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.

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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.

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But some courts skip the presumption of innocence part and suddenly decide a defendant is guilty after a missed deadline that they invent.  In traffic courts such as Santa Clara, Solano, Fresno, and others, if the defendant misses the date on a citation, they send the fine bill to a collections agency and refuse to provide the defendant their day in court. They give the file to a collection agency such as GC Services, and for the defendant to talk with that company about payment. And by refusing the Defendant an arraignment on teh case, they take away teh defendant’s right to a trial.

Technically, there is a way for the courts to find a defendant guilty of infractions on a citation if the defendant does not appear in court.  The procedure is listed in Vehicle Code section 40903(a), which allows a court to “deem a failure to appear as a request for trial by declaration”.

But it is definitely not an automatic process.  Before a defendant can be found guilty, the court must actually have the trial by declaration without the defendant, and notify the defendant of the result of the trial.

Section 40903 requires the court to provide a 10 day warning of this election, and then Vehicle Code section 40902 requires the Court to provide the defendant a written “Statement of Decision” on the Trial by Declaration in absentia on an official California Legal Form, named Judicial Council Form #TR-215.

The problem is that some courts are very sloppy with their collection happy procedures, and they routinely violate the law by ignoring the requirement for a trial.  I have seen it over and over again in many courts.

Specifically, the courts with the flawed procedure commit 3 legal errors:

1) they fail to make the required “election” (choice) to deem the Failure to Appear a “Request for Trial By Declaration”;

2) they do not provide a 10 day warning of the election;  and/or

3) they do not provide the required notice of a decision on the trial, and

4) they fail to respect the deendant’s right to demand a Trial De Novo after losing a trial by declaration.

Instead, the offending courts skip the trial and arbitrarily treat the unproven allegations on a photo copied ticket as proven. No Trial.  No presumption of innocence.  No Proof the Defendant had actual notice of anything.

In these courts, once an arbitrary deadline passes, the court assumes guilt and calculates a fine amount based upon a guilty finding to a collection agency such as GC Services.  Then, in an attempt to prevent the rights of criminal due process from attaching, they call the fine a “civil judgement”.

And to make matters worse, they add a “Civil Assessment” of $300+, claiming authorization under penal code section 1214.1.

When an unfortunate defendant eventually discovers this sort of problem, the court clerk will tell the defendant (through the collection agency) that there is no choice but to pay the collection agency for the fine, civil assessment, and any fees the collection agency invents. The defendant’s right to a trial is lost.  The court clerk took it away.

The end result in these cases is that the late defendant never gets a trial on the original charges, and never gets a Due Process Hearing where they can challenge the “civil assessment”. They get screwed, and $25 correctable fix it tickets turn into $1200 collection agency bills that everyday people cannot pay.

Innocent people get screwed in these courts, especially in cases where the Defendant may have been the victim of identity fraud, or may not have actual notice of the court dates because they were away for, ummmmm, lets say active military duty.  Soldiers coming back from combat to find a 2 year old traffic citation in collections for a ticket they could not have possibly received???? It happens.

Sound familiar? It is a crazy but true aspect of the California Traffic Court universe.

The Solution: How to Fight a Civil Assessment Ticket When the Court Will Not Give You a Court Appearance.

Step 1: Demand Entry of Not Guilty Plea and Setting of Court Trial.

Recommended Form:  I have drafted a properly formatted, detailed and well cited form for exactly this step called “Not Guilty! Demand for Trial”. You can buy it for $9.99 as a down loadable “.pdf”, and it includes a Demand for Not Guilty Plea, Demand for Trial Setting, Supporting Declaration by Defendant, and instructions from me.

But you can write your own.  Here is an explanation of how the Demand for Entry of Not Guilty Plea works if you want to draft your own:

In most courts where this refusal of the right to trial happens, the defendant has not had an Arraignment, and technically, there has been no plea entered at all.  Thus, it stands to reason the Defendant should be allow to enter a “not guilty plea”.  A natural Consequence of a not guilty plea is the sitting of a trial date. In fact, a not guilty plea is a prerequisite for a trial.

Entry of a plea - whether it be guilty or not guilty -  usually happens at an Arraignment.  But if the court will not let you have an arraignment, you need to enter your plea by filing a document with the court clerk.

