2013 UPDATE: We Now Have a Failure to Appear Self Help Forms Package Available and related individual Self Help Forms.
Are you stuck with an unfair Civil Assessment on a traffic ticket where you had no opportunity or notice for a trial? Had to deal with a court clerk, Alliance One, GC Services or other collection agency employee, who tells you that you cannot have a court date or drivers license because the case is in “Collections”? Cant pay their crazy fees? Innocent? Identity theft?
Here is the 2012 Update on our on going battle against this sort of unfair Denial of Due Process.
Understanding The Civil Assessment and Drivers License Suspension After a Failure to Appear:
|In California traffic courts, there is a huge variance in how the courts handle a traffic ticket case when the Defendant does not show up or pay by the court’s deadline.|| |
Some traffic courts will have a Trial By Declaration in Absentia (without the Defendant) using California Veh Code 40503 and find the Defendant Guilty without advising the Defendant of their rights. When this happens, the court is required to give notice of the decision, and to give Defendant the right to Demand a New Trial (Trial De Novo) after any trial by declaration.
Then the typical traffic court adds a “Civil Assessment” fee to the fines under claimed authority of PC 1214.1(a), increasing the cost to defendant tremendously. Of course, this hurts poor people more than it hurts rich people.
After the civil assessment is added, the court notifies the Department of Motor Vehicles (using Vehicle Code 40509.5) of the Defendant’s missed court date, and the DMV then suspends the Defendant’s drivers license after a 30 day notice period.
Penal Code section 1214.1(b) requires that the court send the Defendant a 10 day warning notice before adding a civil assessment, (See Penal Code section 1214.1(b)). The 10 day Civil Assessment warning notice is required to tell the defendant they can appear in court or post bail to avoid the Civil Assessment. Many courts fail to comply with this law, or send the notice to an old address the court had from some other action, and thereby screw the Defendant out of a chance to avoid the Civil Assessment.
Finally, (much of this is pure opinion) – some courts probably send the fine account to a Private, For Profit Collection Agency with instructions to tell people there is nothing that can be done on the case. Then the Collection Agencies take over, harassing, misleading and convincing people they have no choice to pay incredibly inflated fines without exercising their rights to challenge an unproven Failure to Appear charge and Denial of Due Process Rights.
Some Courts may seem to hide the Defendant’s right under Penal Code section 1214.1(d) to challenge a Civil Assessment. You do have due process rights even after a Civil Assessment and referral to a for profit collections agency. Read the statute.
To combat injustice if it happens to you, I say do all of the Following at the Same Time:
2) Demand a New Trial After Trial By Declaration in Absentia (Trial De Novo);
4) make a Petition to Vacate Civil Assessment; and
Of course, there is no guaranteed way to beat a failure to appear case. But, if you try everything I list here, you give yourself the best shot at relief – and we have seen this approach work over and over for some people.
The courts do not want traffic ticket failure to appear cases coming back into court. It costs the courts a great deal of money to give you court time. And they are sick of failure to appear cases sucking up valuable resources.
Want more details? The courts with the flawed procedure commit 3 legal errors:
1) they fail to make the required Vehicle Code 40503 “Election” (choice) to deem the Failure to Appear a “Request for Trial By Declaration” properly and they do not actually conduct a trial by declaration;
2) they do not provide Notice to the defendant of the election in a manner reasonably designed to provide actual, timely notice to the Defendant, thus denying the Defendant the right to be heard in open court;
3) they do not provide the required notice of a decision on the trial in absentia at all, and
4) by failing to provide Defendant notice of the decision after trial in absentia, the courts do not give the defendants the opportunity to use their right to demand a Trial De Novo after losing a trial by declaration (as required by Vehicle Code 40902);
5) When courts add a “Civil Assessment” under penal code section 1214.1(a) without a trial by declaration election and notice of decision, they are violating the Defendant’s right to a trial. And the Defendant’s right to cross examine witnesses simply disappears somehow, and right to use the court’s subpoena power to call witnesses melts away.
Why are there 5 legal error when we said there were 3? Because this is the 2012 update, and the world is supposed to end this year.
If you don’t have this problem, you might be thinking: “Who cares? You missed your court date, suffer.” But what if you are the victim of identity theft? Or pure idiot error by the court like sending the Notice to the address they have on file for your from a small claims case from 5 years ago instead of the correct address on the citation? It happens people.
