Which is Worse? Driving on a Suspended License vs. Driving W/O a Valid license

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.

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

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

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

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

Instant Complete Warrant Search

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

Visit TraficCourtPros.com.  Free Attorney Case Reviews, Free Self Help.

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

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

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

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

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

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

Yes!

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

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


WHAT HAPPENS IF YOU JUST PAY THE COLLECTION AGENCY?

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

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

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

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

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

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

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

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

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

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

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).

Visit TrafficCourtPros.com.  Free Self Help, Free Attorney Case Reviews

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’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.

Visit Traffic Court Pros.com.  Free Self Help.  Free Attorney Case Reviews.

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

My Clients Can Now Track the Status of Cases On-Line.

Not all Attorneys understand how to use technology efficiently.  Actually, some don’t even understand email.  But we do.

At TrafficCourtPros.com, and in the course of my own law practice, I consider the effective use of technology one of our best competitive advantages.

I’ve worked hard to develop and provide the benefits of technology to clients such as email case reviews with hyper links to statutes and articles, receiving payments on line with credit or debit cards, conducting Skype conferences with clients, and accepting fee agreements with electronic signatures from clients out of state or out of the country.

In the process, I’ve found there is a better way to help busy people with everyday legal problems than the old skool “Lets make an appointment for consultation” model. After all, I always knew people do not want to drive to a stuffy attorneys office when they do not have to.

In my on going effort to improve the way I report to clients on the work we are doing and their cases, we’ve just developed a free and easy process for providing short and quick status reports to our clients.  I’ve been testing it for days, and it works.

Specifically, my office now publishes status reports via Twitter RSS using a private and secure client file #.

What???? You say -  Don’t worry - it’s much simpler than it sounds.

How Does On Line Case Tracking Work?

When my office or myself works on a client file, we will be posting updates on http://www.twitter.com/TCPAttorney with anonymous and unique File # tags.

Clients can then do a very basic Twitter search using their unique file # and see all that has been done in nearly real time.  Date and time stamped reports will be at their fingertips whenever they want.

How Will We Update the Status of Work on a Case?

While I am at court working on a case, or at my desk typing a form, or on the phone with a court clerk, I will send short reports to my Twitter RSS feed to post a quick status from where ever I am at using a web enabled mobile device (Iphone).   The updates will be posted directly to http://www.twitter.com/tcpattorney instantly.

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What is the Best Way for Clients to View the On Line Reports?

New clients will receive an email with simple instructions and a hyper-link to the Twitter feed and their unique file number.

Clients with Twitter accounts should log in to their account, go to their home page, and do a search from there for the text string of their file number, beginning with “#” - for example “#0209_0069 TCP”.

A file number search of this sort will immediately pull up all updates related to that number.

Twitter users can also just click on the file number if they see a report with their number in any or our Twitter posts.A Twitter user can also choose to follow http://www.twitter.com/tcpattorney to get the updates added to their own Twitter page - just like a friend’s comments on their week drive.

But a Twitter account is not required.

Non Twitts can simply go to http://www.twitter.com/tcpattorney, click on the “RSS Feed” Link on the right of the page, and then search for their file number to get a list of updates.

Once a person makes the Twitter search and gets a results page, they can bookmark the results page in their browser bookmarks for fast and easy checking on the status of their case.

Is On Line Case Reporting Secure and Private?

Yes.  Because we use unique and private client file #s as searchable tags, there is no way to identify the name or identity of the client related to the report.

Will Clients Still Get Detailed Reports?

Yes.  We are not changing our standard reporting procedure which generally includes detailed reporting, analysis, and recommendations via email or in some cases paper letters.

The on line reporting using Twitter RSS feeds is only designed to give brief, summary status reports such as “At court house on file #: 0902_0069 TCP for entry of not guilty plea”. At times, they may include hyper-links to laws, or more detailed info.

What Are the Benefits of On Line Status Reports to the Client?

