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
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF YOUR COUNTY, YOUR CITY SUPERIOR COURT
COUNTY OF YOUR COUNTY, YOUR CITY SUPERIOR COURT
| PEOPLE OF THE STATE OF CALIFORNIA vs. YOUR NAME | Case No. XXXXXX DISCOVERY REQUEST |
Regarding Citation Number: XXXXX
Citing Officer: XXXXXXX #BADGE NUMBER
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.
_______________________
YOUR NAME
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Go back to Part 1
32 comments:
Hi sarit, My tbd is 12/26/08 but when I went, it then is prompting for me to select a court date believe it or not all or most court dates are set for April 2009!, anywho. There was an option for night court and the only option there was for 2/5/09. On 12/10/08 I sent in my request for discovery to the district attorneys office since I was sited by the chp in los angeles. Now im wondering how do I do this speedy trial deal? Do I really have to wait 4 months or 2 months from now?. just to appear in court. I am wondering if there's a way to speed this up?. Let me know what you did because i got this ticket back in 7/27/08.
Vehicle code violation. 22349A VC above vg max.
Not sure if this is a win but on the lasuperiorcourt.org they messed up my middle name and spelled it completely wrong. So far I havent heard anything back yet which is good, but can I just go in court or find a way to speed this up rather than wait, my tbd online was just to schedule a court date, had nothing to do with appear in court the day after xmas.
Todays date since google is crap and doesnt list dates or times.
12/24/08 1:07PM
I can be reached at fraze_2 [at] yahoo .com
Update. I got al etter back from the District attorney, and guess what. They replied :
Dr mr elusion:
The los angeles coounty district attorney's office is in receipt of your discovery request received 12-11-08. the District Attorney's Office does not handle traffic infractions.
Your request for information regarding items 1-12 should be addressed to the issuing law enforcement agency since we do-not posses that information.
So now what?. I got a letter a week ago from the la courthouse, basically I have to fill out and complete send back a form they gave. I hope you come online.. Im kind of stuck here not sure if I mail the chp directly?. Maybe the speedy trial thing is the next step.
Todays date: 01-03-09
Just so you know I'm not a lawyer so none of what I say should be considered to be legal advice. This is just my opinion based on researching the internet.
PC 1054.1 states:
"The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,
if it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the
investigating agencies:"
So technically they must provide you with the discovery information even if the police have it. Their response fulfills the criteria of "knows it to be in the possession of the investigating agencies".
You have to make sure that the LA County DA is considered to be your "prosecutor" (Note: the testifying officer is a witness for the prosecution not a prosecutor). You may have to call the courthouse to find out.
If you got the right prosecutor, then the question is whether or not to challenge the DA's response. If you challenge, then you risk that they will actually give discovery to you. If you don't challenge then the judge may overrule your objections to evidence outside of discovery since you may not have made enough of an effort to obtain discovery. I sidestepped this decision by submitting a pre-trial motion to exclude evidence that the prosecution did not share with me. I can't say what is best for your case since it hinges on how judges and attorneys will react, but you should pick a game plan and stick with it. Let me know what you decide and I'll see what info I can dig up for you.
When did you enter your not-guilty plea?
Did you enter your plea in writing or in person?
For a speedy trial defense you should read up on:
CA Penal Code 1382(a)(3)
CA Vehicle Code 40519 (b)
The thing to watch out about speedy trials is that you can very easily "waive your right to a speedy trial" without knowing it. Picking a court date beyond the 45 day limit may count as waiving your right (even if there is no earlier spot). Also submitting a written not-guilty plea will waive your right.
I don't know if this is the right thing to do, but if you haven't already waived your right to a speedy trial, you could write a letter to the courts saying no court dates are availabe for a speedy trial so they must either give you an acceptable court date or dismiss your case.
Hi Sarit this is what I received 2 weeks ago from the court house ill free type it:
1)[X] We have received your request to plead "Not Guilty"
2)[X] We have received your request for a [Blank] cort trial (both parties present) [X] Trial by Declaration (no appearance, written declarations only). [] Summary Trial* (officer not present).
3) just states they received my payment..
So now im worried am I screwed now???.
in bold caps it says:
IT IS YOUR RESPONSIBILITY TO MEET THE INDICATED REQUIREMENTS BELOW BY (January 21, 2009) IF YOU ARE UNABLE TO COMPLY WITH ANY OF THE ITEMS CHECKED BY THIS DATE YOU MUST CONTACT THE COURT AT LEAST 10COURT DAYS BEFORE YOUR SCHEDULED DATE.
6)[X] Regarding the Trial by declaration, you MUST complete and return the enclosed Trial by Declaration form to the Court. You will be notified by mail of the Court's ruling.
Now heres the thing I still have to appear in court Feb 5th so thats why im confused?. any insight or help is greatly appreciated, I will copy my other post from part 2. I received a TR200 form and the next page is a TR205 form, I will scan and post later on.
So should I call the court and tell them I would like to go in court and make a plea of not guilty?. then ask for a trial by declaration?. I got confused with your first post because the option for trial by declaration came up, so when i picked that it said dec 26th, then I went back online to secure a court date options was feb 09 night court or april 09 day court. Todays date is (01-04-09 10:18am)
Elusion
According to the letter it says you already plead not guilty. Is this true? Did you request a TBD by mail or online? Technically, requesting a TBD implies that you are pleading not guilty. If so you may have waived your right to a speedy trial. You may need to call or write to the courthouse explaining that you were confused by the website and want to withdraw your "online" plea and submit one in person (if you still want to keep your right to a speedy trial).
My first post talked about securing a court date so you could present pre-trial motions. For this you should not have to specify whether you are doing a TBD. If their website doesn't allow you to, then you may need to call the courthouse to arrange one.
What makes you think that you have to appear in court on Feb 5th? I see that on #2, the court date is blank and the TBD option is checked. This just means that you your trial will be done via mail. Considering that the website you described is not very clear in what court dates its asking you to pick, I would say you need to call the courthouse to get a clarification. A TBD should not require a courtdate.
oh ok thanks sarit yeah I need to call those guys pronto because I have 10 court days to respond otherwise its all done by mail. I dont know what to do now?. I thought im royally screwed on both ends because speedy trial supposed to happen within 30 -45 days of ticket which was back in june! early july so I doubt thats an option and now is this TBD but I read online the District attorney does not deal with traffic matters as does the response from the DA's office. So now im in a real bind. I dont know what to do period now. I will call the courthouse and explain but I really am stressing it hard
Court Date Reservation - Select a time preference below.
Night Court
So i also printed out the portion where I go in to night court. but yeah very confusing and the # is not working for the la courthouse. I dont know what else to do with the request for discovery since the DA said they dont handle traffic matters, and it was infact the chp cited me. The only proof I have is this letter from the DA and the signature confirmation, other than that I think im fucked.
01/06/09
The speedy trial clock doesn't start until you enter a plea (you implicitly entered a not-guilty plea when you requested the TBD). So its 45 days from when they sent you that letter, NOT THE DAY YOU GOT THE TICKET.
Read my last comment in this thread about challenging the DA's response. You need to decide if you want to challenge or not. If you challenge and they still don't give it to you, then you got a lot of ammo to win your case. The law is very clear that the prosecution is responsible for giving you discovery. If they decide to shirk their responsibilities that seriously improves your chances of winning.
Thank you Sarit for your help. Following your tips, I won my case (CHP, speeding). I requested TDB (mail) using the correct form. This was granted. I requested discovery including my evidence (a photo) to both CHP and DA. DA said they do not handle traffic and directed me to issuing agency. CHP returned my request and evidence w/o comment. I mailed the mail receipts and non-response paperwork to the judge with my evidence saying that due to denial of due process (PC1054) I could not prepare my case. I am so happy about this. Thanks again.
Hello Sarit Please Help,
I recieved a ticket for CVC22349 (a) VC on 3/24/12. Since then, i got 2 extensions, and my due date was 8/8/12. However, 2 days before the 8th I called to schedule a court date, for my arraignment which was today 8/10/12. I plead "not guilty" and requested TBD. I was expecting to pay my bail today and start the TBD process. When I went to the Clerk, she gave me the notice to defendant in which it granted me a further extension from 8/8/12 to 9/24/12 and upon posting bail i will receive my TBD papers and an extra 25 days to complete the TBD papers. I did not pay my bail today. My question is when does the 45 day speedy trial end? Did I waive my right to the speedy trial by taking the extension to 9/24/12? Or can i still pay on Monday and fall in the parameters? Thank you very much for your help!
When you go in person to pay the ticket and pled NOT guilty to the clerk, should I give the clerk the Discovery Forms that's already filled in to the clerk too?
10/5/12
Hi Sarit,
did you have to fill out a TR-205 form and read the rules in TR-200?
if you did, how did you fill it out? How did you submit it? did you attach any documents (like discovery) to it?
Thanks.
(i apologize. i'm asking a bunch of questions)
10-5-12
I know you said that you turned in the Discovery to the City Attorney (if it was a city police that ticketed you) and the District Attorney (if it was the CHP that ticketed you).
What if it was the Los Angeles sheriff's department (branch: Temple Sheriff's Department)?? Where do I turn the discovery to?
Also, when you turned it in to the city attorney, where did you turn that in? Would it be to the city hall or the court that the police wrote on your ticket??
Thanks Sarit!
sorry Sarit for a choppy posts. questions keep coming after I post things. For the Discovery, it says 15 days. Would that be business days or 15 days in general. Thanks!
Hi Jessica,
When I went in for arraignment, I tried to submit to the traffic clerk before I appeared in court, but the clerk just asked me to present it directly to the judge. Then when I went in front of the judge, the judge asked me why I hadn't submitted it earlier, to which I explained that the clerk wanted me to present it directly to her.
Yes I did have to fill out a TR-205.
This is basically your written trial. You attach everything you wish to present in your trial to this form.
This is where I included my legal argument as to why the case should be dismissed. This included my motions to dismiss (again), all the evidence to show that I made a completely valid request for discovery and that the prosecution did not respond, and legal arguments as to why my case should be dismissed.
I then just mailed the whole packet to the court. I think they should have provided you an address of the court to mail this to.
You have to submit your discovery request to the "prosecution". I did so by finding the city and district attorney's mailing address on the net and letting the post office deliver it with signature confirmation. I also had my friend do the mailings and sign a "Proof of Service" form. This provided the paper trail of evidence that I fulfilled my end of the discovery request. This evidence is what was submitted w/ the TR-405.
You can also call the LA sheriff dept and ask them who is the prosecutor for them. If you can get a written & signed note from an official there, then even better.
I believe it refers to 15 calendar days (not business days).
The 15 days comes from CA Penal Code 1054.5(b):
(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to provide
the materials and information requested, the party may seek a court
order. Upon a showing that a party has not complied with Section
1054.1 or 1054.3 and upon a showing that the moving party complied
with the informal discovery procedure provided in this subdivision, a
court may make any order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure,
contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the
matter, or any other lawful order. Further, the court may advise the
jury of any failure or refusal to disclose and of any untimely
disclosure.
Hi Sarit!
Great posts about traffic tickets. I got one today because he accused me of driving with an out of state license but he wrote my driving license number on the ticket incorrectly. He wrote my state iD number in there instead. Is this enough reason to have my case thrown out of the court?
Feel free to email me danceabstract@gmail.com Thank you so much!
Hi Sarit,
Thanks for the great blog…
Got a few questions after I sent my Request for Discovery:
1. I was stopped by a city police. So I sent this to the city attorney. On the envelope, I just address it to the city attorney. I got a missed call from the city police department today, asking me to call back. Should I call back? Or even talk to them? Is there any consequence if I don’t talk to them? Today is 1 day before the 15 calendar days due. I mailed the request though. Should I wait for 20 days?
2. Do you have a sample that for Motion of Dismiss when they don’t send you evidence or the evidence they sent was not sufficient…? I read the part 3 in your blog… still don’t really know how to put everything together. Thanks much.
Just a bit about my background. Got a 22350 tix on a surface street. Cited going 55 on 35. Cops hide right after the 35 sign when the speed limit zone changes from 45 to 35. Method: LIDAR. In my TBD, I would argue 4 points: 1. Cop could have clocked my speed on the 45 zone. 2. My speed is safe (got speed survey that was 7 years old). 3. They need to prove that it was not a speed trap. 4. Motion of dismiss from the Request of Discovery process… (I am not so sure how to do this part yet… ) but basically as you suggested, I’d say “I asked for discovery yet no evidence was given to me therefore any evidence the cop provides in his TBD response is illegal.”
Thanks so much.
Hi Sarit thank you for your website!
Question: how complete Discovery Request for a stop sign ticket? Your sample is for speeding ticket.
Thank you
I read somewhere that it is illegal for cops to do ticket quotas and to hide. is this true?
Cops were giving out numerous tickets same day same stop sign, and they were hiding.
Seeking that info for fighting my ticket. Doing TBD.
I heard that it is good to ask in the Discovery for number of same citations given at same location for 30 days prior and after my citation.
This is a stop sign violation.
what do you think? what is the proper wording to ask for this in the discovery letter?
should i ask for just the one officer's record of these citations or whole city police dept?
(I am anonymous who submitted last 3 posts).
Doing Trial by Writ for stop sign.
question:
Your sample Request for Discovery form says "Superior Court of CA" and "People of CA vs" but since I'm delivering this request to city atty or city police dept doesn't it need have that person's name or dept on the letter?
