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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DUI Penalties Get Harsher in CA Starting July 1, 2010 (Veh Code 23152)

California’s DUI laws are getting tougher, and driving under the influence convictions are getting more painful.

These devices are intended to stop DUI offenders from driving again with any alcohol in their blood (or on their breath).  But if they work, why isn’t the law applicable to all California Counties?  Because there will be problems.  Here are the details form my point of view.

On July 1, 2010, a new vehicle code section will become effective in Sacramento, Los Angeles, Turlare and . . . . what was that other county?  Oh yah, Alameda County.  Tulare?  Where the hell is that??

Anyway, the new law is called Vehicle Code 23700 - and it states that all persons convicted of a DUI offense must install an ignition interlock device on any car they own, drive or have access to before they can get a restricted drivers license or have a drivers license reinstated.  The duration for which the driver must have the device varies depending on whether it is a first offense or multiple offense.  First time offenders must install the device for at least 4 months.

The new law states that if there is any kind of violation of the requirement - such as an attempt to remove the device, or failure to show up for required maintenance checks (and result checking), the term of the ignition interlock device can be restarted from day 1.

Technically, the Department of Motor Vehicles is in charge of the Interlock program’s requirements and verification.  But it is very likely that the courts will also make the installation of the device a required term of probation. If the device is ordered as part of probation, and there is a problem such as tampering or failure to install the device on time, the court can revoke probation and re sentence the defendant to jail instead of probation.  Probation is a privilege, and not a right, and a failure to comply with the court’s probation orders can result in jail time.

Defendants who are offered probation with restrictive terms do have the right to decline probation and elect jail time instead.  It’s rare, but possible.  A denial of probation will not affect the Ignition Interlock requirements, because Vehicle Code section 23700 states that DMV must require the device (in the 4 pilot counties) before a drivers license can be reinstated.

There is a way to be exempted from the ignition interlock device requirement, but it basically amounts to not driving or owning a car at all.  If you do not own, drive or have access to a vehicle, you can apply with DMV for the exemption.  But the law seems to contradict itself somewhat because a DUI convict cannot get a drivers license at all without installing the device.  So what if you want a drivers license for all those idiots at clubs and grocery stores who think that a drivers license is a proper form of identification? (I once had a grocery clerk refuse to accept a passport as identification for beer because she said I needed a drivers license to buy beer. Craziness!).  Good luck with that one.

If you are interested in an exemption or reduced fee due to poverty, please read the law to see what documentation must be presented.

Who pays for the device and installation?  Ha ha.  The Defendant of course.  The cost of the alcohol detection device is estimated at $800-$2000.

When this new cost is added to the existing costs of a DUI conviction (not including legal fees), I estimate that a DUI conviction will cost the defendant more than $12,000 over the long term. But there are provisions in the law that makes the interlock device somewhat cheaper for people who can prove they fall below the Federal Poverty Line. (See Veh. Code 23700(b).)

However, from my point of view - the provision for a reduced fee for people who can prove they are in poverty is a major defect in the law that will  eventually change.  I say this because the law actually requires the manufacturer of the device to “absorb” the loss associated with reducing the price for those below the poverty line, and it also restricts the amount of money the manufacturer can charge.

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And that fact presents a very strong DIS-incentive for the private business people who make the devices to do business in California at all. The end result in my expectation will be that DUI defendants will have great difficulty finding a interlock device manufacturer / installer willing to do business in CA - because the vast majority of DUI defendants are broke and/or will lose their employment after a DUI arrest.  Where is the manufacturer going to find DUI defendants that will pay enough to give them a positive return on their investment? If you want a business to provide a service in your state, you can’t restrict the prices they charge and expect it to work out fine.

- C. Dort

http://www.dortlaw.com

Questions?  Post a comment - we try to answer them all.

DUI Problem?  Attorney Christopher Dort offers free DUI expungement services for DUI clients that hire him and complete probation without violations. For details and a free attorney case review for a DUI case in any of these pilot program, contact cdort@dortlaw.com.

What to Worry About for a Pre Employment Background Check.

Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to Do Your Own On Line Background Check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not apply to pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. It’s in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant immediately. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

But some employers will give an applicant some time to clear a warrant problem once discovered.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court appearance is made, the court can recall the warrant.

In most misdemeanor cases, an Attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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How Does DMV Treat a Failure to Appear? Here is the Law.