There has to be a trial, or you are presumed innocent.  The presumption of innocence is a fundamental pillar of our legal system and denial of it, on any level is something that can be appealed 2, 3, 4, maybe even 10 times all the way to the US Supreme Court if you are really obsessed with working on your case.

And the 5th and 14th Amendments to the US Constitution require Due Process, which the courts have ruled means a trial, before the State can Take your life, liberty, or property (including cash - which is just as good as money).  And even more to the point, Penal Code section 1214.1(d) explicitly requires that a Defendant be allowed Due Process to defend against a “civil assessment”.

So how do you Demand Entry of a Not Guilty Plea and Trial Setting if the court will not give you a Court date?  On Paper.  You have to write down the demand and present it to the court clerk for filing in the case.  Once in the court’s file, they have to either accept or reject your not guilty plea.

What if the court refuses to accept the Written Demand for Not Guilty Plea? Well, the court clerk you run into probably will have very little, or zero experience filing court documents such as motions, declarations, and other papers that are common in bigger cases.  And they are train to put up objections to everything.  There are not going to be happy about someone trying to file a document in a traffic court case.  But you have to be persistent and demand to speak with a supervisor if they give you trouble.  If you have a legitimate document to file in a pending legal case, the court clerk cannot prevent you from getting it filed (so long as it meets local rules).  It’s up to the judge (not the court clerk who never went to law school) to deny, allow, or ignore your filing.

What if they still refuse?  Well, it’s very unlikely that they will completely refuse to file your document.  But I can see it happening in some of the worst courts.

In the case of a complete refusal to accept your filing,  I recommend a 2 step process to force the court clerk to take action on it and to preserve your right to appeal on the issue:

1) Drop it of at the clerks office in person and get a “Proof of Service” form signed (by the person who drops it off); and then

2) Mail 2 copies to the court clerk with proof of delivery requested - request filing and return of a copy with a “Filed” stamp - and finally fill out and sign a “Proof of Service by Mail” form.

By keeping a signed “Proof of Service Form” you have legal proof that you “Served” the court with the document and then it can be the subject of an appeal if they ignore it.  It is always best to have someone besides the Defendant do the service part and sign the Proof of Service”.

Once you have gotten the Demand for Not Guilty Plea to the court clerk, they have to do one of 3 things:  1) ignore it; 2) reject it by sending it back to you with an explanation; and 3) tell you that you have lost the right to a trial. It is very important that you get proof that you got the request to the court clerk, because you may need it for the appeal if necessary.

If the court does give you a trial date, you have won - stop here.  Note:  they may require you to post “bail” in the amount of the fine, but there is nothing you can do about that if it happens.

Step 2: Demand a Trial De Novo.

If the court does anything besides give you a Trial date:

1) File a “Request for Trial De Novo” form and ask for a new trial.

A Trial De Novo (which means new trial) is possible and should be granted if you are denied entry of a not guilty plea, because they only way to deny entry of a not guilty plea is to claim there has already been a trial by declaration in absentia under authority of California Vehicle Code section 40903.

The law states that after being notified of a decision after a trial by declaration:

“if the defendant is dissatisfied with a decision of the court . . . , the defendant shall be granted a trial de novo.” (Vehicle Code section 40902(d).)

There is a standard state wide form for a “Request for Trial De Novo” that makes such a request easy.

A timely request should be granted because the court has treated the case as a trial by declaration, and made a decision of guilt.  The law states that once this happens, a defendant has a right to a new trial in person if they want one.

The catch is that you only have about 20 days to request a trial de novo after the court clerk MAILS the decision.  But they never send out a notice of decision in any form and worse yet,  Vehicle Code section 40902(a)(2) requires that the Court use the Official Judicial Council Form for that notice of decision (it is #TR-215 “Decision and Notice of Decision”). The clock starts running from the date they mail that form, but if they never send it, the clock and deadline to file a Request for Trial De Novo never starts running.

A defendant who did not receive notice on TR-215 from the court of the decision on a trial by declaration, but who got a civil assessment, should write on the form:

“Decision and Notice of Decision on Judicial Council Form TR-215 not sent and/or not received as of today”.

Once a request for trial de novo form has been filed with the court clerk (sent to the court clerks office with proof of delivery is best), the court must make a ruling on it.

