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 judgment, 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

Related Form:  Demand a Trial After Civil Assessment ($9.95)

When Can an Attorney Go to Court for a Client Who Stays Home?

The issue of whether or not a defendant has to actually appear in court, or if they can send an Attorney to go for them, comes up a lot in California’s misdemeanor criminal and traffic court cases. Here is an explanation of when the client does have to show up in person to a court appearance, and when they can go to the beach instead.

California Penal Code section 977 allows an attorney to appear in court for a defendant in any misdemeanor case except for a few crimes that are excluded, such as domestic violence cases (Penal Code sec. 273.5 cases).

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But other than a couple exceptions, an Attorney can go to court for the client in nearly all California misdemeanor  and traffic infractions cases.  The Penal Code sec 977 law (statute) allows the Attorney to cover for, and speak for the defendant in all misdemeanor proceedings, including arraignment and sentencing.

The law does state that a court MAY require a DUI defendant (a person charged with Vehicle code section 23152 violations) to appear in person for Arraignment and other DUI dates - but it is very rare for a court to require this of DUI defendants.

In most courts, an Attorney can do all of the routine work involved in a DUI and misdemeanor case without the client having to go at all. An attorney can go in alone, and plead guilty, not guilty and even get sentenced for the client who can go about their work or school activities.

Because of this fact - that a client can go to work or school instead of court when they hire an attorney - the attorneys work is very valuable in terms of limited stress and frustration of the client.

Public Defenders can appear in court for their defendants, but to get a public defender, a defendant must appear in court and ask for one - then meet financial/income restrictions. And many public defenders prefer their clients to attend court, because that is the only time they get to conference together in person.

Some Private Attorneys prefer that their clients attend the sentencing in person, so that if something goes wrong, the client cannot claim they did not know what was happening.  This is especially true when the Attorney knows there is going to be a bad outcome, but its not required in most cases.

The few times when a client actually must go to court in person to court with or without an attorney is when there is a bench warrant pending, or when they want to provide testimony in a hearing or trial.

Felony defendants are out of luck. They must appear for their court dates in person, unless they get a specific waiver filed and approved by the court.

Dealing With a Vehicle Code Sec 12500a Violation? It Helps to Get a Valid License.

Some people who get caught driving on a suspended drivers license, or with an expired drivers license will get arrested and/or cited for violating vehicle code section 12500(a).  That section is generally known as “driving without a valid license”.

Violations of Vehicle Code section 12500 usually come in the form of a ticket or citation after a person is stopped by a peace officer. The violation will typically be listed in the officers writing on the citation as “VC 12500a”.

In a way, getting a VC12500a violation means you got lucky. It may have been the lessor of 2 evils the officer could have selected.

Driving on a suspended license (veh code sec 14601.1), is almost always a misdemeanor only, and can lead to mandatory jail time, arrest and impoundment of your vehicle, and 2 points on your drivers record (the same as a DUI conviction).

On the other hand,  not as serious as a charge of Driving on a Suspended License (which is vehicle code section 14601), California Vehicle Code section 12500(a), can be a misdemeanor or an infraction in most courts.  The law specifically states that VC12500a is a misdemeanor (see vehicle code section 40000.1-.5) but most courts will entertain the idea that it be an infraction instead.

I’ve talked more than one judge into allowing it to be an infraction by demanding a jury trial if it is a Misdemeanor and the court will not be flexible.

This is because as a misdemeanor, it gives the defendant the right to a jury trial.  And no judge wants to call in 12 jurors from the voting community to hear a VC12500a case.  There is just way too much other more important justice to serve, and a 12500 trial is not an efficient use of the courts time.  A judge can avoid the jury trial right by reducing the charge to an infraction, and save the court time and money.

It is also a violation that is “correctable” in many courts, which means a court can reduce the penalties for driving without a valid license if the problem is corrected (which means show a valid drivers license in court).