When a person misses a court date for a traffic citation, the court will usually add a new failure to appear charge (California Vehicle Code section 40508a) and possibly issue a bench warrant. But the trouble does not stop there. The court will also notify DMV of the failure to appear and then the DMV takes independent action against the persons drivers license.

The following is the law on how the California Department of Motor Vehicles must treat failure to appear holds:

Under California Vehicle Code section 40508, when a driver fails to appear in court after signing a promise to appear on a citation, the court reports the failure to appear to the Department of Motor Vehicles as a Failure to Appear (FTA) violation. DMV then places a hold on the drivers license (40509.5VC hold).

If the driver is ultimately convicted of the failure to appear in court (by losing a trial or admitting guilt), the court notifies DMV of the conviction, and DMV enters it on the drivers history record.

A failure to appear conviction is not assigned a “Negligent Operator” point count by DMV, like a moving vioaltion. However, a failure to appear conviction may be used as evidence of a negligent driver in future DMV Driver Safety hearings against the driver.

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Effect On A Drivers License Record:

Vehicle Code section 12808. (a) The department (DMV ) shall, before issuing or renewing any license, check the record of the applicant for conviction of traffic violations, traffic accidents, reports filed pursuant to Section 103900 of the Health and Safety Code, reports filed pursuant to Section 13803, or notices issued pursuant to Section 21061.

(b) The department shall, before issuing or renewing any license, check the record of the applicant for notices of failure to appear in court filed with it and shall withhold or shall not issue a license to any applicant who has violated his or her written promise to appear in court unless the department has received a certificate issued by the magistrate or clerk of the court hearing the case in which the promise was given showing that the case has been adjudicated or unless the applicant’s record is cleared as provided in Chapter 6 (commencing with Section 41500) of Division 17. In lieu of the certificate of adjudication, a notice from the court stating that the original records have been lost or destroyed shall permit the department to issue a license.

(c) (1) Any notice received by the department pursuant to Section 40509, 40509.1, or 40509.5, except subdivision (c) of Section 40509.5, that has been on file five years may be removed from the department records and destroyed at the discretion of the department.

(2) Any notice received by the department under subdivision (c) of Section 40509.5 that has been on file 10 years may be removed from the department records and destroyed at the discretion of the department.

(d) This section shall remain in effect only until January 1, 2011, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2011, deletes or extends that date.

Suspension for Failure to Appear. California Vehicle Code 13365:

13365. (a) Upon receipt of notification of a violation of subdivision (a) or (b) of Section 40508 the department shall take the following action:
(1) If the notice is given pursuant to subdivision (a) or (b) of Section 40509, if the driving record of the person who is the subject of the notice contains one or more prior notifications of a violation issued pursuant to Section 40509 or 40509.5, and if the person’s driving privilege is not currently suspended under this section, the department shall suspend the driving privilege of the person.

(2) If the notice is given pursuant to subdivision (a) or (b) of Section 40509.5, and if the driving privilege of the person who is the subject of the notice is not currently suspended under this section, the department shall suspend the driving privilege of the person.

(b) A suspension under this section shall not be effective before a date 60 days after the date of receipt, by the department, of the notice given specified in subdivision (a), and the notice of suspension shall not be mailed by the department before a date 30 days after receipt of the notice given specified in subdivision (a).

The suspension shall continue until the suspended person’s driving record does not contain any notification of a violation of subdivision (a) or (b) of Section 40508.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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What is a 40509.5 Hold? It is a Failure to Appear Hold on a Drivers License.

If your Drivers License is suspended and the Department of Motor Vehicles has told you it was due to a VC 40509.5 hold, here is what is going on.

Vehicle Code section 40509.5 is a law that allows DMV to suspend a driver’s license when a court notifies DMV of a missed court date.  “VC” is an abbreviation for Vehicle Code, which is the set of laws in California relating to Motor Vehicles (and bicycles).

When you miss a court date on a ticket or citation, or the court thinks you missed one, they can do a number of things.

Some courts, such as Riverside County Superior, always issue arrest warrants known as Vehicle Code section 40508(a) bench warrants. Some courts add failure to appear charges and issue a warrant. Some courts suspend your drivers license and some courts do all three at once.

When a court suspends a drivers license following a failure to appear in California, the court lists the case as having a “VC40509.5 Hold” as the status.

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A Vehicle Code section 40509.5 hold refers to the drivers license hold that the court places on a license when they think a person missed a court date. Techincally, it is a notice they send the the DMV.

