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  1. #1
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    Question How to Fight a Cell Phone Ticket, VC 23123(A)

    23123(A) Violation. How Are My Chances in Court with This Evidence

    Charged with talking on cell while driving in San Diego, CA
    Here's my version of events:
    • Driving along eating a big slice of pizza (could have looked like a phone I guess )
    • Flashing red lights, I pull over
    • While officer explains why I was pulled over my phone rings.
    • I answer the phone and explain that I am unable to talk.
    • Officer says: "See I told you you've been talking on the phone".
    • He writes the ticket. Time of violation recorded as 3:50 PM.
    • I make a couple nervous calls (while parked) and drive away.


    My VZW call log:

    Note that the middle three calls are all to the same number. (Mom)


    Assuming he remembers/is honest about witnessing the incoming call, I see two possibilities:


    1) He agrees with my claim that the incoming call came at 3:49
    The call log shows no earlier call, therefore I am innocent.

    2) He claims the incoming call came later.

    He would then have to claim the following:

    • He pulled me over for the call at 3:49.
    • After getting my info he went back to his car to write the ticket.
    • While he was away I made a two minute outgoing call at 3:55 that ended just before he got back to my car.
    • He returned, and immediately observed me answer a call at 3:57 as he handed me my ticket

    His scenario sounds plausible, however I am certain that the incoming call came prior to the ticket being written.

    I don't want it to end up his word against mine.

    Any advice?
    Thanks

    PS
    I realize answering the phone with him there grilling me was stupid, I was nervous and not thinking straight.

  2. #2
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Not very good arguments. Not everyone is that precise with their watches. It might be 3:49 cell phone/internet time officially, but maybe his watch was running slow or fast.

  3. #3
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting Mikebuzzsaw
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    Not very good arguments. Not everyone is that precise with their watches. It might be 3:49 cell phone/internet time officially, but maybe his watch was running slow or fast.
    He could have written my ticket for 3:49 and my argument would be just as compelling. (or just as not compelling)
    There are only two incoming calls in the general time period. One of which he witnessed.
    My argument rests upon an order of events. A fast or slow watch should not effect the outcome.

    Please re-read my post and provide more specific concerns/criticisms if you desire.

    Thanks.

  4. #4
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting theZ
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    • While officer explains why I was pulled over my phone rings.
    Do you remember the reason he gave, before your phone rang?

    3:49 vs 3:50 is irrelevant.

    I STRONGLY recommend you do a trial by declaration (TBD) if it's still before your appearance date (you will have to post bail though--amount of your fine--will be refunded if you win). Given your attempted explanation, DO NOT put that in the TBD, just state "I plead not guilty." If you're lucky, the officer won't respond and you'll probably get off. If he does, you can then schedule a real trial (trial de novo) and get your hands on the officers statement for the TBD, so you (we) know what his version of the story is. We can then help you poke holes (if any) in it, since he will likely tell a similar tale in court.

  5. #5
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting quirkyquark
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    Do you remember the reason he gave, before your phone rang?

    3:49 vs 3:50 is irrelevant.

    I STRONGLY recommend you do a trial by declaration (TBD) if it's still before your appearance date (you will have to post bail though--amount of your fine--will be refunded if you win). Given your attempted explanation, DO NOT put that in the TBD, just state "I plead not guilty." If you're lucky, the officer won't respond and you'll probably get off. If he does, you can then schedule a real trial (trial de novo) and get your hands on the officers statement for the TBD, so you (we) know what his version of the story is. We can then help you poke holes (if any) in it, since he will likely tell a similar tale in court.
    Thanks for the response.

    I've already got a trial set for 10/28/11. Is it too late to implement this plan?

  6. #6
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting theZ
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    I've already got a trial set for 10/28/11. Is it too late to implement this plan?
    Is that your first appearance (arraignment), or did you already show up at court once (OR send in a letter), plead not guilty and ask for a court trial? If 10/28/11 is your actual court trial, you need to send letters for informal discovery asap. If you don't know what that is, look here for basic info and form letters, post back with questions and we can help you.

  7. #7
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting quirkyquark
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    Is that your first appearance (arraignment), or did you already show up at court once (OR send in a letter), plead not guilty and ask for a court trial? If 10/28/11 is your actual court trial, you need to send letters for informal discovery asap. If you don't know what that is, look here for basic info and form letters, post back with questions and we can help you.
    Already pleaded not guilty in court. I'll get to work on the letters for informal discovery. Thanks again.

  8. #8
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Wait, do you remember agreeing to "waive time" (or signing something to that effect) at your arraignment? By state law, your trial MUST be scheduled within 45 days of your arraignment (that's your constitutional right to a speedy trial at work). If you didn't agree to waive time, you can most probably get your case thrown out at trial.

  9. #9
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting quirkyquark
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    Wait, do you remember agreeing to "waive time" (or signing something to that effect) at your arraignment? By state law, your trial MUST be scheduled within 45 days of your arraignment (that's your constitutional right to a speedy trial at work). If you didn't agree to waive time, you can most probably get your case thrown out at trial.
    First of all the trial is set for 11/28. I wrote the wrong date in my previous post.

    I thought I agreed to a trial within 45 days to the judge. Don't remember anything about waiving time.

    After court the clerk offered an October trial (likely falling within 45 days of arraignment) but I chose more time to prepare.

    Paperwork I signed shows time is waived.

    Hope I didn't mess up...

  10. #10
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    Default Re: How to Fight a Cell Phone Ticket, VC 23123(A)

    Quote Quoting theZ
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    Paperwork I signed shows time is waived.

    Hope I didn't mess up...
    Probably not, you would have been scheduled inside 45 days unless you waived time. Still, sometimes errors happen.

    helpigotaticket and other sources may advise you to send discovery just to the city/district attorney and if you don't receive it in time, give you steps to try to have the case dismissed. Please be aware that following through on that alternative requires quite a bit of time and effort preparing and filing motions, etc. and nothing is as guaranteed as the sites/books may make it out to be. If you do want to get your hands on the cop's notes etc. to prepare a defense instead of relying on procedural loopholes, be sure to send a copy of the discovery request to the citing officer's station -- SDPD, CHP, etc. They will probably give you something if not everything.

    Also, sometimes statements are recorded during a traffic stop. There's no harm in requesting any audio/video taken during the stop in discovery...you may find phone rings, etc. in the audio that could help bolster your argument.

    Good luck!

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