Because of this, ideally, a person charged with a VC 12500a violation should know whether they are charged with a misdemeanor or an infraction, and should get the matter corrected by getting a valid drivers license. Then try to get an infraction as the outcome.

Finding out whether you are charged with a misdemeanor or infraction to is easy. On most California form citations, the severity of the vioaltion is listed in a check box next to the violation. Usually, there is a check box for “M” and one for “I”. Sometimes the officer will handwrite in M or I.  The M stands for misdemeanor, and the I stands for infraction.  You can also call the court clerk to verify the label they give it. VC 12500a violations almost always start out as misdemeanors.

Most courts will reduce a misdemeanor violation of vehicle code section 12500(a) to an infraction in court if they are shown a valid drivers license for the defendant. To make this happen, typically, a person will appear in court, plead not guilty, and then return for a second court date with a valid drivers license.

Usually this takes 30 days or more, because the person may have to deal with drivers license holds, or failure to appear cases to get the license back. But the court will allow time if requested. Most courts want unlicensed drivers to get a valid drivers license.

A person may end a VC 12500 case completely by just paying the fine and pleading guilty without a drivers license at the first court date. The penalties are harsher then if the case i reduced to an infraction, but it can be done.

Do not make this mistake: Many people believe that they cannot resolve the case without a license and therefore miss their court date and do not pay the fine. Even without a license, the court dates must be made - and the court is not required to reduce the charge. In difficult courtrooms, having an attorney do the work for you is valuable, because the attorney has a much more legitimate threat to demand a jury trial and have one, than an everyday lay person who does not know how to start the jury trial process.

To find out the status of a drivers license, the best option is to call the Department of Motor Vehicles Driver Safety Office. If there are holds on a license preventing it from being valid, the holds must be cleared and a re issuance fee paid to DMV before a license is completely valid. Clearing the holds alone is not enough - you must go to DMV to get a valid license after a suspension.

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Winner of Slam Dunk Contest Arrested for Driving with a Suspended License

New York Knicks Basketball star and Winner of the 2008-2009 NBA Slam Dunk Contest, Nate Robinson, was arrested Tuesday in the Bronx for driving with a suspended drivers license.  Reports from Yahoo! and the New York Post indicated that his drivers license may have been suspended up to 5 times due to past infractions and failure to appear problems.

The Miami Herald reported that Police said they arrested Robinson after officers pulled him over in the Bronx at about 5:30 p.m. and discovered he had a suspended license.

The high flying Knicks guard was taken to the 52nd Precinct and charged with aggravated unlicensed operation of a motor vehicle and issued a summons to return to court at a later date, police said. This procedure is known as a “cite and release” arrest and is common for driving related misdemeanors. At his court date, Robinson will be asked to enter a plea of guilty or not guilty and have a trial.

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On his Twitter page, Robinson apologized to his team and fans, and explained the suspension was due to an “unpaid” ticket.

In California, “driving n a Suspended Drivers License” is also known as a violation of vehicle code section 14601.1 or Vehicle Code section 14601.2. It is a misdemeanor that can lead to 1 year in county jail.

And the government will impound the car for 30 days. The owner of the car must pay for the towing and all storage fees, which often exceed $2,000.

Most defendants convicted of the charge will receive 3-4 days of jail or community service, 5 years of probation, a $1000 fine, and 2 points on their driving record (the same as a DUI Arrest) A second offense has a 10 days in jail minimum penalty.

The most common reasons for a suspension of a drivers license is a failure to appear in court after receiving a traffic ticket.  People who get traffic tickets in California have the option to pay a “bail” and forfeit it to close the case (pay the fine) or they must show up in court before the date listed on the ticket. Drivers who do neither have their licenses suspended under Vehicle Code section 40509.5.

Some courts, such as Riverside County Traffic Court, will also issue a bench warrant for a failure to appear charge under Vehicle Code section 40508(a).

Not having actual knowledge of the suspension is a defense to the charge, but very difficult to prove because the law states that you must keep your address current with DMV. And DMV always sends out the notices to the last known address.