To get a little more detailed - California Vehicle Code section 40508(a) gives the court or prosecutor the power to add a failure to appear charge to a case when a defendant does not show up in court.

Then, Vehicle Code section 40509.5 is the law the instructs the court on how to notify DMV that the court date was missed, and authorizes DMV to suspend the drivers license of the defendant.

So if the DMV tells you that you have a “40509.5 hold”, it means that your drivers license is suspended for a failure to appear at a court date.

There are 3 ways to clear a VC 40509.5 hold, and how it works differs greatly from courthouse to courthouse (and some times from court clerk to court clerk).

Actually, from an Attorneys point of view, I have cleared hundreds of VC 40509.5 holds in at least 15 different courthouses, and I am shocked at how inconsistent the rules are applied form court to court. Don’t assume it is going to work the same way on two different days.

Anyway, the 3 main ways to clear a VC40509.5 hold are:

1) pay the “bail” on the citation in full;

2) set a court date and ask the court clerk to release the hold at the same time the court date is set;

3) make a court appearance and ask the judge to release the hold prior to payment of the fine or before the trial (if you plead not guilty and demand a trial).

Some courts, such as the LA Superior Court,  will release a VC 40509.5 hold once an Attorney appears at the court clerks office and sets a court date for the defendant.  The setting of the court date is considered a substantial step towards taking care of the problem, and the court gives you credit for doing that work.  But it has to be done in person.

These courts understand that people need to drive to work to feed their families.  And they understand that when people get arrested for driving on a suspended drivers license because of a 40509.5 hold, it really does not help anyone, and clogs the court up with pointless cases that result in more pointless cases.

Some courts, such as Solano are just totally unreasonable and in a way cruel to people with VC40509.5 holds.  They will not allow court dates once the hold is set, and force extortion style demands for full pay on people even when they did not have legal or proper notice of the court date the court claims they missed (Solano is famous for changing court dates on people without giving any notice of the changed date).

Oh yea, that reminds me - if someone in Solano County Clerks office tells you that they have no record of your citations, make sure you get proof you were there, and don’t trust them.  Check back with them over and over again to make sure you are not another victim of the change your court date scam.

If you are unlucky enough to have a VC 40509.5 hold, do not drive at all. If you are caught, you will be arrested and your car impounded (not to mention you’ll be facing a criminal misdemeanor charge of VC 14601.1 after you get home).  That’s how many people make the problem worse.

On VC40508a and VC 40509.5 cases, an Attorney can go into court for the defendant and do the work.

Once a court releases a VC40509.5 hold, DMV is notified immediately electronically, and a drivers can visit DMV the next day to get a drivers license reinstated.  Be careful!  You must visit DMV to verify the status of your driving license after releasing a hold from the court.  DMV will NOT AUTOMATICALLY REINSTATE a suspended drivers license until the driver pays a re-issuance fee (to get their cut).

This article was first written in 2003 and updated and edited in May 2009

Questions?  Post a comment and I will try to answer for free.

-Christopher Dort, Esq.

Email: cdort@dortlaw

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There Are Defenses to Driving on a Suspended License (VC 14601.1)

If you were recently arrested for Driving on a Suspended Drivers License, it may seem like a hopeless case if your license actually was suspended.  But you may not be completely screwed, because there are defenses to driving on a suspended license.

Background.

California Vehicle Code section 14601.1 is the law that makes driving with a suspended drivers license a misdemeanor crime. Yes, its a real misdemeanor, which means it can lead to a criminal record, and jail time.  (Not to mention 2 points on your DMV Record).

Because it is a misdemeanor, people charged with driving on a suspended license violations, such as Vehicle Code section 14601.1 and 14601.2)  are entitled to a jury trial if they wish to fight against a conviction.

Defenses to the charge of VC 14601 can produce a dismissal or a not guilty verdict at trial, or provide leverage for plea negotiations.  A good defense Attorney will review and consider at least the following defenses, which may lead to a not guilty verdict or extra leverage for plea negotiations:

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Defense # 1. The stop of the vehicle was an illegal detention (4th Amendment; Penal Code section 1538.5).

Peace officers, such as the California Highway Patrol and City police officers, must have a valid legal reason to stop a vehicle. The 4th amendment to the US Constitution requires that an officer have specific facts that would lead a reasonable officer in the same circumstances to believe that:

1) a crime occurred, and

2) that the vehicle or occupants were involved in the crime.

