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How to Fight a Civil Assessment Fine in Traffic Court When You Can’t Get a Court Date
Posted on December 23rd, 2009 63 commentsAre 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
Civil Assessments, DUI Information, Fresno County, Going to Court, Los Angeles County, San Luis Obispo County, Santa Clara County, Solano County, Traffic Court Fines, Traffic Court Trials, Vehicle Code, Warrant Information, penal code 1214.1, appeal, attorney, citation, civil assessment, Civil Assessments, declaration, fight, forms, GC services, law, petition, ticket, trial, trial de novo, Vehicle Code63 Responses to “How to Fight a Civil Assessment Fine in Traffic Court When You Can’t Get a Court Date”
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Vic Colborn November 23rd, 2009 at 8:21 pm
So I tried your suggestion about filing for a new trial. Didn’t work for me. The county of Monterey sent me a letter back stating that since there was no initial trial, I was not entitled to a new trial.
Other suggestions?
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Vic - Are you the fighting type?
Now that the court has denied your request, you have a judgment that you can appeal. Here is what is going on, hope it makes sense:
If they denied your request because you did not have a trial yet, and they will not give you a court date, they are wrong and you ran into a court clerk who does not understand what is going on.
In order to deny you a court date after a failure to appear on a traffic citation, the court must consider your failure to appear as a request for a trial by declaration under Vehicle Code section 40903. Because you are not present at the trial by declaration and file no paperwork, the defendant always loses. When they use this procedure, they can deny you a court date because you already had a trial and lost (involuntary trial by declaration under VC 40903 that is).
Any defendant that loses a trial by declaration has 20 days from the date they get notice of the decision to request a new trial. If they deny the new trial, they are clearly making a legal error that I believe should cause a reversal.
If you request a Trial De Novo, and instead of telling you that you are too late, they tell you that you did not have a trial, then you have now been convicted, and you have the right to an arraignment. If they will not give you an arraignment, and claim that you have not had a trial and will not give you a court date - then you are being denied due process (under the 5th and 14th amendments to the US Constitution).
This is a great reason to appeal, and a real judge who looks at it may stop the traffic court in their tracks.
The issue on appear should be presented as: The court refuses to allow me to have a trial; and (in the alternative) the court illegally denied a request for trial de novo after trial by declaration under Vehicle code section 40903.
You can appear the decision for free. File the Notice of appeal within 30 days of the denial of your Trial De Novo Request. See my post on How to Appeal a Traffic Court Trial.
Also, Review Vehicle Code section 40903 and my article on Kangaroo Courts.
They gave you a trial by declaration, but they do not want to admit it, because they did not give you notice of the trial by declaration that would allow you to request a trial de novo. You are getting screwed!!!
I recommend appealing again and again until you get to the CA Supreme Court on the Due Process Denial claim. They have to let you have a trial if they are going to take your property (money). Screw them, they are WRONG!
I know it can be done, I just can’t find a client to pay me to do it. I wish I could afford to do it for free, because I am sure if we won the appeal on this issue, it would completely change the way the traffic courts screw people out of court dates and send the cases to collection agencies. But the problem is that the cases are too small to warrant 30-40 hours of an attorney working on it.
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franky torres November 25th, 2009 at 12:25 am
thanks for this great website full of information. a simple question: what’s the equivalent form for “petition to vacate a civil assessment” in solano county?
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franky torres November 25th, 2009 at 4:07 am
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<<<<<>>>>>>Is solano county one of those other counties?
thanks again for your help. Frankyt Torres -
Solano county (at last visit) will not allow walk in court dates on overdue traffic infractions. They consider a failure to appear as a request for trial by declaration - which the defendant always loses.
My best recommendation on these (if you cannot just pay and end the problem) is to file a “Demand for Trial De Novo” and on the judicial council form state that you never received notice of the court’s ruling on the citation (should have come on form TR-215). If the court denies your request for trial de novo, you can appeal that ruling.
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Frank, they have their own local form for Petition to Vacate Civil Assessment in Solano that you have to get in person at the clerk’s office. Some courts make this form available on line, but in my opinion, the Solano County Superior Court intentionally makes it more difficult in their court to take care of old citations.
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franky torres December 1st, 2009 at 11:40 pm
update:
i went to court yesterday asked them for a court date and they denied it because it was in collection already. i asked them if my FTA was treated as a request for trial by declaration and they looked like they didn’t know what i was talking about. they just told me to fill out form GC111209 and mail it in and wait 2 to 3 weeks with a decision. i asked for a trial de novo and they said i couldn’t get one because there was no initial trial in the first place. thanks again, Franky Torres -
Frank, when you are talking to a traffic court clerk, you are not talking to a person with any legal training. It is not surprising that they did not understand what you were talking about. If I were there, I would have asked the court clerk if you had a right to a trial, or if they took that away from you. That is really the point here. They are preventing you from having a trial. It’s a denial of due process. Clerks are just hourly employees that are told how to shuffle papers. You need to file the Request for Trial De Novo Form, and get a written denial of the request. Once you have that, you can appeal that denial on the grounds that you were denied due process of a trial. It’s free. See How to Appeal a Traffic Court Case.