Got it? What you are challenging is summarized as: The offending courts skip the right to trial and arbitrarily treat the unproven allegations on a photo copied ticket as proven. No Trial. No presumption of innocence. No Proof the Defendant had actual notice of anything. Denial of Due Process, violation of the 5th, and 14ht Amendments to the US Constitution.
A Note On Required Local Forms for a Petition to Vacate Civil Assessment for Some Counties.
Some courts will tell you can file a “Petition to Vacate Civil Assessment” to challenge the Penal Code 1214.1(a) Civil Assessment, but they force you to use a unique “Local Form” the clerk invented for the Petition. Naturally, these local forms vary greatly from court to court, and not all courts use them consistently.
These 1 page “Local Petition to Vacate” forms are always DESIGNED TO LIMIT your legal and factual arguments to what the court clerks thinks is permissible. They provide only a tiny space for writing, and are filled with discouraging words from the court clerk. They ignore the scope of PC 1214.1(d)’s due process requirements.
Not all counties use local forms for a Petition to Vacate Civil Assessment. A partial list of counties that have unique local forms for a Petition to Vacate Civil Assessment are as follows:
Solano County Traffic Court Local Form
(the Solano Court calls their local form a “GC Services Declaration” in honor of the collection agency’s hard work)
Contra Costa County
Fresno County Local Petition to Vacate
Santa Clara County
Use the local forms as a cover sheet for a more expansive arguments. If there is no link above to the local form, check the court’s web site or ask the court clerk for one in person.
As you can see from this list, and especially from the Solano County “GC Services Declaration” example, some courts are using the forms to limit a defendant’s access to arguments and to court review. You should not
tolerate . . .waive objections to it.
You can attach our Motion to Vacate Civil Assessment and Supporting Declaration to such a Local Form if necessary. That Motion includes an Objection to Use of Local Form to Preserve the Issue for Appeal if Necessary.
In my opinion, the required local form itself is a violation of law designed to restrict your right to a trial (5th and 14th Amendment to the US Constitution).
In many of the counties with required local forms for Petition to Vacate Civil Assessment – identity theft is not a defense allowed by the local form! In some local petition forms – there is nearly no room to write out a legal challenge. Some courts charge a filing fee for a local form petition to vacate civil assessment. Crazy unfair. Illegal. Object, Object!!
The 5th and 14th Amendments to the US Constitution require Due Process, which the courts have ruled means a trial, before the State can Take your life, liberty, or property (including cash – which is just as good as money). And even more to the point, Penal Code section 1214.1(d) explicitly gives the Defendant the right to challenge a PC 1214.1(a) Civil Assessment in any way you can challenge a civil judgment. It does not say you must use a local form that limits your arguments.
A motion to vacate a civil judgment is a common motion, and the court cannot deny you the right to challenge the Civil Assessment. You may have to force them to read the statute.
Here Is a Break Down of How Our Self Help Forms for Traffic Tickets with Failure to Appear Are Intended to Work.
Step 1: Demand For Trial and Not Guilty Plea (After Civil Assessment).
This is my favorite form. It has worked in at least 4 counties so far, probably more.
To get a trial date after a civil assessment you have to do it in writing. And you have to present it to the court clerk for filing in the case. Once in the court’s file, they have to either accept or reject your “Not Guilty” plea in writing. Did they take away your right to a trial or not? Force them to tell you.
In most courts where this refusal of the right to trial happens, the defendant has not had an Arraignment, and technically, there has been no plea entered at all. There has been no advisement of rights either. Thus, it stands to reason the Defendant should be allowed to enter a “not guilty plea”. A natural Consequence of a not guilty plea is the sitting of a trial date. In fact, a not guilty plea is a prerequisite for a trial.
Entry of a plea – whether it be guilty or not guilty - usually happens at an Arraignment. But if the court will not let you have an arraignment, you need to enter your plea by filing a document with the court clerk.
What if the court refuses to accept the Demand for Trial? Well, it come with instructions on how to avoid that problem. And if the court clerk truly does refuse to file your demand for trial, you can appeal on that issue alone if you have to.
They are not going to be happy about someone trying to file a document in a traffic court case. But you have to be persistent and demand to speak with a supervisor if they give you trouble. If you have a legitimate document to file in a pending legal case, the court clerk cannot prevent you from getting it filed (so long as it meets local rules). Clerks file, judges decide.
Once you have gotten the Demand for Not Guilty Plea to the court clerk, they have to do one of 3 things: 1) ignore it; 2) reject it by sending it back to you with an explanation; and 3) tell you that you have lost the right to a trial.
