Related Article: How to Fight a CA Traffic Ticket with A Civil Assessment.
Related Self Help Form: Attorney Drafted Petition to Vacate Civil Assessment w/ Supporting Declaration
Is your ticket “in Collections”? Trying to Beat a Civil Assessment and the court is telling you to fill out a local Petition to Vacate Civil Assessment Form? Court Clerk will not let you have a court date for arraignment? Says you need to fill out a “Mandatory Local Petition” to Vacate Civil Assessment Form?
Here is some real, free Attorney advice on How to Prepare the most effective Petition to Vacate Civil Assessment in that situation:
|How California Traffic Courts deal with civil assessment cases varies tremendously from county to county. But one thing they all have in common is that they are going to try to convince you have no rights if you are late, and that you have to talk to a private collection agency. |
Of course, the collection agency works on a for profit basis, and they have incentive to convince you that you have no rights at all. Not True.
If the court clerk tells you “all you can do” is fill out a “Petition to Vacate Civil Assessment” and give it to the collection agency- that is not true. There is a lot you can do. Penal Code section 1214.1(d) gives you the right to challenge a civil assessment in court.
You can file motions with the court that they have to rule on, you can file a Petition to Vacate Civil Assessment, and you can use attachments to your Petition to raise appealable legal issues, and you can appeal a court’s refusal to grant you a court date on several legit issues.
Of course, on a Traffic Ticket with a failure to appear and civil assessment, you can always just give in and pay to end the case (so long as there is no warrant or misdemeanor charges). But what if you want to fight injustice and denial of due process in your case?
After handling many of these cases in more than a dozen CA counties, I have come up with this set of options if you want to, or have to, keep fighting:
1) Demand a walk in Court Date from the court clerk in person at 8 am on a court day;
2) File a Motion to Dismiss under Penal Code sec 1385;
3) File a Petition to Vacate Civil Assessment that argues legal and good cause issues. Use the court’s local form only if you have to, and object to its limitations on your defenses and it’s exclusion of defenses like: a) denial of the right to trial; and b) identity theft.
Understanding what is going on is important. Many California Traffic Courts are changing the way they deal with people who miss the court date listed on the bottom of traffic tickets (next to the signature).
In the old days, the traffic courts would issue a bench warrant, and add a misdemeanor failure to appear charge under California Vehicle Code section 40508(a).
Instead of issuing Bench Warrants after a missed court date on a traffic ticket, some courts are suspending the defendant’s drivers license under Vehicle Code section 40509.5, and then adding an automatic $300 “Civil Assessment” penalty to the case under (claimed) authority of California Penal Code section 1214.1. The Civil Assessment then gets treated by the court clerk as a civil judgment, not a criminal penalty, which limits a defendant’s legal rights to challenge the penalty.
But you do have a right to challenge a Civil Assessment!! – Even if it is a civil judgment.
Penal Code section 1214.1(d) states that the Assessment is subject to all of the same challenges that are available to a civil judgment “Generally” – and this certainly should include a right to a Motion to Vacate Judgment, with an evidentiary hearing and in court testimony from witnesses if there is any evidence the court was not able to consider.
Some courts are now streamlining the civil assessment process with their own rules and limiting challenges. They are doing this by skipping the required 10 day warning notice before Civil Assessment (PC 1214.1(b)), and by denying defendants the right PC 1214.1(d) right to challenge the Assessment in the same way you would challenge a Civil Judgment.
Specifically, they deny court appearances (in some courts) and tell the defendants the only way to challenge this automatic judgment of a Civil Assessment, is to fill out a very limited 1 page check box mandatory local form they invented called a “Petition to Vacate Civil Assessment” with pre written arguments they choose.
Each county Superior Court limiting challenges to Civil Assessments has a local Petition to Vacate local form based on a similar template. But if you look at all the the different county forms, their inconsistency prove that they are more of an attempt to limit your arguments that a real, useful legal form from an objective court.
For example, some of the local county Petition to Vacate Civil Assessment Forms allow you to claim Clerical Error as a Defense to the Civil Assessment (Contra Costa), Some give you only 3 choices of defenses (Santa Clara County), and others even assume you are guilty without a trial and start out saying “The Following is My EXPLANATION of MY FAILURE TO PAY” [emphasis added].
It seems these Courts decided to forget the solid American ideal of “presumed innocence”.
You can use this violation of law as the basis of a Petition to Vacate Civil Assessment even if you have no other defense. Then, if you are motivated, and do it right, you can preserve and perfect many appealable issues.
Here is where to focus: if you have the right facts, the court is violating the law in 2 main ways. First, Penal Code section 1214.1(b) requires that the court gives a person a 10 day “Warning Notice” to their last known address before imposing the “Civil Assessment”.