Thank you
Hi Sarit,
I received a speeding ticket for going 81 on a 65. The traffic was going at a steady 75mph. I was even cut off but a highway patrol while I was going 75. I merged lanes to get out of the way and I think this may have been the moment when the officer radared me because when I passed the cop, I checked my speedometer and I was going 68mph. I have been given a court date. I tried to push my date further but the courthouse doesn't reschedule. I can, however, appear before a judge any day before my date. I plan on going before a judge before my scheduled court date. And I'm assuming the citing officer won't be there.
So basically, I need some advice as to what I should do/expect?
Hi Sarit,
I'm trying to navigate my way through all this information, and am a bit confused.
I received a violation for doing 80 in a 70, which in fact I had my cruise control set at 72 (below the flow of traffic).
Anyway, I want to fight my ticket by written declaration since my citation was issued in another county and appearing in court will require time off work and driving (not even worth it to fight). At what point in all this do I submit the written declaration? Should I do this before or after requesting discovery? If I do it before, won't I already have stated my case in writing? Any help is much appreciated. Thanks so much.
Hi Erin,
You would submit your TBD after your request for discovery. If you're trying to do what I did, you would need to submit the request early enough so that there is more than a reasonable amount of time for them to send you the discovery.
Thanks for the reply, Sarit. I already requested an extension to push my due date to July 15th. So, I have about 5 weeks left. Do you think that is sufficient time to request discovery and TBD? I am planning to call the clerk tomorrow to get more clarification on what is due when, but do you have a simple, bulleted step by step list of what order things go in?
I understand I can request discovery, but then I also need to mail my TR205, bail amount, and written statement (am I missing anything?). Do the latter 3 items all go in together at once?
Lastly, would you say it's worth it to fight? A lot of people have been telling me to just pay ($240 or $300 if I opt for traffic school) and get it over with. But I'm having a hard time based on the principle of right and wrong. In my case, I had my CC on and was traveling slower than the flow of traffic. The officer refused to show me his radar, saying there was no record of it. He also declined to answer my question of whether it was possible he caught a different car on his radar. Other than that, I don't have any solid evidence to support my innocence.
Really appreciate your blog and guidance. It's been incredibly helpful - thanks again.
Ok, just got off the phone with the clerk. If I understand correctly, my timeline is as follows:
1) All I have to do by the due date of 7/15 is mail the bail amount and courtesy notice form requesting TBD
2) Then the court will mail me a TR205 form with additional instructions on what evidence I can submit with my actual written declaration.
3) I submit request for discovery (clerk didn't know much about this) before written statement. This is how I will get information such as calibration records, etc. He said it is ok to submit discovery request after mailing bail.
4) Submit written statement and TR205 form (due date will be specified upon receiving form).
Does this all sound correct?
Great news! So, I followed the instructions here and requested an extension, TBD, and mailed my discovery request to the issuing CHP and DA. Well, I just got a letter back from the CHP saying my citing officer has since retired and they will not be pursuing my case. I might be the luckiest person ever.
This information regarding how to
Fight Speeding Tickets is very useful. Thanks for the information.
Hey Sarit,
I was doing at max 77 in a 65 speed limit zone just outside Redwood City when I notice a police Ford Expedition (perhaps Explorer) accelerating a couple of cars behind me. I slow down in case he was trying to ticket someone else, and the fact that I want to be going under the speed limit while driving around him. He pulls up behind me and immediately turns on his lights. I pull over three lanes onto the highway's shoulder and put my car in park and turn on the emergency brakes. He parks behind me and walks to the passenger side of my car and I roll the window down. I immediately say "I'm sorry." He asks, "Any particular reason you're speeding?" I respond, "I wasn't really speeding, but I was just trying to get to work." He says, "All right well, license, registration, and insurance agreement." I begin to take papers out of my glove box and ask, "These?" motioning to some papers I thought were my insurance forms. He shakes his head and points to some DMV issues papers, says "Those. I'll get you out of here in a couple of minutes." He then walks away and I begin to think he won't ticket me, but then I notice a pen in his hand so I know I'll be getting a ticket. After a couple of minutes he comes back and hands me my ticket. I take a moment to scan it (it was my first time seeing one) and see he said I was going 97. I tell him, "Wait, this says I was going 97. My odometer, rather my speedometer never went past 80. This is wrong." He smirks at me and says, "Man I got lidar. You can contest the ticket if you want to." I respond, "It's wrong, but fine." He leaves, I roll up the window and I wait for a couple of minutes not knowing if I'm free to go. I roll down my window, finally and motion at him to get his attention. He gets out of his car and returns to the passenger side of my car and I roll down the window. I ask, "Can I go?" He responds, "Yeah, you're free to go." I roll up the window, take my car out of park, take out the emergency brake, and signal to return to the highway. I then merge into the lane and drive away.
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