With our on line case reporting, a client can (at their own leisure) do a quick search to get all of the reports on their case in one list.  And clients will get automatic, real time reports as it happens.  For example, an attorney finishing a court appearnace will report via Iphone to Twitter- from the courthouse parking lot - , and the report will instantly arrive on the clients Twitter account (or be available by search).

Persons familiar with RSS Feed Integration will also discover they can place the fee for their file # into their Yahoo or Google home page for auto updating reports when they open their homepage during the course of their day.

Will On Line Case Reporting Force an Increase in Fees?

Ironically, instant on line reporting is expected to reduce the costs of tracking a case and report to the client.  We are eliminating out dated work such as transcribing handwritten notes on paper into a digital file after a court appearnace.  And since the reports are done in real time, it is expected that the waste of energy accompanied by mistakes in handwritten note transcribing will be reduced.

Can Clients Opt Out of the On Line Reporting?

Yes.  If the procedure is unwanted by the client, there will be no on line reporting for that client.  And in more difficult or complicated cases (such as homicide) we will not be posting on line up dates.  We anticipate to use the procedure most often for misdemeanor clients.

What Are the Biggest Problems With On Line Reporting?

Well, I won’t be able to play video games on my Iphone while in court anymore.

For more info - contact cdort@dortlaw.com

Follow us on Twitter even is you are not a client for free court tips and notes on court work http://www.twitter.com/tcpattorney

Parking Tickets Do Not Lead To Warrants, But Can Hurt You

While watching the TV show Parking Wars this evening, it dawned on me that I should address a common question from users who are clearly afraid of the parking enforcement people, like those shown on the show.

It is fairly common knowledge that if you fail to appear for a court date on a speeding ticket, the court may issue a bench warrant.

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But what if a person is worried about old parking tickets? Can a court issue a warrant off a parking ticket?  How about 20 parking tickets?  What happens if you fail to pay on time?  Can you fight them in court?

In general, the answer is no. Over due parking tickets do not lead to arrest or bench warrants, because they are fundamentally different than a speeding ticket.  And generally, there is no right to a court date where you can present real evidence, only limited paperwork review by a bureaucrat.

Speeding tickets are handed out in person, by a sworn peace officer (cop).  And when an Officer gives out a speeding ticket, the driver is required to sign a ticket (also known as a “Promise to Appear” form).  By signing a ticket, the driver is giving a peace officer his (or her) sworn statement (promise) that he or she will appear in court on the date listed on the ticket.

Because the driver makes this promise, the law is harsh if the promise is broken.  A failure to appear on this signed promise is a misdemeanor crime (Vehicle Code section 40508(a).).

Parking citation are different.   They are not signed promises to appear.  When a city agency issues a parking ticket, they leave it on the car without a signature.  They do not secure a “signed promise to appear” from the driver of the car that is cited, and they have no way to confirm the person received service of a notice to appear or pay.

Because of this service problem with parking tickets, the law considers them a civil penalty, and not a criminal violation.  A civil penalty is a less serious way to piss off the government, and in general there is no requirement that you go to court at all on a parking ticket.  A driver who is cited for a parking violation may elect to pay a fine or fight the violation, but has little or no real court due process rights. The maximum penalty is a fine, and there is no risk of jail time.

However, there are real penalties for failing to pay parking tickets in California.  Most large cities have a limit to the number of tickets you are allowed to have.

For example, the author (me), once had a car towed in front of a law firm in down town San Diego because I had 5 pending tickets, only 2 of which were over due. They took my car away, but refused to arrest me.

And some cities, such as Santa Ana, and San Diego will send the over due fines to the State Franchise Tax Board for collection with interest. And eventually, always, from everyone, the FTB gets their money.

Some cities will refer the overdue fines to DMV, who will in turn require payment in order to renew a registration.

But every city varies.  You should not assume that DMV will tell you if there is a problem.

If you have outstanding parking citations, contact the city parking enforcement division and get it cleared up before it becomes a problem.

Don’t wait until they take your car.

-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

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

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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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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

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