What is a Speed Trap Defense? Take a look at California Veh. Code 40802(a)

In California traffic court, evidence of speeding gathered from a “speed trap” is not admissible to prove a person was speeding. This fact is the source of the “Speed Trap” defense. If it applies, you win.

In summary, the defense is this:

The government has the burden to prove at trial that your speeding citation was not based on a speed trap, as defined by California Vehicle Code section 40802. “Burden” means the officer or prosecutor must prove it first, before the defendant has to say anything.

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If the government cannot meet their burden, then the evidence of the defendant’s speeding is not admissible, and the citation should be dismissed.

If they can’t prove it was not a speed trap, then the defendant does not have to do anything but ask for a dismissal.

As speed trap is defined by Vehicle Code section 40802(a) as:

40802. (a) A “speed trap” is either of the following:

(1) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.

(2) A particular section of a highway with a prima facie speed limit that is provided by this code or by local ordinance . . ., if that . . . speed limit is not justified by an engineering and traffic survey conducted within five years . . ., and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This paragraph does not apply to a local street, road, or school zone.

Most commonly, the speed trap defense is used when the officer who testifies at trial cannot produce a timely engineering report to establish that the posted speed limit was justified. If the report is missing, or not timely, it’s a speed trap citation.

Practice Note: This defense does not apply to local, residential streets.

Practice Note # 2: A speed trap defense will not work for a failure to appear charge. It’s not legal justification for not appearing in court on the date listed on your citation.

Practice Note #3: You must plead not guilty and have a trial to use this defense.  You cannot get a speed trap dismissal at the first court date, which is known as the “Arraignment”.

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When does an Officer have to show up in Court? At the Trial.

So what happens if you show up on the date listed on a traffic ticket, but the cop does not show up?  Whohoo! The ticket goes away!!! Right? No, That Is Wrong.

From the many questions we get at Traffic Court Pros.com I can surmise that some people believe that if you show up in court on the date listed on a ticket, and the officer does not show up, your ticket will be dismissed.  Don’t fall into this frustrating trap! The officer who wrote the citation does not have to show up unless there is a trial.

When a person receives a ticket or citation, it starts a process that has several steps. The first step (the first court date)  is the “Arraignment”, where you can plead “guilty” or “not guilty”. If a defendant pleads Guilty, the case ends and the cop never has to appear.  If the defendant pleads “not guilty”, then the court will schedule a trial.

If you pay a fine by mail, you are in effect pleading guilty and there will be no trial.  The officer does not ever have to show up at all if you choose to pay the fine, rather than have a trial.

A defendant must ask for a trial if they want one by pleading not guilty.  There are generally 2 ways to plead not guilty:  1) post bail (the amount of the fine as a deposit with the court); or 2) appear in an arraignment in person and tell the judge in person that you plead not guilty (no bail required).

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If there is a trial, that is where evidence is presented by the officer, and you have the opportunity to present a defense or testimony on your side.

If you show up in court on the date listed on the citation, this first date will generally be your Arraignment. The only thing that happens on a traffic ticket arraignment is that you get to tell the judge guilty or not guilty. No evidence is taken at the arraignment, and the court will not make any rulings.

Because of the nature of the Arraignment, the officer does not need to be present, and the court will not be interested in hearing your side of the story. So don’t bother bringing any witnesses to the first court date.

Because there must be evidence presented at the Trial in order to find you guilty, the court requires the officer to show up at the Trial. In most cases, it is only at the Trial date that the officer must appear and present evidence to support the citation.

If you go through the work of setting a trial date, and the officer does not show for the Trial, then you’re lucky.  You should tell the court that you wish to make a motion to dismiss the case, based upon the fact that there is no testimony to verify the allegations (violations on the citation).

But beware! This is not always a winner - the court has the power to continue the Trial to a later date when the officer is available. If this happens, make an objection to protect your right to appeal. THe grounds for the objection is a “denial of due process and the right to a speedy trial”.

Questions on when an officer must show up in court?  Leave a comment.

How to Disqualify A Biased Judge. Its Easier Than You Think

Want a different judge to hear your traffic court case? Afraid to let a Commissioner hear your misdemeanor case? There is something you can do to get a different Judge to hear your case.

In California, the Code of Civil Procedures provides a method of disqualification of a judge or commissioner  that may be used in civil cases, criminal cases, and even traffic court. A quick and easy disqualification can be made by filling out a written form and filing it, or as an oral request made in court. If done correctly, disqualification is automatic, and immediate. Here are the details.