In practice, this generally means that the officer must have reason to believe a driver has violated a traffic law.

An officer is generally not allowed to stop a vehicle only because they suspect the person may have a suspended drivers license. This is because there is no way for an officer to know who is actually driving a car, or what the status of the drivers license is until after the car is stopped (or detained). The justification for the stop must be present before the officer turns on his flashing blue lights. If not, it is an illegal detention.

If there are grounds for challenging an illegal stop, an Attorney would write and file a Motion under Penal Code section 1538.5 for an order to exclude all evidence flowing from the illegal detention, including discovery of the status of the drivers license.

Usually, the court will have a separate hearing prior to jury trial to determine if the Motion should be granted. In ruling on the motion, the judge will take live testimony from witnesses and the police officer(s).

If the judge agrees that the stop was illegal, the Motion is granted, and the court will not allow evidence collected after the stop in the trial. That means they cannot use the status of the drivers license as evidence.  When this happens, the prosecutions case is usually crippled and usually dismissed on the spot.

Defense #2. A driver charged with VC 14601 starts out innocent, and there may not be sufficient evidence to convict.

A defendant charged with a misdemeanor violation starts out presumed innocent by the court.

To get a conviction, the government must prove the violation up “beyond a reasonable doubt” to overcome the presumption of innocence. If they can’t do it, the defendant remains innocent.

Many not guilty verdicts have been won on the simple argument to a receptive jury that there was not enough evidence shown in trial to prove the charge beyond a reasonable doubt, and therefore, not enough to convict.

Consequently, it is always important to review all of the evidence the government intends to use in a prosecution. A careful study of the evidence may reveal that critical evidence is missing or not admissible because of a rule of evidence.

Such may be the case if a prosecutor does not have admissible documents to prove the DMV suspended the drivers license during the day of the violation.

3. The driver did not have actual knowledge of the suspended license.

They have to prove you knew your license was suspended.  It is a required element of the charge.

If a driver does not have real, actual knowledge of a suspended license, and is arrested and charged with a violation of Vehicle Code section 14601, it may be possible to convince a jury to vote not guilty on the charge.

There are many hurdles to this defense, but it does work with the right facts. One of the hurdles is that a driver is required by law to keep their address current with the Department of Motor Vehicles, and DMV does send out notices of suspension to the last known address. And yes, they send it certified and probably have proof they sent it to your address on file.

However, there are occasions where DMV fails to give proper notice or warning to a driver of a suspended license. When that happens, there may be grounds for a motion to dismiss the case prior to trial, or a solid basis for a jury to vote not guilty.

There are other defenses to driving on a suspended license, and a defendant wishing to fight a VC 14601 can read up on others with a little research.

Plea Agreement Negotiations.

If there is an applicable defense to a case, or evidence that may lead a jury to vote against a conviction, it can be used to negotiate a plea agreement with the prosecution to end the case without a trial. After all, no prosecutor wants to lose a trial, and when presented with weaknesses in their case, they may become flexible and willing to reduce a misdemeanor to an infraction, for example.

But if not, with the right facts and presentation, a not guilty verdict can be won in some driving on a suspended license cases, even if the license was suspended.

Ironically, getting a valid drivers license (or the license reinstated) is not a defense to the charge of violating Vehicle code section 14601. This is because getting a new license does not suddenly erase history, and it is not a correctable violation.

But there is good news.  When a VC 14601 defendant gets a valid drivers license, it is often very helpful in getting a good result on the case. The courts and prosecuting agencies are always motivated to get rid of suspended license cases efficiently, and most judges believe society’s interests are best served by getting a suspended driver back on track, rather than giving them a jail sentence.

Specifically, a valid drivers license can be used by an attorney to negotiate a reduction in the charge to a substituted charge of Vehicle Code section 12500(a) - (Driving without a valid drivers license) - which is much better for a lot of reasons.  The most important reason is that it can be an infraction.

Updated May 2009.

(info and links are not meant to be advice on any specific case, and citations to statutes are paraphrased. For advice on your case, consult with a license attorney and/or check official publications for current statute language)

For more info:

By Attorney Christopher Dort  - Email cdort@dortlaw.com

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Traffic Court Pros.com

What is a Vehicle Code 40508(b) Violation?

California Vehicle Code sections 40508b and 40508a are closely related.  40508(a)  is a misdemeanor crime defined as “Failure to Appear” and 40508(b) is a misdemeanor crime defined as a “Failure to Make Fine Payments on time.