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jason q. December 11th, 2009 at 2:58 am
Hello I received a cell phone ticket in November and it said it was due by the 19th. I get paid once a month and was going to pay today but when i got home I received a civil assessment fee that shot it up to 450. They said I have 10 days to talk to them and give them a reason.
So far my reasons are I work part time from 8-12 everyday then go straight to school from 12:30 to 2 and coach from 2:15 to 4. This is Monday -Friday to pay for UCI. Do you think the judge might let that slide? I forgot to mention that this at the west justice center for westminister/ huntigton beach area -
Thanks for the clear and concise info. I have a FTA/FTP in collection for a red light photo ticket that I knew nothing about in Yuba county. They want $865.00 and will not give me a court date. I will demand a “Trial De Novo” all the way up the chain.
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Marc, Do It!!!!! There is no harm, and it is free. Make sure that on the request for trial de novo that you state you did not receive notice of the court’s decision. If you have to appeal, your appeal should be that they are denying you the right to due process (trial) and taking your property (money) in violation of the 5th and 14th Amendments to the US Constitution.
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Jason, you need to go to the court clerks office and request a walk in court date. Then, you need to ask the judge for time to pay the fine. They will give it to you, but you have to go now.
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I tried to file for a Trial De Novo at the clerks’ wondow and they wouldn’t consider it. They gave me a copy of everything in the case file. The only thing it contained was a copy of the ticket, a courtesy notice, and a notice of intent to impose a civil assessment. No trial by declaration documentation, yet some how I owe the collection agency $865 and my driver license is suspended.
What now??
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Marc, Appeal, appeal, appeal!!!!! It’s free. And they are screwing you. Read my article on how to appeal a traffic court case. if they denied or refused to file your request for trial by declaration, you can appeal the case based up that action (or refusal). File a notice for appeal, and list the date of the decision you are appealing as the date you tried to file the Request for Trial De novo. They are denying you the right to a trial and trying to take your property without due process if they deny you an arraignment and trial. They only way they can justify refusing you a court date is if they consider your failure to appear as a request for trial by declaration (as allowed by the Vehicle Code). And they have to give you notice of that decision. If there is no proof that there was a trial in the file, and no proof you had an arraignment or were notified of a trial by declaration, by law you do still have the right to be heard in court. If they don’t let you have that day in court, you are being robbed and denied your right to due process under the 5th and 14th Amendments to the US Constitution. Ideally, you force them to give you proof they refused your request for trial de novo by getting a copy of it with the court’s denial listed on it. The courts are getting very sloppy with refusing people their right to a trial date and they can be stopped. The reason they are getting away with it is because the cases are so small that no one has been willing to take real issue with it yet.
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Thanks for the encouragement!
How does this plan sound?
The court quoted penal code 1214.1 on the civil assessment form.
1214.1. (a) In addition to any other penalty in infraction,
misdemeanor, or felony cases, the court may impose a civil assessment
of up to three hundred dollars ($300) against any defendant who
fails, after notice and without good cause, to appear in court for
any proceeding authorized by law or who fails to pay all or any
portion of a fine ordered by the court.However, 1214.1 (d) reads:
(d) The assessment imposed under subdivision (a) shall be subject
to the due process requirements governing defense and collection of
civil money judgments generally.Therefore, if I am correct, I have 180 days from the day “I” discovered the assessment to file to vacate it. The closest form that I can find to use is SC-135. I know that will be chore getting it through the clerk’s window with a “TR” case number on it.
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Oh yeah, thanks for the other info. I’m definitely going to try to appeal.
On the CR-142 section 2, do I check box a,b, or c?
I’m guessing it’s box A, because under penal code 1466(2)(A)- “the court may review any order denying a motion
for a new trial.”I hope I’m right, and thanks again.
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Marc, Check boxes B & C. There are 2 actions you are appealing: 1) Refusal to enter not guilty plea at arraignment (use date you asked for a court date); and 2) denial of your request for a trial de novo (use the date they denied it or refused to file it). Note - you do not have to make your arguments on the Notice of Appeal form, Your arguments come later in the Appellants Opening Brief, which you will file later (when the court tells you to).
I am interested in helping you with this for free. The courts are screwing people out of trials and if you are interested in working on it, I want to help you get it right. If you will send your phone # to cdort@dortlaw.com I’ll call you and discuss. Just get the Notice of Appeal filed on time - don’t worry much about what it says. Get proof you filed it.
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Marc, you are not really appealing the civil assessment, you are appealing their refusal to give you a trial date. It is a denial of due process on the original violation that is the primary problem.
