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
38 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.
Todays date since google is crap and doesnt list dates or times.
12/24/08 1:00PM
I can be reached at fraze_2 @ yahoo .com
Your speedy trial clock starts as soon as you plead not guilty. Hopefully, you pleaded not guilty in person in court (not via mail) because if you do it by mail, you've just waived your right to a speedy trial.
If you use a TBD, then lose the TBD, then request a trial de novo, your speedy trial limit gets increased by a certain amount (lookup the law on trial de novo).
Technically, your TBD is a trial so no court date is necessary. Just make sure you submit it to the courthouse and get a receipt by the deadline. However if you are trying to secure a court date for submitting a pretrial motion, you should be able to get a court clerk to attach the motion to your case (you may have to really insist cuz they may not have done this before).
At this point make sure you submit your TBD on time. You should include the fact that the name on the violation is not yours in the TBD. Also, since you've requested discovery, I'm assuming that they have not provided you with anything. If this is the case then in your TBD make sure to provide all the evidence that you submitted your discovery request and that they have received it. Then state that any evidence the prosecution provides is inadmissible since it was not provided to you in discovery. Then make sure one of our your arguments is that the case should be dismissed due to insufficient evidence.
I wouldn't worry about using a speedy trial defense until after your TBD results comes back. Let me know how it goes.
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
Trial by Declaration Payment - The amount due is $XXX.00. The extension date will be 12/XX/2008.
Traffic School Payment - The amount due is $XXX.00 plus a e-Public Access service fee* of $10.00 will be added to this amount. The traffic school due date will be 01/XX/2009.
Full Payment - The amount due is $XXX plus a e-Public Access service fee* of $10.00 will be added to this amount.
Court Date Reservation - Select a time preference below.
AM PM Night Court No Preference
At the very end I did reserve a court date which is why this is so confusing. and I paid the thing. well anyway wish me luck and email me!
todays date is 1-06-09
I mean to say the TBD payment was made, and then on the actual date I had to pick day court or night court and it said which court to appear!. So again Im not sure what the fuck is going on :( . Rage against the system
You may have to go down to the courthouse to figure out why they are asking you to select a court date for a TBD.
today i received my informal request for discovery by the chp. alot of interesting stuff.
so they enclosed front back of citation.
aside from the officer there are no additional witnesses to testify at the trial on behalf of the people of the state of california.
radar / laser was not used to determine vehicles speed.
copy of the original speedometer calibration report on the day of citation.
there are no video or audio recordings
todays date 2/4/09
tomorrow is the day i go to court. for what? i dunno. hopefully to say go home case dismissed.
If this is the court date where you were going to raise a motion, then there might not be any point in going. It does appear that they have enough evidence to prosecute you so the case won't be dismissed on the grounds of a lack of evidence.
You may want to seek a dismissal on the grounds of a lack of a speedy trial. Be sure to print out and read all the relevant laws regarding speedy trials that I mentioned in earlier comments. You may need to reference them to justify that you have not waived your right to a speedy trial.
btw, did you ever submit your TBD? Based on your comments, I'm not sure if this is your trial or just a court date to resolve legal matters before the trial.
Thanks for the info. I'm going to give this strategy a shot on Wednesday. Got a 22349A from the CHP crossing through Ventura County in the middle of the night a few weeks back.
Never got anything from the prosecution so I went ahead and wrote my motion to exclude. I returned all the paper work with my motion to the court in person to a clerk so we will see if any judge is impressed by my rantings. My motion was pretty loosey goosey, I divided into different sections and broke down what the law said and what I wanted and argued my points. I didn't cite any prior cases because that takes access to databases that I simply don't have time or means to do the research, but I cited all the public law I could that should help me. The decision takes a little while so we will see! Thanks for the web site, if anything I pretended to be some hot shot attorney for a few hours!
Worked great! After a few months of waiting, apparently the judge can take all the time he wants, got my not guilty verdict in the mail and a few days later my bail refund of $460. Wow. I feel awesome, thanks so much for the info. The Law can be fun, and I learned a lot about writing motions and reading California penal code!
That's great to hear Toby. Was your verdict "dismissed" or "not guilty"? I'd be interested in hearing if the judge put down anything regarding why he gave his verdict.
Hi
Thanks for posting this. I've been following your advice. As others have noted I got a letter form th DA saying I should request evidence front the CHP.
Great! I ignored that and am now trying to find out how to file a motion. I went to the court house to the traffic ticket window. They said I do not have the right to file a motion or to see the evidence because it isn't a criminal trial.
They said the TBD is only my written statement vs the officer's. And sent me away. What now?
I hope you got that clerk to sign something saying that you aren't allowed to see the evidence because that's legal gold right there. If you combine that with the DA's response, then that should be enough grounds to raise an objection to their evidence and a lack of due process.
When I wanted to file a motion I did it during my arraignment (where you plead not-guilty) in front of a judge so I was able to hand the motion to her at that time. It might be possible to mail in your motion to the court, but I'm not sure how that will be accepted. If you do, I would encourage you to also include your motion again with your TBD just in case.
Remember to keep track of all the interactions you had and when they occurred so that you can replay them in the motion/TBD. Being able to show how you did everything possible to get a fair trial, yet were denied due process makes your case much stronger.
Thanks for your reply, Sarit. (I posted as Anonymous above) Unfortunately I didn't have the foresight to get a written statement from the clerk but I have included the incident in my TBD statements. Hopefully that will work. I'm submitting everything tomorrow and will let you know how it goes.
Hi Sarit,
Just got the notice in the mail. Not guilty! I still dont know what I did or if the officer simply didn't complete his half of the TBD, but I don't care. Thanks!
Couple notes: for those wondering whether the officer responded to your TBWD or not, you can call the court and ask -- they'll even send you a copy of his statement.
It would be great if you would post your sample motion -- it will give us a template to work off of.
I do believe, also, that when you file a motion you're supposed to specify a date for the hearing in the motion and serve the motion on the prosecutor. If this was a case they cared about, they would file a response to your motion as well as show up at court at the time of your motion hearing.
Well... I guess it was too good to last. I got another speeding ticket. I followed the same steps, but this time, when I made a Motion to Dismiss (based on the fact that the Prosecutor requested I make my discovery request to the CHP), my motion was denied.
The letter says "Request must be served on CHP office. The court continues the TBD until XXX date so that defendant can serve proper issuing agency." I quoted the law as you advised in my motion, but I am at a loss as to what to do now. Any advice? Thanks in advance.
Hi subess,
It's very difficult to argue with the court after they have made a decision.
I'm don't remember offhand how speedy trials affect TBD's, but if you have preserved your right to a speedy trial you may be able to send in a motion to dismiss because you do not consent to an extension of your trial date and you have a right to discovery in a timely manner. You want to say something along the lines that you have a right to BOTH discovery and a speedy trial, not either or but BOTH.
You should definitely check out the laws regarding speedy trial and TBD's see what they say. I believe it says something about TBD causes the speedy trial time to be increased by XX number of days.
If that won't help then you might as well make a request to CHP being sure the keep an official paper trail of when and whom received the request. If CHP fails to give you anything, then you have grounds to exclude their evidence again.
Juliet
Hi Sarit,
I got an speeding ticket 22350 by a Traffic Enforcement motorcycle policeman with Radar for going 54 in a 40 mph zone. This area is well knows as a speed trap which I do not know if that will help me or not since you notice the officers are (most of the times) the same for what I can assumed they may be familiar with all kind of process at the time they expect to have a fight for a ticket; Despite of that, I am completely convinced I do not deserved that ticket. The area where I was driving is very crowded in the morning between 7:30 to 8:30 so it is almost impossible to be at more than 40 unless I get into a car accident. Also he mentioned on the ticket I was on the first line when I was on the second since I was just taking the ramp coming from the freeway and before you can take the main street (where I was stopped) you need to stop at the light which 99% of the times is on red. I stop and then I accelerate normal – BTW I drive a regular beetle and those cars do not have accelerate as a corvette or something like that – I was close to the next light on the main road which is not even a block apart and right when I was ready to stop it changed to green, so I accelerate again, at that point the officer was located and mentioned he had the radar on me. I accelerate again for the next light to make a left turn, again not even a block apart and, he turn on the lights and start talking over the speaker.
