Did you lose your traffic court case and feel that the judge made an error in ruling against you? Well, there is a way to try again. If you lose a trial after pleading “not guilty” on a traffic citation, or if the court makes an order that substantially affects the case, you have the right to an Appeal decided by different judges.
Here is a step by step guide to Appealing a Traffic Court Trial in California.
Step 1 Is Losing a Trial or Your Rights.
It may sound like a no brainer that you have to lose a trial to appeal one, but the devil is in the details.
|A defendant who pleads guilty or no contest does not have the right to an appeal. |
Many people who plead guilty are unhappy with the outcome and feel like they should be allowed to appeal to get their fines or violations reduced. But if you admit you are guilty – game over – no appeal. When you plead GUILTY, you are saying “I am guilty!”. There is no back tracking from a confession in court like that – no matter how much you hate it. Pleading “No Contest” is the same as GUILTY.
To be eligible for an appeal, you must first plead “Not Guilty” at the arraignment (or by mail on some citations) and request a Court Trial. Then, you must show up and lose a trial.
It is also possible to Appeal a Specific Order of the Court, if it has the effect of substantially affecting your rights. It would apply in the case where the court denies your rights by: 1) refusing you the right to challenge a civil assessment (see penal code 1214.1(d)), or 2) if the court refuses to allow you to have an attorney represent you at trial.
You can only appear errors of law. You cannot appeal factual decisions made by the trial judge. This means if the judge decides to believe the cop instead of you, there is nothing to appeal. Deciding who to believe is a factual finding that you cannot appeal.
But if the judge makes a legal error, such as refusing to allow you to cross examine the police officer, you can appeal that error.
An appeal basically works like this: 1) you file a notice to the trial court and the court of appeal that you wish to appeal. Then, sometime later, 2) you have to file a Brief, stating in writing what the error was, and why it should be reversed.
After a trial, this means you have to collect the transcript of the trial, and use it to point out exactly where the error was made.
To appeal an order of a judge when there has been no trial, you must get proof of the order that you want to challenge. If it was a denial of a Petition to Vacate a Civil Assessment, you need a copy of the Denial letter (or clear Minute Order from the courtroom clerk).
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The “Notice of Appeal” is how you tell the court you want an appeal. The actual Notice of Appeal is a 1 page Judicial Council Form that you can get online and mail to the court or file in person. It’s very simple and essentially tells the trial court and appeal court what case you want to appeal. It comes with detailed instructions.
You should file the Notice of Appeal immediately, without delay, in person. Take a copy with you when you go to the trial just in case you want to appeal and get the Notice part done while you are there in court.
There is a deadline for filing a Notice of Appeal, and as of the time of this writing, it is, in CA, 30 days from the date the final decision was made. It does not matter when you received a final notice or when it was mailed. The deadline is from the date of the decision, which is usually the trial date.
File a Notice to Appeal early by getting it to the court clerk’s office a week or more ahead of the deadline. There is no cost or filing fee to file a Notice of Appeal in CA traffic court.
On the form for the Notice of Appeal there is a check box so that you can request a copy of the tape or transcript of the trial. Get it, you need it.
The clerk at the court where the trial happened will receive the notice and prepare the record. The clerk then sends the record to the appeal court or the Appellate Division of the Superior Court. The record should include all the evidence used at trial, including exhibits (photos?). If the Judge returned exhibits to you – then you must deliver the exhibits yourself to the Appeals Court and get them filed in the case.
There is no fee for filing a Notice of Appeal. There may be a fee for copying and sending the record. If you cannot afford it, you can apply for a waiver of the fee with the court clerk called an “Indigent Fee Waiver”
Once the Appeals Court gets a complete copy of the record, they set a deadline for the “Appellant” to write a statement about why the appeal should be granted. This statement is called an “Appellant’s Opening Brief” and it where you make your arguments.
After the Notice of Appeal is filed with the court, you have to write an “Appellant’s Opening Brief”, and get it filed with the APPEAL COURT prior to the deadline they make up. The Appeal Court may be in a different location, so dont get the appeal court confused with the trial court.
Once an Appellant’s Opening Brief is filed, the government gets to respond to your claims (usually the city attorney’s office). But the government can just ignore you and let the court decide the appeal without a response.
The appeal court will not review the entire trial. They will only look at errors of law that you challenge. You must point them out, and state why they are errors of law that affected the case.
The appeal decision will be based on the arguments of the defendant and the government in documents called “Briefs”. It sounds more complicated than it is. Basically, a Brief is just a statement of why the appeal court should overturn the ruling of the trial court.
California Rule of Court 8.928 gives instructions on how to format and what kind of cover to use for your Appellant’s Opening Brief. You can do it at Kinko’s. Or at least you could before they disappeared.
You will need about 5 copies made.
Once written, the brief must be filed with the Appeals Court. You will be told where it should go. You can mail or file it in person. I say file it in person.
Then you must get some one to deliver or send a copy to the government representative handling their side of the appeal. Usually this is the District Attorneys office, but the court will let you know exactly once the Notice of Appeal is received. The defendant cannot serve the opening brief himself, it must be a person who is not connected to the case at all.
California Rule of Court 8.927 gives instructions on how to file and serve the “Appellant’s Opening Brief”.
Once you get some one to deliver or send a copy of the Opening Brief to the government, that person must sign a “Proof of Service Form” that then gets filed with the Appellate Court. There is a Proof of Service by Mail Form and a Proof of Service in Person Form. If the copy was dropped off at the DA’s office, use the Proof of Service in Person Form.
The proof of service can be filed with the appeal court by mail or in person – but in person filing is best so that you get a receipt or proof of filing.
After the Appellant and the Government file briefs, the Appeals Court will review the Briefs and the Record, and make a decision. Usually the Appeal Court is actually the Appellate Division of the Superior Court, which is a three judge panel that rotates membership.
For the court’s instructions on how to fill out the Traffic Court Appeal Forms, see the Judicial Council Form Instructions for Traffic Court Appeals
So now that you know how to do it, how do you win a Traffic Court Appeal? Well, that is a topic for another article.
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