Sunday, October 05, 2008

How I Beat my Speeding Ticket (Part 3)

Motion to exclude Evidence and Testimony
Hopefully, you've waited 15-20 days and NOT gotten any evidence from the prosecution. You will want to file a motion to exclude the evidence and testimony you requested in discovery, but did not get. At this point you can either file your motion immediately, or wait till you are a bit closer to your TBD date and file it. I can't say what's best for you, but here are some things to think about. First, if your court is unlikely to hear your motion, then filing it sooner allows you to say that you've done everything in your power and if the courts procrastinate, then they must exclude the evidence during trial. On the otherhand, filing too early may give the court time to order the prosecution to provide you with the requested evidence in a timely manner.

Now suppose you were able to submit your motion, and a judge is willing to hear and decide on it. If the judge says that he can only order the prosecution to pony up the evidence, remind him of your TBD date and the timely requirement for discovery. At that time the judge may tell you that you should ask for a continuance (ie an extension), but you should kindly remind him of your rights to a speedy trial. If he says you must pick either timely evidence or a speedy trial, tell him you are guarunteed both under the constitution, and that the evidence should be rejected if it cannot be produced in time. If on the other hand, the judge says that you forfeited your right to a speedy trial when you requested a TBD, kindly remind him that VC 40519(b) only applies to people who entered a written non-guilty plea and since you plead not-guilty in court, you still have the right to a speedy trial.

Writing your motion
My motion is very specific to my case, so I won't be sharing it, but here are some tips on what to include in it:
  • Structure your motion into five sections: What you want, Relevant Facts, What the Law says, Your legal argument, and your conclusion (which reiterates what you want).
  • Use PC 1054.5(c) in your Law section as the basis of excluding testimony. You may also use other parts of PC 1054 to support your motion also.
  • Ensure that you legal argument is sound and makes use of the laws you stated.
  • Include copies of all the documents proving that you sent the discovery request and that it was received by someone there. These should be labeled Exhibit A, B, C,...
  • Make sure your argument is striving towards a legitimate reason why evidence or testimony should be deemed inadmissible.
  • Include a statement at the end saying in effect that you swear this is the truth under penalty of perjury.

Submitting your motion
I'll be honest, in that I don't really know what's the best way to submit my motion, since event the court clerk didn't know. I would suggest that you call the courts and find out. If they tell you to go to walk-in-court get them to tell you how to get an appointment or if there are special days where more cases are heard. You can also try going to the booth where you're suppose to pay your traffic fines and asking them to attach a motion to your case, but i'm not sure that counts as having your motion submitted to the courts.

Go back to Part 1
Go back to Part 2

Friday, October 03, 2008

How I beat my Speeding Ticket (Part 2)

I've received several requests to see the documents I used, so here they are. If you use them, be sure to replace the relevant portions with the particulars of your case.
Remember this is a Request for Discovery, you will need to send this via certified mail w/ signature confirmation (get a print out of the signature online once its delivered) to be able to prove that the prosecution received it. To be really sure this is valid, have a friend fill out a Proof of Service Form(there are a ton of em on the net) and do all your mailings. Be sure to keep a copy of each signed form.

Who to send this to?
Technically, you must send this to the prosecution, but who is the prosecution? In most cases, if you were stopped by the city police, it will be the city attorney. If you were stopped by the CHP, then it is the county DA. If you want to cover your bases, you could send it to both (like what I did), but you do run the risk of having one of the agencies actually responding to your request.

When do I send this?
I would suggest that you send this the same day that go to court in person and plea NOT GUILTY and request a trial by declaration (TBD) (I believe this part is called arraignment). When you request TBD, the courts will immediately set a deadline for you to turn in your TBD a few weeks after arraignment. This is good because, by law, the prosecution is allowed 15 days to provide you with the evidence you requested. So if the 15 days are up, and you're only a few days from trial (TBD due date), then you have good cause for having all that evidence you requested deemed as inadmissible because it cannot be given to you in a timely manner.

What do I do next?
You wait 15 days (possibly 20 if you make your request by mail). Hopefully, the prosecution didn't send you anything. If they didn't, then you should try to submit a pretrial motion to get the requested evidence rejected (I'll talk about this in Part 3).

Here is my Request for Discovery:

Your Name
My Street Address
My City, My State My ZIP
My Phone Number
Pro Per




Regarding Citation Number: XXXXX

Pursuant to California Penal Code sections 1054 and 1054.1, and California Government Code section 26500, the defendant in the above entitled matter does hereby request under discovery the following:
1)The names and addresses of all the witnesses who may be called to testify against the defendant at the trial
2)Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.
3)The citing officer's daily log for the night of THE NIGHT OF YOUR TICKET
4)A list of all method(s) used in the determination of the defendant's vehicle speed
5)A copy of all records regarding the maintenance and calibration of any device used to determine the defendant's vehicle speed.
6)A copy of each and every certification issued to citing officer involving the use of said device(s)
7)A copy of all of the citing officer's notes on this case including copies of the front and back of the officer’s copy of the ticket.
8)If a radar device was used to ascertain the defendant's speed,
a)Include a copy of all certificates of accuracy, repair records, and calibration records of the tuning forks used to calibrate those radar devices
b)Include a copy of the manufacturers manual and specifications of the radar unit
c)Include a copy of the Department's FCC License to operate the radar unit
d)Include a copy of all documents certifying that the officer operating the radar has completed a radar operator course of not less than 24 hours on the use of police traffic radar.
e)Include a copy of all documents proving that the radar operator course was certified by the Commission on Peace Office Standards and Training
9)If a laser or any other electronic device was used to ascertain the defendant's speed, then include the documents in (7) (d) and a document certifying that the officer took an additional training course of no less than 2 hours that was certified by the Commission on Peace Officer Standards and Training.
10)If the defendant's speed was determined through visual estimation, then include a description of all visual indicators and/or reference points used by the officer in his estimation.
11)Copies of all photos or videos taken of the defendant or of the vehicle he is alleged to have been driving, at or near the time of the alleged violation in this case. Please assure that all copies of photographic materials (still or video) are the same resolution as the originals, and that all copies of videos are the same length and "frame rate" (frames per second) as the originals. Please also assure that if the original photos were "digital," the copies provided are also in a digital form.
12)Information and materials favorable to the accused and material either to guilt or to punishment (Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194.), or mandated by the United States Constitution (Penal Code Sec. 1054(e).), as follows:
(a). Exculpatory evidence, i.e., any evidence, information, documents and other materials favorable to the defendant in the possession of the office of the city attorney, or of any police department involved in the investigation of the case against defendant, or of any agency or person and available to the prosecution through the exercise of due diligence. (Randle v. City and County of San Francisco (1986) 186 Cal. App.3d 449; Evans v. Janing (8th Cir., 1973) 489 F.2d 470; U.S. v. Eley (N.D. Ga, 1972) 335 F.Supp. 353.)

Please note: PC 1054.1 uses the imperative, “shall disclose.” The only place in the law where we find any choice in this matter is in Government Code 26500, which states in part:
The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses. (emphasis added)
Obviously the public prosecutor would not violate the law, therefore we will have to interpret a failure to provide the documents requested under discovery as an exercise of the discretion provided for in GC 26500 and a decision not to prosecute this case.

This request is made on this the THE DAY YOU SEND THIS.


Goto Part 3
Go back to Part 1