I was in the middle of the road with traffic in all directions and sides and this person want me to pull over? I had definitely to wait to turn to make a safe stop and not to cause traffic or make it worst.
The officer was really annoyed because I make him go a little further but it was the only place I could park. When I finally stopped, he came to me and ask me for my license and registration, which I gave to him (honestly it has been my first ticket and I did not know what to do or what to ask so I was quite all the time), he left for a moment took some notes and after that he came to me and told me I was speeding and he was giving me a ticket for that. He also said they are doing that to make people more aware of the danger when speeding, he make me sign and he took off.
As you can see I feel really dump about the situation not because what happen but how it happen, I think I made it really easy for him, he saw the opportunity and took advantage of it. I should argument a little more but I did not know what to do.
Hope you can give me some guidance on this case because I am determinate to fight it if I can.
Regards!
When should I send the Motion to Dismiss?
Where would I send the Motion to Dismiss?
Should I just go to the clerk and give it to him/her?
10/5/12
Hi Sarit,
I'm a bit confused. When requesting Discovery AND filing for motions all done before arraignment (where I go in person, pay the ticket, pled not guilty)??
Pls respond ASAP.
Thanks.
Hi Sarit,
I read your blogs and the other peoples' comments over and over again to make sure I understood everything.
I received a CVC22350 for going 55 in a 35 zone. I opted to just go to court instead of TBD so I do not need to pay the bail in advance.
Anyway, I copied your letter for discovery and sent it to the City Attorney. I then received a response from the City Atty saying that " the City Atty's office does not make appearances on traffic citations nor does it process discovery requests for these types of offenses. Normally, the only evidence submitted in support of a traffic citation is the citation itself and the testimony of the citing officer."
Can I still use the "discovery defense" even if the only evidence that they are going to use against me is the ticket and the testimony of the officer?
Or, should I just ask for the maintenance and calibration records of the radar device and records of each certification issue to the officer to use the radar, inlcuding certificated of accuracy, repair record and calibration records of the tuning forks?
My trial is on 11/09/2012. Any advice will be appraciated.
thanks,
JM
Let me clarify a bit the above things that I said.
When I go to court, should I :
(1) request for a pre-trial motion to dismiss the case due to denied access to evidence (discovery)? or
(2) during the cross-examination of the officer by me, ask for the calibration records/certifications for the officer to prove accuracy of the radar reading?
I am hoping that if the first one does not work, the second one will if the officer does not have the documents.
thanks,
JM
10-25-12
Sarit,
Thank you so much, Sarit, for answering my questions!
A question I have is should I submit 'copy of the discovery letter' and a 'copy of the certified mail receipt' as "evidence" to fight my case? Because the prosecutor (aka district attorney) has not mailed anything back to me.
Please let me know what your intake on this.
Thanks!
-Jessica J.
This is JM. I posted my questions just above Jessica J. I am writing this for the benefit of other people who might come across this site and are looking for answers too. Unfortunately, I think Sarit is no longer answering this particular section of his blog. Anyway, I have followed his advice but still got the GUILTY verdict. Apparently, even with the Discovery Request method (from which I did not get any document from the City Atty), the officer's response to my TBD defeated my case. I will now file a Trial De Novo and just hope that the officer does not show up. This seems to be the only hope of getting my case dismissed.
01/15/2013 10;10AM
Hello,
This JM again. I just want to update the result of my case. I just came from court this morning and I won my case as the officer did not show-up.
I believe that although I have lost my TBD using discovery, the main merit of doing this exercise is to delay your case for the longest time possible which gives a higher probability that the officer no longer remembers the details of the case or he does not show up. Using the one month extension, TBD and Trial de novo methods, I have delayed my trial to almost 5 months. The total time it took from the issuance of the ticket to the actual trial is about 6 1/2 months. Using the TBD and the Trial De Novo, you are given two opportunities to win your case and two chances that the officer will not respond.