Attorney defending Veh. Code sec. 14601 cases often try to get the charge reduced to a less serious “driving without a valid license” or VC 12500(a), which can be an infraction instead of a misdemeanor.

The best way to avoid arrest for driving on a suspended license if you have old tickets, if to go to the court and schedule court date(s) or have an attorney do the work for you.

We offer free attorney case reviews for this purpose.

Questions? Email cdort@dortlaw.com

What Happens If You Are Caught Driving After A DUI?

When a person gets caught driving with a suspended drivers license after a DUI arrest, they are normally arrested and charged with a violation of vehicle code section 14601.2.  Here is what you need to know if it happens to you.

After a person is arrested for a driving under the influence offense in California, the arresting officer physically takes the drivers license from the arrestee, and gives them a paper “notice of suspension” of the license.

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10 days later, the Department of Motor Vehicles suspends the drivers license unless the driver gets a stay of the suspension.  This means that almost all DUI arestees end up with a suspended drivers license and they are no longer allowed to drive.

Unfortunately for some, they get caught driving anyway and arrested. Then, these unlucky souls have to go to court to deal with 2 problems:

1) a misdemeanor charge of Vehicle Code section 14601.2; and possibly

2) a probation violation on the DUI case for the misdemeanor arrest.

Dealing with the VC 14601.2 Charge.

Vehicle Code section 14601.2 is actually much nastier than the standard Driving on a Suspended License (VC14601.1).  Because a 14601.2 is alcohol related, the penalties are a lot stiffer.

Vehicle Code section 14601.2 has a penalty range of 10 days to 1 year in the county jail plus fines that can total $2000. It is always a misdemeanor and cannot be reduced to an infraction.

The judge may also decide to require you to install and pay for a breathalyzer machine for the ignition on any car that you own.

Often the best way to avoid jail on a VC 14601.2 charge is to get a valid drivers license (by pleading not guilty and delaying the case until you can complete the DMV requirements) and then using the valid license to try to negotiate a reduction to a Vehicle Code section 14601.5 charge with no jail time.

Often it takes some work to get this point.  I have had many, many cases where the prosecutors would only offer a VC 14601.5 with 10 days jail, and it was not until the very last minute that I was able to get a 14601.5 with no jail or better offer.

Some prosecutors in some courts will reduce it to a less serious VC12500a misdemeanor, but it is super rare in cases where the drivers license was suspended due to an alcohol arrest.  Courts generally have little tollerance for that sort of case.

Getting a reduction in the charge is not automatic when you get your drivers license back, but it will usually help with negotiations to avoid a jury trial - which is a waste of the courts time and resources.

Persons charged with a VC14601.2 have a right to a jury trial, but most of the time it would be a waste of time because the license was suspended.  But possible defenses include: the driver had reason to believe it was a valid license; the arrest was illegal because the cop had no justification for the stop, etc.

If you have prior 14601 convictions - even one-  the penalty is likely to be 30 days in jail (just had that result in Santa Clara on a bad case).

If a defendant cannot get their drivers license back, or if they plead guilty on the first court date, the sentence is likely to be 10 days in county jail and a fine.  Not all courts will require the ignition control device, but some will.  Technically, if you plead guilty the judge can sentence a 14601.2 defendant to a year in county jail.  Because of this danger, it is always good to ask for an indicated sentence before pleading guilty.  That way the judge will tell you want is going to happen before you give up your right to a jury trial.

Dealing With The Probation Violation.

Most people who get a first offense DUI in Californina are on probation for 3 years, any any arrest violates that probation.  Once probation is violated, the court can start over on the DUI and re-sentence the Defendant on the original DUI Charge (Vehicle Code section 23152(a) and 23152 (b)).  This probation violation part of the problem is completely separate from the Misdemeanor 14601.2 case, and it is important to not get them confused.

