Update on How To Handle VC40508A Failure to Appear Cases in Santa Clara County

After a recent visit to the Morgan Hill Courthouse in Santa Clara County, and lengthy discussion with the court clerk and her supervisor(s), I discovered that the Santa Clara traffic courts are dealing with missed court dates on traffic citations a bit differently than other courts.

Here is an update on what I found, and my recommendations on how to handle a traffic citation with a failure to appear charge in San Jose, Palo Alto or Morgan Hill traffic court.

When a person misses the court date listed on the bottom of a traffic ticket in Santa Clara County Traffic Courts, the court does the following:

They add a misdemeanor failure to appear charge known as Vehicle Code section 40508A (aka VC40508a); and

Increase the total fine on the whole case.

They do not issue warrants for missed court dates on infractions (in general – some exceptions), and may not place a VC40509.5 hold on the persons drivers license as most other courts do.

However, VC40508A (failure to appear violation) can be an infraction, or a misdemeanor.  It always starts as a misdemeanor, but most courts reduce it routinely to an infraction, add a “civil assessment” fine and refer the total bill to a collection agency such as AllianceOne or GC Services.

When the court reduces the VC40508A to an infraction, the defendant has almost no rights to challenge the violation, because it is considered a civil, not a criminal problem (like a parking ticket – if its a civil fine, you are screwed). But with a misdemeanor, a defendant has more rights.

Visit Traffic Court Pros.com.  Free Self Help, Free Attorney Case Reviews.

The label of misdemeanor or infraction does make a real important difference for many people.  A misdemeanor conviction means you have a criminal record, and may have immigration consequences (such as denial of a permanent resident status).

Some people may be required to report a misdemeanor conviction to their employer or licensing agency, and some may lose employment or business opportunities if they get a misdemeanor conviction.

Misdemeanors are more serious than infractions, because they carry the possibility of jail time.  The US Constitution guarantees the misdemeanor defendant specific rights called “Due Process Rights” in the 4th, 5th and 10th Amendments.  The most important of these Due Process rights is the right to a jury trial when a person’s freedom is at risk.

In Santa Clara, it is different.  They have their own view.

Here, they refuse to reduce the misdemeanor 40508A violation to an infraction when a person pays the claimed fine by mail or by phone.   They don’t tell you that you have the right to a jury trial, or other Due Process rights you have when accused of a misdemeanor.  They just take the money and enter a misdemeanor conviction.

Santa Clara is very unique in this regard.  Most other California Courts interpret Due Process law as requiring that a defendant in a misdemeanor case actually “knowingly and voluntarily” give up his/her right to a jury trial before there can be a conviction.  Usually this happens with a misdemeanor “Waiver Form” that the defendant must sign and present in court.

Santa Clara ignores the waiver process for 40508A misdemeanor cases and does not tell defendants with VC40508a charges that they have the right to a jury trial.  In fact, it’s quite the opposite – the court clerks hide this fact from the defendants – along with the other Due Process rights guarantee to all misdemeanor defendants such as the right to confront and cross examine witnesses.  In my opinion, it’s a tricky way to screw people on traffic citations.

But as it turns out, it’s a good process for a defense attorney like myself, because there is work that can be done that will make a difference for the client on these cases.  Specifically:

Most courts will reduce the failure to appear charge to an infraction to prevent the defendant from demanding a jury trial, and from having the ability to refuse to allow a commissioner to hear the case.

By reducing the VC40508a to an infraction, most courts basically prevent defendants from having the rights associated with a misdemeanor, and thereby make it difficult for the defendant to get a court date on a failure to appear case.  They refuse to give them a court date, and just refer the fine to a collection agency for payment.  Because there is no threat of jail time with an infraction, they do not have to give the defendant a trial.

In Santa Clara, because they refuse to reduce the FTA to an infraction, defendants have the absolute right to an Arraignment court date, and to a jury trial.  Misdemeanor defendants also have the right to refuse to allow a case to be heard by a commissioner, and may demand a real judge.

Because of these rights, and the existence of a misdemeanor charge, a defendant with an FTA case in Santa Clara can go into court, get an arraignment date, and demand a jury trial with a real judge. And an attorney can do all that work for a defendant – and make the threat of wasted time in a jury trial credible.  If the attorney is getting paid to do a trial, its going to happen.

And my experience has shown me that courts do not want jury trials over infraction FTA cases.  It would be a giant, tremendous waste of the court’s time, and of the time of the every citizen who would have to spend 2 days in jury duty to hear a traffic ticket case.  When presented with a demand for a jury trial on a VC40508a case, it would be my expectation (and has been my observation in the past) that the court would reduce the misdemeanor to an infraction at that point to prevent a useless jury trial.

So in the future I will be recommending to my own FTA clients in Santa Clara that they do not pay they pay the Failure to Appear fine the court says is due, because it will result is a misdemeanor conviction.  Rather, I will usually recommend that we schedule an Arraignment, refuse the commissioner, and demand a jury trial.

If the court reduces the misdemeanor to an infraction to prevent a jury trial – Great! Good result.

If the court is stubborn and allows the jury trial – Great! Let’s see if they can get 12 every day people to vote for convcition. They need 12 citizens to vote gulty to win.  I only need 1 crazy person to vote “screw the government” to win.

I’ll give an update on how it all turns out in my next case.

In the mean time – here is some concrete tips that I can give to everyone with traffic infractions and VC40508A charges in santa clara traffic court:

1. Call the court clerk prior to paying and ask if your payment will result in a misdemeanor conviction;

2. Look up your case on-line (courts web site) before paying to see if there is a misdemeanor 40508A charge listed;

3. If you want or need to avoid a misdemeanor conviction for employment purposes, get an attorneys help because it is worth the money;

4. If you want to do the work yourself, schedule an Arraignment, appear in court, and ask the judge to reduce the 40508A to an infraction. If the judge says Yes – Great.  If they say no, then you can decide if you want to have a trial or not.

5. I would Refuse to allow a commissioner to hear your VC40508A misdemeanor case and demand a real judge (you will have to appear in court and make the objection verbally).

And whatever you do, do not assume there is nothing you can do if you have a failure to appear case in Santa Clara County Superior Court.

-Christopher Dort, Esq

More Info: What is  A VC40508A Charge? |

This article was written pro bono as a free self help community service.  It is not advice on your specific case, and should not be your only source of info on the subject.

Questions? Send them to cdort@dortlaw.com or Request a Free Case Review for Santa Clara County.

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About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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