Pleading “Not Guilty” on Traffic Ticket? You Don’t Have To Give Up The Right to a Speedy Trial.



| Free Attorney Case Review

Defendants who plead “not guilty” to a traffic violation in California and most states have the right to a court trial within about 45 days.  It’s called the right to a speedy trial, and it was created to prevent Defendants from having their defense suffer due to government delay. But in most courts, they will try to trick defendants into giving uo this right to a speedy traffic court trial. 

Defense Attorneys commonly recommend that Defendants do not give up or “waive” this right unless they have a clear reason to do so. Here is how to make sure you protect your right to a speedy trial.

Why a Defendant Should Not Give Up the Right to a Speedy Trial In a Traffic Court Case.

A waiver of the right to a trial within 45 days gives the court, and the police more flexibility in setting the trial date.  If a defendant waives the right to a speedy trial, the court can give the police officer more time to appear, and may be able to grant a continuance if the officer does not show up for the first trial date.

This flexibility for the court hurts the defendant in many ways. For example, if there is a waiver of the right to a speedy trial, the court may grant a continuance to help the officer, and the defendant will not be able to request a dismissal because the case did not have a trial within 45 days.

But if the defendant demands a speedy trial within 45 days, the court will not be able to grant a continuance to help the police or government prove its case.

How a Court can Trick Defendants Into Waiving Their Right to a Speedy Trial.

I’ve seen it in many courthouses, and it hurts me as a lawyer every time. In my opinion, here is how the scam works:

A defendant appears in court at the arraignment, the judge will ask how they plead – “Guilty” or “Not Guilty”.  Then, the second question comes in hot and fast -  and in secret code – the Judge or “Commissioner” will ask:

Do You Waive Time?“.

What that question really means is:  “Do you give up your right to have a trial within 45 days?” The term “WAIVE” is secret court code for “Give Up”.

Generally, the court will ask this question in a leading way, that makes it sound like the correct answer is “Yes”.  And they look at you like you have no choice.

In the rare instance where a defendant questions why that is necessary, the most common response I have witnessed is that the court will insinuate that it will help the defendant because it will allow the court to work around their schedule.

But you do not have to agree.  Screw them and their full schedule / work furlow / no budget / laying off employees / closed on Wednesdays problems! The law says they have to set the trial within 45 days.  You can demand that they do it.

And in general – my rule #1 of Defense is Never Agree to Give Up Any Rights Unless You Have a Really Good Reason For It.

Most people who are not trained in handling Arraignments and in the law have no idea at all what “Waive Time” means.  And most people standing there at the podium in court to plead not guilty are scared, and nervous.  Some defendants pee their pants trying to get a trial date.

By asking the question in code, and suggesting that the correct answer is “Yes” without adequately explaining what it means to the defendant, the court can take advantage of a defendant.

How To Plead Not Guilty and Protect Your Right to a Speedy Trial

I recommend that Defendants in traffic court who wish to plead guilty and NOT WAIVE their right to a speedy trial state their plea in this way:

“I plead not guilty to all allegations and DO NOT WAIVE my right to a speedy trial”.

Dont let the judge talk you into “Waiving Time” if you want your right to a speedy trial.

Finally, there are some good reasons to give up a right to a speedy trial. If a defendant needs more time to prepare a defense, or if the evidence is really bad, the defendant may decide that not having a speedy trial is in his/her best interest.

Questions?  Leave a Reply below.


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47 Responses to Pleading “Not Guilty” on Traffic Ticket? You Don’t Have To Give Up The Right to a Speedy Trial.

  1. Jason says:

    Hi Chris,

    I am glad I read this blog before filing a not guilty plea.
    I got a ticket and is scheduled a court date next Thursday, but I really want to save the time for 2.5 hours trip to the court…so I called the clerk and she told me I can fax them a non-guilty plea and waive the time.( I didn’t know what that means until I read this blog)
    The only form they have online is the “time waiver with non-guilty plea” form.

    Does that mean I have to waive time to plead not guilty? Does the pre-trial always going to be a phone conference with the prosecutor? I just want to plea bargain and negotiate the ticket…eventually save myself the travel time and money.

    Any help and direction would be helpful..Thank you in advance!!

  2. Christin says:

    Thank you for this informative blog. You are like a good law school professor: funny, direct, sometimes-mean, but you explain things well.

    I was ticketed for crossing the railroad while the signal is already lit and the guard rails started moving (cvc 22451a) The weather was clear and there were no visual obstructions, and I was not being chased by zombies in race cars. Needless to say, I have no good defense against the citation.

