF5NDEZ

Our bench warrant Attorneys have recently run into a recurring problem in Los Angeles County Superior Court that can result in a very frustrating waste of a whole day, and possibly cause a failure to appear charge if you don’t expect the court to screw with you.

In many West Los Angeles Courthouse traffic court cases where the defendant has missed the original court date, or is charged with driving on a suspended license, the LA Superior Court’s Web Site will INCORRECTLY  list the case as pending in the “West LA Courthouse” when a person looks up a court date on the web.

At last check, the West LA Courthouse does not handle driving on a suspended license cases (Vehicle Code section 14601 cases), DUIs, Vehicle Code 40508(a) warrants or other misdemeanors at all.  Those types of cases are actually heard in the Airport Courthouse (West District).

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This problem has existed for years, and no doubt resulted in hundreds of people going to the West LA Courthouse for a court date that was not there.  The court has not been interested in correcting the problem.

To avoid wasting a trip to West LA - call the court clerk before you go and confirm that your case is actually in the West LA Courthouse.  Ask specifically if your case will be heard in WLA Court, or the Airport Courthouse.  The relevant phone numbers are:  WEST LA COURT CLERK: (213) 742-1884   AIRPORT COURT CLERKS OFFICE: (310) 727-6020

Questions:  Email Attorney Christopher Dort cdort@dortlaw.com.

Public Service Ad

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? My opinion is that it is.

It’s actually illegal in California to guarantee the outcome of a court case to sell services.  That’s the #1 problem. But there is more.

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) (unregistered vehicle), illegal lane changes, driving without a valid license, etc.

And they are not available at all on misdemeanor charges, such as VC23152 (DUI), VC14601.2 (Driving on a Suspended) cases, or Health and Safety Code 11357 (Possession of Pot) problems. 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.2fixyourtrafficticket.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.

Questions?  I try to answer for free. Leave a comment.

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, or GC Services employee, 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, denying 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.

Recommended Form: Demand for Trial and Entry of Not Guilty Plea (Written by Attorney Christopher Dort and has worked many times);

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.