Normally, the probation violation will be heard on a different date than the misdemeanor case. Defendants accused of a probation violation have a right to a hearing, but the burden of proof is “proponderance of the evidence”, not “proof beyond a reasonable doubt”.  The reason for the lessor burden of prood is that the defendant was already found guilty, and given the break of probation.

Usually it is best to try to negotiate a second chance in the form of Reinstatement of probation on teh same terms and conditions.”

Most judges will give a person a second chance, but some judges will take all DUI Probation Violation people into custody.  30 days is a common sentence in some courtrooms for violation of a DUI probation.  But it can be as much as 1 year.

Some defendants will get lucky and have their probation in a different court than the court handling the VC 14601.2 case.  If this happens, there is a decent chance the probation court will never find out, and no probation violation will come about.  But I would not count on this outcome.  Computers are getting better, not worse.

The best advice I can give a person who gets arrested for driving after a DUI is to get an Attorney who has handled the cases before to do the work.  Then, work on getting your drivers license back and give it to the attorney to use in plea negotiations.

Considering the cost of a bad outcome that results in jail, it is worth the money to get professional help. The judge is not going to help you, and the prosecutor is not going to talk to you alone.

-Christopher Dort, Esq.

cdort@dortlaw.com

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What is a Vehicle Code Section 13365 Suspension?

One question we often get at TrafficCourtPros.com comes from people who are looking at their driving record from the DMV, and who get confused when they see a listing for a “VC13365 suspension”.

To the everyday person, this entry on their DMV report might as well be ancient Egyptian Hieroglyphics, or a 30 year old coffee stain.  So they come to TrafficCourtPros.com for help, asking “What the F***** is a VC13365?

And here is the answer:

VC40508a + VC40509.5 =  VC13365.

Got it? That is what they tell you at DMV.  It is new age DMV math.

No? Want an answer in English?

OK - here is the real answer from a non DMV human.

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When a person misses a court date on a misdemeanor or a traffic citation, the court adds a new charge to the case.  This charge is called a “failure to appear” or “FTA”, and the definition of a failure to appear is listed in section 40508a of the California Vehicle Code.  (VC stands for vehicle code, as does Veh. Code.)  Thus, a failure to appear charge shows up in the court file as a VC40508a violation.

When a VC40508a failure to appear violation is added to a case, the court notifies DMV of the 40508a, and requests a drivers license suspension through the procedure listed in Vehicle Code section 40509.5.  Once DMV is notified of the FTA in this way, the court lists a “VC40509.5 hold” in the case file.

Then, once DMV receives notice of the VC40509.5 hold request, Vehicle Code section 13365 instructs DMV to suspend the drivers license per the courts instructions.  When this happens, the DMV lists the action on the drivers histopry report as a “VC13356″ suspension.

So, in essence, it is a suspension caused by a failure to appear in court.

To clear the suspension, there is a 2 step process:

1) a driver must clear the hold with the court by either appearing in court and asking the judge to remove it, or by paying off the case in full (where possible); and

2) the driver must contact DMV to determine if a visit to DMV is required to reinstate the drivers license.

Clearing the hold with the court alone is not enough to reinstate the drivers license. A driver with a VC 40509.5 hold and/or a VC 13365 suspension must contact DMV once the hold is released to verify the status of their drivers license.

For more info see these articles:

What is a VC 40508a charge? |    How Do VC 40509.5 Holds Work?

-Christopher Dort, Esq.

Editor in Chief, TrafficCourtBlog.com

Email: cdort@dortlaw.com

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New Laws for 2009 Bring Greater Restrictions for Those Convicted of DUIs

Like any new year in California, 2009 brings a batch of new laws affecting drivers.  Although there are less new amendments to the California Vehicle Code than last year, the new 2009 laws follow a growing trend to toughen the penalties for drivers caught driving under the influence of alcohol or drugs.

First on the list is a new law that changes the legal limit for blood alcohol content (BAC) for those who have been convicted of a DUI and who are on probation.  Assembly Bill 1165 makes it illegal for a driver on DUI probation to have any measurable amount of alcohol in their blood while driving.  This change effectively lowers the legal limit for drivers on  DUI probation from 0.07 to 0.01.