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Marc, UPDATE!!! I finally got sick of this problem and did some real legal work. I just wrote a new document for people who have a civil assessment added and the court will not allow them to have a trial date. It’s a real legal form, on pleading paper, instructions included, for a Notice of Not Guilty Plea and Demand for Court Trial. In your situation, I recommend you fill it out and file it right before you file the notice of appeal - (if you can) - so that you have prof they refused you a trial. Here is a link where you can get this form for free for a limited time: http://sites.google.com/site/dortlawcom/DemandforTrialTrafficCourt.pdf?attredirects=0&d=1. After a short free period, it will be available for $9.99.
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Franky, UPDATE!!! I finally got sick of this problem and did some real legal work. I just wrote a new document for people who have a civil assessment added and the court will not allow them to have a trial date.
It’s a real legal form, on pleading paper, instructions included, for a Notice of Not Guilty Plea and Demand for Court Trial. In your situation, I recommend you fill it out and file by delivering to the court clerk it ASAP - so that you have prof they refused you a trial. If it does not work, you can appeal and in my opinion, with a strong case. Here is a link where you can get this form I wrote myself for free for a limited time: http://sites.google.com/site/dortlawcom/DemandforTrialTrafficCourt.pdf?attredirects=0&d=1. After a short free period, it will be available for $9.99.
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Vic, UPDATE!!! I finally got sick of this problem and did some real legal work. I just wrote a new document for people who have a civil assessment added and the court will not allow them to have a trial date.
It’s a real legal form, on pleading paper, instructions included, for a Notice of Not Guilty Plea and Demand for Court Trial. In your situation, I recommend you fill it out and file by delivering to the court clerk it ASAP - so that you have prof they refused you a trial. If it does not work, you can appeal and in my opinion, with a strong case. Here is a link where you can get this form I wrote myself for free for a limited time: http://sites.google.com/site/dortlawcom/DemandforTrialTrafficCourt.pdf?attredirects=0&d=1. After a short free period, it will be available for $9.99.
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Jonathan December 26th, 2009 at 1:58 am
is there a court imposed filing fee for filing an appeal from a decision in traffic court? if so, what is that fee? Thanks.
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Jonathan, Great question. No, there is no filing fee involved in appealing a California traffic court case. There is a small fee if you want a copy of the recording of the trial (about $10), but no other fees. That why I say Just Do It!!!!
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Franky Torres December 30th, 2009 at 10:25 am
well, I went to court this morning directly to traffic window and told the clerk I wanted to file these papers and handed them to her. She looked atg the first page and looked up the case number on her computer and said: “you need to go to window 8 (collection) because this is in collection already” I told her I had no business to do there and that in those forms I was asking for a trial date. she got up noticiably upset and said: “meet me at window 8″ when I got to window 8 she handed the papers to the collection employee and left. The collection employee read what the document was about, stamped it, stamped my copy and told me that I would hear from them in 3-6 weeks. QUESTIONS: what am I supossed to get in the mail from them? I didn’t feel to confortable leaving my documents there since she’s not a court employee but I had no choice. Did I do the right thing? what’s the next step? Thanks For your Help once again.
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Unforturnately, I filed my appeal before I saw your last post.
They would not hear my appeal and stated:
“Your case never went to trial and the court did not issue a judgement. You need to contact Shasta Collections and may want to seek legal advice on your case.”
I’ll file the Notice of Not Guilty Form, and then try it again.
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Franky, Nice Work! They have to do something with it. Keep it rolling and I’ll help as much as I can. Here is what I recommend you do next: Mail 2 copies of the “Demand for Entry of Not Guilty Plea” form to the court clerk with a very short letter asking for it to be filed and a “Conformed Copy” returned to you. Include a self addressed, stamped envelope. Include a “Proof of service by mail form” signed by someone else you can get to mail the letter and form. Keep a copy of the proof of service as your proof you served that document.
Then wait. They will respond somehow. If they do not respond somehow, then the correct course is a “Write of Mandate” which is where you ask a court to order a public official to do their official duty. I can and will help with that if necessary. Technically, it is called an “interlocutory appeal”. If you lose that, you can go to Federal Court and start at the ground. Denial of a right to Due Process is an issue that can go all the way through Federal Courts.
If anyone else sees this post and is working on the same problem, let us know!
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Marc, you are on track. You need to get the court clerk to “file” that form, and you need proof you gave it to them. The proof you gave it to them can be a stamped copy, and/or a “Proof of Service form”. If you are wiling to do some work on it, I will help as much as I can for free. Please see the comments and replies from Franky on the same topic. I’d love to stop the traffic courts from continuing their illegal denials of the right to a trial.
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Good news! I have a stamped copy of the Notice of Not Guilty and Demand for Trial form. I was out of town, so I had to mail it, but they filed and returned the stamped copy w/o delay.