    My only way of getting this ticket dismissed is to request a court date and hope the officer does not show up to court.

    Is it a waste of time (+ public resources and personal dignity) to schedule a court date, knowing that I do not have good defense to substantiate the ‘not guilty’ plea?

    Bring in the insults if you wish, and if this question is a waste of your time, I apologize in advance.

    • Christin,

      This is a good question.

      I believe it is a waste of the everyday person’s time and energy to demand a traffic ticket court trial if they have no defense in the hopes the officer will not show for the trial.

      There are many problems with that theory.

      1. The officer gets paid to show up up in court, sometimes overtime pay;
      2. Going to court is easy work for officers, and they can get coffee and danishes;
      3. Even if the officer does not show, the court may give the officer a continuance in your face;
      4. Realistically, for most people, it is smarter to go to work instead;
      5. If you know you are guilty, and you plead guilty prior to trial, most courts will give you a small break. Generally this means they charge you the “bail” amount (forfeiture of bail) instead of the authorized “fine”, which includes a crap load of court and state fees;

      But if your job is being a defense attorney, and you go to that court everyday anyway, and you know where the secret parking is because the dude who owns the cleaners across the street lets you park there until 10:30, and you are really good at cross examination and objecting to evidence, then maybe you demand a trial every time.

  3. Aysel says:

    I received a ’45 in a 30′ speeding ticket in Texas for which I had sufficient evidence to contest it (photographs showing the missing speed limit signs); I pleaded ‘not guilty’, demanded a jury trial, and requested to speak to the DA that day, which is what they were doing for everyone else that pleaded not guilty. The attorney gave me a ‘deal’ but I knew I could do better on my own in front of a jury so I declined it; he said “I’ll see you in court then” and told me to finish with the clerk. The clerk behind the window told me I’d be notified of my court date and confirmed my mailing address. I asked to set the date of trial that day but she told me they have to gather jurors first and can’t set the trial date right now. It’s been 4 months and I’ve not heard or received anything. Can I write in motioning for a dismissal since I was denied a speedy trial? Or how much longer should I wait?

  4. Lori says:

    Hello,
    I have a quick question for you. I was issued a citation for unlawful use of a telephone. I sent in a plea of NOT guilty for my court date of March 7th. I was then sent a date of March 26th for a pretrial conference with the D.A. by phone. He told me he wasn’t offering me anything and to grow up. I replied that I will not change my Plea as he has no idea what was actually happening in the conversation on the phone and That I am prepared to take this all the way to trial. He then said well I will give you two weeks to send in any information you have to prove you didn’t do this. I sent in all the information and it has now been 35 days and I still have not receive a court date. Should I file a motion for dismissal due to Prejudice and fading memory of witnesses and lack of a speedy trial?

    • Lori,

      This is unfamiliar to me – sounds like a case outside of CA.

      Unlawful use of a telephone? While driving? or While beating the crap out of someone?

      If you are not sure of the status of your case, you should immediately contact the court to get an update. The best way to do that is usually to visit the court clerk in person.

  5. Claire says:

    Hi Christopher,

    I got a speeding ticket (which I believe is completely bogus) on 12/6 for going 80 at a speed limit of 65 in Orange County. They set a trial date on 1/17 on the citation. I called in an asked for an extension, so they moved the court date to 3/4. I just called for another extension and the moved it to 4/3.

    1) How many extensions can I request?
    2) I will actually be in the area in late March, so I was wondering if I should just try to get a court date on the day that I’ll be there. (I live 6 hours away.)

    I was advised by someone who supposedly got out of 8 traffic tickets by asking for extensions and writing a letter to waive time, so that it is pushed so far back that the police officer doesn’t show up in court because he doesn’t remember the case. The logic is flawed because I don’t think the officer will remember the case anyway, but it seems to have worked for him.

    What is your advice?

    Thanks very much,
    C

    • Claire,

      My thought is this:

      If your best defense is getting as many extensions as you can, hoping for magic, you are asking for trouble. Sooner or later you will miss the date, and you will end up with a failure to appear misdemeanor charge and a suspended drivers license.

      If you have no defense, pay the fine.

      If you have a defense, demand a trial and try to win it.