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In addition to a lower limit on blood alcohol content, probationers will now also be required to submit to portable field breath tests (PAS) to determine blood alcohol content when asked by a police officer.   Previously, this portable breath test was optional for all drivers.  Drivers not on probation may still refuse the portable field breath test, and request another form of testing - such as a blood test.

This aspect of the new law (AB 1165) is somewhat controversial, because the portable breath test machines used in the field have a higher error rate and are less accurate than a direct blood test.  Because of this inaccuracy, drivers have traditionally been allowed by law to request a blood or urine test instead.

However, for some counties, these changes for DUI Probationers are nothing new.  Many judges in counties such as Santa Clara, and Santa Cruz Superior Courts, routiinely imposed similar probation terms on DUI Defendants before the new law was passed.  Judges have a wide range of discretion when imposing probation terms, and many judges imposed “zero tolerance” probation terms as a way of tightening down on DUI defendants.

Persons on DUI probation who violate the new law are subject to a new criminal misdemeanor case and to a separate charge of a probation violation.  Any probationer with a probation violation may have their probation revoked, and can then be re sentenced by the court.

Another change in the law for 2009 affects how Alcohol Interlock Ignition Devices (IID) are managed (Assembly Bill 1388).  Under this new law to amend the vehicle code, the responsibility for imposing a IID restriction on a person convicted of a DUI moves to the Department of Motor Vehicles - and will no longer be handled by the courts.

It is now easier for the court or DMV to require an IID installation.  Assembly Bill 1190 reduces the blood alcohol content that triggers a IID requirement from 0.20 to 0.15.

And defendants caught driving on a suspended drivers license which was suspended for an alcohol offense (Vehicle Code section 14601.2), can now be required by the DMV to install a IID on all vehicles they own or operate.  Previously, the court could “consider” requiring a IID for a VC 14601.2 defendant, and the DMV was not involved in the decision.  THis change is expected to result in an increase of the number of drivers that must install IID devices.

There is no change in the requirement that the defendant pay all costs involved in installing a IID.

In summary, it is now easier for the courts and DMV to impose additional penalties on those convicted of a DUI. And if you are on DUI probation, you cannot drive with any alcohol in your blood, and you should not ever drive without a valid drivers license in your pocket.

Traditionally, new passed amending the vehicle code go into effect in July of the new year (not Jan. 1).

For more info on new laws for 2009, see the CHP Press Release at:

New Laws for 2009 Vehicle Code

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

Question about this article? Post a comment and we will try to respond with useful info.

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If You Sign a Ticket, You Are Promising to Appear in Court.

If you sign a traffic ticket, do not put it in your glove box and wait for the court to mail you something! At Traffic Court Pros.com we get many case review requests from people who state:

I got a ticket, but the court never sent me anything. I put it in my glove box and forgot about it. Now my license is suspended!

Of course there is a way to solve this problem.  However, technically, when this happens it is the fault of the driver, not the court. Here is the explanation as to why, and tips on how to avoid the common failure to appear suspension.

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A traffic ticket is actually known legally as “A Promise to Appear” in court. When an officer gives a driver a citation, he or she writes several things on the ticket:  1) the alleged violation; 2) the drivers identification and address info; and 3) a court date and time (usually at the bottom).

When a driver signs the ticket, he or she is signing an enforceable promise to appear in court. Once a ticket is signed, there is no requirement that the court send you anything (unless they change the date).

When that date comes around, if the driver does not appear in court, the court will add a new charge of failure to appear to the case (Vehicle Code section 40508a), and add a drivers license hold under Vehicle Code section 40509.5, which results in a drivers license suspension.

If an officer tells you that the court will send you something, do not wait for it. Take the ticket, read it carefully, put the court date on your calendar, and pay attention to it. Make sure your address is correct with the court and DMV at all times.

