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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When Do Warrants Expire? Never On Their Own

I often get questions from people who have outstanding warrants asking when the warrant will expire.  Every time I get one of these question, I have to roll my eyes a bit - because when a person asks that questions, it indicates they do not understand what is going on when a warrant is issued.

In California, (and the rest of the US as far as I know) nearly all warrants are court orders instructing a law enforcement agency (usually the County Sheriff for a state warrant) to take a person into custody.  Most warrants are issued because of a problem in a pending case, such as a missed court date.  Because it is a court order, a warrant can only be recalled by the court that issued it.

Regardless of whether the warrant comes from the Los Angeles Criminal Court, traffic court, or federal court, there are pretty much only 3 ways to get a warrant recalled:

1) law enforcement takes person into custody;

2) person goes to court and cures the problem that led to the warrant issuance; or

3) person posts bail with the court and schedules court date to deal with the warrant.

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Some warrants are easier to take care of than others.  For example a warrant with a $500 bail may be resolved without jail time if taken care of correctly, but a warrant with a $1,000,000 bail means the person is going to jail for sure.

But there is no expiration period for a warrant.  They cannot, and should not be ignored for even a day.  Even a 10 year old warrant can result in arrest on the road, at the airport, or even at your place of work.

Courts that issue warrants do not just give up on their order to take a person into custody after a certain amount of time.  The warrants stay active until the problem is cured.

Many times in my 12 (or is it 13 now?) years of being a trial attorney, I have seen warrants 10 or more years old result in the arrest of a person.

In nearly all warrants, a court appearance is mandatory.  There is almost never a way to take care of a warrant by telephone (unless you use the telephone to hire an attorney and/or post bail)

The “statute of limitations” does not apply in any way to a warrant.  A “Statute of Limitations” is a deadline for a prosecutor to File Charges with the Court.  It is not in any way a deadline to catch a person.

And no, leaving the state or country does not solve a warrant problem.  It only makes it worse.  For example, last year I talked with a potential client that had a 15 year old warrant in Santa Clara County Superior Court.  It was a no bail warrant, and he had left the US to live in a new country, thinking he could out run the warrant.  Well, in the end, it turned out that the new country denied him residency due to the warrant in the US, and were in the process of booting him. And the real trouble came around when he discovered he probably could not fly back to the US without being arrested on the very old warrant.  I wanted to help him and have him hire me - but in the end I had to just tell him he was screwed. Even though the warrant was years old, he was going to prison for sure.

If you have a warrant pending, I strongly recommend getting one of our FREE ATTORNEY CASE REVIEWS and/or contacting the court to determine what to do.  Do not delay.  Everyday that a warrant remains pending makes it harder to get a good result.

Questions?  Leave a comment or 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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Now is the Time to Take Care of Old Cases in Contra Costa Courts

If you have an old misdemeanor case (such as Vehicle Code section 14601, 12500(a) or 40508a), or an old DUI warrant problem in Contra Costa County traffic or criminal courts, now is the time to take care of it.  A temporary perfect storm of good results in misdemeanor and warrant cases is being fueled by DA and court budget problems.

Skeletons in the Closet? Evict them this Halloween

What’s changed?  Well a few months ago the Contra Costa District Attorney announced a plan to stop prosecuting some misdemeanor offenses because a lack of funds forced him to limit and direct resources to more serious felony cases.

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And the Superior Court itself, especially the traffic and criminal divisions, have been on a long term plan of saving resources on minor cases by resolving them with sentencing offers that make pleading guilty attractive to a misdemeanor defendant.

Together, these forces result in the court treating many misdemeanors as infractions, and recalling many failure to appear bench warrants without much trouble when the defendant takes care of the problem voluntarily.

We run into specific examples each week.  For example, under normal conditions, and in other ports, a violation of California Vehicle Code section 14601 (driving on a suspended drivers license) is a misdemeanor, punishable by up to 6 months in the county jail and a hefty fine.  A second offense carries a minimum of 5 days in the county jail, technically, and a fine of $1000 + when it’s all added up. The text of the law clearly states it should be a misdemeanor.

But one client last week got two 14601.1 charges reduced to infractions - even though he had 4 prior offenses! It really was an outstanding result.  In other courts, we would expect 6 months county jail.

Because there is a possibility of jail time with a misdemeanor, usually VC14601 defendants have a right to a jury trial. But jury trials cost money, and CoCo County Courts and county offices are squeezing every penny. They don’t want misdemeanor defendants having trials.

So, the county prosecutors in Contra Costa have not been using resources to fight the 14601.1 cases, warrant cases, and DUI probation violations, and as a result, the courts have been routinely treating these problems as “infractions” for defendants who appear in court voluntarily.

Infractions are not crimes, and carry only a fine as the possible sentence. Jail time is not possible with an infraction.   There is no right to a jury trial on an infraction.

By treating a 14601 misdemeanor or failure to appear as an infraction, the court does not have to allow a jury trial and the prosecutors do not have to do any work on the cases at all.  And it’s a win win situation for the defendant, because an infraction is usually a great result when you are facing a criminal misdemeanor charge to start.

This means the budget problems have effectively decriminalized driving on a suspended license cases and most failure to appear charges in the county for now.

There is a similar effect on cases with a failure to appear (Vehicle Code sec 40508(a) cases).  Where most courts would issue a warrant on a missed court date, Contra Costa traffic court Commissioners are treating missed court dates as an infraction with “civil assessment” penalty (fine), and not a criminal problem.

Some things have not changed: The court still imposes a drivers license hold as a result of a missed court date (which causes a DMV license suspension), but they are not requiring jail time.

This means that it is easier then ever to get misdemeanor cases reduced to infractions - even if there is a missed court date and failure to appear charges (Vehicle Code section 40508(a)). And it is easier than ever to get DUI warrants and probation violations cleared up without jail time.

Thanks to a lack of funds, a scary criminal problem can now be cured fast and the chances of getting out of a big problem with a good result have never been better.  Who knows how long it will last, but it doesn’t matter. If you have a failure to appear case in Contra Costa, you should take care of it ASAP.

Taking voluntary action to solve a warrant or misdemeanor problem is the best way to get a good result.

Most misdemeanor and warrant cases in the Pittsburg or Walnut Creek Courthouse can be placed on the courts schedule on a walk in basis, but the days are limited. The courts only have walkins for most cases 11 days a month (Mon, Wed, Fri and Closed some Weds.).

Walk in requests must be made at 8 am at the court clerks office.  We recommend calling in advance to make sure they do walk ins on the chosen day.

A court appearance is required to resolve most failure to appear cases, but an attorney can go for a client, or the defendant can go on their own.

If you have an old case pending in CoCo County, request a Free Case Aeview to let us show you why it makes sense to have help.

-Chris Dort

Statute of Limitations Does Not Work On Warrants

One of the most common questions I get at TrafficCourtPros.com is How Long Is The Statute of Limitations on a Warrant?

For this question, I have good news and bad news.

The good news is that I am going to answer it once and for all and save the users of TrafficCourtPros.com time, money and embarassment.

The bad news is that there is no Statute of Limitations problem with a warrant.

The reason is this:  the Statute of limitations for crimes is only a deadline to file charges against a defendant or accused.  It is not a deadline to catch a person!!!!!!
Wouldn’t that be nice - avoid prosecution just by being good at hiding?  No?  Well the idea of a statute of limitations is to prevent the defendant from suffering because the district attorney can not get things filed on time.

But if the District Attorney, or the City Attorney does their job and files the papers to start a case - there is no statute of limitations problem.

All warrants are issued from existing cases, where charges have already been filed.  Because the charges on a warrant case are filed, there is generally no missed deadline.

And in traffic court cases (where the vast majority of warrants arise), the police officer meets the filing deadline by sending the citation with the drivers signature to the court clerk.  That is it.  All it takes to satisfy the statute of limitations.
If you have a warrant problem from an old case, get a free case review from TrafficCourtPros.com.
Christopher Dort, Esq.

Questions?  Send them to Attorney@TrafficCourtPros.com

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

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San Diego Sheriff Asks for Warrant Tips On Line

If you have an arrest warrant or bench warrant pending in San Diego county, Watch out!  In a perfect example of technology gone over the top, the San Diego Sheriffs office has come up with an innovative way to serve traffic and DUI warrants (arrest people).

They launched an on-line web form on their web site that asks for anonymous tips on how the Sheriffs Dept may locate people with warrants. That’s right, they are asking friends and neighbors to rat out people with warrants electronically! No phone calls required.

And they also created a whole web page devoted to, as they put it:

“The San Diego County Sheriff’s Department actively attempts service of warrants issued by our courts. We encourage the public’s participation in that effort.”

If think you may have a warrant in San Diego, you can look it up on the Sheriff’s web site.  With their search, you can get the charges, bail amount (if any) date of the warrant, case number, and the courthouse location.

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How do you clear up a warrant?  Generally, typically a defendant misdemeanor warrant must go to the applicable courthouse and arrange a court appearance.  For some warrants, a defendant may post bail with the court and set a court date to get a warrant recalled. Then the defendant must take care of the underlying case.

Visit www.TrafficCourtPros.com for free Attorney Case Reviews on warrant problems.  In many cases, an attorney can appear in court for you within a few days - sometimes the same day.

Chris Dort, Esq.

Kangaroo Court? No Consistency in How Courts Handle Failure to Appear Cases.

How traffic courts deal with failure to appear cases differs greatly from courthouse to courthouse. In this article, Attorney Christopher Dort reviews the most common ways California courts handle a failure to appear on a traffic citation, and shows how to understand what is happening to a case after a missed court date.

When I was in law school, I once had to tell my trial advocacy professor that I had to miss a class because I scheduled a traffic court trial on one of my own tickets. Upon hearing this, my professor replied:

You want to go to Kangaroo Court instead of learning how to do a real trial?

10 years later, I think I finally figured out what that professor meant. You never know which way the traffic court kangaroo is going to jump, and you will probably get your butt kicked in a boxing match with a kangaroo.

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Today, the kangaroo is alive and well when it comes to failure to appear cases on traffic citations, but I’ve figured out the most common ways it jumps. Here is what you need to know to figure out what is happening if you missed a court date on a traffic ticket.

All traffic citations have a court date listed on the bottom of the ticket form, along with the courts address. When a person signs a ticket, they are making a legal promise to appear in that court on that day.

Once this ticket is signed, the court is not required to send any other notice to the defendant of a court date.

Many people make the mistake of thinking that they do not have to go if the court does not mail them a court date. The truth is the court is not required to send you anything once you sign a ticket.

If a defendant fails to appear on the date listed on the ticket, the court has a number of options on what to do, and what happens differs in a very confusing way from court to court. Here are the main procedures used in California traffic courts.

A Court May Elect to Treat A Failure to Appear As A Request for A Trial By Declaration.

A trial by declaration is a procedure by which a defendant can request that a judge review the paperwork related to a citation, and make a decision as to guilt based only on the paperwork.

When done correctly, the defendant and the police officer each send in sworn statements about what happened, and the judge reviews those statements and the citation, then makes a ruling.

If a defendant does not like the ruling on the trial by declaration, they have 30 days to request an in person trial. To get this second chance at a trial, the defendant must file a “Request for Trial De Novo” on the approved form, on time. If the defendant does not request a trial de novo on time, the case is over. The defendant must pay the penalty as imposed by the judge.

But there is a law that allows the judge to use this procedure if the defendant fails to appear for their court date, and even if the defendant does not request it. The law is California vehicle code section 40903, and it states a failure to appear can be considered a request for trial by declaration.

If the court elects to treat the failure to appear this way, the court reviews the ticket, and nothing from the defendant at all. Because there is no evidence from the defendant, the defendant has no say in what happens.

The court finds the defendant guilty, generally imposes a harsh penalty and the case is closed. No further court appearances are allowed. The defendant is sent notice of the decision and penalty to the address on the citation, and if the penalty is not paid on time, more serious consequences follow.

If this happens, there is a solution. The defendant may request a trial de novo within 30 days and get a new court date to try to do something different with the case. But the defendant must take action within 30 days.

This procedure is used in Calaveras County, in Wastonville Courthouse, Solano County, and others on traffic infraction only cases (not in misdemeanor cases). But other counties take a completely different approach.

Some Courts Suspend a Defendants Drivers License When There is a Failure to Appear.

Other courts take a different approach, and try to prevent giving the defendant a second chance with the “Trial De Novo Procedure”.

They do this by using California Vehicle Code section 40509.5 instead. That statute (or law) allows the court to suspend a persons drivers license with a “VC 40509.5 hold” until the defendant appears in court to take care of the case, which is kept open.

Most courts that use this procedure also impose a new fine called a “civil assessment” to the case as part of the VC40509.5 action.