Both of these violations are real crimes that carry a jail sentence as a possible consequence.  Simply missing a fine payment or showing up late for a court can lead to a new misdemeanor conviction.  And worse yet, when a court aadds a VC40508a or 40508b charge to a case, they often also suspend the defendants drivers license and issues a bench warrant for the arrest of the defendant.

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Because warrants and misdemeanor convictions can have long term consequences, it is important to make sure a court appear is made if a defendant cannot make a fine payment on time.  It is always better to go in and ask for more time, than to ignore a fine payment or make it late.  In most misdemeanor cases, an Attorney can go for a defendant and handle the work.

If you have to make a fine payment late, the best approach is to go to the court clerks office several days early and request a court appearnace.  Once in court, you can ask the judge for more time or an adjustment.  Chances are the judge will respect your efforts to get it done without causing the court a problem and will grant your request.

Here is the actual text of the Failure to Appear and Failure to Pay Statute (Vehicle Code section 40508) as published by the CA DMV:

40508.  (a) A person willfully violating his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court or before a person authorized to receive a deposit of bail is guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested.

(b) A person willfully failing to pay bail in installments as agreed to under Section 40510.5 or a lawfully imposed fine for a violation of a provision of this code or a local ordinance adopted pursuant to this code within the time authorized by the court and without lawful excuse having been presented to the court on or before the date the bail or fine is due is guilty of a misdemeanor regardless of the full payment of the bail or fine after that time.
If you have a failure to appear problem or bench warrant, request a free attorney case review and let us show you why it makes sense to have help.
-Attorney Christopher Dort

Questions?  Leave a comment.

Santa Cruz County Stops Issuing Warrants for Failure to Pay Cases

Santa Cruz-  The traffic court landscape is changing quickly in California.  The Santa Cruz Superior Court has joined the growing list of courts giving up on using a threat of jail time to collect fines.  The court recently announced they will no longer issue warrants for a failure to pay court ordered fines.  Instead, they will use a private collection agency to collect.  Is this bad news, or good news for people with outstanding fines?

Ironically, it could be very good news for some.  Old warrants will be recalled automatically.  But the bad news is that defendants are losing the right to contest how much they owe in court.

How It Was At The Old School:  In many courts in California, and in Santa Cruz before the end of last year, the court uses a “warrant and arrest” process to collect delinquent fines. The process was relatively straight forward:  a defendant misses a fine payment, then a warrant is issued.  Eventually, the person was arrested and brought to a court hearing to deal with the problem.

For the most part, the warrant and arrest procedure is still used in counties such as Riverside and San Bernardino.  In those counties, a failure to pay a court ordered fine can result in a warrant.

This warrant and arrest system is very powerful, but very inefficient.  It did result in the arrests, and could prevent a person from getting employment.  But the cost was high and profits low.  In many cases, a single court appearance could easily cost the court more than the  value of the fine they were trying to collect.  And bringing delinquent fine cases into court resulted in thousands upon thousands of useless court hearings.

How It Works At The New School:  Because of these problems, many courts in California are now turning away from the warrant and arrest model in an effort to reduce the waste of court resources.  In essence, they want to reduce the number of court hearings on fine issues.  Instead of isssuing warrants, they are adopting a different procedure that keeps defendants out of courtroom, and in private collection agency lines.

Some sources suspect that these private collection agencies, such as GC Services, conduct sales campaigns directed at the courts - trying to get the fines as their own collection accounts for profit.  The Court pays the collection agency a commission on the money they collect.

Santa Cruz County Superior has now adopted the civil assessment / collection agency model itself.  A press release from the court states they are “hopeful” that the use of new civil assessments will make people think twice before “deciding” not to pay court ordered fines in criminal cases.

“This is a matter of fairness and holding people accountable for the penalties they receive in criminal cases.” says Tim Newman, spokesperson for the Superior Court.

But what we think he meant to say was “the threat of going to jail on a warrant was not working!”  And its interesting to note that he belives people “decide” not to pay fine, as opposed to cannot pay fines.

According to California law, courts can use the addition of “civil assessments” as a way to collect court ordered fines.

Now, the Santa Cruz court will follow this procedure for failure to pay fine cases:

1) add a civil assessment (fine for having a fine);

2) refer the case to a private collections agency; and

3) Instruct DMV to suspend the  drivers license via a Vehicle Code section 40509.5 Hold.

