Going 80 MPH at 65MPH highway - CA

[CdwJava]

As long as you ask for basic items (copy of citation and all notes by officer pertaining to the stop, video/audio of traffic stop if avail, radar logs if applicable, etc) than I would imagine the court would assume that the DA would have the reasonable knowledge that these items are indeed in possession of the investigating agency.

But if the DA is not part of the loop, then the section does not necessarily apply as they have no knowledge of the matter at all.

The judge ordered discovery directly to the officer and set a court date for 2 weeks later.

Which is exactly what they are required to do before dismissing the matter.

- Carl

 

[JIMinCA]

But if the DA is not part of the loop, then the section does not necessarily apply as they have no knowledge of the matter at all.

I don't agree. The prosecuting attorney certainly knows that the original ticket, officer's notes, calibratioin/maintenance records and training certificates WILL be evidence introduced. Therefore, if he doesn't provide them, the best the prosecution could do is move forward without this evidence.... which means they will NOT be able to meet their burden of proof.



SMBI,

That was an outstanding post. I agree with everything you said, up to the point where you suggested that reserving your rights to prepare a viable defense via the discovery process may be a "technicality". It is much more than that. It is the law and it is a basic foundation of fairness in our legal system. Certainly, you would not want to proceed with a murder defense (whether you did it or not) if the prosecution refused to provide requested discovery. While that is an extreme comparison, the burdens are the same.

 

[SMBI]

SMBI,

That was an outstanding post. I agree with everything you said, up to the point where you suggested that reserving your rights to prepare a viable defense via the discovery process may be a "technicality". It is much more than that. It is the law and it is a basic foundation of fairness in our legal system. Certainly, you would not want to proceed with a murder defense (whether you did it or not) if the prosecution refused to provide requested discovery. While that is an extreme comparison, the burdens are the same.

I guess technicality was the wrong word to use. What I was trying to convey was that making a fuss over discovery isn't probably worth the time unless you take the time to prepare a good defense. Because if you get discovery or what you're asking for doesn't exist and the trial moves forward and you have nothing else to go on, the court will be able to tell you weren't really prepared.

Regardless what people believe the DA is not "out of the loop" on traffic court. The law does not mandate the prosecuting atorney to attend to traffic infractions, but it does not prohibit their attendance. The police involvement at the court is solely as a witness. If the DA *chooses* not to attend that does not allow them to abandon their legal requirements to provide discovery. Traffic court, in they eyes of the law, is no different than any other court. All provisions of law for misdemeanors and felonies also apply to infractions (except for the exemptions of compulsory attendance by prosecuting attorney and right to jury trial).

As an example, in my particular case, the DA did eventually respond to the court ordered discovery (albeit past the deadline the court gave) and in their 5 page legal response they raised many issues (I'm sure all legally valid) but in their document they conceeded that they were indeed responsible for disclosing all exculpatory evidence upon request of discovery and said they intended to do so, even though that was never done.

 

[JIMinCA]

SMBI,

I am really glad to see your posts. I have felt pretty lonely around here talking to people about the State's obligation to follow its own rules as they attempt to prosecute individuals for not following its rules. While this seems pretty obvious to me, I typically get responses accusing me of advocating reckless behavior and then seeking to evade responsibility by searching for loopholes in the law. I am also glad to see someone else posting about the State's responsibility based on the law rather than what they saw in court one time or what they were told by someone. Although the law is pretty clear on these issues, it doesn't always fit what some people want the law to say.

Once again, very good posts. I am sure many people will benefit from them.

 

[coffeebean]

Guys,
I am happy that you are trying to help. It seems that there is a lot of discussion about the discovery process.

So let me update you on what's happening:

- Like I said, I did reach 80 for like a second. Everybody goes at 75mph in my commute every day. The driver in front of me was making weird movements and breaking suddenly all the time, so I decided to pass him and that's when I reached 80mph.

I have heard that it's permissible to over speed if the conditions allow. Clear day, good traffic, just going with the flow.

- I asked the office why he stopped me. He said "because for a moment I was the fastest car"

- I can't go to traffic school because I already went in the previous 18 months

- I am in Orange County

- At this point, I have to fight it no matter what, or my insurance is going to go up big time. And I can't afford it!

- I have until Feb 11 to pay or appear. I got an extension.

With all that in mind, and not taking in consideration if you think I have the right or not to win this, I would appreciate advice on the best way to fight this.

- Do the discovery request? Please let me know where to find the info on how to do it
- Just show up and hope the officer doesn't show up? Would that automatically make me win?
- Request a written appeal?

I really appreciate your help.