  6. Shane Curry says:

    Help! Though you have provided a lot of helpful information on this blog I’m at my wits end how to make the transition for the TBD VC 21453(A) decision to Trial De Novo. The decision on my TDB by Judicial Officer shows, Court trial commences: For count 1, the defendant is found guilty per written declaration. For count 1 pay fine in amount $480. The security/court operations assessment is imposed/included in the fine. Officers statement of facts not received.
    Since the Officers fail to summit their declaration how could this not be dismissed, instead of guilty? I’m filing my request for New Trial this Wed Feb 6 2013 as it is last day to do so. Will court consider the decision the Judicial Officer made as wrong since they did not get a statement or declaration for Red Light officers? Any thoughts would be greatly appreciated.

    • Shane,

      Your comment is not super clear. But I will try to answer. I think this is a common question:

      What Happens if an Officer Fails to Provide the Court with a Declaration for a Trial By Declaration?

      Good question.

      Here’s the bad news. When a sworn police officer signs a citation, he/she is verifying under the penalty of perjury that the defendant committed the alleged violation. That signed citation is admissible evidence in a Trial By Declaration. So if the officer fails to provide a declaration other than the citation, there is still evidence against the Defendant.

      Thus – the defendant can still lose even if the only evidence against the defendant is the citation.

      But then there is this more common problem:

      Most people convict themselves with their own statements. It’s a weird phenomenon.

      For example, if you are charged with CA Vehicle Code section 22349 (driving over max speed of 65 mph), and in your declaration you write “the officer claims I was going 85. I was not going 85!!! I was going 74 max.!!!” – GUILTY GUILTY GUILTY is the result, no matter what the officer says.

      Example #2 (super common): “I was only going with the flow of traffic. There were people going faster than me.” – GUILTY GUILTY GUILTY GUILTY;

      Example #3: “I did not see the sign because I did not know the area.” = GUILTY GUILTY GUILTY GUILTY;

      Example #4: “It’s not my car!” = most of the time GUILTY GUILTY GUILTY.

      etc.

  7. nunya beezwax says:

    ever heard of the bone head move where the defense files a plea of not guilty and waiver of arraignment as default procedure even before there are charges filed? doesnt this basically grant the court subject matter jurisdiction or something? Can you file a motion to reverse this?Like motion to withdraw plea / waiver and get back to square one after you fire the looser attorney and then start challenging the courts jurisdiction and the probable cause determination which the now fired bone head lawyer never thought to challenge.How do you get back to that key first appearance point where the state was supposed to ESTABLISH/argue for /prove probable cause for arrest so you can show they didnt have it and move to dismiss? thanks your awesome.lay the rude and sassy on me. I can take it ;)

    • DortLaw says:

      Nunya,

      This is actually a wacky question I get a lot.

      It is impossible to enter a plea to charges before they are filed. You are misunderstanding something.

      When a police officer files a signed citation with the court, charges are in fact “filed” within that document. The citation is a verified complaint against the defendant, so long as it is signed under penalty of perjury by the officer. The citation alone is in fact evidence against the defendant.

      Only after charges are filed does the court open a case file. Without the filing of a citation, and therefore charges (alleged violations of law), there is no case, no case #, no court date, nothing to attach plea to. Nothing to deny or admit.

      Get it? It is impossible to enter a plea before charges are filed.

      You can try to do it by mail, but it wont work.



      • nunya beezwax says:

        thanks for the reply but your sort of wrong .I should clarify it was not a traffic citation it was an arrest of an assault and battery victim who filed a complaint about the 3 assailants but didnt know who they were and had no idea why he was attacked so his report had virtually nothing on it but the claim 3 unknown people came on his property and assaulted him.Later that night the 3 assailants called and fabricated a story filed a complaint and the victim was arrested while coming out of the E.R. from having the dislocated and fractured shoulder and other injuries looked at.The other parties have no injuries and the only evidence of the truth was ignored by the sheriffs and the victim was arrested on only the hearsay of the assailants implicated in the assault.there are no charges filed against the victim yet even though as I said before the pub def entered a “writ plea of not guilty and waiver of arraignment “and got the victim on home confinement.

        • Nunya,

          Thank for the additional ad space.

          Unfortunately, I am unable to understand what in the worlds you are talking about. But I will approve your comment in the hopes that there is some other quack out there who wants to discuss this with you.



  8. dalila says:

    Hi,
    First thanks for the info. Is the 45 days, working days? If not, does it have to be exactly? I got a ticket, not turning right when the lane said to do so, on May 28 and they gave me a date for July 26, 2012. This is in Orange County Sup. Court. I sent them a note pleading not guilty and paid the fine. Also, if the officer shows up and they find me guilty, can I still go to traffic school? (no tickets on my record). I am not sure what I should do, or say. My infraction was due to wrong GPS instructions (the fwy was ahead not on the R), unfamiliarity with area, and I actually asked the person on my left if he would let me go straight (I was stopped at a light and first in line to go). Also, would go to night court give me a better chance to get the officer to not show? Thanks for the help.

    • DortLaw says:

      Dalila,

      This is another comment I dont understand. It’s just one of those days I guess.

      So you plead “not guilty” AND paid the fine? That makes zero sense to a person like me who has been damaged by law school details.

      Do you mean you plead “not guilty” and demanded a trial and paid the BAIL to secure your trial date?

      Or do you mean that you plead guilty and paid the fine? These are 2 very different things.

      I’ll just make up what I think it is, because this is all the free time you are going to get this weekend.

      So your infraction was caused by GPS? Sweet! That’s an ez one then. Just bring your GPS to the trial – and tell the judge it is the GPS’s fault, and any penalty should be levied on the GPS device. Or, you can go in alone, and if you lose, you can sue the GPS manufacturer for indemnification (refund of the fine you have to pay if you lose).

      No? Neither one of those will work? You dont think the GPS device will ask good questions of the officer? Dont think it will make a good final argument? Dont think Garmin is actually going to pay your fine for you if you lose?

      Well, let me re read and see if I can say something constructive.

      Do you know who really caused this problem? Not the GPS – it was the dude on your left!!!!! Not you! You are totally freaking innocent. It is the fault of that dude on the left!

      What else can I say? Sounds like you are totally guilty.

      You never did mention what your alleged violation was. The most important fact for any question on this blog – and you left it out.

      And here I shall stop ranting.

      • dalila says:

        Hi,
        well what can I say? harsh, cruel, cynical? Sorry to waste your time. I guess I am not well versed with the jargon, (not being familiar with going to courts, getting tickets..etc) and yes I meant posting bail (the same as paying the fine). My infraction was going straight on a R turn only lane. I know I should not have gone straight from the R turn only lane… but I did not act erratically or cut off anyone. Many people get warnings, I guess it is luck or something. Your implication I could fault the GPS or the guy who let me go straight was particularly uncalled for. You spent a lot of time writing an extremely sarcastic and offensive answer. I have always been told, that if you got nothing good to say, just say nothing. And that is what you could have done. Have a good life.

        • DortLaw says:

          Dalila,

          Sorry you didnt like my response. Being rude is how I get more readers. But I warn people – -and they keep on asking for free help no matter how rude I am. The Freakonomics people should study the new art of making money by being rude to people and giving away free help. It works. Crazy.
          Believe it or not, my rudeness will actually help you if you end up in court – because you will already have an understand of what is important, and what is not (your GPS).

          OK – now we have the facts. You are accused of going straight from a right turn only lane. We do not have the code section, but in reality it is probably a violation for “failing to obey posted sign”. But It could also be “unlawful or unsafe lane change”. The two violations are really different. Illegal lane change may require that you affected another driver. But failing to obey a sign probably does not require that your action affected another driver.

          Well, I still cannot tell what you are charged with. But I can say it totally sounds like you are guilty. You actually committed the act, right? There is no dispute there. Your defense is that you were lost? Being lost is not a defense.

          • dalila says:

            Well, your defense is also a bit weak! There are ways, other than yours, to make a sharp impression. But, I guess, one can always not write to you. Given that I am, I implicitly accept your treatment. You made me curious about the difference the code of the infraction can make. I was cited for 22101d VC. I looked it up and it said-
            When official traffic control devices are placed as required in subdivisions (b) or (c), it shall be unlawful for any driver of a vehicle to disobey the directions of such official traffic control
            devices. I am not sure if it refers to the more serious infraction or not. Thanks

          • DortLaw says:

            Dalila,

            Ok. Now we are getting somewhere. Details. Details are important in these discussions. A Violation of Vehicle Code section 22101(d) [failing to obey traffic sign] does not require that you affected another car.

            That is bad news for you. If it were a violation for an unsafe lane change, you could argue that you did not affect any other cars, and the lane change was safe.

            But with your violation, you are guilty if you disobeyed the sign. That’s it. Game over. Insert new quarter.

            Life is short. Too short to spend time in traffic court fighting a citation if you are totally guilty.

  9. Daniel says:

    Hey, I recently got cited for an illegal left turn, but the date to appear is set for a day when I am unavailable to go to court. If I do a trial by written declaration and get a guilty verdict, then request a Trial de Novo, will my right to speedy trial apply to the new trial?

  10. Lin says:

    I pleaded not guilty btw

  11. Lin says:

    I went to my arraignment (court for first time to plead guilty or not guilty. The judge told everyone that it they wants a speedy trial the date is picked and it can be convienient for us and if w wanted to waive time we could pick any date we wanted. She tricked in making me pick a waive of time to pick only the two dates she can offer me. Anyways, I recieved a letter from the office requesting a continuance because he is on vacation. Do you know what will happen or what I should be doing? I’m so worried she will try to trick me again.

  12. Kristine dlc says:

    Thanks for the info on your blog.

    I’m going into court tomorrow, 2/28, and arraignment was on 1/6. My trial date was originally last Tuesday, 2/21, but I received a letter from the court notifying me that my case has been continued to tomorrow. 54 days from my original arraignment date.

    Based on what you have listed in your blog, I’m going to say the following:

    “You Honor, I need to object to this trial on the grounds that I have been denied the right to a speedy trial. I would like to file a motion for a dismissal of the charges on the ground that I was unconstitutionally deprived of my right to a “speedy trial” and denied due process of the law as required by the 14th amendment to the U.S. Constitution.”

    I will list my arraignment date, original trial date, and tomorrow’s continuance date and indicate that the delay has given prejudice to my case in the form of the fading memory of the officer.

    WHEEW!! Here’s hoping that it works. Either way, I appreciate the info. Anywhere on this site we can donate?? Thanks for the help.
    K

    • Kristine,

      !!! Ha! You get it!

      Make sure you point out that your defense was harmed in some way – “prejudiced” – like a witness cannot come, memory has faded, the court has denied you a fundamental right that increases your costs of defense (by missing work) to a point where pleading guilty even though you are innocent makes more sense – the court is screwing you. Find something.

      If you want to help us publish – support our sponsors, and tweet our good articles for us.

      • Kristine de la Cruz says:

        I’m late in responding and giving my overdue “Thanks!”

        Out of 34+ cases that day, about 6 were dismissed because the officer failed to appear, 5 changed their plea to Guilty, and the rest fought their case and ended up with a Guilty verdict. I was the only one that had my case presented in front of a judge and used the info from your blog and had my case DISMISSED!!

        I should have had my case presented earlier in the day, but I had to run out and put money in my meter. I ended up missing my slot and they put my case at the end. Bah. But it ended up working out for me since I was able to listen to everyone else’s defense and made me feel so much better that I visited your blog. I changed my reason to prejudice because my witness was ready on the 21st but was unable to take the time off for the 28th.

        I read the prepared speech above verbatim. The judge asked for my arraignment date, the number of days in question, and my reason and I had an answer for all. He then agreed that my case should be dismissed for the reason I noted. I walked out of there with a huge grin on my face. Thanks again. I could not have done it without your blog’s help. I’ll click the links and support your sponsors!!

  13. RyanB says:

    Question 1: Does the 45 days to a speedy trial (at your arraignment) mean 45 court days (M-F excluding weekends, holidays, shutdowns) or 45 calender days ? I could not confirm this anywhere so far.

    Question 2: If the person requests continuance before arraignment date (to delay the arraignment so that the 45 day window is closer to some major holiday), does the individual implicitly waive his/her right to a speedy trial ?

    Question 3: If the disclosure request was sent to all parties (Superior Court, DA, Police) but only 1 party e.g police replied with disclosure information, can a motion to dismiss be filed because the remaining parties failed reply within 20 days from posting by certified mail ?

    Question 4: Do the police, CHP in CA, need to follow all DMV rules up to and until they flash their lights and pull the driver over ? Specifically is the Law Enforcement personnel excluded from CVC and DMV laws ?

    Thanks,
    RyanB

    • RyanB,

      Good questions, well organized. Here is my best free quick answers.

      1) There is no statute in the CA Vehicle Code that I can find that requires a trial on an infraction within 45 days. Vehicle Code 40901 gives the court the power to provide trials on infractions according to local rules of court. But the Due Process requirements of the 5th and 14th Amendments require a “speedy trial” anytime the government is trying to take your property. Courts of appeal and supreme courts (state and federal) have ruled that a violation of due process may occur if a trial does not happen within 45 days of arraignment. If you were paying me by the hour, I might look up those cases for you.