From a defense Attorney’s point of view, if you did not get that Notice, you have a right to it before addition of the Civil Assessment. And that 10 day notice is intended by law to giv eyou the opportunity to get into court in person.
Most courts are either ignoring, or not maintaining proper proof that they satisfied this 10 day notice (PC1214.1(b)) requirement. If there is no proof the court complied with this requirement, you are innocent of the charge of being too late.
Secondly, Penal Code section 1214.1(d) requires the defendant have the same Due Process hearing rights that attach to “Civil Judgments” generally, which should mean the right to a hearing with written brief on whether or not the Civil Assessment can be legally imposed in this case.
By requiring defendants to use a mandatory localized form that limits defenses, and by denying the defendant an in person hearing on the Civil Assessment, the court is violating the 1214.1(d) legal requirement for Due Process of law.
How to Challenge a Penal Code section 1214.1 Civil Assessment (Write the Petition)
My research indicates that the BEST LEGAL ARGUMENTS in favor of a Petition to Vacate Civil Assessment are the following:
1) The Court failed to mail a Penal Code sec 1214.1(b) Warning Notice to the correct address. The court has access to DMV address records.
2) Defendant did not have actual knowledge of the Penal Code sec 1214.1(b) Warning.
3) Defendant demands a Due Process hearing to challenge legal application of the 1214.1(a) civil judgment as required by Penal Code section 1214.1(d).
By putting those specific words in your Petition to Vacate a Civil Assessment - you will give yourself the best legal chance to win the petition and then strong legal grounds for an appeal of a denial of the petition. Just write them in with any other argument you have.
You should then a signed Declaration to the Petition to Vacate Civil Assessment package to establish important facts under penalty of perjury – facts like: “I did not have a trial”; “the court clerk denied my request for a court date”; I did not get the 10 day warning notice required by PC 1214.1(b)”;, etc.
There is a Standard California Judicial Council Form for a Simple Blank Declaration. It is free.
We offer an Attorney Drafted Sample Declaration form that includes examples of how to write your facts, and foundational facts needed to make the best legal arguments.
We also offer the whole package: an Attorney Drafted Petition to Vacate with Declaration in Support of the Petition. It can be used in all CA counties, and it can be attached to a Required Local Form if necessary.
If there is a local form, you will have to find it. You can check to see if your court has a local form on their web site under Local Forms.
Make sure you file everything, including the Petition to Vacate Civil Assessment in person [if possible] at the Traffic Court Division Clerks Office and go home with a copy that has a “Filed” stamp on it. You can demand the court clerk give you proof you filed it. Keep copies of everything.
Do not confuse the “Civil Assessment” with the violations that started the case. They are separate things. If you want a trial on the underlying violations after you get past the Civil Assessment problem, use this type of Motion:
HERE IS THE (UNOFFICIAL) TEXT of California Penal Code section 1214.1:
(a) In addition to any other penalty in infraction, misdemeanor, or felony cases, the court may impose a civil assessment of up to three hundred dollars ($300) against any defendant who fails, after notice and without good cause, to appear in court for any proceeding authorized by law or who fails to pay all or any portion of a fine ordered by the court or to pay an installment of bail as agreed to under Section 40510.5 of the Vehicle Code. This assessment shall be deposited in the Trial Court Trust Fund, as provided in Section 68085.1 of the Government Code. (b) The assessment shall not become effective until at least 10 calendar days after the court mails a warning notice to the defendant by first-class mail to the address shown on the notice to appear or to the defendant's last known address. If the defendant appears within the time specified in the notice and shows good cause for the failure to appear or for the failure to pay a fine or installment of bail, the court shall vacate the assessment. (c) If a civil assessment is imposed under this section, no bench warrant or warrant of arrest shall be issued with respect to the failure to appear at the proceeding for which the assessment is imposed or the failure to pay the fine or installment of bail. An outstanding, unserved bench warrant or warrant of arrest for a failure to appear or for a failure to pay a fine or installment of bail shall be recalled prior to the subsequent imposition of a civil assessment. (d) The assessment imposed under subdivision (a) shall be subject to the due process requirements governing defense and collection of civil money judgments generally. (e) Each court and county shall maintain the collection program that was in effect on July 1, 2005, unless otherwise agreed to by the court and county. If a court and a county do not agree on a plan for the collection of civil assessments imposed pursuant to this section, or any other collections under Section 1463.010, after the implementation of Sections 68085.6 and 68085.7 of the Government Code, the court or the county may request arbitration by a third party mutually agreed upon by the Administrative Director of the Courts and the California State Association of Counties.