Thanks

 

[CdwJava]

- Like I said, I did reach 80 for like a second. Everybody goes at 75mph in my commute every day. The driver in front of me was making weird movements and breaking suddenly all the time, so I decided to pass him and that's when I reached 80mph.

I have heard that it's permissible to over speed if the conditions allow. Clear day, good traffic, just going with the flow.

The judge might allow an exception for excessive speed for your safety, but that is an affirmative defense you will have to raise to the court. It's essentially, "guilty, but with an explanation."

- I can go to traffic school because I already went in the previous 18 months

I presume you meant that you can NOT go to school because you attended in the last 18 months. But, actually, you can. I don't have the section in front of me, but there is a way that the court can allow you to attend a second school ... I am pretty sure Jim will have the info handy.

- Just show up and hope the officer doesn't show up? Would that automatically make me win?

Maybe. It depends. If he doesn't show you might have to make a motion to dismiss. if not, the court may continue the matter.


- Carl

 

[coffeebean]

Yes, I meant to say I can't go to school because I went in the last 18 months.

I asked the traffic court agent the phone and she said all my record said was that I was not eligible for traffic school. I tried telling her that I heard something about an advanced traffic school or a 2nd level traffic school, and she just kept saying "you are not eligible".

 

[CdwJava]

I don't have the particulars in front of me, but I believe it is something only the judge can assign. I'm rushed for time at the moment, or I'd see what I can dig up on it.

There might be others who have that info handy - just be patient.

- Carl

 

[JIMinCA]

coffeebean,

CVC 42005 gives the court the authority to order traffic school in lieu of a conviction. However, it says nothing about 18 months. I believe that is just a common rule of the courts. Traffic school is ordered at the discretion of the Court. I have also heard of the Court exercising its discretion to allow a violator to attend traffic school twice within the 18 month window.

42005. (a) The court may order or permit a person convicted of a
traffic violation to attend a traffic violator school licensed
pursuant to Chapter 1.5 (commencing with Section 11200) of Division
5.
(b) In lieu of adjudicating a traffic offense committed by a
person who holds a noncommercial class C, class M1, or class M2
driver's license, and with the consent of the defendant, the court
may order the person to attend a licensed traffic violator school, a
licensed driving school, or any other court-approved program or
driving instruction.
(c) Pursuant to Title 49 of the Code of Federal Regulations, the
court may not order or permit a person who holds a class A, class B,
or commercial class C driver's license to complete a licensed traffic
violator school, a licensed driving school, or any other
court-approved program of driving instruction in lieu of adjudicating
any traffic offense committed by the holder of a class A, class B,
or commercial class C driver's license.
(d) The court may not order or permit a person, regardless of the
driver's license class, to complete a licensed traffic violator
school, a licensed driving school, or any other court-approved
program of driving instruction in lieu of adjudicating an offense if
that offense had occurred in a commercial motor vehicle, as defined
in subdivision (b) of Section 15210.
(e) Except as otherwise provided in subdivision (f), a person so
ordered may choose the traffic violator school the person will
attend. The court shall make available to each person subject to
that order the current list of traffic violator schools published by
the department pursuant to Section 11205.
(f) In those counties where, prior to January 1, 1985, one or more
individual courts, or the county acting on behalf of one or more
individual courts, contracted for the provision of traffic safety
instructional services to traffic violators referred by the court
pursuant to a pretrial diversion program, the courts may restrict
referrals under this section to those schools for traffic violators
or licensed driving schools that are under contract with the court or
with the county to provide traffic safety instructional services for
persons referred pursuant to subdivision (a).
(g) A county described in Section 28023 of the Government Code may
continue to provide the program authorized by this section in
accordance with the provisions of current and future contracts as may
be amended and approved by the individual courts within that county
and the county shall be exempt from state regulations relative to
maximum classroom attendance.
(h) Notwithstanding subdivisions (f) and (g), a court in the
counties described in those subdivisions shall comply with the
prohibitions set forth in subdivisions (c) and (d).
(i) A person who willfully fails to comply with a court order to
attend traffic violator school is guilty of a misdemeanor.
(j) This section shall become operative on September 20, 2005.​

However, as you know, traffic school will cost

1) the fine for the ticket
2) $25-$50 for court costs
3) $25-$50 cost for the traffic school

On top of that, even though it converts your ticket to a dismissal, I have heard where the insurance company can legally raise your premiums all the same.


Therefore, you should do all you can to defend yourself. Since you requested an extension, you have waived your right to a speedy trial after arraignment. So, you should get all the extensions you can. Call back around the third week of January and ask for another extension. Take as many as they will give you.