I’ve already appealed once, but they admitted and documented that no trial has taken place.
Is my next step an interlocutory appeal?
Also, I heard a rumor that the camera company that allegedly took my picture, has an incentive based contract w/ the city. Would that mean the evidence was illegally acquired?
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Marc- Wooh Hoo!!!!!!! Great Work. A+. OK, now we’re rolling and I will help you for free. Here is what we do next - they have 45 days from the entry of a Not Guilty plea to give you a trial. On the 46th day after the file stamp, we will file a demand for dismissal based upon a violation of the right to a speedy trial. I will help you with that motion (if they don’t give you a trial). Then, if they deny the dismissal on that ground, we have many good appeal issues. What is the date on the file stamp? You can send me info @ cdort@dortlaw.com or (800) 256 5983.
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Franky Torres January 24th, 2010 at 5:52 pm
well, i don’t know if mine are good news but they actually DID give me a trial date. its set for 02.10.10 at 8:30am. since they didn’t refuse to give mea trial date, we won’t be able to appeal and demand for them to dissmiss the case based on denial of my rights, Right? so what do i do now? Thank you again for your help. Franky Torres
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Franky, good work. You did it. You got a trial date after they told you could not have one because they said your case was “in collections”. You won the battle. You are correct, now that you have a trial, there is no point in appealing due to a denial of the right to a trial. Now you have to present what ever defense you feel you have to the original citation and civil assessment (caused by a failure to appear) at the trial. Somehow you are going to have to explain to the judge why you should not have to pay what the collection agency said you owe. You can still pay in full and end the case without the trial, but I assume you don’t want to do that. Make sure you ask the judge to release the drivers license hold (assuming there is one - Vehicle Code section 40509.5). Once the drivers license hold is released you have to visit DMV in person to get a valid drivers license.
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Franky Torres January 29th, 2010 at 10:12 am
WE won the battle. I don’t think i would’ve made it without your help. That was only for 1 of the 2 cases that are holding my drivers license. I haven’t heard from the other one yet. I’ll come back with the update. Once again, Gracias.
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Sam Ali January 31st, 2010 at 4:52 am
Mr Christopher Dort,
Thank you for helping us fight our traffics and ridiculous fines.
At my initial arraigment at the San Francisco Hall of Justice I appeared before the requested date and declared I was not guilty. They gave me a court date (own recognizance agreement to appear in lieu of posting bail) on the 27th, which I missed do to very important college classes. I tried calling but I the lines were always busy, and I myself being busy, could not frequently stay on hold.
I see you mentioned legitimate reasons for missing a date such as active duty, or hospital emergency, but what do you think would happen if I explain my situation in writing to the court-
That being that- I tried reguraly to contact, could not be directed to an answering machine (the phone system got me no where), and had to prioritize my education (and I was also feeling terribly ill that day from food poisoning), and that in the end my only option was to miss out on court date and explain my situation to them later.
I can not afford 300$ in addition to my traffic ticket- and they have threatened to issue a warrant for my arrest or suspend my license
Please help,
Sam
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Sam, I cannot tell if this was a traffic ticket or a misdemeanor (such as driving on a suspended license under Veh. Code section 14601.2). So I will try to answer both ways.
If you schedule a trial in a traffic court (infraction) case, and do not appear for the trial, the court will have the trial without you, and take testimony from the officer. Of course, if this happens, you lose the case and are found guilty. In that case, you’re screwed, there is nothing you can do but pay. There is no way to get a new trial date. The courts hate it when this happens, because they have to go through the time of subpoenaing the officer, and having the hearing.
If it was a misdemeanor case, and you plead not guilty and got a “pre trial conference date” then missed it, the court will usually issue a warrant and add a charge of failure to appear under Vehicle Code section 40508(a) or penal code section 853.7. If this is what happened, you need to go to court immediately and ask for a walk in appearance from the court clerk.
Attempting to call the court to tell them you are going to miss a date is a waste of time. Even if you got through, they would have just told you that you need to show up. You cannot call the court and cancel a court date. Once a court date is set, you have to go, or hire a licensed attorney to go for you. There is no other option.
As for defenses to a failure to appear - having to go to school does not work. Being sick might work if you had proof.
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Franky Torres February 4th, 2010 at 10:09 am
Now that I’ve been granted a court trial, i have some questions about what’s gonna happen there: Is the citing officer required to be there? If he is and he doesn’t show up, is my case dismissed including the FTA? Will I be offered a plea bargain by the DA before trial? Will it help my case if i disqualify the comissioner and demand for a real judge to hear my case? if so, when would be the right time to do it? your help will be appreciated. thank you.
