Thursday, June 05, 2008

How I beat my California Speeding Ticket

I got the results of my Trial by Declaration in the mail today. My case was dismissed and noted at the bottom of my Decision and Notice of Decision, the words "insufficient evidence" was written. Unfortunately, I don't know if I won because of the motions, objections, and arguments that I presented, or because the officer never bothered to send in his side of the story. However, since I won because of "insufficient evidence" instead of "failure to prosecute" I probably won this out of my own merit.

Anyhow, the preparation that I did for my case provided me with a lot of information that might help some of you in the cases that you might face.

Know what you were cited for
I think most people would be surprised after reading the actual law behind the citation they got. Take for example a common citation, VC 22350, aka The Basic Speed Law:

No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

Notice how there is no mention of a posted speed limit sign. As long as you can show that you were driving a safe speed for the conditions, you have not violated this law. I read of one case where the driver asked the officer if he thought he was driving at an unsafe speed. The officer responded no, and noted the conversation down on the ticket. During the trial, the driver said that by the officer's own account, he was driving at a safe speed, therefore he had not violated the law. The judge was then forced to rule in his favor.

Unfortunately for me, I was cited for a violation of VC22349(a) The Maximum Speed Law:

Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

This is much harder to defend against since the officer only has to prove that I was going over 65. In addition, there is a popular defense known as the Speed Trap Defense which doesn't apply to this code.

Read the laws
I know its a pain, but California laws are actually quite readable. You don't need a law degree to read them. Just know that when they say "Notwithstanding XXX", it means that the following decree overrides the XXX. So if you are planning to use a part of the law like subdivision (b) of Section 22351 then make sure there are no other laws with the phrase "Notwithstanding subdivision (b) of Section 22351",... Like there is in VC22348. You don't need to read everything, just try to find anything that might be relavent to your case. If you can connect your defense strategies to an actual vehicle code or penal code then it will become much, much stronger. Even if you find out that a particular code that you want to use is negated by another code, you can still employ it as one of your many defense strategies. Just because you know it shouldn't work, doesn't mean that the judge, officer, and prosecutor will know.

PC 1054.1 is your Friend
Discovery is the process by which both the defense and the prosecution must share evidence and disclose witnesses with each other before they may be used at trial. Discovery is one of the cornerstones of due process in our judical system. Without it, prosecutions could easily ambush the defense with falsified or illegal evidence. They could also put on the stand witnesses that would otherwise be unfit to testify without fear of rebuttal from the defense. The key to using discovery to your advantage is that once you are in discovery, only evidence and witnesses presented in discovery will be allowed in court (you'll have to make an objection of course). So the strategy here is to make sure that you get into discovery (by sending an informal discovery request to the prosecution) and hope that either the prosecution doesn't send you anything or that they send you "exculpatory evidence" (ie evidence that will show your innocence). Make sure that for every discovery request you submit, you have your friend deliver it for you (to the post office) and have him fill out a "proof of service" form that you keep to prove that the request was indeed sent to the post office. Then make sure that you get signature confirmation for the delivery from the post office. That way, if the prosecution fails to send you anything, you can prove that somebody there received it. I sent a request to both the city attorney (where I was cited) and to the district attorney. Its very important that the request goes to all the people that could claim to be the prosecution. Luckily, none of the prosecutions gave me any evidence, therefore, at trial I could object to any evidence or witness presented against me.

Find out how to get a hearing at your court
I wish I had known about this sooner. Courts don't want to deal with traffic violations. Some courts, like the one I went to, have an ingenious plan to provide the least access while appearing to make the courts seem even more accessible. They call this "walk-in court". It really should be called, "wait outside in the cold for a few hours and hope court" because even if you waited all morning, the courts will only see a set number of cases that day and the rest get to go home (unless of course you wanna just pay up your fine). If the court you are assigned to has walk-in court demand that you want a scheduled court hearing as soon as possible, even if you don't know what you want it for. The court clerk on the phone told me, that I had to go to walk-in court but it wasn't until I got moved to the "get to go home" line that they told me I could go to a super tuesday night court session two weeks later. Remember that you can probably extend your due date by 2 months online if you search for it on the back of your ticket or courtesy notice. That should give you enough time to secure a hearing.