If they refuse to file it - use the rocedure outlined above wherein you drop off a copy in person, and then mail and get proof of service forms for each delivery.

Generally there are only 2 options for the court:  1) grant the request for a new trial; or 2) state that it was filed late, and provide the date of mailing of the decision Form TR-215.  If the court denies the request, it is a decision that can be appealed, again with a standard Notice of Appeal Traffic Court Form from the Judicial Council.

2) Assuming the Request for Trial De Novo fails, a civil assessment victim defendant in Santa Clara traffic court can file their local form called a “Petition to Vacate Civil Assessment”, which gives the defendant one more chance to get a review of the case.

On this form, the Defendant can argue: a) notice of the TBD was not proper; b) they are innocent and did not have an opportunity to be heard; and/or c) there is some other reason that the civil assessment should be removed and/or a court date allowed.

(Many other courts have a similar local petition form).

If the Petition to Vacate Civil Assessment is denied, that too may be the subject of an appeal.

A defendant with a traffic citation and civil assessment can use this process to force the court to look at it several times - and with a little justice - can beat the completely unfair imposition of a civil assessment without proper notice or justification.

But if none of this orks for you, you will have a perfect record for appealing several issues, including:  Denial of right to arraignment; denial of trial and due process; violation of the right to be presumed innocent, etc.

Appeals of traffic court cases are free, and the forms are free.  See my related article on How to Appeal a Traffic Court Case.

If you need to appeal after following this procedure, I will try my best to answer your questions for free help you get it done right.

If you want help filling out these forms, and advice on the best strategy, I offer affordable one hour attorney conferences for $89, and will answer general questions for free.  cdort@dortlaw.com

-Christopher Dort

Court Upholds Police Search of Car After Impound, Expands Police Search Powers

The Right to be free from unreasonable searches and seizures just got a bit narrower, and the police have a new reason to search your car.

On November 9, 2009, the 9th Circuit Federal Court of Appeal upheld a search of a car that was being impounded without an arrest of the driver on the grounds that the discovery of the evidence inside was “inevitable”.

The facts of the case of United States v. Ruckes are simple and pretty common.  Dude was pulled over, officer discovered that his drivers license was suspended for a failure to pay child support.  Although the officer could have arrested Dude at that point, the officer initially decided to give Dude a citation and release him - sans vehicle - which is French for “Dude to be released but car to be impounded”.

It seemed at this point to Dude that he had gotten really lucky. But then his luck changed.

Although the towing of the vehicle was to be done by a private company, and there was no arrest at this point, the Officer searched the car without permission and found a bottle of crack cocaine.   And then he found a loaded 9mm handgun.

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Dude, who should have left earlier, was arrested for the crack and for being a felon in possession of a weapon.

At his trial, Dude tried everything to avoid prison time.  He challenged the search of the vehicle on the grounds that since there was no arrest at the time of the impound, the officer had no probable cause to justify a search. He argued the Officer’s search was unreasonable under the 4th Amendment, and therefore the crack and the gun could not be used at trial.

The 4th Amendment to the US Constitution prohibits “Unreasonable Searches and Seizures”, and established law dictates that a warrant less search is  per se (presumed) unreasonable.

In general, any evidence obtained from a warrant less search is inadmissible in a trial, unless a recognized exception to the warrant requirement applies.

A search that occurs during an arrest, is an exception to the warrant requirement.  But here there was not arrest, and the officer had no reason to believe Dude had committed any other crime.

Dude asked the court to exclude the evidence of the crack cocaine, and the gun because the search was unreasonable under the 4th Amendment. The trial court denied the request, and Dude was convicted.

He appealed the ruling to the Federal Court of Appeal.  After reviewing the law and arguments from the government and Dude’s defense counsel, the 9th Circuit Federal Appeals Court decided that the search of an impounded vehicle was legal.

The rationale the Court adopted for the ruling was that although a car search was not properly incident to arrest, the evidence obtained was admissible because the police would have discovered it inevitably during an inventory search to identify the personal property in the car.

Commentators have called the ruling the “inevitable discovery rule”.

To me, it sounds more like:

“If a police officer is going to find something eventually, it’s OK to search for it before there is probable cause to justify the search.”

I expect the decision will result in the police searching nearly every car they impound, regardless of the reason for the impound.  So my professional advice is that if you are driving with a suspended license, leave your crack and loaded gun at home.

Dude does have the right to petition the US Supreme Court to review the Court of Appeals decision.  As of right now, this decision is binding on all US District Courts in the 9th Circuit (Western US and California) and very persuasive in California State Courts.

The decision in its entirety can be found as a “.pdf” file at:

United States v. Ruckes http://www.ca9.uscourts.gov/datastore/opinions/2009/11/09/08-30088.pdf

How to Appeal A Traffic Court Case

Did you lose your traffic court case and feel that the judge made an error in ruling against you?  Well, there is a way to try again.  If you lose a trial after pleading “not guilty” on a traffic citation, or if the court makes an order that substantially affects the case, you have the right to an Appeal decided by different judges.

Here is a step by step guide to Appealing a Traffic Court Trial in California.

1. You Must Lose a Trial or Court Must Make an Order Affecting Rights.

It may sound like a no brainer that you have to lose a trial to appeal one, but the devil is in the details.

A defendant who pleads guilty or no contest does not have the right to an appeal.

Many people who plead guilty are unhappy with the outcome and feel like they should be allowed to appeal to get their fines or violations reduced.  But if you admit you are guilty - game over - no appeal.

To be eligible for an appeal, you must first plead not guilty at the arraignment (or by mail on some citations) and request a trial.  Then, you must lose a trial.

It is also possible to Appeal a Specific Order of the Court, if it has the effect of substantially affecting the case - but this kind of appeal is rare.  It would apply in the case where the court denies a petition to vacate a civil assessment, or in the situation where the court refuses to give you a speedy trial within 45 days of arraignment.

To appeal an order of a judge when there has been no trial, you must get prof of the order.  If it was a denial of a Petition to Vacate a Civil Assessment, you need a copy of the Denial letter (or clear minute order from in court).

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2. File a “Notice of Appeal”.

The Notice of Appeal is how you tell the court you want an appeal.  The actual Notice of Appeal is a 1 page Judicial Council Form that you can get online and mail to the court.  It’s very simple and essentially tells the trial court what case you want to appeal.

We recommend that you mail the Notice of Appeal and get a receipt from the Postal Service for the mailing and delivery once it happens. That way they are unlikely to screw you by saying they did not receive it in time.

There is a deadline for filing a Notice of Appeal, and as of the time of this writing, it is in CA, 30 days from the date the final decision was made. It does not matter when you received a final notice or when it was mailed.  The deadline is from the date of the decision, which is usually the trial date. File it early by getting it to the court clerk’s office a week ahead of the deadline.

On the form for the Notice of Appeal there is a check box so that you can request a copy of the tape or transcript of the trial if there was one.

The clerk at the court where the trial happened will receive the notice and prepare the record.  The clerk then sends the record to the appeal court  or the Appellate Division of the Superior Court.  The record should include all the evidence used at trial, including exhibits.  If the Judge returned exhibits to you - then you must deliver the exhibits yourself to the Appeals Court and get them filed in the case.

There is no fee for filing a Notice of Appeal. There may be a fee for copying and sending the record.  If you cannot afford it, you can apply for a waiver of the fee with the court clerk called an “Indigent Fee Waiver”

Once the Appeals Court gets a complete copy of the record, they set a deadline for the “Appellant” to write a statement about why the appeal should be granted.  This statement is called an “Appellant’s Opening Brief” and it where you make your arguments.

3. Write an “Appellant’s Opening Brief”

The appeal decision will be based on the arguments of the defendant and the government in documents called “Briefs”.  It sounds more complicated than it is.  Basically, a Brief is just a statement of why the appeal court should overturn the ruling of the trial court.

California Rule of Court 8.928 gives instructions on how to format and what kind of cover to use for your Appellant’s Opening Brief.

You will need about 5 copies made.

4. File and Serve the Appellant’s Opening Brief.

Once written, the brief must be filed with the Appeals Court.  You will be told where it should go.  You can mail or file it in person.

Then you must get some one to deliver or send a copy to the government representative handling their side of the appeal.  Usually this is the District Attorneys office, but the court will let you know exactly once the Notice of Appeal is received. The defendant cannot serve the opening brief, it must be a person who is not connected to the case.

California Rule of Court 8.927 gives instructions on how to file and serve the “Appellant’s Opening Brief”.

6. File the Proof of Service Form With the Appellate Court.

Once you get some one to deliver or send a copy of the Opening Brief to the government, that person must sign a “Proof of Service Form” that then gets filed with the Appellate Court. There is a Proof of Service by Mail Form and a Proof of Service in Person Form. If the copy was dropped off at the DA’s office, use the Proof of Service in Person Form.

The proof of service can be filed by mail or in person - but in person filing is best so that you get a receipt or proof of filing.

After the Appellant and the Government file briefs, the Appeals Court will review the Briefs and the Record, and make a decision.  Usually the Appeal Court is actually the Appellate Division of the Superior Court, which is a three judge panel that rotates membership.

For the court’s instructions on how to fill out the Traffic Court Appeal Forms, see the Judicial Council Form Instructions for Traffic Court Appeals

So now that you know how to do it, how do you win a Traffic Court Appeal?  Well, that is a topic for another article.

What is the difference between an Appeal and a “Writ”?

We hope you find this free self help useful.

Questions?  Leave a Comment.

Biased Judge Leads to Overturning of Failure to Appear Conviction in Santa Clara Court

A failure to appear conviction in Santa Clara County Superior Court was overturned last week by the California Court of Appeal. The rare reversal was the product of a trial in front of a biased judge that should have never taken place.

The appeal decision followed the trial of Defendant Salee Amina Mohammed, who was accused of missing a court appearance after being released from custody.

Her defense was that she had never signed a promise to appear in court on the day in question, and that the required elements of a conviction were not present. There was no evidence in the court record that she had promised to appear on the date in question.

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Salee Mohamad believed she had a defense to the failure to appear allegation, and demanded a trial on the charge. At first, Salee tried to defend herself in the trial. But the judge, a former prosecutor and Deputy District Attorney, took over the trial with completely unfair manipulation of the trial in front of the jury.

Judge Joyce Allegro (Department 54) repeatedly chastised Mohamad and her defense, and led the jury to believe the judge was aligned with the prosecution.

The official court record showed the judge told Salee to “be quiet” more than 50 times. Further, Judge Allegro called the defendant “completely rude” and asked her at one point: “‘Do you want to be physically gagged? I can do that if I have to and I will if I have to.”

At one point, Judge Allegro herself objected to the defendants arguments as if she were still a prosecutor.

According to Attorney Christopher Dort, an attorney who handles failure to appear cases in Santa Clara:

“When a judge mindlessly objects to a defendant’s arguments, it is a clear showing that the judge views herself as a prosecutor, not as an impartial decision maker. This judge thinks she is still a prosecutor. When the jury sees that behavior, the jury believes the right thing to do is follow the judge’s lead.”

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Thereafter, the Judge Allegro prohibited Salee from continuing on as her own attorney, and appointed a public defender to finish the trial.

At the end of the trial, the prosecution had not produced enough evidence for a conviction, so Judge Allegro took the unusual and unfair action of allowing the prosecution to reopen its case, to try to shore up its evidence. Once that was done, Judge Allegro denied a defense effort to challenge the added evidence.

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Finally, the jury convicted Salee of the failure to appear charge, and Judge Allegro sentenced her to 1 year in the county jail.

Salee’s court appointed defender then appealed the conviction on numerous grounds, including judicial misconduct.

Upon hearing the appeal, the 6th District Court of Appeal agreed that the conviction was illegal, and overturned the conviction.

The appeal court’s opinion, authored by Justice Franklin Elia, concluded that Judge Allegro had acted improperly when she refused to dismiss the charges against Mohammed, even though there was no evidence that the defendant knew she needed to appear. In essence, the appeals court ruled that there was not even enough evidence to send the case to trial to begin with.

Whats the moral of this story? Not all judges are fair. They can screw you if they want to. If you are fighting a failure to appear charge in Santa Clara County, disqualify Judge Joyce Allegro immediately. For information on how to disqualify a biased judge, see our blog article on the topic.

Download People v. Mohammed appeal decision (.doc)

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Email: info@dortlaw.com

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