File a request for discovery now. You can go to http://www.helpigotaticket.com/proc/discover.html to learn how to do a discovery request. It is free and I am in no way affiliated with the site. It is just a very good source of information. If the DA provides your discovery, you may find that calibrations/maintenance on the radar unit were expired or some othe exculpatory evidence that could make a good defense. You'll know once you get it back. If you don't get anything back, you can use that as a defense as well. The DA is mandated to provide you with discovery. Failure to do so compromises your right to provide a defense for yourself.

Once you are nearing the end of your final extension, you can plead not-guilty and request a trial by written declaration. Many jurisdictions will allow you to do this over the phone. Or you can do it in writing via USPS or just show up to the arraignment and do so. You will have to pay bail (the amount of your ticket) to do this. In your TBWD, you can provide an eloquent defense, you can explain the fact that you exceeded the speed limit only momentarily for safety reasons (just don't plead guilty) or you can simply say "I am not guilty". If the judge likes your argument or if the cop doesn't submit a written statement, then you will get a dismissal. If you are found guilty, you can request a Trial De Novo (a new trial).

At your "new trial", you may get lucky and the cop doesn't show up. In that case, you'll likely get a dismissal. However, if he does show up, you can request your Traffic School at that time.

Keep in mind, the TBWD is likely to come out with a guilty verdict. I have done two TBWD and provided undisputable evidence that my case should be dismissed. However, I simply got a form letter back saying I was guilty with the judges stamp on it (didn't even sign it). I'm half convinced the judge didn't even see it. This is quite an abuse of authority, but I'll save that for another time. However, in both instances, I requested a Trial De Novo, went to court and presented the EXACT same defense and was acquitted. Amazing.

Good luck in whatever you decide to do. Keep us posted.

 

[coffeebean]

Thanks for all the info.

I was looking at that site and then realized that I didn't ask the officer if he was using radar, laser or just pacing me. What should I do?

Thanks

 

[CdwJava]

Thanks for all the info.

I was looking at that site and then realized that I didn't ask the officer if he was using radar, laser or just pacing me. What should I do?

Thanks

That info MAY be on the citation. if not, then it should be obtained as part of discovery.

- Carl

 

[coffeebean]

Since you requested an extension, you have waived your right to a speedy trial after arraignment. So, you should get all the extensions you can. Call back around the third week of January and ask for another extension.

I asked for extension primarily because when I got the courtesy notice I only had like a week to pay or appear.

If I am going to ask for discovery, why should I keep getting extensions? Wouldn't it be better to hope that nothing comes back from extension and just go to court as soon as I can, so I can claim that my request for discovery was ignored?

Thanks

 

[JIMinCA]

I asked for extension primarily because when I got the courtesy notice I only had like a week to pay or appear.

If I am going to ask for discovery, why should I keep getting extensions? Wouldn't it be better to hope that nothing comes back from extension and just go to court as soon as I can, so I can claim that my request for discovery was ignored?

Thanks

The extensions will allow the cop's memory to become stale. Therefore, he will have to rely on his notes to offer testimony. If you have problems with the discovery and the judge doesn't grant you a dismissal, you can question him as to his memory. If he tells you that he refered to his notes, you can reitterate your argument of being denied your right to prepare a defense.

Delaying isn't necessary... it is just another dimension of a possible defense. You can request the discovery now and proceed. Just keep in mind, your discovery request has to be in 30 days before trial. I would shoot for at least 45 days to be safe.

After 15 days with no discovery, you can make a motion to the court to order the DA to produce the discovery. This is not mandatory, but it could add to your argument if the DA refuses to cooperate. You may get some correspondence that discovery must be directed to the issuing agency. This is by practice, not by law. The law REQUIRES the prosecuting attorney to provide the discovery. Stick to the law.

 

[coffeebean]

Thanks Jim.

Should I use the discovery form for radar/laser or pacing?
Thanks

 

[FlyingRon]

Guys,
- Like I said, I did reach 80 for like a second. Everybody goes at 75mph in my commute every day.

The "everybody does it" argument is not a valid defense.

I have heard that it's permissible to over speed if the conditions allow. Clear day, good traffic, just going with the flow.

You were told wrong. The speed limit is set with all those things in advance. Slower traffic, poorer conditions mandate going SLOWER.
Going with the flow isn't a valid defense.

- I asked the office why he stopped me. He said "because for a moment I was the fastest car"

Not that he needs a reason, but that seems as good as any. Why would he bypass the worst offender.

- I can't go to traffic school because I already went in the previous 18 months

Were you not paying attention the first time? Driver more carefully and lawfully.