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Franky Torres February 12th, 2010 at 9:08 am
tomorrow saturday 13th is the 45th day after i filed my Demand for Entry of Not Guilty Plea and i never recieved anything from the court. what’s the next step? file a motion to dismiss based upon a violation of the right to a speedy trial? how do I do that? thanks again for your help.
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After being told by several court employees and the collection company that it can’t happen, the court finally responded to the Notice of Not Guilty form by giving me a trial date of March 10th. I wouldn’t have gotten this far without your help, Mr. Dort.
I’ll let you know how the trial goes. The reason that I never recieved the ticket or notices in the first place is because they went to the address of the OTHER owner of the car (my ex-wife). I hope that defense will knock off some of the fines.
Thanks a ton!
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The court finally responded to the Notice of Not Guilty form. My court date is March 10th. I guess all those court employees and collection agents were wrong after all. I couldn’t have done it without your help Mr. Dort.
I never received the ticket or notices because they went to the address of the OTHER owner of the car, my ex-wife. I hope that defense will knock off some of the fines. I’ll let you know how the trial goes.
Thanks for everything!!!!
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Franky, the bad news is that on January 24, you posted a comment stating that you were given a trial date of 2/10/10. So I don’t really believe that you did not receive anything from the court (unless there is another Franky Torres with the same problem and same email address). If you did not go on 2/10/10, you are double screwed and should hire a licensed attorney to help. If you missed it, you missed your chance. Sorry. But if you went, and the court did not allow you to have a trial, then you need to write and file a motion to dismiss for denial of the right to a speedy trial. That’s about all the free help I can provide.
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Franky Torres February 18th, 2010 at 1:25 am
I’m sorry for the misunderstanding, I’ll try to explain: on february 29 i posted a comment that said: “That was only for 1 of the 2 cases that are holding my drivers license. I haven’t heard from the other one yet. I’ll come back with the update” I have 2 different cases in solano county, 1 of them, in the city of vallejo and the other 1 in the city of fairfield. on dicember 29 for both cases I dropped off the demand for a trial forms in person and got them to stamp my copies. About 7 days later i mailed forms for both cases following your instructions. i got a letter from fairfield where i was granted a court trial date on feb 8 (not on the 10th like i had originally said) and about 8-10 days i received another letter from fairfield that said: “Mr Torres, please be advised that the court had previously received your plea of no guilty form on 12/29/2009″ In other words, fairfield court responded to both of my atempts to enter my plea but vallejo court hasn’t responded me at all. I hope all this makes sense. thank you so much for all your help on this matter.
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Franky Torres February 22nd, 2010 at 9:12 am
Hi Mr Dort, before anything, I would like to express my gratitude for everything you’ve done for me in the best way I know, for months i’ve been trying to find the way to get my drivers license back with no success, till i found your website. thanks for your expert advise, I am closer than ever to getting my drivers license back. I understand if you can’t help me for free anymore so, how much would you charge me to write the motion to dismiss form and for instructions on how to file it? please let me know how I can get you a check or money order and tell me what the next step will be. Thanks again for your help, Franky Torres.
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I have a couple of tickets that I have not been able to pay because I am unemployed, tickets are over one year old, Now I may be receiving a job offer that requires I have a valid drivers license, my license has been suspended. I don’t have the money now to pay the fine, is there anything I can do to reduce the fine or make payment arrangement with the courts.
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Rod, you should go to the courthouse(s) in person and request a walk in appearance. Once in court, maybe you can talk the judge into releasing the drivers license holds without payment. I’d recommend hiring an attorney to do the work for you, because an attorney can get it done in most courts within a few days.
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I just received a DENIAL of my appeal for a civil assessment waiver (So frustrating as I actually called the court a few times/ and checked the website as well. The court clerk told me sometimes the officers forget to file/ to keep checking back– well I did for a few months, and then forgot. I NEVER got a notice about the ticket in the mail). I really can’t afford the $300– I will pay the $142 cell phone infraction (guilty).. but the fee is ridiculous.
Other than filing the appeal as you suggest above (with these laborious instructions fro m the gov.. cr141: )
Any suggestions?
Thanks!
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You can appeal an order denying a Petition to Vacate a Civil Assessment on Several grounds, including: 1) Court’s failure to comply with Penal Code section 1214.1(b) [10 day notice requirement]; and 2) illegal government taking in violation of US Constitution Amendments 5 and 14 [Due Process Requirements]. But if you do not want to do that, I’d recommend trying to go to the court clerks office in person at 8 am and asking for a walk in court appearance. Then, once in court, plead not guilty and demand a court trial. Once in trial, make those same arguments.
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Very helpful suggestions, Thank you. One follow up– can I plead guilty to the infraction, but not guilty to failure to pay?
Thanks! -
Emily, Yes, you can plead guilty to one charge and not guilty to other charges. But in your case it doesn’t make sense. The only reason to plead not guilty is if you have a defense. To have a defense to a failure to pay charge, you need to have proof you paid. If you don’t have proof you paid, don’t waste your time.