California Code of Civil Procedure section 170.6 provides that a judge must disqualify him or herself upon a timely motion by any party or attorney for qualification, so long as there is a sworn statement under oath that the party or attorney believes that that the judge is biased against that party or attorney. A challenge to a judge under section 170.6 is called a “pre-emptory challenge”.
Sec. 170.6 provides for judicial disqualification without any evidence of actual bias. Once a Sec. 170.6 motion has been filed, with a statement under penalty of perjury or an oral statement under oath indicating that the judge is so biased “that the moving party or her attorney believes she cannot have a fair and impartial trial or hearing”, the judge ordinarily has no choice but to disqualify himself.

The peremptory challenge right is “automatic”. A good faith belief in the judge’s bias is alone sufficient to insure that the challenged judge will no longer be permitted to sit.

Some California Appellate courts have ruled that when a party properly makes a proper motion under Code of Civil Procedure sec. 170.6, the judge immediately loses jurisdiction and any action he takes on the case afterwards is void.

A motion to disqualify a judge under Sec. 170.6 must be made in a “timely fashion”, which generally means at the first hearing where a judge has been assigned to a case. In other words, the motion must be made at the first opportunity. You cannot decide to make the motion after you have allowed a judge to hold hearings in a case. You may only use one 170.6 challenge per case.

To make a CCP 170.6 motion to disqualify a judge, you should use the standardized local judicial counsel form. Most courts will post a Local CCP 170.6 form (such as this one for LA County) on the courts web site in a “pdf” format. It is best to fill out the form before going to court. Once there, if you decide to disqualify the judge, when your case is called, tell the judge you have a motion to file and hand the form to the bailiff or court clerk, who will show it to the judge.

If you cannot get or find a form for the court, you can make the motion orally, or in a simple letter which declares under penalty of perjury that you have a belief the judge is biased.   Review the sample above for help.
Don’t feel bad or guilty about disqualifying a judge. It happens everyday in every court, to every judge. If you need to change judges to protect your interests, do it.
One more tip: If you are charged with a misdemeanor in traffic court, the court must get your permission to have a Commission, instead of a real judge, decide your case. If you do not want the Commissioner to hear your case, just inform the court in writing or orally in court that you do not “stipulate” (or agree) to have a Commissioner hear your case. The court should then transfer your case to a real judge.

C. Dort, Esq.

info@dortlaw.com

www.dortlaw.com

For more detailed information on CCP 170 disqualifications, go to: http://www.cce-mcle.com/tests/ss6005b.htm

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Fighting Traffic Citations: Trial by Declaration Explained

If you are really serious about doing all you can to fight a traffic ticket, a Trial by Declaration is a good way to start.  It is a way to have a judge rule on your case after reviewing written statements from both sides.  And no court appearance is necessary, so it requires less effort than a court trial in person.

A defendant can win a trial by declaration if they have a real defense, and there is no harm in trying - because a defendant who loses a trial by declaration can still have a court trial in person.

To set your case for a Trial by Declaration you must request one in writing from the court clerk.  Generally, it must be requested before the deadline on your citation - or before your first court date if the court changes the court date on you.

You can also ask for a trial by declaration at your Arraignment (first court date) but the judge may deny the request and send you to a live court trial instead if the request is too late.  But generally, the courts prefer a trial by declaration because it prevents the officers from coming in to court, and limits the amount of resources the court must spend on the trial.

Some courts, such as the Santa Cruz Superior, will receive the request for a trial by declaration over the phone, but its probably best to make the request in writing.  Some, but not all courts have their own local “TBD” Request Form which is optional.

After a request is made, the court has 15 days to set a deadline for the defendant and officer(s) to submit written statements for review.

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After requesting a Trial by Declaration and getting a date, you must submit (file)  your statement to the court clerk with all of your evidence on a standardized form. You can find the Form at www/courtinfo.ca.gov. (http://www.courtinfo.ca.gov/forms/fillable/tr205.pdf.) Official Trial By Declaration Instructions are available at the San Diego County Superior Court’s Web Site - Traffic Court Forms Section.

Once you submit your statement and evidence, the officer who issued you the citation must submit a response. Once the officers response is in, the court reviews the statements and evidence, and makes a ruling without the parties being present in court.

Some defenses are ideally raised in a Trial by Declaration. For example, in a case where an officer makes a mistake you can prove, such as there was a “Yield” sign where the officer thought there was a “Stop” sign.   A picture of the intersection and a sworn, signed, Trial by Declaration from is a good way to present that defense without wasting time and effort.

If you lose a Trial by Declaration, you can request a court trial, and start over. When the court sends you the decision that you lost, it will also include information on how to request a “Trial De Novo”, or a new live court trial. Basically, you must fill out the Request for Trial De Novo Form (http://www.courtinfo.ca.gov/forms/fillable/tr220.pdf) and submit it to the court.

“De Novo” is Latin for “of new”. And yes, “El Nino” is Spanish for “the Nino”.

Questions?  Send them to cdort@dortlaw.com or leave a comment

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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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