Then, if the court does send you a courtesy notice, it will have further instructions on how to pay and admit guilt if you wish, or how to appear in court. But if nothing comes from the court, you must go at the date and time listed on the ticket. Once in court, get written proof that you were there. Do not leave court without proof you were there, even if the court says they have no record of your citation.

By following these simple rules, you can avoid the nightmare of having your license suspended and a failure to appear charge because you missed the court date.

If you do have the problem of a drivers license suspension because of a failure to appear, there is a way to solve the problem quickly. For more info, visit TrafficCourtPros.com and get a free case review.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Kangaroo Court? No Consistency in How Courts Handle Failure to Appear Cases.

How traffic courts deal with failure to appear cases differs greatly from courthouse to courthouse. In this article, Attorney Christopher Dort reviews the most common ways California courts handle a failure to appear on a traffic citation, and shows how to understand what is happening to a case after a missed court date.

When I was in law school, I once had to tell my trial advocacy professor that I had to miss a class because I scheduled a traffic court trial on one of my own tickets. Upon hearing this, my professor replied:

You want to go to Kangaroo Court instead of learning how to do a real trial?

10 years later, I think I finally figured out what that professor meant. You never know which way the traffic court kangaroo is going to jump, and you will probably get your butt kicked in a boxing match with a kangaroo.

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Today, the kangaroo is alive and well when it comes to failure to appear cases on traffic citations, but I’ve figured out the most common ways it jumps. Here is what you need to know to figure out what is happening if you missed a court date on a traffic ticket.

All traffic citations have a court date listed on the bottom of the ticket form, along with the courts address. When a person signs a ticket, they are making a legal promise to appear in that court on that day.

Once this ticket is signed, the court is not required to send any other notice to the defendant of a court date.

Many people make the mistake of thinking that they do not have to go if the court does not mail them a court date. The truth is the court is not required to send you anything once you sign a ticket.

If a defendant fails to appear on the date listed on the ticket, the court has a number of options on what to do, and what happens differs in a very confusing way from court to court. Here are the main procedures used in California traffic courts.

A Court May Elect to Treat A Failure to Appear As A Request for A Trial By Declaration.

A trial by declaration is a procedure by which a defendant can request that a judge review the paperwork related to a citation, and make a decision as to guilt based only on the paperwork.

When done correctly, the defendant and the police officer each send in sworn statements about what happened, and the judge reviews those statements and the citation, then makes a ruling.

If a defendant does not like the ruling on the trial by declaration, they have 30 days to request an in person trial. To get this second chance at a trial, the defendant must file a “Request for Trial De Novo” on the approved form, on time. If the defendant does not request a trial de novo on time, the case is over. The defendant must pay the penalty as imposed by the judge.

But there is a law that allows the judge to use this procedure if the defendant fails to appear for their court date, and even if the defendant does not request it. The law is California vehicle code section 40903, and it states a failure to appear can be considered a request for trial by declaration.

If the court elects to treat the failure to appear this way, the court reviews the ticket, and nothing from the defendant at all. Because there is no evidence from the defendant, the defendant has no say in what happens.

The court finds the defendant guilty, generally imposes a harsh penalty and the case is closed. No further court appearances are allowed. The defendant is sent notice of the decision and penalty to the address on the citation, and if the penalty is not paid on time, more serious consequences follow.

If this happens, there is a solution. The defendant may request a trial de novo within 30 days and get a new court date to try to do something different with the case. But the defendant must take action within 30 days.

This procedure is used in Calaveras County, in Wastonville Courthouse, Solano County, and others on traffic infraction only cases (not in misdemeanor cases). But other counties take a completely different approach.

Some Courts Suspend a Defendants Drivers License When There is a Failure to Appear.

Other courts take a different approach, and try to prevent giving the defendant a second chance with the “Trial De Novo Procedure”.

They do this by using California Vehicle Code section 40509.5 instead. That statute (or law) allows the court to suspend a persons drivers license with a “VC 40509.5 hold” until the defendant appears in court to take care of the case, which is kept open.