4) If unpaid for a long time - Refer the fines to the State Franchise Tax Board.
Once a fine is late - the court states they will not accept any payments and will not schedule a court date once a case
has been referred to “collections”.

This means defendants with a legit reason for not paying a fine (or with a defense to the claim), they will no longer be able to challenge the action in court.

So what’s the good news? The bottom line is that now it appears late fines will not result in jail time in Santa Cruz.  And the new procedure is retro active - the court has already started recalling bench warrants issued in the past.

When a warrant is recalled, the court states they will notify people that they have 10 days to answer for outstanding fines or face the civil assessment procedure.

For those people with pending warrants in Santa Cruz for a late fine, you may get real lucky. By calling the traffic or criminal division court clerk, you can find out if your warrant was recalled yet.

One word of caution - a delinquent fine can result in a drivers license suspension.  Driving on a suspended drivers license is a crime that can lead to arrest.

A second word of caution - this procedure does not affect FAILURE TO APPEAR cases, which are different.  In FAILURE TO APPEAR CASES, the court will continue to issue warrants.

And if a fine payment was a term of probation (for example in a DUI case) it is possible the court could still charge the defendant with a probation violation separate from a civil assessment.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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

Traffic Court Pros.com can help! Get a Free Case Review (Click here)

Or research your issue with our Traffic Court Pros.com Custom Search:

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Notify DMV of Your Address to Prevent Problems

The courts and DMV often send notices related to traffic citations to a persons address as listed in the Department of Motor Vehicle records. To make sure you get all notices from the court and DMV, make sure your DMV address is current. If it is not, you can update it on-line at: http://www.dmv.ca.gov/online/coa/welcome.htm.

Because the law requires a person to keep their DMV address current, failure to receive notices from the DMV is usually not an effective defense to suspended drivers license charges.

What is a Vehicle Code Section 13365 Suspension?

One question we often get at TrafficCourtPros.com comes from people who are looking at their driving record from the DMV, and who get confused when they see a listing for a “VC13365 suspension”.

To the everyday person, this entry on their DMV report might as well be ancient Egyptian Hieroglyphics, or a 30 year old coffee stain.  So they come to TrafficCourtPros.com for help, asking “What the F***** is a VC13365?

And here is the answer:

VC40508a + VC40509.5 =  VC13365.

Got it? That is what they tell you at DMV.  It is new age DMV math.

No? Want an answer in English?

OK - here is the real answer from a non DMV human.

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When a person misses a court date on a misdemeanor or a traffic citation, the court adds a new charge to the case.  This charge is called a “failure to appear” or “FTA”, and the definition of a failure to appear is listed in section 40508a of the California Vehicle Code.  (VC stands for vehicle code, as does Veh. Code.)  Thus, a failure to appear charge shows up in the court file as a VC40508a violation.

When a VC40508a failure to appear violation is added to a case, the court notifies DMV of the 40508a, and requests a drivers license suspension through the procedure listed in Vehicle Code section 40509.5.  Once DMV is notified of the FTA in this way, the court lists a “VC40509.5 hold” in the case file.

Then, once DMV receives notice of the VC40509.5 hold request, Vehicle Code section 13365 instructs DMV to suspend the drivers license per the courts instructions.  When this happens, the DMV lists the action on the drivers histopry report as a “VC13356″ suspension.

So, in essence, it is a suspension caused by a failure to appear in court.

To clear the suspension, there is a 2 step process:

1) a driver must clear the hold with the court by either appearing in court and asking the judge to remove it, or by paying off the case in full (where possible); and

2) the driver must contact DMV to determine if a visit to DMV is required to reinstate the drivers license.

Clearing the hold with the court alone is not enough to reinstate the drivers license. A driver with a VC 40509.5 hold and/or a VC 13365 suspension must contact DMV once the hold is released to verify the status of their drivers license.

For more info see these articles:

What is a VC 40508a charge? |    How Do VC 40509.5 Holds Work?

-Christopher Dort, Esq.

Editor in Chief, TrafficCourtBlog.com

Email: cdort@dortlaw.com

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

Traffic Court Pros.com can help! Get a Free Case Review (Click here)

Or research your issue with our Traffic Court Pros.com Custom Search:

Going to court yourself and want an Attorney’s Advice?

Get a 1 hour Attorney Conference for $89.

Clear Your DMV Record with an Expungement.

Question about this article? Post a comment and we will try to respond with useful info.