      But just because more than 45 days runs – does not mean a case gets dismissed automatically. You have to show that the delay caused you “prejudice”, which means harmed your case in some way. It is the “prejudice” that occurs after a period of time that justifies a dismissal, not a technical date (in infraction cases – criminal cases are different).

      Here is how a trial attorney would deal with this problem:

      File a motion to dismiss on the grounds that there has been a violation of due process following a denial of the right to trial. Demonstrate prejudice to your case somehow – loss of witness memory perhaps? Spoliation of exculpatory evidence? (use big words where ever possible).

      To win a denial of speedy trial motion you have to show the delay harmed your case. No harm? = Harmless error = you lose.

      So forget about the exact deadline – focus on the damage to your case. Argue it has been too long, regardless of whether it has been 45 or 52 real days.

      Once you file the motion, even if you lose, it becomes an issue for appeal if you keep fighting.

      2) If you request a continuance, you screw up your speedy trial argument, because it is you who causes the delay that may lead to prejudice. But you can still make the motion. You’ve got nothing to lose.

      3) I assume you mean “discovery” request. No, you cannot get a dismissal because someone does not respond to a discovery request. You can ask for a continuance to get the evidence you are looking for. Maybe time to issue a subpoena. Subpoenas require a response – discovery “requests” do not.

      If you want dismissal for failure to disclose exculpatory evidence, you have to identify exactly what you are trying to get, and subpoena it. Then if the prosecutor or whoever fails to produce the evidence, and it exists, you can demand a dismissal because it causes “prejudice to your case” again.

      But I can tell you this – you are off track. There is nothing to get from the Superior Court! That is a waste of time. The entire court file is open to you. You can view the whole entire thing any time you want. Make copies yourself. It does not surprise me they ignored you. What in the world did you hope to get?

      And the DA? The District Attorney does nothing on infraction cases. The probably have absolutely nothing involving your case. What is it you were hoping to get? DNA evidence?

      The cop is really the only person to get discovery from in a traffic court trial, unless you have a strange issue where you need discovery from CalTrans, or the National Weather Center, or Nasa. Criminal cases are different.

      4) It does not matter at all if the cops violated the law right before catching up with a person It does not matter if they ran a red light, ran over someone’s lawn, or drove without a seat belt while talking on the phone. Even if they did break the law right before contact you, it does not matter in your case at all. It is not relevant to any of the issues to be deiced on a traffic citation.

      Stay focused on the alleged violation. Stay focused on how you are going to show that you did comply with the law, and that you deserve to win because you were making a good faith effort to obey the law. If you cannot do that, you are wasting your time.

      Forget about what the cop did, said, or looked like. None of that will help you.

  14. T. says:

    Hi,
    I think I may have been lied to today by the judge at my arraignment- I said exactly what you wrote, that I plead not guilty and do NOT waive my right to a speedy trial, and the judge told me that I have NO right to a speedy trial on an infraction. Is this true? And if not, how can the judge lie to me like that? This was at the LA Metropolitan Courthouse.

    It should be noted, this was a temporary judge, but he still should know the law! Please advise.

    The violation of a right to a speedy trial was my only hope to get out of my ticket, so because the judge took that option off of the table I plead guilty and now have 30 days to pay my $450 fine. Am I out of luck now?

    • T,

      This is actually interesting – but you blew it by pleading guilty.

      The correct thing to do if you were really fighting here would have been to say,

      “Fine – whatever you say. I just want to mark the record here at this point for appeal. I disagree with you. I plead not guilty. I do not waive anything, and I want a separate date for a motion to dismiss based on the denial of a right to a speedy trial.”

      And then, right before the trial, you file a motion to dismiss based on that issue (the judge would not give you a separate date, but mark the record and ask for one).

      If the judge denies your motion, and you really want to fight, you ask the judge to postpone the trial pending an interlocutory appeal on the denial of a speedy trial. (Writ to the Superior Court Appeal Division) Tell the judge (and mark the record) that your defense has been harmed by the denial of a speedy trial because exculpatory evidence has spoiled, expired, or been lost (like the officer’s memory of the incident).

      The judge would probably deny your request, SO then you go forward with the trial. If you lose the trial, then you appeal everything. Make a post trial motion to vacate the judgement.

      Send a complaint about the judge to the JNE commission if you feel you were actually lied to be a judge. But this sounds more like you disagree with the judge.

      If you were paying me to write this (im doing it for free this morning) I would actually look up the law and provide citations for a great legal argument on the issue of speedy trial rights in Government Taking Cases.