In my next case (wife's ticket), I will still take advantage of the TBD. However, I will not employ the Discovery method. I will simply try to explain and defend my case. My main objective is to take advantage of the chance that the officer will not respond to the TBD. If he does, then I will ask for Trial De Novo.
If anyone has a question for me, you can e-mail me at joramed88@hotmail.com.
Peace,
JM
Hi Sarit,
Thanks for the great info.
Quick question - if you request discovery from the prosecution, are you likewise required to provide your discovery documents (assuming they do not respond/do not request the documents)? If so, are you also bound by the 15-20 day timeframe?
Thanks!
AO
Once you request discovery, you are supposed to also provide the evidence you wish to present. This could be done by merely including it with your discovery request and including a description of it in the proof of delivery.
What happens if you don't? Most likely nothing because if you are successful at excluding evidence and/or testimony then you wouldn't need your evidence to win in the first place. Its only a problem if the prosecution does provide discovery and they make a motion to exclude your evidence that you did not provide during the discovery process. The likelihood of both these things happening are extremely small.
Hi Sarit,
Great posts regarding your handling of your ticket. I have not received anything from my discovery request and am going to file a motion to compel or dismiss. It seems you have done this and I appriciate your tips, but would you be willing to post or send me your actual motion for my learning/modification?
Thanks!
Darren
My TBD ended with the judge finding me guilty.
I had 20 days from the time the court clerk sent me the notification, which I received days later.
Too late now to ask for a trial de novo, so I would like to go to traffic school so my record stays intact, but I cannot find info on how to do this.
The court is in Chatsworth, CA (part of Los Angeles.
I got a 27349(B) said I was going 80 and was tailgating in a designated short passing zone as there was a large truck going up a hill. He waved me and another car in front of me over. After seeing that I never had a driving ticket in 38 years he said he would make it for 75 MPH and I could go to traffic school. I did not know to ask about the Radar.
He was waiting on the side of the road and I know I was not going those speeds as my son got ticketed there many years ago and I am extremely careful!
Any way, can I argue that identifying one target from another is difficult, especially when the lead car is larger and also question about the calibration? I was ticketed in Sonoma, by a Napa CHP and I have to go to Santa Rosa from my home in Marin which is at least an hour away. Will miss work as the hearings are only on two afternoons.
I read that officers often don't show when the trial is in the County Seat office….far from them? ANy advice. thanks so much, claudia
After the light turned green at the Highway 121/Napa Road Junction I began driving on Highway 121 where the road became a divided highway going toward Napa County. Seeing 2 large trucks ahead, I pulled over into the designated“ Passing Lane. Zone” I slowly excelerated as there was a car ahead of me in the same lane. Immediately I saw a Police Vehicle on the side of the road with the officer waving his arm to move over to the right. The car ahead of me and myself moved over to the shoulder and stopped wherein the Police care pulled out and we followed. The Police car then pulled use over to the shoulder again.
The office came over and asked me if I knew why I was stopped and I said no. He said I was “going 80 miles an hour and tailgating”
He said it was a 55 mile an hour zone. He asked me if I knew how fast I was going and I said I did not know . I told him it was the first time I was ever stopped in my 38 years of driving.
He returned with a ticket saying he put down 75 miles and hour so the fine would not be so great. I asked him to help me understand how one is supposed to pass if the cars in the right lane are all going faster than the 55 miles an hour. He said he knew and they should all get tickets.
Having never had a speeding ticket, I did not know to ask how my speed was determined, and ask about calibration Most significantly I was the driver of the vehicle behind the lead car and in most cases the lead car travels at a faster speed. The car was also larger than mine and closer to the officer and his vehicle and this would result in that vehicle’s reflected Radar signal being stronger I did not see a Radar gun. Although the ticket says it was
Fighting the ticket means missing work . I was tagged in Sonoma Countyy a Napa County CHP…I found out. The County seat Court is in Santa Rosa about an hour from my home and about an hour from Napa ….should I fight it? Your help please thanks Claudia
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