In courts where they impose a VC 40509.5 hold for a failure to appear, the defendant still has the right to demand a trial and contest the citation. However, the timing of when the court releases the hold is up to the judge.

In some courts, such as Los Angeles County Superior, the courts will release the drivers license hold once a court appearance is made. Other courts, such as Sacramento County, may require the defendant to fully close the case and pay any outstanding penalty before the Vehicle Code 40509.5 hold is released and the drivers license cleared.

However, often when there is a VC 40509.5 hold (and no warrant or extra charges), the defendant can end the case without a court date by paying the court or a private collection agency in full for everything. Such payment is an admission of guilt to all of the violations, but will end the case. But the defendant does have the option of setting a court date and demanding a trial.

Once a 40509.5 hold is released by the court, the drivers license does not automatically become valid. The defendant must first visit DMV to get a valid drivers license re-issued. Many people skip this step (because the kangaroo doesn’t give them clear instructions), and later get into deeper trouble by driving on a suspended license - even though the original case is cleared.

If you had a VC 40509.5 hold, call DMV to ensure your license is valid. You may have to go to DMV to get a new license.

Some Courts Will Add A New Misdemeanor Failure to Appear Charge to the Case.

California Vehicle Code section 40508a makes it a misdemeanor crime to fail to appear after signing a promise to appear. This statute provides for a penalty of upto 6 months in the county jail. And if convicted of the VC 40508a misdemeanor, the defendant will have a new conviction on their criminal record that will be visible to potential employers, and anyone else doing a background check.

Some courts, such as Riverside County, will add this new, more serious violation to a simple infraction case when the defendant misses a court date.

Generally, when the new 40508a misdemeanor is added, this prevents the Defendant from contesting the original violation, because even if they somehow beat the original violation, they will get convicted of the more serious misdemeanor.

Because of this fact, some courts use the VC 40508a violation as a way to prevent defendants from fighting a violation after missing the orignal court date listed oon the citation.

(Remember - the fact that the court did not mail you anything is not a defense to a failure to appear charge. The court is not required to send you anything after you sign a promise to appear. It is usually a mistake to fight a traffic violation with a misdemeanor VC 40508a charge if you do not have a defense to the failure to appear charge. You might end up beating the infraction, and getting convicted of a misdemeanor instead)

To clear up a case with a VC 40508a misdemeanor charge, a defendant must appear in court.

Some Courts Will Add A Failure to Appear Misdemeanor and Issue a Bench Warrant.

Some counties take a harsher approach. They will add the misdemeanor failure to appear charge under vehicle code 40508a, and at the same time, issue a warrant for the arrest of the defendant who missed a court date.

When this happens, the defendant must appear in court to get the warrant recalled. Some judges will take defendants with a warrant into custody right away. Judge Hastings in Santa Clara County is an example of a judge who routinely takes defendants into custody right away when they have a warrant. Some judges will recall a warrant without much trouble once a defendant appears in court.

There is no consistency on how to solve this problem in the different county courts. In some courts, such as Sacramento, once a warrant is issued, the court will not give you any information on it, except to tell you to turn yourself in at the Sheriffs Office.

Other courts do it completely differently. For example, in San Diego County, an Attorney can get a warrant recalled on a traffic court or misdemeanor case by sending a simple fax requesting a court date. (why don’t other courts use this procedure????)

Courts such as Riverside County, and San Bernardino County issue bench warrants on nearly every failure to appear case. Some courts, such as Los Angeles, will only issue a bench warrant if the judge is pissed off at the defendant.

Typically, a defendant with a warrant for a failure to appear still has the right to demand a trial. If there is a misdemeanor failure to appear charge, the defendant has a right to a jury trial.

Some Courts Will Do Everything, Suspend a Drivers License, Issue a Warrant and Add a Failure to Appear Misdemeanor.

Some courts will do everything listed above in some failure to appear cases. An example of such a court is Riverside County.

So the bottom line is this:

Defendants with a failure to appear charge need to figure out which procedure their court has used on their case to find a way to solve the problem. Every court is different, and there may be differences even from judge to judge.

To figure out what is going on in your Failure to Appear case, you may have to do a little boxing with the kangaroo. Here is my coaching advice:

I recommend calling the court clerk where the case is located and asking these detailed questions:

1) Is there a drivers license suspension?

