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)

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