Going 80 MPH at 65MPH highway - CA

[Zigner]

I am niether young, naive, nor rich. And, I have made that defense work several times.

How many tickets DO you have under your belt?

 

[CdwJava]

Sorry Carl, with all due respect and deference to your background, but I disagree with you. We have had this disagreement before. The issuing agency does NOT prosecute traffic cases. The ticketing cop appears as a witness for the State, nothing more, nothing less. It would be very inappropriate to send a discovery request to a witness. The Penal Code makes responsible the prosecuting attorney for providing discovery. There is no requirement for the issuing agency to do so. The issuing agency could simply ignore the discovery request and by the time the OP files a proper request, they could be within the 30 days period before trial. This could seriously compromise his defense.

Once again you have to read the conditional "if" in the law.

As a matter of fact, I asked our local DA this very question (in passing) at his ranch (on Wednesday 12/26/07 at approximately 4:00 PM) while I was there on other business, and he got into a legal discourse of why his office is not responsible for providing discovery for traffic violations ... sadly, I did not cite the codes as it was too cold to write, and I was on the phone trying to track down another county department head while he was talking ... it was a bizarre day. He also offered up that on those rare occasions they DO know who issued the cite (usually because the person requesting the discovery provides that info) they pass the request to the involved agency.

This is why the court can direct discovery and why they are arguably required to do so before dismissing.

From a purely practical standpoint, if the DA does not know about nor possess the relevant documents sought in discovery, they cannot provide anything. As I have repeatedly said, some DA's offices do not have ANY traffic info so they have nothing they can provide.

It all goes back to the conditional "if" in the code.

As for dismissals without ordering discovery, we all know that many things CAN happen, and that in traffic matters many things DO happen that may not be entirely kosher. The thing is, when a judge errs on the side of the defense, there is no prosecutor there to object and the officer does not have standing to so object. So, the judge can make any decision he likes in favor of the defendant without repercussion or objection.

- Carl

 

[Zigner]

Carl - I compliment you on your real-world wisdom and knowledge.

 

[JIMinCA]

How many tickets DO you have under your belt?

I'm not sure how that is relevant or even a good argument as the more tickets I have successfully defended, the more credible my posts!

 

[fairisfair]

I'm not sure how that is relevant or even a good argument as the more tickets I have successfully defended, the more credible my posts!

I am sure we are all more curious as to the total number you have received. and how many of them you have successfully defended IN COURT, not how many of them have been summarily dismissed.

 

[Zigner]

I'm not sure how that is relevant or even a good argument as the more tickets I have successfully defended, the more credible my posts!

No, your record of violating the law reduces your credibility...and it makes me want to steer clear of you on the road!

 

[JIMinCA]

Once again you have to read the conditional "if" in the law.

As a matter of fact, I asked our local DA this very question (in passing) at his ranch (on Wednesday 12/26/07 at approximately 4:00 PM) while I was there on other business, and he got into a legal discourse of why his office is not responsible for providing discovery for traffic violations ... sadly, I did not cite the codes as it was too cold to write, and I was on the phone trying to track down another county department head while he was talking ... it was a bizarre day. He also offered up that on those rare occasions they DO know who issued the cite (usually because the person requesting the discovery provides that info) they pass the request to the involved agency.

It is too bad you didn't write down the codes. As it stands, the Penal Code speaks for itself. The prosecuting attorney is still the prosecutor of record and still has the obligation to provide the discovery. The ticketing cop is still just a witness and still is under no legal obligation to provide discovery.

This is why the court can direct discovery and why they are arguably required to do so before dismissing.

If the Court decides to order the issuing agency to produce discovery, that's fine. However, the original request must be made to the prosecuting attorney for it to be legally binding. Anything other than that will simply be relying on the judge being a nice guy and helping out the defense.

From a purely practical standpoint, if the DA does not know about nor possess the relevant documents sought in discovery, they cannot provide anything. As I have repeatedly said, some DA's offices do not have ANY traffic info so they have nothing they can provide.

If the prosecuting attorney decides not to familiarize himself with the case he is responsible for prosecuting, that's his business. However, it doesn't relieve him of his responsibilities under the law... regardless of how "impractical" it may be.

It all goes back to the conditional "if" in the code.

As for dismissals without ordering discovery, we all know that many things CAN happen, and that in traffic matters many things DO happen that may not be entirely kosher. The thing is, when a judge errs on the side of the defense, there is no prosecutor there to object and the officer does not have standing to so object. So, the judge can make any decision he likes in favor of the defendant without repercussion or objection.

- Carl

Once again, if the prosecution decides to not show up to court and raise an objection, that's his perrogative. His case will suffer because of his decision. On the other hand, if I chose not to show up for court as a defendant, I will be tried in absentia and my case will suffer because of my decision. The same knife cuts both ways.

 

[Zigner]

So, to boil it down. Jim is agreeing with us

 

[CdwJava]

Once again, if the prosecution decides to not show up to court and raise an objection, that's his perrogative. His case will suffer because of his decision. On the other hand, if I chose not to show up for court as a defendant, I will be tried in absentia and my case will suffer because of my decision. The same knife cuts both ways.

I don't know what to tell you ... But, I'd go with the opinion of the DA over that of any poster here.

And i still encourage you to read the "if" portion of the section you cite as compelling the DA to provide the discovery. If the section were meant to compel the DA to provide discovery no matter the situation, why put "if" in there? Why not just say that the DA or prosecuting agency is responsible to get all discovery to the defendant come heck or high water? It would seem that since the legislature chose NOT to make such absolute language present in there that they left open the possibility that the DA might not be in possession of the information.