2) Is there a VC40508a charge?

3) Is there a bench warrant?

4) Do I still have the right to a trial?

5) How do I Schedule a Court Date?

By asking these questions, and demanding real answers from a knowledgeable clerk, you can find the path to solving the problem.

If you are doing it on your own - beware of the kangaroo’s punching combinations:

1) most courts have separate traffic and criminal divisions. You may have to check with both divisions separately to find your case;

2) most court clerks in the traffic division are poorly trained, if at all, and are prone to saying things they do not understand. If you have to, ask to speak with a court clerk over 20 years old, preferably with a college degree;

3) If you do go to court to get something done, get written proof you were there. If you pay for something at the court, get proof you paid and keep it in a safe place.

4) If the court tells you to call a collection agency, keep detailed notes about the conversation, and ask them very clearly if you still have the right to a court date. If they tell you “no”, chances are they are giving you false information. Double check with the court.

5) Always make sure your address is current with the court and DMV. And always, always check with DMV to ensure your license is valid if before driving if you have a failure to appear case.

At Traffic Court Pros.com, we offer free and confidential problem reviews from licensed traffic court experts to help out. Let us show you why it makes sense to have professional help.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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How Long Are the Lines at LA Metro Courthouse? Well, How Far Do 9,000 People Stretch?

Worried about the lines in LA Traffic Court? Trying to figure out if you can go schedule a court date on your lunch break? Don’t even try in LA.

The Los Angeles Metropolitan Courthouse at 1945 South Hill Street might just be the busiest courthouse in the world. This downtown courthouse is the central clearing house for Los Angeles traffic court problems.

The majority of its visitors are there to schedule a traffic court date or enter a plea on a traffic court or misdemeanor charge.

On a normal day, 6,000 people will walk through the front doors of the courthouse and be screened by security. Then, the majority of those people walk straight to the traffic court clerks window to wait in a snake like line defined by retractable fabric barriers. Sometimes the wait exceeds two hours for a routine transaction.

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And if you want to schedule a court date, get out your biggest calendar. Frequently, persons trying to schedule a court date to fight a ticket or citation are given court dates 6-8 months away.

In an effort to speed up the process, the court recently assigned several new judges to the task of clearing out old arraignments and lightening the case load of the traffic division. They are hoping to shave 3 weeks off of the wait before a court date can be heard by a hearing officer. But according to reports at the LA Times Blog, the hearing officers were not experienced judges, and some had as little as 2 hours of training.

In part due to the recent increase in arraignments after the new judges were added, last Monday the courts daily intake totaled a reported 9,000 people.

Often, the early morning lines at the LA Metro Courthouse will circle the building and extend down the local sidewalk. Drivers passing may may well mistake the scene for a parade, but it’s really just people waiting in line to see a court clerk.

The backlog can be blamed in part on inefficiencies that could be cured. Much of the business that is now currently done in person at the courthouse could be replaced with an online service according to one observer. “Why can’t we just set court dates on-line?”. And in some court, such as San Diego County, Attorneys can complete routine arraignments on misdemeanors by fax filing a simple form. See Misdemeanor Fax Arraignment Form San Diego County.

In LA County, they do not allow fax filing for even the simplest traffic court transaction, such as entering a not guilty plea.

Here are some tips for limiting wasted time at the LA Metropolitan Courthouse:

1. Hire an attorney to go for you. (Attorneys have priority because they are sworn, court officers and can get things done faster than a non lawyer);

2. Go in the afternoon if you can. The court clerks office is open until 4. Don’t expect to get a same day court date.

3. If you have to go in the morning, get there before 8 a.m.

4. Don’t look for free parking. There is none.

5. Make sure you ask for your paperwork, and don’t leave without it. You don’t want to have to go back in after you leave;

6. If you don’t have a legit defense, and are not committed to having a trial, you can avoid scheduling new traffic court dates by pleading no contest or guilty at any time.
-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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DMV Hearings After a DUI Arrest: What You Need to Know

When a California driver is arrested for a violation of Vehicle Code section 23152, also known as a DUI, the Department of Motor Vehicles (DMV) will automatically suspended the persons drivers license. This DMV action is independent of any court action in a criminal case. Many people get confused on this point.

The DMV action against the driver is separate from the criminal case, and must be dealt with separately.