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I HAVE FOUR CASES I PAYED BACK IN 2000 1998 1999 AND NEVER NEW I HAD TO PAY 1200 DALLARS, I GOT THE PETITON TO VACATE AND WROTE SEC1214B 12141B 12141A AND I GOT BACK THEM SAYING I WAS DENIED BUT THEY SENT ME A FORUM WITH A CASE NUMBER BUT NOTHEN IS CHECK
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steve May 4th, 2010 at 6:48 pm
On the form “Declaration of Defendant in Support of Not Guilty Plea” where it says declaration of (blank), I put my full name correct? Also if the court says I can have a court date but I have to post the full bail amount and wait 45 days, is that legal?
p.s. Thank you for all you do to help us.
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Steve S. May 4th, 2010 at 6:51 pm
On your not guilty plea/demand for trial form where it says declaration of (blank), I put my full name correct? Also if the court says I can have a court date but I have to post the full bail amount and wait 45 days, is that legal?
p.s. Thank you for all you do to help us.
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Lurch May 4th, 2010 at 6:55 pm
Hello, if the court says I can have a court date but I have to post the full bail amount and wait 45 days, is that legal?
p.s. Thank you for all you do to help us.
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If the deadline listed on your citation (at the bottom), or in your courtesy notice (you may not get one) has passed, some courts will require that you post bail to get a trial date. But technically, if you ask for a trial during an in person “Arraignment”, they probably have to give it to you without bail. Try asking the court clerk for a walk in arraignment (instead of pleading guilty at the counter or by mail). At your arraignment in person, say not guilty, that you want a trial, and that you cannot afford bail.
Bail is really a deposit that the court holds to make sure you show up. If you have already missed a date, it is sometimes hard to get around a court clerk that wants to demand bail. Once at the Watsonville Courthouse in Santa Cruz County, I had this problem. Client had hired me to take care of several cases, and I tried to set them all for a court date. The court clerk told me we had to post bail for a trial, and I said I don’t want a trial, I want an “Arraignment” to decide if I want a trial or not. After all, it’s at the arraignment where the charges are read to you, and where you get the court to state your rights in person. Why would you decide to plead guilty or not guilty prior to being read the charges and rights? Denial of the reading of the charges and rights is a Denial of Due Process under the 14th and 5th Amendments to the US Constitution. [As a side note: I'm a former editing Member of the Hastings Constitutional Law Quarterly, and this is my favorite argument for all obstacles the court throws in front of you]
So anyway, she insisted that I had to post bail to even get an arraignment. After the head clerk came by to sort out the issue, we pulled out the clerk’s white binder titled “Operations Manual” and found a page that states Attorneys can set cases - including old traffic infraction cases - for arraignment without paying bail. The manual actually said that itself. I got my court dates without bail. So then, finally, once I got into court, I told the judge what happened, and how ridiculous it all was. The clerks office was denying court dates when they should not. The judge called the head clerk, asked for an explanation, and actually said they were going to make sure it did not happen again.
I believe that they cannot legally deny you an arraignment because of inability to post bail. Then once in court, pleading not guilty, the court cannot deny you a trial date due to a lack of money (but they can keep you in jail on a misdemeanor).
You can appeal an order denying a request for court date without paying bail, but that would almost certainly be a waste of time and effort. The main problem is that is just an order, and not a final judgment. For more info on how to appeal a traffic court case click here.
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Steve, some courts will let you have a court date only if you post bail.
If you are using my form to demand a trial, and they offer to give you one if you post bail, you need to file a declaration stating that you are unable to post bail, and ask for in person “Arraignment” instead of trial. See if you can fit it in there to say “I cannot afford to post bail”, or add a single page.
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This is an excellent site - I’m at work and need to read it thoroughly - evidentally I have rights that I didn’t know about, and have already paid the state over $1500 for several lack of registration tickets - 2 I got within days of each other (paid the reg. but couldn’t get vehicle to pass smog - most cops let me go when they saw the proof of pmt. but some didn’t). I’ve already paid the state $1040 for one ticket (that they refused to give me a court date for). The problem is dealt with now (new car), but after going to court today and having a ticket dismissed (for the same problem), I find out that I still owe $300 since they say I was late in responding - to my recollection I was not, but need to find paperwork to substantiate this. I cannot continue to pay this much money to the state. Hoping there’s something I can do. Will check back/educate myself on this a bit later…
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Theresa June 9th, 2010 at 7:07 pm
I got a fix it ticket back in feb of 09 due to no plates and registration on a car i just bought. i have a son with severe autism and who gets sick constantly he also had a ton of therapy and doctors appointments. Anyway The ticket slipped my mind. I got it fixed and had an oficer sign off on it but I missed my trial date and my licence was suspended. When I went down to the court to try andget a new trial the clerk told me it was already in collections(GC Services)and I couldnt get a new trial til I paid the fine. I went to the window and found out that my fix it ticket went from $0 to $748. I told them the situation and they could care less and said it wasnt their problem and I had no right to see a judge. Like a fool i believed them and made a payment of $100.