      But then again – is there anyway you do all that work for $450? No way. I wont even consider going to LA metro for $450. Tuck Fhat.

  15. Michael says:

    To save time for both the court and myself, I entered a plea of not guilty at the clerks window of my local superior court. I was given a date well outside the 45 day window that would be considered a speedy trial in California. I called to get any information regarding how I would go about entering a motion for dismissal and was told that they were slipping my trial date another 60 days. When I entered my plea with the clerk they did not inform me of any loss of rights nor did I check any boxes on the paperwork I filed.

    Did I in fact give up my right to a speedy trial by attempting to save both the courts time and my own? Also, how do I go about entering a motion for dismissal? Is it is simple as drafting a formal letter and submitting it to a clerk?

    Thank you. This blog has been very helpful.

    • Michael, Good question. You got tricked by the court clerk. I’d bet somewhere in your paperwork it says that by pleading not guilty at the clerk’s window you “waive time”. They tricked you.

      If you were paying me to work on this by the hour – I’d write and file a Notice of Pulling of Waiver of Time, and Demand for Speedy trial. If they did not give me a trial within 45 days, a Motion to Dismiss on the grounds that your right to a speedy trial was violated. Then if you lose the trial, you have all sorts of appeal able issues.

      You can “pull” a waiver of the right to a speedy trial at any time in CA. It happens a lot. You have to do it in writing.

      Expect them to try to trick you again. Get proof you filed the motions, because they might mysteriously disappear. They do not want you to have a right to a speedy trial. That is why they hide the waiver of the right from you. Smoke and mirrors. Bulletproof glass. Sideways waiver of rights.

  16. Raymond Porras says:

    I went to court today 8/16/11 and the officer was not present. The commissioner then proceeded to tell me that this is not cause for dismissal and that the officer is on vacation and request a continuance. The commissioner stated that the officer could be present with in the 45 day. The date he suggested was 8/23/11. I could not make this date and he said “well I can schedule a later date, but you will have to waive time.” I chose a date after the 45 days, but he never official asked me do you waive time? I also never replied I waive time or yes to waiving time. Is this grounds for dismissal do to a lack of the court providing a speedy trial within 45 days? I also asked the judge does the officer not being her because he’s on vacation supersede my right to face my accuser. He stated that the officer is allowed one continuance.

  17. sonia rodriguez says:

    Imactually in court rt now I was trying to ask for a court trial today or Monday cus I got an emergency call n need to leave LA THIS WEEKEND N MY TRIAL IS TUESDAY BUT they couldn’t help me with that on the court window.. so I cheked my paper n my yellow paper which was “release under OR” IT WAS GIVEN TO ME ON JUNE 28 WHEN I CAME TO COURT N PLEAD NOT GUILTY FOR A TRAFFIC TICKET AND THEY GAVE ME THE TRIAL DATE FOR 8/2/2011 WHICH IS 35DAYS TOTAL IS THAT STILL GOOD??? SHOULD I JUST COME OR WHAT IS THERE TO DO IF I HAVE AN EMERGENCY?? SORRY BUT I HAD TO WRITTE REALLY FAST THANK YOU

    • Sonia, If you do not get the date changed in court, you have to show up. An emergency involving another person – unless your kid or husband is in the hospital – is not a legit reason to leave. I wouldnt leave. I’d make sure I was there when my name gets called.

  18. Chris says:

    I was just arraigned for a traffic infraction in CA and explicitly did NOT waive my right to a speedy trial. Then the scheduler had me sign a paper with the same shown (“time not waived” box had been checked) and then proceeded to schedule me beyond the 45 days timeframe. Seems like that kind of falls under your last comment about filing for a Motion to Dismiss based upon a denial of the right to a speedy trial. Am I correct or way off base?

    • CHris, you are right. When the time for your trial shows up, you should make a motion to dismiss based upon a denial of the right to a speedy trial. They are trying to screw you out of your right to a speedy trial. They screw a lot of people out of their rights like that.

  19. paul says:

    hi christopher, after purchasing all three forms for petition to vacate civil assessment, motion to dismiss per PC 1385, and demand for trial and went in this morning to file them with the clerk while requesting a walk-in appearance. the clerk denied me the walk-in, but i filed the three motions and had the clerk stamp copies of all three for my own records.

    does the fact that i am accused with a failure to appear automatically waive my right to a speedy trial, even though i am contesting this charge and demanding trial? i had already scheduled another appearance on the date of the failure to appear, and that was why i was denied the walk-in, but the date is beyond the 45 day limit, and it’s not for my actual trial but for another appearance. what i want to know is why the clerk would schedule my next court appearance for a date so far away, as i’m scheduled for dec 29th.

    • Paul, wow! Good question. Finally.

      And good work getting the forms filed. Go after them! I’m pretty sure you will get some releif if you just keep up the good work. Try everything.

      Does a failure to appear waive the right to a speedy trial?

      Answer: No. You actually have to explicitly waive the right to a speedy trial in court or on paper.

      But be careful: the right to a speedy trial only starts after arraignment. Maybe they scheduled you for arraignment, not trial. And they may have tricked you into giving it up when you signed the “Promise to Appear” with a “Time Waived” check box checked. Check the check box. Is it checked? They will trick you into “Waiving Time” if they can.

      If you did not waive it, or they unfairly tricked you into waiving it, the REMEDY = file a Motion to Dismiss based upon a denial of the right to a speedy trial.

      Maybe I should write a form for that one. It’s a common question.

      PS – you can remove a “Waiver of Time” or waiver of the right to a speedy trial any time. If you want to, it might be a good idea to send the court clerk a notice of “No Waiver of the Right to a Speedy Trial” and request for a new trial date setting. Send it with proof of delivery requested, so that when you make your motion to dismiss at the trial, you have proof you did not want to waive time.

      If you think I have helped you, please take a moment to give me a quick review on my Google Local Review page.

      Related: If you plead not guilty to a traffic citation by mail, you give up your right to a speedy Trial. See CA Vehicle Code sec. 40519.

  20. Barbara Martinez says:

    Thanks for this blog – I wish I had read it before my arraignment.

    I was cited for two issues, one correctable, and one which I am pleading not guilty as the red-left-arrow was not visible from the angle at which I was stopped beneath an overpass, and which since has been upgraded by the Division of Electrical Services. At arraignment, the Commissioner set a trial date approximately 60 days subsequent, asking me only “is that date ok with you?” There was no explicit discussion about “waiving time,” nor was the “TW” box checked on the paperwork I received from the Clerk.

    On my way to the window to pay the $25 processing fee for the corrected/dismissed item, I noted that the Court’s information sheet indicated defendants are entitled to a speedy trial within 45 days. So when I got to the window I asked the clerk whether I could have a trial sooner. She asked me, “Now why would you want to do that? The commissioner is very busy.” Again, not in open court. Again, no explicit discussion of the word “WAIVE.”

    Eleven days before my trial date, I realized I had to be out of town, and went back to the Clerk to ask again why I hadn’t been given a speedy trial, and whether the matter should therefore be dismissed. On the phone they told me to write a letter to the Commissioner and bring it down that day. When I did, they suggested I come back for “walk-in” court to talk directly to the Commissioner. I did, but got a different judge than I had had at the arraignment. He asked me if “there was a good reason” for the delay, and I couldn’t answer him — I didn’t know, nothing was explained to me by the first Commissioner who set the original trial date. SO… he asked me to come back again after he had a chance to review my letter-phrased motion/request for dismissal. If he denies the motion, can I appeal that prior to moving forward with trial?

    • Barbara, if you believe the court failed to give you a speedy trial, you should write a formal Motion to Dismiss For Violation of Right to Speedy Trial and file it with the court clerk in advance of the trial date. Then, at the actual trial, demand that the judge make a ruling on your motion. Your motion should include the facts: 1) you did not waive your right to a speedy trial; 2) the date of arraignment; date of trial; 3) some reason why it causes you a problem (prejudice to your case such as fading memory of cop)

      Then you need to argue that the court has violated your rights by not giving you a speedy trial.

      If you lose that motion, and think you are right, you can appeal on that point.

  21. WILLIAM FUNG says:

    Hi,
    Does a trial by written declaration (California) automatically waive your right to a speedy trial?
    From CVC 40519(b), a request for trial by mail is “deemed to have waived the right to be tried within the statutory period” but not sure if Trial by written declaration (CVC 40902) is included by this CVC40519(b).
    Thanks.

    • William, I would say this – if you elect to have a trial by declaration you cannot expect to win on an argument that they do not give you a speedy trial. If that is your defense, you are wasting your time.

  22. Pretty great post, really educational information. Never considered I would discover the information I would like right here. I have been scouring everywhere in the net for a while now and had been starting to get irritated. Luckily, I stumbled onto your blog and got precisely what I was searching for.

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