It is very important that you get proof that you got the request to the court clerk, because you may need it for the appeal if necessary.
If the court does give you a trial date, you have won – stop here. It has already worked many times. (Note: they may require you to post “bail” in the amount of the fine, but there is nothing you can do about that if it happens).
Step 2: Demand a Trial De Novo.
File a “Request for Trial De Novo” form and ask for a new trial following the Trial By Declaration in Absentia.
A Trial De Novo (which means new trial) should be granted by the court if you are denied a Trial on the grounds that there has not been a trial yet, because they only way to deny a request for entry of a “not guilty” plea is to claim there has already been a trial by declaration in absentia under authority of California Vehicle Code section 40903.
The law states that after being notified of a decision after a trial by declaration:
“if the defendant is dissatisfied with a decision of the court . . . , the defendant shall be granted a trial de novo.” (Vehicle Code section 40902(d).)
There is a standard 1 page free form for a “Request for Trial De Novo” that makes such a request easy – by with my custom form you get a custom declaration in support of the request that cites the legal basis and facts needed to get it granted.
The catch is that you only have about 20 days to request a trial de novo after the court clerk MAILS the decision. But they never send out a notice of decision in any form and worse yet, Vehicle Code section 40902(a)(2) requires that the Court use the Official Judicial Council Form for that notice of decision (it is #TR-215 “Decision and Notice of Decision”). The clock starts running from the date they mail that form, but if they never send it, the clock and deadline to file a Request for Trial De Novo never starts running.
A defendant who did not receive notice on TR-215 from the court of the decision on a trial by declaration, but who got a civil assessment, should write on the form:
“Decision and Notice of Decision on Judicial Council Form TR-215 not sent and/or not received as of today”.
Once a request for trial de novo form has been filed with the court clerk (sent to the court clerks office with proof of delivery is best), the court must make a ruling on it.
Generally there are only 2 options for the court: 1) grant the request for a new trial; or 2) state that it was filed late, and provide the date of mailing of the decision Form TR-215. If the court denies the request, it is a decision that can be appealed, again with a standard Notice of Appeal Traffic Court Form from the Judicial Council.
The judge has the power to dismiss any cases or fine if it is “In the Interests of Justice” under authority of Penal Code 1385. A motion to dismiss under this statute is a great way to give the court an avenue to dismiss the case for a hardship problem, or just because of plain unfairness.
I wrote this common Legal Motion for the thousands of people who have traffic court fines that they cannot pay, and they need to drive or get some sort of relief to work.
Use this form to ASK THE COURT TO DISMISS the case or SUSPEND A FINE using the court’s discretionary powers under California Penal Code 1385 – which allows dismissals in the “Interests of Justice”.
This is an EZ ready to file form, just fill in the blanks and add your special circumstance – like financial hardship, military service, need to drive, etc. Then file with court clerk or judge in open court (and send to prosecutor, if any). Use this form as is, or as a template for your own ideas.
Step 4: File Petition to Vacate Civil Assessment
A Petition to Vacate Civil Assessment only deals with the $300+ fee, not the drivers license suspension or the underlying violations. But it is a good idea to fight this assessment with everything.
Many, but not all courts have a local Petition to Vacate form. Use the local 1 page form and attach the custom Declaration in Support of Petition to make the best arguments I could think of.
More info on How to Write a Petition to Vacate Civil Assessment.
According to the text of Vehicle Code 40509.5, in my opinion, the court must release the drivers license hold once the Defendant appears in court and satisfied the order that caused the hold – which was SHOW UP IN COURT ON YOUR SIGNED PROMISE TO APPEAR.
But many courts will refuse to release the hold after a court appearance, and require you to plead guilty and pay the fines in full first. In this manner, they use your drivers license suspension to prevent you from demanding a trial.
I wrote this motion to challenge this legal problem and to make sure you get a written record to force the clerk to release the hold when the judge says so (some court clerks will refuse to release a drivers license hold even after the judge in court has said they will).
Steps 6 & 7 listed at the top are self explanatory. And I am tired of writing.
If none of this works for you, you will have a perfect record for appealing several issues, including: Denial of right to arraignment; denial of trial and due process; violation of the right to be presumed innocent, etc. If any of my recommended forms is denied (or refused), that may be the subject of an appeal. If everything is denied, you have a ton of appealable issues. File a Notice of Appeal.