How to Get a Dismissal for Lack of Speedy Trial in Traffic Court

[That Guy]

So I should specifically request an arraignment IN PERSON when I enter into a plea of not guilty with these next tickets if I want to retain my sixth amendment rights?

You need not "specifically" request an "in person" appearance... You can simply appear in court on the date shown on the notice to appear, or an extension date (if you've requested/received an extension), check the list which is usually posted outside of the courtroom (to ensure that you've got the right courtroom), and wait for your name to be called. You walk up, and the judge will read the charges to you and ask you to enter a plea.

If, you choose to forgo that process, and instead you walk up to the clerk's window (on or before the date shown on the notice to appear), and decide to post bail and request a trial date, then you're facing the consequences that you are facing now.

Can I still retain my sixth amendment rights if I do a TBD and then subsequently request a trial de novo if I am found guilty, and specifically request an arraignment in person?

For starters, if you were to choose to request a TBD, that is done with the clerk. Furthermore, there are no specific time limits for the court to process the TBD (which means that it can take much longer than the 45 days that you're so adamant about invoking). Also, and while the California Court Rules require the clerk to schedule your TDN within a 45 day period of your requesting it (after losing the TBD), those same court rules also allow the court to extend those dates without even as much as a requirement to state the reason for the delay.

Additionally, by you requesting a TBD (a process that may take as long as 90 days or more) and then opting to go for a TDN (which can take as long as another 45 days or more).... It seems like you're defeating the argument that you are invoking your right to a SPEEDY trial by choosing a process that is bound to take in excess of 4 or 5 months to complete.

What does puzzle me is how on the document I posted it says you have the following Constitutional rights - "right to a trial within 45 days. If you request by mail you are waiving your right..."

And by you reading the document and singing it, you attested to knowing what your rights are and yet you chose to waive them. The court clerk handing you that document is NOT a legal adviser. In fact, they are forbidden from offering legal advice. Therefore, it is your responsibility to either educate yourself about your rights and the manner in which you can properly invoke them or hire an attorney to handle the matter for you, rather than inadvertently waiving them and then trying to back track by blaming the standardized court procedures.

Wouldn't they read me my rights at the trial since it is my arraignment and that is where I am entering into a plea allegedly, not here?

But, with you having your arraignment and you trial scheduled on the same day, the judge will read you your rights, ask you to enter a plea, and then immediately order the trial to commence. No risk of violating your right to a speedy trial...

Even if the judge did not read you your right(s) -remember, you signed that piece of paper saying you were informed of your rights by virtue of you reading it and signing it-... Do you think that you can come back and appeal on the grounds that your right to a speedy trial were violated, when in fact, your arraignment AND your trial were held on the same date?

[whitesti]

I understand that there is no right to a speedy trial for TBD, and that it is a lengthy process. My understanding was that if I am found guilty in a TBD i can request a TDN, which is a whole new trial. So regardless of the length of time required and my understanding of the slow process I should still be afforded my Constitutional right to a speedy trial in my new trial. I obviously do not know if this is correct, I am just asking.

So Can I do a TBD - be found guilty - and then go in person and request an arraignment for my TDN and still retain the sixth amendment. OR is the right to a speedy trial waived for a TDN since you had previously opted for a TBD?

I realize it is not the clerk's responsibility to advise me, and that I should seek a lawyer, or properly educate my self. That is why I have been doing lots of research and have posted on this forum.

I will keep updated on how things go as far as motion for dismissal since it will be over 4 months since my arrest until I was arraigned.

[That Guy]

It would appear this is my current only chance of getting lack of speedy trial: I was ticketed on 7/13/10 and arraignment and trial which are on same day are delayed to 11/19/10.

"If an unusually long amount of time (at least four months: see Rost v. Municipal Court (1960) 184 Cal. App.2d 507) is allowed to pass between the time you were ticketed and your arraignment, and you diligently tried to get a court date earlier, you can make a motion at the arraignment for a dismissal of the charge on the ground that you were unconsti- tutionally deprived of your right to a “speedy trial.” "

I'm not sure where you got that quote from, but here is the case that is cited Rost v. Municipal Court, 184 Cal. App. 2d 507 - Cal: Court of Appeals 1960... Read it and you'll see that the facts in that case are dissimilar to yours in that Rost was charged with a misdemeanor... Rost argued his case based on statutes that required that an "arrest warrant" be issued and served within a "reasonable period of time". And I quote:

Thus it appears that the constitutional requirement of a speedy trial requires that a defendant be served with a warrant of arrest within a reasonable time after the filing of the complaint. Thereby he would be given notice of the fact that a charge has been made against him at a time when witnesses in his behalf, if any there be, are available.

While I will not dispute the fact that the Penal code section 19.7 states:

19.7. Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof.

... however, in your case (an infraction), there was no warrant, there was no delay in serving the same. The only reason for the delay is the fact that the court system is swamped with cases (Hmmm.... I wonder why!!!).... And your argument would then imply that your case, amongst ALL other traffic cases pending in the court system, should be dismissed accordingly.

Furthermore, Rost argued that the delay occurred between the time the alleged crime was committed, and the actual arrest. In your case, you committed the alleged offense, you were arrested (by definition) and later that same day (probably within the hour), you were released on your own recognizance after you signed the notice to appear (the citation). So again, the facts of the case you cited are not applicable to your situation.

So maybe I should make an extreme effort to get my previous court date and get it document that it was denied by the clerk.

It was not denied "by the clerk"... It was denied "by order of the judge"!

And then I will file a motion for dismissal because my arraignment was so far away from my ticket.

By all means... Go for it! Especially if this is the only glimmer of hope that you have for a dismissal.

I understand that there is no right to a speedy trial for TBD, and that it is a lengthy process. My understanding was that if I am found guilty in a TBD i can request a TDN, which is a whole new trial. So regardless of the length of time required and my understanding of the slow process I should still be afforded my Constitutional right to a speedy trial in my new trial. I obviously do not know if this is correct, I am just asking.

So Can I do a TBD - be found guilty - and then go in person and request an arraignment for my TDN and still retain the sixth amendment. OR is the right to a speedy trial waived for a TDN since you had previously opted for a TBD?

You can read the related court rules here: 2010 California Rules of Court ~ Rule 4.210. Traffic court-trial by written declaration.

Yes, pursuant to subparagraph 4.210(b)(7), "the clerk must set a trial date within 45 calendar days of receipt of the defendant's written request for a new trial". However, you should also glance at subsection (c) of 4.210 which states:

(c) Due dates and time limits

Due dates and time limits must be as stated in this rule, unless changed or extended by the court. The court may extend any date, but the court need not state the reasons for granting or denying an extension on the record or in the minutes.

The way I interpret that is: the court can extend the 45 day time limit for scheduling the trial de novo (or any other time limit stated in those rules) after you submitted your request.

We have previously had this same discussion on this forum, more than once. And while there are a few members that disagree with my analogy, I am yet to see any statute/court rule or case law citation that is contradicts my interpretation. Who knows, maybe I'm reading too much into it!

Maybe you can be the one to take a case through the appeals process to get this matter clarified once and for all.