The automatic suspension action by the DMV is called an administrative per se suspension. Typically, the process goes like this: when the officer makes a DUI arrest, they confiscate the actual drivers license card. In exchange for taking this drivers license, the officer gives the recently arrested driver a DMV Suspension Advisement on a standard government looking DMV Form.

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The DMV form from the officer gives official notice that says the drivers license will be suspended within 30 days. The advisement serves as official notice of the drivers license suspension from the Department of Motor Vehicles. The 30 day period is required by law to give the driver time to take action against this automatic suspension. Everyone in this situation should read this form carefully.

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Administrative Suspension Is Automatic

The DMV administrative per se suspension is based solely on the initial facts leading to the arrest. It does not depend on whether a driver is guilty or not. It’s all about the arrest. Because driving is a “privilege” and not a right, it can be taken away without a true showing of proof at this stage. However, to sustain the suspension against a challenge by the driver, there must be evidence that the driver was actually impaired at the time of driving upon a review.

If the driver wants to present his or her own evidence, or challenge the police version of the story in relation to their driving privilege, the driver must demand an appeal hearing from the Administrative per se suspension.

To demand a hearing a driver need only call the DMV driver safety office within the deadline.

There are ways to beat a DMV suspension after a DUI arrest. There may not be sufficient evidence to believe the person was impaired, there may be problems with the testing procedure, the cops may have made errors, etc. Sometimes the innocent are accused.

Because of this possibility, it is prudent to speak with an attorney about your case soon after your arrest. Waiting until your court date will result in the deadline passing, and an uncontested suspension.

10 Days To Request Appeal Hearing From DMV

A driver can challenge this automatic suspension, but they must take action within 10 days of the ARREST. Within this 10 day period, the driver (or an attorney for the driver), must request an appear hearing to challenge the per se suspension (See Vehicle Code section 13353.2(e).)

Hearings can be in person or ever the phone. The driver may present evidence, and can be represented by an attorney. The driver may call witnesses, including the officer, testing lab officials, and other witnesses by subpoena.

Usually, a telephone call or letter from the attorney is enough to get the hearing scheduled.. Once a hearing is scheduled, the DMV will pause the suspension until a decision on the hearing, and the drivers’ license becomes valid again.

This means that you can extend the amount of time before a suspension simply by requesting a hearing date. Often DMV is booked up for months, so it can be a long period that can help a driver make new arrangements if a suspension is inevitable.

Winning a DMV hearing after a DUI arrest is difficult. A former DMV hearing officer recently told me the winning percentage was roughly 17% when the driver was represented by an attorney.

If There Is No Conviction, More Work To Do.

Even if your DUI case is dismissed, your drivers license will remain suspended unless you request a hearing.

After an arrest, the prosecutor, normally a District Attorney (or City Attorney in some places) must file charges in the Superior Court to start a criminal DUI case. Sometimes, the prosecutor will decline to file these charges, because of evidence problems.

This happens often in borderline BAC cases such as 0.06% and lower. Sometimes with such a low BAC, there will be an arrest and then a DMV administrative per se suspension, but no charges filed because of the low BAC.

If a DUI case is not prosecuted after the arrest – for example the DA dismisses the case or does not file charges - then the law requires DMV to review the suspension and reinstate the license unless they find independent justification for the suspension. (See vehicle Code section 13353.2(e)).

The drivers license reinstatement after a dismissal or failure to file does not happen automatically. If a driver is arrested for a DUI, but charges are never filed by a prosecutor, the driver may need to notify the DMV on his or her own.

If no charges are filed, the deadline for a hearing increases to 1 year, so if you missed the 10 day deadline, you can make a late request. A letter to the DMV Driver Safety Office requesting a Vehicle Code section 13353.2 (e) hearing should get it scheduled.

At the Vehicle Code section 13353.2 (e) hearing you can present evidence that the case was not filed, etc.

If a defendant is acquitted at a trial of the charges, the DMV is required to release the suspension automatically.

If the DMV fails to grant a hearing, or a driver losing a DMV hearing appear, the driver can appeal the matter to the Superior Court via a “Writ of Mandamus” – otherwise know as a request for an order to get a state agency to do their duty.

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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

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For problems involving DUI arrest, warrants and suspensions in Los Angeles County, call or email Attorney Juan Lozano, Email lozanolaw@gmail.com

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