VC 21453(C) Trial De Novo

[That Guy]

Yes, simply put, if the OP knows where the officer was at the time.

Simply put... Why not turn to the officer and ask him what he saw? Why depend upon the defendant to guess and hopefully, possibly get it right but more than likely get it wrong? After all, in that short period of him turning, is he looking to see if there are officers around or looking to make sure the light isn't red and that the other side of the intersection is clear?

The OP says there are louvers on those lights, and that there are no indicator lights to see from another direction. The OP claims to know where the officer was. Those are material facts which the OP can ask of the officer.

Those are "claims" not material facts. And they cease to become material facts until the party making those declarations is able to provide evidence of such! So when it comes to the third "claim" to know where the officer was, the only proof of that is a picture taken of the officer at that location at the time the OP made his turn. How do you come up with such a picture?

By your analogy, the OP says he didn't run the light, that becomes a material fact, case dismissed!

To all of that the OP can testify, along with introducing pictures. If it was impossible for the officer to see the OP's light, and if the OP can prove that the time is 3.5 seconds when the officer said 3, there is at least a chance, and I'd take it.

Are you reading the same thread we're reading?

The officer said the driver entered the intersection 3 seconds after the light turned red.
The OP is saying the yellow phase time is 3.5 seconds...

One has little to do with the other!

The truth is for the finder of fact to declare, and again I agree that the judge usually believes the officer. I suspect that the chances of prevailing are very slim.

I can tell you flat out that based on what's been presented so far... Chances of prevailing are close to none!

[RedSnapper]

I want to thank all of you for the help you gave me in preparing for trial. I particularly want to thank themadnorwegian for the help he gave me with a peremptory challenge I filed and the citations he posted regarding photographic evidence. I also want to thank ThatGuy. His understandable skepticism motivated me to put together a case that really highlighted the problems with the officer's statement in the TBD. I also wanted to be prepared since the officer was clear in telling me when he issued the citation that he if I was thinking of challenging him I should reconsider. He said, "I always appear for my traffic court dates."

My hope was that the officer would testify while referring to his TBD statement and that his testimony would mirror his statement. If he hadn't laid the proper foundation, when he got close to the end of his testimony I'd have objected to his use of notes only so I could look at his notes to confirm he was testifying from his TBD statement. I felt his statement "stretched the truth" when it came to what he said he could see from his vantage point during his traffic enforcement. I knew that I had an uphill battle but I felt confident knowing that I was putting my best foot forward.

I showed up to the Palo Alto Courthouse a little after 8:30 and saw my case was listed on the docket for department 86, 87, and 89....all at 9:00 am. I filed I peremptory challenge for department 86, so I chose to check out departments 87 and 89. At 9:00 am I learned that 87 was closed that day so I headed to department 89. At around 9:20 the clerk called my name and asked if the officer was present. He wasn't. I was hoping my case would be dismissed at that point but it wasn't. I sat through around eight hearings and then the judge said everyone left in the courtroom was present for an arraignment which had me scratching my head. I was here for trial! I sat through all of the arraignments and watched the number of folders on the judges bench diminish until there was one left, which I thought was mine. When the last folder wasn't mine I was a bit confused. As the judge was getting ready to adjourn the clerk walked up and said that he had a traffic case but the officer wasn't present. The judge asked, "Well, why wasn't this case dismissed?" He quickly called my name and dismissed my case.

I'll be glad to receive my $490 check in the mail and I am very happy that my case was dismissed. I am a bit curious of how the case would have turned out had the officer shown up. I know there is the tendency to always take the officer's word over the cited driver but I think I could have shown that the officer couldn't have seen everything that he testified to in his TBD. Whether he would have testified to the same thing in court is something that I'll never know.

Thank you again, everyone, for your help.

[cmre3456]

Congratulations!

[RedSnapper]

Thanks, cmre3456! I am appreciative of your comments prior to trial.

[That Guy]

I also want to thank ThatGuy. His understandable skepticism motivated me to put together a case that really highlighted the problems with the officer's statement in the TBD.

No thank you needed... But please, first of all my "understandable" skepticism is obviously not understood. If it were understood, you would have come back here relieved and thankful, instead, you're back cocky and thankful. You simply because you dodged a huge bullet where you would have learned that most everything I alluded to here in this thread had some basis that is realistic and true, and not based on premise where you can simply walk into court, suggest or imply a scenario or two that could have occurred and that such a speculative plan can presumably can win a trial"!

Sometimes I wish that there isn't anything called "dismissal for lack of prosecution (because the cop didn't show)" just so people can get to actually experience standing before the court when its your neck on the line, may be they will get to see that court isn't the fantasy land they dream it to be! But far be it for me to wish bad on anyone. Win or lose, I didn't get a cut of the $490 the court was holding as bail in your case and I certainly don't have to contribute a red cent to paying it back to you!

My hope was that the officer would testify while referring to his TBD statement and that his testimony would mirror his statement. If he hadn't laid the proper foundation, when he got close to the end of his testimony I'd have objected to his use of notes only so I could look at his notes to confirm he was testifying from his TBD statement.

What foundation are you talking about? Seriously! What foundation is he required to lay so that he can use his own freaking notes? Or alternatively, what foundation is he required to lay that you think he couldn't do without his notes? Better yet, besides testifying how long he's been in law enforcement, how long in traffic enforcement... His vehicle description (marked) and that he was in full uniform, what foundation are you talking about? This is exactly what I meant by the "fantasy land" comment; Where is it said, that an officer has to have his entire testimony memorized, that he cannot refer to his notes or base anything he said on anything he mentioned in his TBD? In fact, I mentioned something about the judge possibly looking at your TBD for reference... Do you think that is allowed or not?

Also, officers write notes on the back of their citation copy. What do you think those are for? And how about you? Did you have notes, and charts, and pictures, and papers, a note pad or two... Several documents you had prepared in case you needed a citation or two. Were you expecting to have to put everything away because no one is allowed any notes or does that only apply to the prosecution's witnesses?

I felt his statement "stretched the truth" when it came to what he said he could see from his vantage point during his traffic enforcement. I knew that I had an uphill battle but I felt confident knowing that I was putting my best foot forward.

Instead of putting "best foot forward", lets put things in proper perspective... I asked you a question or two earlier on. You never answered them... I never expected an answer then and I am not waiting for one now... Just think back, I know you remember them, think about them for 5 seconds..... Now that everything is said and done let me say this:

You're approaching a left turn arrow that is green, eventually, it changes to yellow... At some point in time you mentioned traffic which would imply a lot going on... I don't know when the light changed to red, but I can guess that you do! And not that saying "I never crossed on red" would make it true, but not saying it would imply a possibility. You never denied it, only suggested that the officer could not see your light from where he was? So you're saying that you are rushing to make a left, under pressure because of the light changing, and yet you still have time to look and see if there are any officers around and what they can possibly see or not see??? OK, so the reason you claimed he couldn't see started out with louvers. Louvers would likely be included in the engineering report, which you apparently had. And just like you disputed the "1 second minimum all red phase" I suggested, you could have also stated that the report mentions louvers. But you didn't! Then you were asked about a location and a direction of travel, and no answer was coming. A location where the officer was? Nope, no reply there either! Then you mentioned more documents and pictures... Neither of which ever came!

I'll be glad to receive my $490 check in the mail and I am very happy that my case was dismissed.

We're happy for you too. The lesson was missed though... When you have little or no case, and you happen to get a gimmie, don't come back bragging about what you could have done, because really, it all sounds cheesy!

I am a bit curious of how the case would have turned out had the officer shown up. I know there is the tendency to always take the officer's word over the cited driver but I think I could have shown that the officer couldn't have seen everything that he testified to in his TBD. Whether he would have testified to the same thing in court is something that I'll never know.

I don't know the specific details of how it would have gone for you... Highly likely that you would have walked out in a daze, still riding on lots of adrenaline but feeling like you just dragged your own azz across town to get home... Feeling sad but quite relieved that its over.

Its not a "tendency" to always take the officer's word. It is a reality. You can deny it all you want. You can claim that you could overcome it, but you can be sure you haven't proven any of that here. Sorry!!! And you can be sure that he would have testified to the same thing he did in your TBD. Not doing so, would be a stupid decision on his part.

The simple fact that you stated nothing in your TBD, and all of a sudden you're running three different speculative theories, isn't conducive to a possibility that the officer is lying about anything!

Again, congrats... And dive carefully please!

[themadnorwegian]

First, congratulations!

I'll be glad to receive my $490 check in the mail and I am very happy that my case was dismissed.

Second, your job isn't done yet. It took me more than 60 days to get my bail refunded, and even though VC42201.6 says that I'm entitled to interest at 10% APR on any amount that's 60 days or more past due, the court didn't bother to pay it when I finally got my refund last week. Moreover, they were similarly slow about dealing with the abstract of conviction that was placed on my driving record after I was found guilty in the TBD. As of 4/30, there's still a point on my license that I'm trying to get removed. It took me 2 phone calls, a certified letter, and a personal visit just to get the bail. I still haven't quite resolved the matter with my record.

Don't think that you're off the hook just yet, and don't assume that the court is doing their job.

[RedSnapper]

That Guy,

I am relieved and thankful, but I was confident in my argument. If I hadn't been, I wouldn't have taken the time to fight the ticket at all! Going to court is a bit of a crapshoot. I felt the potential reward outweighed the risk. I realize that I could have easily been found guilty.

I have had experiences in civil court and I have to say that I do believe traffic court is fantasy land! There is no prosecutor even though it's a criminal matter. Subpoenaed witnesses don't show up and it goes unpunished. The police officer in my case "no showing" being a prime example of this. If you are subpoenaed as a witness in a non-traffic case and you don't show up you can be held in contempt and the DA can issue a warrant. In traffic court, it goes unpunished........but only if you are a law enforcement officer.

Perhaps getting rid of the dismissal for lack of prosecution would be a good thing. It would force officers to attend trials to defend the citations they write or the statements made in TBD's. It may reduce the number of questionable citations issued by law enforcement. If an officer issues a questionable ticket I'd guess that most people just pay it. If the officer takes a position that's difficult to defend and you challenge a questionable citation, the officer just has to "no show" and their questionable testimony disappears. Officers should have to defend their actions!

What foundation are you talking about? Seriously! What foundation is he required to lay so that he can use his own freaking notes? Or alternatively, what foundation is he required to lay that you think he couldn't do without his notes? Better yet, besides testifying how long he's been in law enforcement, how long in traffic enforcement... His vehicle description (marked) and that he was in full uniform, what foundation are you talking about? This is exactly what I meant by the "fantasy land" comment; Where is it said, that an officer has to have his entire testimony memorized, that he cannot refer to his notes or base anything he said on anything he mentioned in his TBD? In fact, I mentioned something about the judge possibly looking at your TBD for reference... Do you think that is allowed or not?

Also, officers write notes on the back of their citation copy. What do you think those are for? And how about you? Did you have notes, and charts, and pictures, and papers, a note pad or two... Several documents you had prepared in case you needed a citation or two. Were you expecting to have to put everything away because no one is allowed any notes or does that only apply to the prosecution's witnesses?

The foundation I am talking about is contained in California Evidence Code Section 771 and 1237. He must testify he has "insufficient present recollection" to be able to refer to any writing while testifying. Whether he lays the proper foundation or not, I still get to find out what writing he is referring to and cross-examine him on the contents of the writing. I wanted the officer's notes and TBD statement admitted as evidence because I could present evidence that contradicted what he had written.

I can use notes in my role of representing myself in pro per. If I testified using notes then my testimony could be objected to as well.....but by who? There is no prosecutor or true plaintiff. The officer isn't an attorney. He is merely a witness.

There is an odd element to traffic court, unlike others in our court system. I think themadnorwegian's most recent post about his bail and driving record just adds to this point.

Perhaps the officer had a strong explanation for the testimony he presented in his TBD. I found the testimony odd enough and unbelievable enough to challenge it, but I was also ready to live with the consequences if I was found guilty. Maybe the officer was sick or busy the day of trial. Maybe he rethought the contents of his TBD statement. Whatever the cause, he didn't show up to defend his position.

[That Guy]

Far be it for me to defend any of them or sit here for hours trying to justify their actions or lack thereof... But what doesn't make sense, just simply doesn't make sense! I think its pretty egotistical to assume that an officer has specific recollection of your particular case and how he made certain lies that he couldn't support and hence, his making a conscious decision to not appear at your trial... All this is while your main plan of attack was based on the premise that he had no independent recollection of the events that led to the citation... That he simply lied about the whole entire thing!

I am relieved and thankful, but I was confident in my argument. If I hadn't been, I wouldn't have taken the time to fight the ticket at all! Going to court is a bit of a crapshoot. I felt the potential reward outweighed the risk. I realize that I could have easily been found guilty.

You didn't sound confident. Now you're just being cocky!

I have had experiences in civil court and I have to say that I do believe traffic court is fantasy land! There is no prosecutor even though it's a criminal matter.

Hope that's not a complaint. Because it is to our advantage and benefit that there isn't one.

Subpoenaed witnesses don't show up and it goes unpunished. The police officer in my case "no showing" being a prime example of this. If you are subpoenaed as a witness in a non-traffic case and you don't show up you can be held in contempt and the DA can issue a warrant. In traffic court, it goes unpunished........but only if you are a law enforcement officer.

I don't see the relevance or the point in continuing a comparison between traffic and civil courts. If you'd like, we can compare to criminal courts but right off the bat, the advantage goes to traffic for the one reason you mentioned above. No prosecutor!

I find it interesting that you were sounding excited that yours was dismissed, although now you're sounding as if you really had looked forward to sort of making it personal between you and the officer.. As in either attempting to prove he was lying ~ or to show a discrepancy in his testimony ~ or to force him to testify from memory ~ and how dare he accuse you of running a red light when in reality, you still have not denied whether you did or not!

The problem with those approaches are (in the same order with the above): what would motivate him to lie, about your citation or any other one for that matter only to risk the consequences of perjuring himself or worse, getting the ax ... For your citation? ~ He testifies in his TBD based on his personal notes which he made after issuing the citation and he bases his TDN testimony on his TBD, so where do you plan on finding a discrepancy that might tend to embarrass him or better yet, shift the case in your favor? ~ And, you can cite all the evidence code sections in existence, the basis for any suggestion that an officer is not allowed to refer to his notes during testimony is pointless. You don't want him doing so for some odd reason, fine... The court will likely offer him a recess to review his notes and his testimony will resume. You want to interrupt again by requesting copies of his notes and his TBD? Well, a copy of his notes was provided to you via discovery, was it not, and you had the option to request a copy of his TBD from the clerk, so now you're simply disrupting your own trial just to be irritating; and the judge is likely to ask you “why and where are you going with all that?”

Perhaps getting rid of the dismissal for lack of prosecution would be a good thing. It would force officers to attend trials to defend the citations they write or the statements made in TBD's. It may reduce the number of questionable citations issued by law enforcement. If an officer issues a questionable ticket I'd guess that most people just pay it. If the officer takes a position that's difficult to defend and you challenge a questionable citation, the officer just has to "no show" and their questionable testimony disappears. Officers should have to defend their actions!

Think about what you're saying... If you're suggesting that you already have your proof that the officer lied, that proof of his lie is some discrepancy between his notes and his TBD, then he already effed up and handed you evidence of his 'lie” in writing form, on a court document commonly referred to as "Officer's Declaration"... I mean why quit now/ Why not quit before the TBD i.e. before handing you the evidence of his lie and giving you the opportunity to ruin his career!

A good question at this point is “Why you?” does he know you? And you believe he set up at that intersection knowing you were coming through at a time that is so close to the light turning red, and while you happened to really and truly make it on yellow, he lied and said you crossed on red... All part of some big conspiracy to convict you of a freaking infraction?

So was it in your opinion planned? Or all part of one coincidence where he goes out to prey on one unsuspecting motorist and not because he benefits in some way, but only for shits, giggles and a few high fives back at the station! Do they receive bonuses in Palo Alto for however many convictions they get? Why would he have submitted a TBD if that contained "the evidence"? Why not skip on that as well if he's unable to support the reasons he issued the citation for?

Here is why your plan would have failed... Miserably.... There are 2 schools of though with regards to TBDs as evidence at the TDN. One school says "nope, any evidence or documentation is set aside and is not to be considered at the TDN"... And in this case, while its obvious that you could have introduced whatever into evidence, the judge is under no obligation to consider it as part of his final determination.

Second school says "hey, its in the case file, it can and should be considered, and yes, any party that wants to refer to it is certainly welcome to motion the court accordingly"... So you request his TBD to be introduced into evidence... The judge decides to pull BOTH TBDs... Hey, remember, he subscribes to the theory that TBDs are part of the evidence. And as you're making your argument about the officer's lie, (cover-up your face 'cause here comes the bull-sh*t shrapnell from this idea blowing up in your face) he glances at yours and "BLANK"! And why aren't ANY of this guys arguments in here? Why would he waste the opportunity to make any argument which he feels are viable and instead, saves everything for a TDN? Now, not only have you lost credibility on the matter related to the officer's alleged lie, you've lost credibility on ALL your other issues as well!

You're not going to get the judge to prohibit the witness from refreshing his recollection by reviewing his notes. Worse comes to worse, he may ask the officer to give you a copy of his notes, and after a short recess, you're back on. But wait, did you not state you already had received a copy via discovery? And you've already requested and received copies of his declaration. So you'll get shushed on that as well!

It would be painfully obvious that an average traffic officer would write 10 to 15 citations a day...Lets assume the he/she works 4-10 (4 days @ 10 hours per day), so 4 X 10 to 15 = 40 to 60 citations a week, which equals 160 to 240 citations a month, which may add up to 960 to 1440 citations every 6 months or about 1920 to 2880 citations a year, and you, or anyone in their right mind, including the trial court and or the appellate, would expect him to have “independent personal recollection of ALL the details of each and every citation? Really??? If you believe that for even a second, then you are only fooling yourself!

With all that said, am I understanding you correctly if I said that you submitted a blank TBD, and yet when you were found guilty, you somehow was able to come up with a few issues which you had opted not to argue in the TBD, but you brought them here... In the meantime, and though you stated above in your last post before reporting back that “I believe my case rides on my ability to create reasonable doubt as to whether the officer could see my traffic control signal” are you saying now that you had something different planned all along? Or was this lie you're claiming related to the reasonable doubt you mentioned?

Your posts are very inconsistent, you don't seem to be telling a stoy, instead, just random unrelated thoughts...

You started out with louvers and him chasing you for blocksa and through turns, and that was put to bed quickly. Then we went to pictures and how to use them as proof, and that went to bed as well. Only to end upcoming back unexpectedly to announce your case was dismissed. Officer didn't show up! Then you combined all of the above and molded it into a story about him lying and you having positive proof he did! And yet not one single way to show how you plan on doing any of your claims!

Officers should have to defend their actions! .

You know you could have insisted that the case be rescheduled rather than dismissed.

You should also keep in mind that the officers are NOT the defendants in these cases!

The foundation I am talking about is contained in California Evidence Code Section 771 and 1237.

771.

(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.
(b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.
(c) Production of the writing is excused, and the testimony of the witness shall not be stricken, if the writing:

(1) Is not in the possession or control of the witness or the party who produced his testimony concerning the matter; and
(2) Was not reasonably procurable by such party through the use of the court's process or other available means.

You were given a copy of his notes were you not? And you were able to obtain a copy of his declaration, were you not?

And here is 1237:

1237.

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;
(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;
(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

I don't see how that would preclude him from reading his notes or basing his testimony on them, or how you can prevent him from testifying by citing this code section. I don't see how his prior statements would be considered hearsay if he's there to testify whether he wrote them or not. Or how any of that relates to foundation or lack thereof re his testimony!!!

With that said, I think you're veering way off the topic of personal knowledge by citing those code sections:

For example, this is more fitting, is it not?

702.

(a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.
(b) A witness' personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.

section 801 relates to "expert testimony", and we can discuss that part if you'd like. But for now, his personal knowledge is proven by admissible evidence in the form of his signature and badge number on the citation, he was there, he stopped you, and cited you, and he's testified against you in a TBD and you're coming now with questions about foundation to his testimony?

And again, if your particular judge believes the TBD is set aside, there is not much you could do to introduce that into evidence... If he feels the TBD should be part of the TDN well, the officer's TBD is already in evidence (and again, so is yours)... So what is your point? What was the discrepancy that you were looking so forward to disclosing to the court? I mean, after all, the case is done and over with and you have no reason whatsoever to hold anything back -if that was your excuse before-!!!

As for his notes, assuming you can decipher them and what they mean, and offer such interpretation and then (like authenticating pictures) have the officer agree that it is what he meant when he wrote those, then assuming there is an inconsistent statement made there, I can see how it would present an issue. If he disagrees to your interpretation )(which is more likely to happen) then you only provided proof that you are capable of speculating but worse yet, it now raises the issue of your own credibility to the surface... You just shot yourself in the hip and blew your entire case!

He must testify he has "insufficient present recollection" to be able to refer to any writing while testifying.

No, he must not testify to that... Let me repeat this part from up top:

You don't want him [reading from his own notes] so for some odd reason, fine... The court will likely offer him a recess to review his notes and his testimony will resume. You want to interrupt again by requesting copies of his notes and his TBD? Well, a copy of his notes was provided to you via discovery, was it not, and you had the option to request a copy of his TBD from the clerk, so now you're simply disrupting your own trial just to be irritating; and the judge is likely to ask you “why and where are you going with all that?” Your answer is what? “I can prove he's lying”... ???

Whether he lays the proper foundation or not, I still get to find out what writing he is referring to and cross-examine him on the contents of the writing.

The only foundation for his testimony is laid properly by virtue of him being the officer who cited you, he signed the citation and wrote his badge number on it – he testified using the same name badge number and asserts or will assert that he identified you as the driver and cited you accordingly. ... Theoretically, he can state anything he wants in his direct. If you can prove he's lying why not wait until he's done, then present your own copy of his notes, your own copy of his TBD, authenticate them both by having him inspect them, and then show the proof of this big conspiracy you're claiming!

So far, you've had several opportunity to present several documents supporting your position and undermining that of the officer. And no, not that you have to prove anything to anyone, it simply goes to add credibility to what you're saying. And maybe, just maybe if your lucky, someone might notice a different issue that what you've seeing. There are always three sides to every story, yours, his and the actual set of facts. Not necessarily that either of you is lying, but it is possible for people to perceive matters differently. And when you make claim, and claim to have support, and yet show none, one might start to wonder!

I wanted the officer's notes and TBD statement admitted as evidence because I could present evidence that contradicted what he had written.

Well, here is your opportunity... you have no reason to hold back. It is, of course possible that this contradiction i.e. lie, is nothing but a simple misinterpretation on your behalf! But we would not know until we see it! Keep holding it back and it is mere speculation on your behalf.

I can use notes in my role of representing myself in pro per. If I testified using notes then my testimony could be objected to as well.....but by who? There is no prosecutor or true plaintiff. The officer isn't an attorney. He is merely a witness.

The judge is not there as a mere fixture. If there is anything to be said or done to protect the interests of the “People” you can bet your bottom dollar he'll act accordingly. As for objecting to your testimony, nobody needs to object simply because the officer does not care what you might have in your notes or what you testify to.

The only reason someone might object to any testimony/evidence is so that they can ensure that such evidence/testimony is not taken into consideration come decision time. But with or without objection, more importantly, the ”trier of fact” is free to assign whatever value he feels appropriate to your testimony or to you notes or another evidence you present. He can assign it a value of ZERO i.e. worthless, or he can base his decision in its entirety on one single line you stated under oath.

There is an odd element to traffic court, unlike others in our court system. I think themadnorwegian's most recent post about his bail and driving record just adds to this point.

Actuallly, it could be argued that TMN's post regarding a refund from court and notice of abstract from the court to the DMV is not even remotely related to the issue of an officer's appearance at trial and whether that means he lied or not!

But in reference to TMN's post, I'm not sure where he got the idea that his refund should be coming in less than 60 days... That is 2 months. In all my years of dealing with California traffic courts, its always been 60 to 80 days for a refund. In fact, look at a form TR-215 “Decision and Notice of Decision”,

e. TOTAL AMOUNT ORDERED REFUNDED (a minus d): ______________________________ (should be received by mail within 60 days)

And what you are told by the clerk is "60 to 80 days"... As for what a judge might say, isn't that the same as them quoting you a fine of $35 only to find out that means $235 after P's & A's...

Perhaps the officer had a strong explanation for the testimony he presented in his TBD. …. Maybe the officer was sick or busy the day of trial.

Maybe he had a different case, in a different court... Maybe he's running behind for the month and decided he'd be better off staying out and writing a few more than spending hours defending one!

Maybe he rethought the contents of his TBD statement.

Maybe he wouldn't have read it until he got to court that day. Which he never did so he hadn't read it since he wrote it back when...

Whatever the cause, he didn't show up to defend his position.

No... You really didn't post that, did you? Far be it for me to say any of this on his behalf but seriously, you must understand the concept of “accuser versus defendant”. The only person there to defend anything was you, not the officer!

This is all sounding like your claim of having been driving for 20 years and yet "never having had a moving violation"! I guess its possible, if you drove for a few minutes back then, quit that and only got behind the wheel an hour or so before you got cited! I'm just teasing you though... Congrats again!

[themadnorwegian]

But in reference to TMN's post, I'm not sure where he got the idea that his refund should be coming in less than 60 days... That is 2 months. In all my years of dealing with California traffic courts, its always been 60 to 80 days for a refund.

I got the idea from reading the Vehicle Code:

42201.6.

(a) A deposit of bail received with respect to an infraction violation of this code, or any local ordinance adopted pursuant to this code, including, but not limited to, a violation involving the standing or parking of a vehicle, shall be refunded by the agency which issued the notice of violation or the court within 30 days of a cancellation, dismissal or finding of not guilty of the offense charged.
...
(c) Any amount to be refunded in accordance with subdivision (a) or (b) shall accrue interest, at the rate specified in Section 3289 of the Civil Code, on and after the 60th day of a cancellation, dismissal, or finding of not guilty or identification of multiple or duplicate deposits, and shall be refunded as soon as possible thereafter along with accrued interest.

and:

42202.

Failure, refusal, or neglect on the part of any judicial or other officer or employee receiving or having custody of any fine or forfeiture mentioned in this article either before or after deposit in the respective fund to comply with the foregoing provisions of this article is misconduct in office and ground for removal therefrom.

There's nearly identical language in VC 1803.3 and 1805 for records of conviction reversal, too.

[That Guy]

I got the idea from reading the Vehicle Code:

42201.6.

(a) A deposit of bail received with respect to an infraction violation of this code, or any local ordinance adopted pursuant to this code, including, but not limited to, a violation involving the standing or parking of a vehicle, shall be refunded by the agency which issued the notice of violation or the court within 30 days of a cancellation, dismissal or finding of not guilty of the offense charged.
...
(c) Any amount to be refunded in accordance with subdivision (a) or (b) shall accrue interest, at the rate specified in Section 3289 of the Civil Code, on and after the 60th day of a cancellation, dismissal, or finding of not guilty or identification of multiple or duplicate deposits, and shall be refunded as soon as possible thereafter along with accrued interest.

and:

42202.

Failure, refusal, or neglect on the part of any judicial or other officer or employee receiving or having custody of any fine or forfeiture mentioned in this article either before or after deposit in the respective fund to comply with the foregoing provisions of this article is misconduct in office and ground for removal therefrom.

I am going to disagree with your interpretations, TMN. Not with regards to 42201.6. That obviously mandates the initiation of the refund within the 30 days following the decision. It does also require payment of interest on the full amount if it is held past the 60 days. I almost said “Shame on the judicial Councel for approving a form that is not compliant with the code; but I guess “up to 60 days” and while it is outside of the 30 days, it does not add to their liability... At least not at the rate of 13 cents a day.

What I disagree with you about, is that 42206 is in any way intended to include violations under 42201.6.

1. I am assuming that the legislatures use of the term “funds” (see “before or after deposit in the respective fund“ is describing the several finds the revenue from traffic fines is supposed to be deposited into pursuant to each of the several statutes authorizing its collection.
Examples on that would be “the "Traffic Safety Fund", “County general Fund”, “Country Road fund” and “State Transportation Fund”, to name a few...
2. The amount of money you deposited with the court is described as “deposit of bail” (see 42201.6(a)) or simply “the bail amount”, whereas if you read 42202, it describes the funds in question as “any fine or forfeiture mentioned in this article”. