What is a Public Defender? Here is what you need to know.

Later, the Supreme Court further explained that this right also required the government to provide a Defense Attorney, at the public’s expense, for defendants who could not afford an Attorney.  Eventually - and this is an interesting reflection on American Society - the court ruled that the Attorney had to be “competent” and stay awake during a trial.

The theory behind this right is that an everyday person accused of a crime has no chance against a skilled and highly trained prosecutor without a defense Attorney to ensure the process is fair, and the evidence reliable.

Yes, somewhere in history, our ancestors learned that prosecutors are not always right, honest and fair. The right to an Attorney at public expense for the poor is a uniquely American counter balance to that problem.

Now, the right to an Attorney for the poor has detailed rules.  Today in California, a Defendant has a right to a court appointed defense Attorney if:

1) charged with a misdemeanor or felony (includes DUI charges, but not traffic infractions); and

2) qualify as “indigent” under the current guidelines set by the county or local where the case is being heard.

When a Defendant meets these qualifications, the court must appoint a Defense Attorney at little or no cost to help the Defendant.

Are Public Defenders Real Defense Attorneys?

You bet. In most counties, there is a separate county division called the Office of the Public Defender, which is the collection of Attorneys hired by the county to act as the court appointed defense counsel for the poor or “indigent”. These attorneys are known as “Public Defenders”.

All Public Defenders are licensed by the State Bar of California to practice criminal defense law.  In fact, often, they are the best criminal defense trial attorneys around. This is due to the fact that they work every courtroom every day, they how their judges are likely to rule, and they know what to expect from the local juries. It is true that many young lawyers start their trial careers with a Public Defenders Office, but the reason for this is more often due to the excellent training available to new Public Defenders, than to the new commers’ inability to get a higher paying job.

Are Public Defenders Available To Everyone Who Asks for One?

No. You must first apply for a Public Defender in court and then qualify as “indigent” under the county’s rules. Generally, if an accused, or the family of the accused, can come up with the money for a private attorney, the accused will not qualify for a public defender. An unwillingness to borrow money for an Attorney, or to sell an asset such as a car does not make one “indigent”.  Generally the courts require that a defendant must have no access to resources for a private Attorney before the qualify for a Public Defender.

Are Public Defenders Free?

No. Almost all California Counties now charge a minimum fee for use of a Public Defender. And many counties now will charge the accused for the services of the public defender on a sliding scale based upon a person’s income, and the court will enforce payment of the bill.

Serious penalties apply to those who try to mislead the court about their ability to pay for a public defender.

How Do You Apply For a Public Defender?

You must appear in court on your assigned court day, and inform the judge that you want to request the help of a public defender. This problem is one giant disadvantage for people accused of Driving under the influence (Vehicle Code section 23152) because it means they do not get help prior to their court date.  And in DUI cases, there is a lot to do prior to a court date.  For example, a person arrested for a DUI offense in CA only has 10 days to schedule a DUI hearing to protect their drivers license, and a Public Defender’s help comes too late for that deadline.  And worse yet for the DUI defendant, the Public Defender will not help with DMV hearings at all.

Practice Tips:

In most traffic citation cases, a Public Defender is not available, because the Defendant is not charged with a misdemeanor or more serious crime.

Public Defenders have limitations.

Public Defenders are generally a great value for those who qualify.  However, they do have limitations that private Attorneys do not have.

One of the downsides of requesting a Public Defender is that you have to go to court to request one, and you may not get one you like.  In most misdemeanor cases, a private defense attorney can go to court for you, and you can always hire the one that works best with you.

Public Defenders are also generally assigned to deal with one case for a Defendant.  If the Defendant has several cases in different courts, a different Attorney may be appointed on each, making coordinating the defenses difficult.

Public Defenders will not assist with issues outside of the courtroom, such as DMV hearings (important in DUI cases), and generally will not talk to defendants or provide consultations prior to being appointed in court.  For defendants with outstanding warrants, this means it is unlikely that a Public Defender can help before getting arrested on the warrant.

A person who wishes to discuss a case with a Public Defender prior to appearing in court should call the Public Defenders Office in their county to see if a pre court consultations is possible.

My advice is you are not sure if you qualify for a public defender?  Shop around for a private attorney first, and find out how they can help more, and faster than a public defender.

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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

How to Get a Public Defender Appointed on a Criminal Case.

Broke and in big trouble? You may be entitled to have the Judge appoint a Public Defender to help you if you are charged with a misdemeanor or felony.

What Is a Public Defender?

In a land far far away, a long, long time ago, a great Supreme Court ruled that all criminal defendants have a right to a “competent defense” which means attorneys help.  Now, anyone charged with a misdemeanor or felony crime has the right to an attorney and if the person cannot afford to hire a private Attorney, the law requires that the court appoint one to help the defendant at the public’s expense. When the Court appoints an attorney to help a broke defendant, they are called “Public Defenders”.

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Public Defenders are real Attorneys, and are generally very good at what they do.  I spent three years with the Santa Cruz County Public Defenders office my self, and can say they do consistently provide great legal work and fight to protect rights.  Those defense daemons are in court everyday helping defendants in trouble, getting evidence suppressed, and they usually know the ins and outs of each courtroom, each judge, and every prosecutor.

Every county has its own Public Defers Office, or a contract with a private law firm to do the assigned work. Sometimes it is a division of the county, as in Santa Clara County. In other counties, such as Santa Cruz, the county has a contract with a law firm to provide Public Defender Services. In Riverside, the court just appoints private attorneys from an approved panel. Most of the time, the offices of the Public Defender are at or near the courthouse.

California Government Code Sections 27700-27709 require a county’s public defender to provide legal representation for indigent persons in certain circumstances.  These California statutes are really just a restatement of the requirements the US Supreme Court set for 5th Amendment Rights in the famous 1963 case of Giddeon vs. Wainright.  And in most counties, the public defender heads the county law office which fulfills this obligation in the most cost effective manner.

Every county handles these qualifications differently, and there is no single rule on how much you can earn or have before you do not qualify for the Public Defender. In some counties, if you are unemployed, you qualify. In others, the requirements are stricter, and you must have no property to sell.
In some counties, such as Santa Cruz, the qualification procedure is relatively simple. The defendant, once in court, makes a request, and the judge will ask several questions with the defendant under an oath to tell the truth.

The questions will include whether or not the defendant is employed, owns their own house and car, etc. Thereafter, the judge just makes a decision whether or not the defendant can come up with the money for a private Attorney.

In most counties, employment is enough to disqualify a defendant.  The court expects the cost of an attorney hurt.

If the judge decides to appoint the Public Defender, he or she just tells the public defender in the courtroom to take the case and talk to the new client.

In other courts, such as Riverside, or on felony cases, the process is more complicated. In some courts, the defendant must fill out an application form and prove what their income is, and a decision to appoint a Public Defender is made at another time. Then a meeting between new client and court appointed attorney is done at a later date.

But no matter what court a defendant is in, the process is basically this: the defendant must go to court, make a request for a Public Defender, and then provide evidence that they qualify for a Public Defender because they cannot afford to hire a private Attorney.

Some Public Defenders Offices will answer simple questions from a potential client in advance of a court date, but generally they do not give detailed advice before being appointed.

Most county Public Defenders do have web sites with good information, with one of the best being the Los Angeles County Public Defenders Office.

While Public Defenders are a great value and help to an indigent defendant, they do have limitations.

Some courts will charge a defendant for the Public Defenders worth according to what they can afford (as determined by the court). In some cases, this charge can range from $100, to $10,000.

Public Defenders are also restricted to helping only on the case the court appoints them for, so if a defendant have multiple cases in different courts, several Public Defenders may be needed, instead of one private attorney. And generally, Public Defenders will not help with DMV problems or hearings.

For Defendants without outstanding warrants, Public Defenders present a problem because they cannot be appointed until the defendant appears in court. This means the defendant must first be arrested, or get their own court date before getting help.

Usually, if a court denies the appointment of a Public Defender because the judge rules the defendant can afford to hire an Attorney, the court will give the defendant time to shop for a private Attorney.

If you need to ask for a Public Defender, I recommend explaining to the court why it is impossible for you to hire a private attorney.

Public defenders are not available on infraction only cases, such as speeding tickets.  Most of the time, they are not available for appeals.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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

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

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

Instant Complete Warrant Search

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

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

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

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

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

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

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

Yes!

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

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


WHAT HAPPENS IF YOU JUST PAY THE COLLECTION AGENCY?

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

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

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

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

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

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

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

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

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

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

LAPD Announces DUI Checkpoints For July 4th Weekend on Blog

The Los Angeles PD has announced DUI Checkpoints at the following locations and times.  There may be others announced, so check the LAPD’s Blog Site for more details.

Friday July 2: Cahuenga Boulevard & Broadlawn Dr, North Hollywood, 6:00p.m. - 1:00a.m. (DUI Checkpoint)

Saturday July 3: Florence Ave between Broadway & Main St, Los Angeles, 6:00p.m. - 1:00a.m. (Sobriety and Drivers License Checkpoint).

Or better yet - DONT DRINK AND DRIVE AT ALL!

Well, aside from that, there are completely legitimate reasons for avoiding a DUI checkpoint.  For example, you may not want the delay, flashing lights in your face, instant accusation and people with loaded guns staring at you.

Brought to you by:

www.LosAngelesCountyDUI.com - Free Attorney Case Reviews For DUI cases.  Avoid Court, Avoid Stress.

Dealing With DUI Warrants From Missed Court Dates and Probation Violations

One of the most common forms of arrest or bench warrants in California Courts today are warrants from driving under the influence cases (Veh. Code sec. 23152). It is a common problem that we see often at TrafficCourtPros.com.  Here is some general information on how an Attorney would deal with a typical DUI warrant problem.

There are basically two ways to end up with a warrant after an arrest for driving under the influence:  1) a failure to appear in court; or 2) a violation of probation.  Step one is figuring out which type of warrant is the problem.  We’ll deal with each separately.

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Failure to Appear Problems.

Most DUI warrants result for missed court dates.  Usually, it is the first court date that gets missed (called the Arraignment).  When this happens, generally, the court will issue a bench warrant under penal code section 853.7 or Vehicle Code section 40508(a).

If the Defendant posted bail to get released from jail prior to court, the court will also revoke the bail bond, and thereby open the jail door for the defendant.

To get the warrant recalled after a missed court date (also known as a failure to appear), either the defendant or an Attorney representing the defendant must appear in court in person. Once in court, the Attorney or Defendant must ask the judge to recall the warrant.

Usually, this is a two step process:  1) getting the court clerk to get the case back on the courts calendar; and 2) appearing in court to ask the judge to recall the warrant.

Once a request to recall a failure to appear warrant is made, a judge has a few options:  1) approve the request and reinstate bail (if any); 2) increase the bail the defendant must pay to stay out of jail; or 3) take the defendant into custody immediately.

For many failure to appear warrants, an Attorney can do this work without the defendant being present in court - if the problem is addressed quickly.  But some judges will be harsh and require the defendant to appear in court, and then take the defendant into custody.  The court technically has the power to keep a defendant in jail until trial if they miss a court date.  But it is rare.

Once the warrant is recalled, the case progresses normally, and the defendant must enter a plea of guilty or not guilty and have a trial.  There may be an added charge of misdemeanor failure to appear (Vehicle Code section 40508a) for the defendant to deal with.  If there is a separate failure to appear charge added, it has a maximum penalty of 6 months to one year in jail once the case ends and the judge imposes a sentence.

Probation Violation Problems:

Most first time DUI defendants are found guilty (or plead guilty) and are given a sentence that includes 3-5 years of court probation.

This court probation includes requirements (terms) such as: 1) pay a fine; 2) do not drive without license and insurance; 3) complete a substance abuse program (AB548 program or similar); and 4) complete jail or sheriffs work program time by a certain date.

If a probationer fails to satisfy any of these terms, or gets arrested for a new crime, the court will typically revoke probation completely, and issue an arrest warrant.   This can happen if the probationer gets caught driving (vehicle code section 14601.2), or if they fail to complete the DUI classes on time.  A missed fine payment can also result in a warrant and probation violation..

Once probation is revoked in a misdemeanor or DUI case, the court has the power to re-sentence the defendant on the DUI charge.  Basically, they can start over.

And a probation violation can prevent a defendant from getting the conviction expunged after probation ends.

To clear a probation violation warrant, an Attorney or defendant must: 1) get the case back on the courts calendar; 2) appear in court and ask the judge to recall the warrant; and 3) ask the judge to reinstate probation on the original terms and conditions.

To get a case on the courts calendar, an Attorney would go to the criminal division court clerks office and request a calendar setting for the case.  Sometimes, a form is required.  In some counties, such as Santa Clara, the Attorney must go into the courtroom and get the judge to sign the setting form.  Then the form must be filed with the clerk.

In the Los Angeles County Superior Court, the process is slightly different.  The court clerk can set a date without a judge’s signature.

In some, but not all courts, an Attorney can get a misdemeanor DUI probation violation warrant recalled without the client in court.  Some courts will require the defendant to appear in court.  Some judges will take all people in this situation into custody and sentence them to jail for 30 days or more.  Some judges will give defendants a second chance if they take care of it correctly.

Probationers do have a right to a hearing to determine if they actually did violate probation.  But in most cases, a probation violation hearing is a waste of time, because the violation is obvious (i.e., missed fine payment, or caught driving). And to make it worse, the burden of proof on a probation violation is very low - it is easy to get a conviction for the prosecutor.

There are very defenses to a probation violation charge - other than it did not happen.  Explaining a missed fine date by stating you could not afford it will not work, and explaining why you were driving will not work.  Once the event happens, there is a violation. Dealing with a probation violation is usually more damage control than anything.

So in general, the Attorneys goals on a DUI warrant problem are to: 1) get the warrant recalled; and 2) talk the judge into a reinstatement of probation under the same terms and conditions as existed originally.

In most DUI cases, it is very important to get into court as soon as possible to solve the problem.  People who wait end up with the worst results.  Everyday that goes by with a warrant outstanding makes it harder to get a no jail result.

Answers to Some Frequently Asked DUI Warrant Questions:

Q. What Happens If A Defendant Cannot Pay a Fine on Time?

A. Generally, the courts treat a failure to pay a DUI fine as probation violation. A warrant can be issued,  and probation can be revoked. Once probation is revoked, a defendant cannot pay the fine until the court reinstates probation, because the fine and amount of the fine are terms of probation.

If a defendant cannot pay a fine on time, they should appear at the court clerks office in person (phone calls will not work) and request a court appearance.  Once in court, a defendant can ask the judge for more time.  This must be done before the fine payment is due.

Q. If I Have A Warrant in CA, but Live Out of State, How Can I Take Care of It?

A. In just about all DUI warrant cases, a court appearance is mandatory. However, an out of state defendant in a misdemeanor case can hire an attorney to make the appearances for them. Although most courts will require the personal appearance by the defendant before recalling a warrant, in some cases an attorney can ask the court for an exception where the defendant cannot go to court without interstate travel. Most courts will grant the request (but not all).

Q. How Can An Attorney Help on a DUI Warrant?

A. In most common DUI cases 9Vehicle code sections 21152(a) & (b), an Attorney can appear in court for a Defendant and handle the case (penal code section 977). If a warrant has been issued for a probation violation, or failure to appear, and Attorney can appear in court for hte defendant and request that the warrant be recalled. In most cases, an Attorney can get a routine warrant recalled without the client having to appear in court. However, it varies from courtroom to courtroom, and in some courts, judges policy dictates the defendant must be present to get a DUI or probation violation warrant recalled. Some judges will take defendants into custody, even if they try to get the warrant recalled correctly.

Not all county superior courts deal with DUI warrant cases the same. In some courtrooms, such as Judge Hastings courtroom in Santa Clara County, a defendant with a DUI warrant is likely to be arrested as soon as they show up in court. In other counties, such as San Diego, the judges will recall a DUI warrant, even years old, if the defendant appears in court voluntarily and takes care of the outstanding issues. An attorney can at times help a defendant get his case into the right court to minimize the chances of the client being taken into custody during a warrant hearing.

Q. What Happens if a Defendant Fails to Complete DUI “Classes” On Time?

A. In most first offense DUI cases, the penalties are routine - the court will impose a jail sentence that is suspended pending the completion of probation. Usually, completing DUI classes such as an AB548 program are included as terms of probation. If a person fails to complete the terms of probation on time, the court can issue a warrant, revoke probation, reinstate the suspended jail sentence, and charge the defendant with a separate probation violation. Because of this, a defendant who has failed to complete DUI classes on time generally must return to court for a request to reinstate probation and a new referral to the classes.

Q. Can Probation Be Reinstated If it Was Revoked?

A. In misdemeanor cases,  the court will frequently sentence a defendant to court probation in place of a jail sentence, which is “suspended” or paused. If the terms of probation are completed without trouble, the jail sentence is never imposed. However, if a defendant violates a term of probation, or misses a court date or deadline, the first action the court takes is to revoke probation.

Once probation is revoked, the court can re sentence the defendant to the “suspended sentence” and can charge the defendant with a separate probation violation that can lead to jail time on its own.

If probation has been revoked, a defendant can request that it be reinstated on the same terms and conditions as before. Whether or not the request is granted is up to the court, but if the court grants the request, yes, probation can be reinstated. It is common for a court to reinstate misdemeanor probation terms after they have been revoked, if the violation was minor, or recent.

Christopher Dort, Esq

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Mom Accused of Killing 2 Year Old Daughter Asks Taxpayers to Pay Defense Costs

Orange County, Florida - Casey Anthony, the Florida Mom accused of killing her 2 year old daughter Caylee, says she is broke.  In a pretrial court hearing this morning, her defense team asked Judge Stan Strickland to find her “Indigent”. They also asked the judge to order the county to pay for her defense costs.

Casey Anthony is charged with first degree murder with the special circumstance of killing a child.  If convicted, prosecutors are asking for the Death Penalty.  Anthony was charged with murder after keeping Caylee’s disappearance hidden for a month, and then reporting that her daughter was stolen by a baby sitter. Inconsistencies in her statements lead police to find the Caylee’s body in a lake near Anthony’s home. The body was wrapped in a garbage bag, with duct tape over the mouth.

Although the charges and evidence look [real] bad, a fundamental right that separates America from much of the world is the fact that the US Constitution requires that Anthony is Innocent Until Proven Guilty at trial.  And Casey Anthony claims that she is in fact innocent.

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The United States Constitution also requires that all persons charged with crimes have the right to “Due Process of Law” which includes an Attorney’s assistance at trial (5th Amendment and 14th Amendment).  If the defendant is “Indigent” and cannot afford to hire a private an Attorney, the government is required by law to provide a defense Attorney at the public’s expense. Usually this public assistance Defense Attorney for the indigent comes in the Form of an Attorney working for the local Public Defender’s Office.

But this is a huge, complicated case, and may be too big for the local public defenders.

Casey Anthony was able to hire defense attorneys on her own at the beginning, using money from media interviews and donations.  But now she claims the money has run out, and the expenses have just begun to pile up. Evidence showed today there is no book deal, no movie deal, no commercialization of the story at all.  She has no income at all. It was reported on Court TV that her [former] house is subject to a foreclosure action.

Because Casey Anthony is facing the death penalty, numerous attorneys and expert witnesses are involved.  The defense team anticipates they will need to hire and pay more than 50 expert witnesses, include forensic toxiclogists, medical examiners, DNA experts and others to counter the government’s own forensic experts from the Department of Justice and FBI.  The current witness list for the defense is 130+ witnesses, and many of those witnesses are hired experts that must be paid by the hour to work and testify in the case.

So far, Anthony has had at least 5 criminal defense Attorneys and numerous private investigators working on the case.  Some are working for free or below market rates.  One lawyer testified that he had already, prior to trial, spent more than 2,400 hours working on the case and received $89,000 - which represents an entire year’s worth of work for one person.  One calculation estimates that the Attorney made about $35 an hour for those 2200+ hours. Another of Anthony’s  lawyers, with 30 years experience and 140+ murder trials under her belt, has been working for free for 1,000+ hours.

Evidence presented in the hearing seemed to show Anthony’s Defense Team has spent $275,000 on costs, fees and a public relations consultant so far. And the trial has not even started.  She got the money from media interviews, charities, and even $22,000 from her own attorneys. Several of the members of her defense team are working for free.  One of the lawyers even has 4 interns working on the case for free nearly full time.

Her Defense Attorneys testified today that “there is no way” the defense can provide a defense competent to satisfy Ms. Anthony’s right to Due Process and a fair trial without public funding.  Even though the case has not reached the trial stage, Anthony needs more than $100,000 now to pay outstanding legal and expert witness bills. And the bills are expected to keep growing.

Even if the Defense Attorneys all agree to work for a year for free, (which is very unlikely), investigation and witnesses costs through trial are expected to top 1 million dollars.

The Orange County Public Defender’s Office has stated that it cannot handle the case. They do not have the money or the capacity to provide an adequate defense.

If Judge Strickland finds Anthony is Indigent, the court is very likely to also rule that her current defense team remain intact in order to prevent reversible error issues on appeal. Specifically, if the court forces her to use the Public Defender’s office instead of her current Defense Team, there would certainly be arguments on appeal that the court denied her a fair trial by disrupting and limiting her defense. It would be an issue that could jeopardize any conviction.

Legal experts agree that if the judge were to deny her pay of her defense costs by the government, there would be strong grounds for a reversal.

“If she has no assets, no income at all, and no prospects of future income, the law requires government must pay for her defense.  And because of the complexity of the case, it would be a violation of Due Process and the right to a Fair Trial to release her current defense team and leave her defense to a broke and under sized Public Defenders Office when her life is at stake.”

There is some precedent for the government paying a Defendant’s Private Attorney after the money runs out.  In the San Diego Trial of Convicted Child Murderer David Westerfield, the county paid more than $304,000 to his 2 private Criminal Defense Attorneys after his own money ran out. (Source: San Diego Union Tribune.)

Judge Strickland decided today to defer his ruling on the case for approx 15 days.

Do you think the judge should order the county to pay her Defense Costs with the current defense team?  Leave a Comment.

How to Fight a Civil Assessment Fine in Traffic Court When You Can’t Get a Court Date

Are you stuck with an unfair Civil Assessment on a traffic ticket where you had no opportunity for a trial?  Had to deal with a court clerk, or GC Services employee, who tells you that you cannot have a court date because the case is in “Collections” even though you just discovered the ticket?

Screw them! I think the courts that do this are illegally denying the defendant a trial and therefore, denying Due Process of Law as required by the United States Constitution.  And after doing some real legal work in the last few days, I believe there is a solution if you are willing to put in a little effort.

Here is my best, updated,  professional legal advice on how to demand a court date, and how to prepare for an appeal if you get screwed out of a court date.  It has links to the applicable laws, and free and nearly free recommended forms.

Recommended Form: Demand for Trial and Entry of Not Guilty Plea (Written by Attorney Christopher Dort and has worked many times);

Related Articles:  How to Fill Out a Petition to Vacate Civil Assessment Form (Penal Code section 1214.1) |  How to Appeal a Traffic Court Case

The Problem:  Court Sends a Case to a Collection Agency and Denies Defendant a Court Date, Because the Case is “In Collections”

There is wide variation on how California’s traffic courts treat a failure to appear (or a claim that you failed to appear) on a traffic citation.  Some courts will issue a warrant and a failure to appear charge under Vehicle Code section 40508a.  Others will suspend a person’s drivers license (using Vehicle Code section 40509.5) until there is an Arraignment for the defendant to enter a “guilty” or “not guilty” plea to the charges.

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Does On Line Case Tracking Work?

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

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

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

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

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

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

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

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

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

But a Twitter account is not required.

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

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

Is On Line Case Reporting Secure and Private?

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

Will Clients Still Get Detailed Reports?

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

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

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

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

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

Will On Line Case Reporting Force an Increase in Fees?

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

Can Clients Opt Out of the On Line Reporting?

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

What Are the Biggest Problems With On Line Reporting?

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

For more info - contact cdort@dortlaw.com

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