Its now been almost a year and I just found this site.
My question is (1) since i paid a payment twords the fine does that mean i plead guilty and now have no right to a trial?
(2)I know there is a civil assment of $300 for not appearing but why am I being Charged $748 on a fix it ticket.I called GC services and was told nothing about the break down of the fine. I was also told that I had to make a payment of $200 if I wanted to start the payment arangement and could only do it through western union. I just lost my job due to my sons disability and being sick all the time. We are living on his ssi and my cash aid which doesnt even pay half the bills.
Im so mad it was a free fix it ticket its not like i was trying to avoid paying something. My life is just so hectic I barley remember to do anything for my self.
Is there anything I can do?
I was never sent a 10 day warning of the election or the required notice of a decision on the trial I dont even think they had a trial they just saw I didnt appear and sent it straight to collections.
Thanks
Theresa -
Theresa,
Here is my impersonation of the judge imagining your comment:
“No! You cannot have a new court date. And No! this is not a zero dollar ticket. If you plead not guilty, got a trial date, and failed to show at the trial, your case is over. Game over, insert new quarter in the form of a cashier’s check for $786. What [probably] happened is that the Police Officer showed up to testify against you, and when you did not show, I ruled on the officer’s statement. There was no evidence to show you were not guilty. Thus, you are guilty - we had the trial without you. You were sentenced and now you must pay. The fact that you or your son may be sick is not a defense. Poverty is not a defense to anything.”
Then, because the judge was pissed off that you wasted the court’s and the officer’s time, stuck it to you to try to recoop some of the money it cost the court and the county to deal with your failure to register the car.
So, unfortunately, if you scheduled a trial and did not go, there is not much that can be done. Look at it this way, in the old days they would have issued a bench warrant for your arrest. Now, all they want is your $$$.
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I just got denied in my petition to vacate the $300 Civil Assessment fee for a fixit ticket and says it is now due. Is there anyway if I go to the clerk at the court and ask for more time to pay or set a payment plan? How long do I have before they send it to collection?
This is from Court of Santa Clara
thanks
Eric -
Eric, I get this question over and over. It is a common problem. Once you miss the deadline for a “correctable” violation, it is no longer a “fix it” ticket. You missed the deadline to fix it. So now it is a regular violation. I can say you are not “entitled” to an extension to pay - if they give you one it is only because they are being nice to you. You should go to the courthouse and ask the traffic court clerk for an extension to pay before the suspend your drivers license. I recommend going at 8 am in case they tell you that you have to see the judge to get an extension. But the best option is to just do what you have to do to pay it off ASAP.
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Hi Christopher,
Is the free (still) document at … sites.google.com/site/dortlawcom… the same as the recommended Demand for Trial after Civil assessment that is recommended by you?
I have just received a notice of a pending suspension of my CA Drivers license from the DMV. The DMV is citing an infraction that I was not ever notified of (red light camera). I am planning on filing the demand for trial tomorrow and pay the bail if it is required. Are there any other filings that I should be aware of?
Also how do I arrange a phone consultation with you?
Thanks Bill
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Bill,
The most current version of my form for demanding a trial after a civil assessment is available for $10 at: http://store.payloadz.com/details/778202-eBooks-Self-Help-Demand-for-Trial-After-Civil-Assesment-PC-1214.1-.html.
I do one hour attorney conferences for $89 - http://www.trafficcourtpros.com/california.html?bpid=519. That is the best way to get my advice on a specific problem. Once you pay by credit or debit card, or even pay pal, I’ll contact you to schedule a discussion. I can review your paperwork in advance of our discussion.
If you did not get any notice of a red light camera violation, it is probably because your address with DMV is not current. I recommend calling DMV to verify your address right now. It is a misdemeanor crime to not keep DMV updated as to your current address.
There may be something strange about your issue, because usually a Red Light Camera ticket cannot cause a failure to appear or the related VC40509.5 suspension because there is no signed “Promise to appear”. You dont sign citations issued by red light cameras - they come in the mail to the address of the registered owner of the car.
Take a look at Vehicle Code section 40518: http://www.dmv.ca.gov/pubs/vctop/d17/vc40518.htm. They can suspend your license if they send a proper notice to your DMV address.
But yes, your best option is to go to court tomorrow and ask for a walk in appearance and try to resolve the case. If it is you in the photo - I would not recommend pleading not guilty and having a trial, because you are almost certain to lose. But if it is not you in the picture, demand a trial.
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Christopher,
Thank you for the clarification and all the advice in the blog that I have learned from.