Most courts that use this procedure also impose a new fine called a “civil assessment” to the case as part of the VC40509.5 action.

In courts where they impose a VC 40509.5 hold for a failure to appear, the defendant still has the right to demand a trial and contest the citation. However, the timing of when the court releases the hold is up to the judge.

In some courts, such as Los Angeles County Superior, the courts will release the drivers license hold once a court appearance is made. Other courts, such as Sacramento County, may require the defendant to fully close the case and pay any outstanding penalty before the Vehicle Code 40509.5 hold is released and the drivers license cleared.

However, often when there is a VC 40509.5 hold (and no warrant or extra charges), the defendant can end the case without a court date by paying the court or a private collection agency in full for everything. Such payment is an admission of guilt to all of the violations, but will end the case. But the defendant does have the option of setting a court date and demanding a trial.

Once a 40509.5 hold is released by the court, the drivers license does not automatically become valid. The defendant must first visit DMV to get a valid drivers license re-issued. Many people skip this step (because the kangaroo doesn’t give them clear instructions), and later get into deeper trouble by driving on a suspended license - even though the original case is cleared.

If you had a VC 40509.5 hold, call DMV to ensure your license is valid. You may have to go to DMV to get a new license.

Some Courts Will Add A New Misdemeanor Failure to Appear Charge to the Case.

California Vehicle Code section 40508a makes it a misdemeanor crime to fail to appear after signing a promise to appear. This statute provides for a penalty of upto 6 months in the county jail. And if convicted of the VC 40508a misdemeanor, the defendant will have a new conviction on their criminal record that will be visible to potential employers, and anyone else doing a background check.

Some courts, such as Riverside County, will add this new, more serious violation to a simple infraction case when the defendant misses a court date.

Generally, when the new 40508a misdemeanor is added, this prevents the Defendant from contesting the original violation, because even if they somehow beat the original violation, they will get convicted of the more serious misdemeanor.

Because of this fact, some courts use the VC 40508a violation as a way to prevent defendants from fighting a violation after missing the orignal court date listed oon the citation.

(Remember - the fact that the court did not mail you anything is not a defense to a failure to appear charge. The court is not required to send you anything after you sign a promise to appear. It is usually a mistake to fight a traffic violation with a misdemeanor VC 40508a charge if you do not have a defense to the failure to appear charge. You might end up beating the infraction, and getting convicted of a misdemeanor instead)

To clear up a case with a VC 40508a misdemeanor charge, a defendant must appear in court.

Some Courts Will Add A Failure to Appear Misdemeanor and Issue a Bench Warrant.

Some counties take a harsher approach. They will add the misdemeanor failure to appear charge under vehicle code 40508a, and at the same time, issue a warrant for the arrest of the defendant who missed a court date.

When this happens, the defendant must appear in court to get the warrant recalled. Some judges will take defendants with a warrant into custody right away. Judge Hastings in Santa Clara County is an example of a judge who routinely takes defendants into custody right away when they have a warrant. Some judges will recall a warrant without much trouble once a defendant appears in court.

There is no consistency on how to solve this problem in the different county courts. In some courts, such as Sacramento, once a warrant is issued, the court will not give you any information on it, except to tell you to turn yourself in at the Sheriffs Office.

Other courts do it completely differently. For example, in San Diego County, an Attorney can get a warrant recalled on a traffic court or misdemeanor case by sending a simple fax requesting a court date. (why don’t other courts use this procedure????)

Courts such as Riverside County, and San Bernardino County issue bench warrants on nearly every failure to appear case. Some courts, such as Los Angeles, will only issue a bench warrant if the judge is pissed off at the defendant.

Typically, a defendant with a warrant for a failure to appear still has the right to demand a trial. If there is a misdemeanor failure to appear charge, the defendant has a right to a jury trial.

