Quirky... The “constitutional” argument, and the 120 days you suggested is part of the guarantees under the 6th amendment, is it not? Well, there are seven guarantees that the sixth offers a criminal defendant:
(1) the right to a Speedy Trial;
(2) the right to a public trial;
(3) the right to an impartial jury;
(4) the right to be informed of pending charges;
(5) the right to confront and to cross-examine adverse witnesses;
(6) the right to compel favorable witnesses to testify at trial through the subpoena power of the judiciary; and
(7) the right to legal counsel.
The way I am looking at it, (1) doesn't fit within the definition of this program but more so because the 120 days comes in where the defendant is incarcerated... I don't know what it is when there is no potential for jail time before nor after a trial; (2) neither a TBD or a TDN are “public trials” per se, (3) what's a jury” - for an infraction?-, (4) informed of pending charges, formally, as in getting arraigned? (not in a TBD/TDN), (5) you don't really “confront” a witness nor can you cross examine him/her in a TBD, (6) doesn't really apply to the TBD either and we know (7) would not be a “right” but part of a privilege that you can afford yourself if you so choose.
Even if you want to split the TBD and TDN processes, you still aren't getting (2), (4) or (7) which would then imply that you cannot invoke (1) at least not by way of a constitutional violation.
So even if you can overcome all of the above hurdles, you still have to answer and pass a 4 prong/question test:
1) The length of the delay
2) The reason for the delay
3) When/how did the defendant assert that “right”
4) How the case was prejudiced by the delay
#1 is easy assuming you can establish a start date that is as well defined as or one that resembles "the arraignment"!
#2 the court need not state a reason for the delay (*) on the record and if it is not part of the record, can the defendant simply speculate???
#3 Defendant was informed of the date for the TDN, and his failure to immediately object to the delay only to bring it up on the trial date is likely to be considered as an implied waiver, but (even if you disagree with that) in the least, it is not going to work to his advantage; lastly...
#4 "If magic can fix all other obstacles, being able to articulate prejudice, defies logic IMO...
By the way, and by adding the time limits that are stated in the court rules, exclusive of the only one part of the process as described in the rules that lacks a specific time period (the amount of time between the clerk submitting the declarations to the judge and the time the case is decided) all those time limits add up to 165 days. While I remember one instance where one court took merely a week to decide a TBD, I have heard of cases where it took two months or longer.... But if we average that time period at 35 days or so, then the entire process from citation (violation date) to the verdict in a TDN can take up to an even 200 days, and even then, that is a conservative estimate.
120 days from what date/action?
There is no guarantee to a speedy trial when you opt for a TBD, so how can you waive something that you do not have?
This is from Form TR-200 Instructions to Defendant - Trial By Declaration
Again, the right to a speedy trial is not in any way related or applicable to a TDB.
Quoting Form TR-200 - Instructions to Defendant
Now, since a TDN can only follow a TBD, and although it shares some of the rights that a regular trial offers, the exception IS the right to a speedy trial simply because the fact that the process had started with a TBD (then led to a TDN) the likelihood that the 45 day speedy trial provision would be violated for virtually every case, it would follow that it is not part of the considerations for a TBD ort a TDN! If in the alternate, you are suggesting that the request for a TDN starts a new process and is therefore re-qualifying you for a different set of rights, where is it in the Rules of Court does or vehicle code/penal code does it state that?
This is the second time you've posted that (first time HERE)... I'm curious where do you get that idea from? And how is filing the TBD in person, procedurally different from "not filing it in person" which I assume to mean "mailing it in"?
A TDN would not be called a Trial De Novo if it weren't for the TBD. It is a continuation of the same procedure. If it were a weay to entitle you to the same set of rights and responsibilities that a regular trial does, then you would have an arraignment at which point in time, your right to a speedy trial would be in effect! But you don't!
Yes and no...
Assuming “Yes”... And *IF*& the court rule was violated...
Where in the court rules does it say that the remedy for any sort of delay is a dismissal?
Its nowhere to be found!
Assuming “No”... Simply because the court rules state:
*4.210(b)(8) Failure of the clerk or the court to comply with any time limit does not void or invalidate the decision of the court, unless prejudice to the defendant is shown.
*4.210(c) 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.
You can try... And although most people might say "why not try, what have you got to lose!". To stand there in court to make such an arguiment is an indirect way to tell the judge that you have nothing for a defense plan IMO, you are basically but here is why I think you have no basis for your motion:
1) as I stated above, there is no such thing as a "right to a speedy trial for a TBD";
2) there is no remedy for a delay in setting the TDN date past the 45 day recommendation in the rules; In fact, instead of suggesting that a dismissal is even a remote consideration for a delay, the rules specifically state that the court is not required to give a reason for a delay (*) (<-- I'd like to briefly come back to this point in a bit);
3)the clock for the 45 day speedy trial for a regular trial starts on the date the defendant enters his/her plea... You couldn't pin-point that action/date when submitting a request for a TBD/TDN so there is no "clock start date", and if we don't have a clock start date then we don't use a clock, and therefore there is no clock;
4) You willingly and knowingly requested a TBD knowing full well that there is no guarantee your case would be decided within 45 days from your request... Not even for the TBD by itself, not for the TDN by itself and most certainly, not for the entire process!
5) You voluntarily made that election. The court did not force you into it; and if a time delay is/was likely to have prejudiced your case, it is incumbent upon you to make the right election that will best benefit you.
6) Lastly, if you've requested any extensions at any point in time during the process, then you really have no basis to arguer that a time delay affected your case in any way!