I would like to fight the ticket and the additional fines on the basis that the courts are not abiding by the USPS recommendations for the mailing of an “important document” (page 11 in Domestic Mail Manual 100 Series PSN: 7610-05-000-5072).It is my understanding that some other states have determined that simply dropping a ticket, summons, or judgment in the mail is not sufficient service yet it appears that in California we are willing to roll over and let this happen. Mail gets lost, stolen, or returned all the time. Proof that someone dropped something in the mail should not be proof that it was delivered to the intended recipient.
I have several addresses that the DMV sends my bills to. My last issued CDL lists one street address but the zip code on the CDL is for another rural address.
The Rural address is not having mail delivered to it as the USPS is being difficult as there is no PS form 4232 (Rural Customer Delivery Instructions) on file with them for the address (not legally required).
While there is a requirement to keep my current address up to date with the DMV there is no law requiring me to be there, or apparently for the USPS to actually deliver the mail to the address.
I think that allowing the courts to have an arraignment, trial, and issue a judgment with no confirmed notification of the accused is just wrong. How do I go about getting this corrected?
Thank You,
Bill -
Bill, thank you for the good question. I assume this is a California problem.
I like your idea, but I have some bad news - (forgive me for sounding rude, but I get sick of telling people this) - THE COURT IS NOT REQUIRED TO SEND YOU ANYTHING AFTER YOU GET A CITATION !!!!!! AGHHH!!!!!!!!! NOTHING, NADA, ZERO. Your signature on the citation is an enforceable “Promise to Appear” in court. Nothing more is required for the court to jack you up if you do not show up on time.
You cannot fight a ticket on the grounds that you did not receive anything in the mail. That is not a defense. Don’t waste your time trying.
Having said that - there are 2 exceptions to the rule that the court is not required to send you anything: 1) red light (or other) camera citations; and 2) when the court adds a civil assessment to your case after you miss the court date listed on the bottom of your ticket next to your signature (see penal code section 1214.1(b).)
If you are talking about a red light camera violation, you might having something. But I can tell you this - you are required by law to keep DMV updated as to your current mailing address. If DMV does not have your current mailing address, it is your own fault - and it is actually a misdemeanor crime to fail to notify DMV of your correct mailing address within 10 days of a change.
The issue regarding the address on your drivers license is totally irrelevant because it is your responsibility to ensure that the address on the citation you get from an officer is correct BEFORE YOU SIGN IT. If the address on the citation is not correct, and you sign it, it’s your fault.
When a person receives a citation from an officer, at the bottom of the citation is the date, time and location of the courthouse where you must appear. If you do not show up and get prof you where in court n that date and time, you are guilty of a failure to appear, regardless of whether or not the court sent you anything.
Now if you found out that you got a red light violation ticket and the court mailed it to an address other than the address DMV has on record for the registered owner of the vehicle, then you may have something. But if you signed the citation, you’re screwed, dont waste your time.
If this is a red light camera problem, give me an update and I’ll try to offer more advice for that problem.
For other people out there, here is my best advice:
1) do not ever sign a citation without reading it to make sure your address is correct and that you can read and understand the court date at the bottom;
2) do not ever fail to notify DMV of a change of address in writing, and get proof that you notified them;
3) do not ever wait for the court to send you something after receiving a citation
4) if you do go to court on the date and time listed on the citation, get proof you were there. -
Bill, it just dawned on me that you might be talking about a problem where you did not receive the 10 day warning of a civil assessment as required by Penal Code section 1214.1(b). That is a warning that the court is required to mail to you. Sorry if I missed that point (I’ve been writing all day).
If you want to challenge a civil assessment on the grounds that you did not receive the Penal Code 1214.1(b) notice, you also should challenge the problem on the grounds that the court has not allowed you a motion to vacate judgment as allowed by Penal Code section 1214.1(d) at the same time.
My best advice for doing this is to file a petition to vacate civil assessment on those grounds, and when the court denies it, appeal.
As far as the post office recommendation for mailing important documents goes, that is very creative. I like the idea. But the law only requires “mailing” it does not require “receipt” of the notice. So - and this is where a law degree helps - you have to present the issue like this - (put this n your petition also):
Penal Code section 1214.1(b) violates the Constitutional requirement of Due Process Under the 5th and 14th Amendments because it allows a government taking of money without assurance that the defendant has RECEIVED notice of the assessment. If the defendant does not receive notice, there is no DUE PROCESS.
So the challenge for your idea would really be to the statute’s requirement of “Mailing” instead of “Proof of actual Notice”.
I would not recommend arguing that they must follow the post recommendations, but you can use that to state that there are “reasonably available” way to ensure actualy notice that the government is not using “because they do not want the defendant to have actual notice”.
Challenge the statute on Due Process Grounds, not the method of mailing. Does that make sense? If you have follow up questions, I am happy to try to answer for free.
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