Some Courts Will Do Everything, Suspend a Drivers License, Issue a Warrant and Add a Failure to Appear Misdemeanor.

Some courts will do everything listed above in some failure to appear cases. An example of such a court is Riverside County.

So the bottom line is this:

Defendants with a failure to appear charge need to figure out which procedure their court has used on their case to find a way to solve the problem. Every court is different, and there may be differences even from judge to judge.

To figure out what is going on in your Failure to Appear case, you may have to do a little boxing with the kangaroo. Here is my coaching advice:

I recommend calling the court clerk where the case is located and asking these detailed questions:

1) Is there a drivers license suspension?

2) Is there a VC40508a charge?

3) Is there a bench warrant?

4) Do I still have the right to a trial?

5) How do I Schedule a Court Date?

By asking these questions, and demanding real answers from a knowledgeable clerk, you can find the path to solving the problem.

If you are doing it on your own - beware of the kangaroo’s punching combinations:

1) most courts have separate traffic and criminal divisions. You may have to check with both divisions separately to find your case;

2) most court clerks in the traffic division are poorly trained, if at all, and are prone to saying things they do not understand. If you have to, ask to speak with a court clerk over 20 years old, preferably with a college degree;

3) If you do go to court to get something done, get written proof you were there. If you pay for something at the court, get proof you paid and keep it in a safe place.

4) If the court tells you to call a collection agency, keep detailed notes about the conversation, and ask them very clearly if you still have the right to a court date. If they tell you “no”, chances are they are giving you false information. Double check with the court.

5) Always make sure your address is current with the court and DMV. And always, always check with DMV to ensure your license is valid if before driving if you have a failure to appear case.

At Traffic Court Pros.com, we offer free and confidential problem reviews from licensed traffic court experts to help out. Let us show you why it makes sense to have professional help.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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Top 10 Things You Should Never Say to a Cop

Everyone who gets pulled over by a police officer hopes the encounter will be short and friendly. But sometimes a police contact ends with the driver being packaged and shipped to jail, and then charged with a crime. It is no secret that things can go bad fast anytime someone with a loaded gun, and lots of armed friends, forces you to pull your car over on the side of the road.

Some unlucky drivers seem to have a special knack for making a police encounter worse than it has to be. Instead of using their right to remain silent, they dive deep into trouble by mindlessly saying something that either ruins any chance for a warning, or kills any defense to a criminal charge they might have.

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Free Attorney Case Reviews, Free Self Help Info.

But this is good news for you! You can learn from someone elses past mistakes. To help out, we have compiled a list of actual statements real people have made to the police that you should never repeat. Here they are, with the reasons why they should not be uttered:

1. “I bought the weed from a stranger.” (it is not a crime to give away very small amounts of marijuana in CA. Buying or selling it is a crime)

2. “I’ll see you in court.” (causes the officer to write down detailed notes of the incident that he or she can use to refresh a memory and screw you in court)

3. “Everything in the car is mine.” (establishes possession of everything in the car, whether you knew it was there or not).

4. “I don’t know who owns the car. ” (creates probable cause for further investigation)

5. “I had a couple of drinks with dinner, but I’m sober.” (gives probable cause for a DUI investigation)

6. “My drivers license is suspended.” (lack of knowledge of the suspension is a defense)

7. “Yes, you have my permission to search.” (eliminates the need for probable cause to search, kills an illegal search defense)

8. “I was only driving home.” (never works)

9. “I hope you meet your quota.” (cops don’t have quotas, and this will just give them reason to add violations to your ticket)

10. “I’m sorry, but I just ran out of donuts.” (pisses cops off, motivates them to screw you)

Avoiding these common statements when pulled over can save you lots of money, and might just help you avoid an unnecessary conviction. Drive safely! Don’t drink and drive.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

Need help with a traffic court problem, Suspended License, Failure to Appear or Warrant?

Traffic Court Pros.com can help! Get a Free Case Review (Click here)

Or research your issue with our Traffic Court Pros.com Custom Search:

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