I do not know what the legal theory is behind a traffic prosecution when the DA is not involved. But, it is common enough in CA that it would seem their involvement is not required. If it were, then being a traffic defense attorney would be easy because they could play all the same games and win every time. I just don't think it's quite the same as you think, and your experience in your local courtroom is limited at best. And, since we both know that traffic courts run rather loosely, it is very likely that a 'pro tem' decided to rule in your favor for any number of reasons even if they were not wholly compliant with the law or court policy.

- Carl

 

[JIMinCA]

I don't know what to tell you ... But, I'd go with the opinion of the DA over that of any poster here.

And i still encourage you to read the "if" portion of the section you cite as compelling the DA to provide the discovery. If the section were meant to compel the DA to provide discovery no matter the situation, why put "if" in there? Why not just say that the DA or prosecuting agency is responsible to get all discovery to the defendant come heck or high water? It would seem that since the legislature chose NOT to make such absolute language present in there that they left open the possibility that the DA might not be in possession of the information.

I do not know what the legal theory is behind a traffic prosecution when the DA is not involved. But, it is common enough in CA that it would seem their involvement is not required. If it were, then being a traffic defense attorney would be easy because they could play all the same games and win every time. I just don't think it's quite the same as you think, and your experience in your local courtroom is limited at best. And, since we both know that traffic courts run rather loosely, it is very likely that a 'pro tem' decided to rule in your favor for any number of reasons even if they were not wholly compliant with the law or court policy.

- Carl

Maybe an analogy would be appropriate. Say a cop is investigating a murder. A person is charged and a trial is pending. The cop uncovers exculpatory evidence that proves the defendant's innocence. The cop keeps the evidence to himself, or simply files it in a case file as he doesn't see the defense's strategy and doesn't recognize its exculpatory value. The defense asks the prosecuting attorney for discvoery concerning the case. Since the prosecution did not KNOW of the evidence, does that mean it doesn't need to be turned over? NO!

The things that are appropriate to ask for concerning discovery in a traffic case are things like: traffic survey, radar calibration/maintenance records, officer's notes, etc. These are things that the prosecution DOES know that the police routinely maintain.

I would love to go to oral arguments in the appellate court with a prosecutor whose argument is "I didn't KNOW the cop had radar maintenance/calibration records". He would be laughed right out of court. Further, I'd seek sanctions for prosecutorial misconduct.

So, since you say that the prosecuting attorney does not have to provide discovery since he doesn't involve himself with traffic tickets, and the Penal Code does not require the issuing agency to provide discovery, are you suggesting that the defendant has no legal right to discovery??????

 

[CdwJava]

Maybe an analogy would be appropriate. Say a cop is investigating a murder. A person is charged and a trial is pending. The cop uncovers exculpatory evidence that proves the defendant's innocence. The cop keeps the evidence to himself, or simply files it in a case file as he doesn't see the defense's strategy and doesn't recognize its exculpatory value. The defense asks the prosecuting attorney for discvoery concerning the case. Since the prosecution did not KNOW of the evidence, does that mean it doesn't need to be turned over? NO!

Under the law, the prosecution is presumed to have that information whether it has been withheld by the agency or not. These cases go to complaint pursuant to PC 948 (et seq) and thus go through the DA's office.

However, TRAFFIC offenses are required ONLY to be filed with the court. They are not required to be filed with the DA's office at all, and, they are legally sufficient for arraignment and can be used as the legally sufficient complaint in a subsequent proceeding. There is no requirement that the city or district attorney initiate or participate in the complaint process for traffic matters. (ref. CVC 40500 et seq.)

If you can find for me some requirement under the Penal or Vehicle that there exist a prosecuting attorney for traffic offenses, i would very much like to see it. The law requires filing with the court, not with the DA or the city attorney.

The things that are appropriate to ask for concerning discovery in a traffic case are things like: traffic survey, radar calibration/maintenance records, officer's notes, etc. These are things that the prosecution DOES know that the police routinely maintain.

But, if the DA does not know about the citation, he cannot know what agency to receive that information from. What should they do - contact each and every agency in the county and ask for road surveys?

Once again, we fall back on the conditional "if". AND, the tiny fact that the DA's office is not (apparently) the legally mandated prosecuting agency for traffic offenses in CA.

- Carl

 

[justalayman]

Hey Carl

jiminCA obviosly has the advantage over you since he has defended 16 tickets. I am sure he knows so much more about this situation than any of us here, including anybody that may happen to live in CA and deal with this sort of thing on a very regular basis

I would suggest we simply defer to his ultimate wisdom and let him save the world.

I just don;t see how anybody with such limited experience and knowledge such as yourself could ever prove yourself to be correct in Jims eyes. I mean, he has cited the exact same statute at least a half dozen time. That surely makes it right, right? (even if he cannot read the word "if")

 

[JIMinCA]

In People ex rel. Kottmeier v. Municipal Court(1990) 220 Cal.App.3d 602 , 269 Cal.Rptr. 542, one finding concerning traffic tickets was:

We note that it has been stated that the provisions of Government Code section 26500 requiring the presence of the prosecutor "are for the benefit of the people." (People v. Thompson (1940) 41 Cal.App.2d Supp. 965, 967 [108 P.2d 105].) This suggests that there is discretion not to appear, if the district attorney is willing to take the consequences of an adverse verdict or ruling​

So, as a result, the prosecuting attorney need not appear at trial, but the district attorney must be willing to accept the consequences. This clearly states that he still holds the responsibilities as the prosecuting attorney.