File your Motions
If you've secured your hearing date, then you should try to submit any motions you have a few days prior to the court clerk. Since no evidence was provided to me at discovery, I made a motion to exclude all evidence and testimony. The clerk I spoke with had no clue as to how to accept the motion so I was forced to submit it during my walk-in court hearing. At the hearing the commissioner said that she couldn't make a ruling then and alluded to the fact that I should have submitted it earlier if I wanted a ruling now! If I had know better, I would have gotten the traffic clerk to go talk to the criminal clerk and ask them how they accept pre-trial motions.
This also could have been a blessing in disguise. I read of another case where the judge refused to exclude the evidence and instead made a court order to compel the prosecution to produce the requested evidence. If this had happened to me, I would have argued that if the prosecution does not intend to produce the evidence at trial, then I don't care to have the evidence either.

Trial by Declaration
My trial started with more pre-trial motions reiterating my submitted motion to exclude evidence, followed by motions to dismiss due to lack of evidence. If the motion to dismiss did not work, I brought up objections to the prosecution use of any evidence not found in discovery as being a failure of due process. The only card left for the prosecution to pull out of the hat, was that courts often consider an officer's visual estimation of speed as an accurate measure of speed. I made a objection based on lack of foundation to any visual estimation. I that the prosecution needs to establish with evidence that the officer can accurately determine speed visually. Since all evidence is excluded, he has no foundation to support that claim. The officer would not need foundation if he could claim that he never calibrated himself using any devices. But, of course, if he never calibrated himself then, he's declaring that the even he doesn't know if he is accurate.

Additional Tips

  • Be nice to the court clerks, even if they aren't nice to you. You'll probably be asking them questions they never heard before and the last thing you need is to be labeled a troublemaker. If they ask you if you are a lawyer or a law student or a wanna-be lawyer always say "law student". You studied the law right? Anyhow they will be more cooperative with you if they think you are one.
  • Time your submittal for discovery to be as late as possible while still being in time for you to legitimately file a motion to exclude or compel evidence (20 days by mail) on the day of your hearing. This reduces the likelihood that the officer will recollect what happened or or be able to reproduce the evidence.
  • Don't testify if you can win without doing so, especially if you are going to incriminate yourself. Some people will say something like "I was only doing 70 in the 65 zone, but the officer said I was doing 80". Since they were still breaking the law at 70, they would be found guilty, even if all the other arguments they put up were successful. If your case does go to trial, you should phrase your questions to the witness (if you failed to get them excluded) so that they provide all the testimony that you need which you will later try to poke holes in.

I'd like to thank several websites that provided me with useful, but not entirely complete information on how to fight my ticket.

  • Ticket Assassin - This inspired me to fight my ticket. Although the information about the advantages of trial by declarations are accurate, their examples wouldn't work for my violation , a VC 22349(a). Chances are if you are on the highway when you get pulled over, then you will get one of these tickets instead of the much easier to defend VC 22350. I found their strategy to be too reliant on a single tactic which may or may not work. A good defense employs several strategies to increase their odds.
  • - Their forums are packed with information about traffic ticket defense strategies, tactics used by the prosecution, and most importantly, info about discovery. Be sure to check that the tips you get are relavant to your state!
Since a lot of people have asked, I've included additional info on how to write the docs you need to send in. There are in Part 2 and Part 3 of this article. Links below.

Click here to read part 2

Click here to read part 3

Wednesday, June 04, 2008

Engrish - Japanese English

This was in our hotel room in Tokyo, Japan. It reads "This room is non-smoking room for your convenience". I'm not sure how this could be an convience to me. Maybe I don't have to take out the dirty ash trays.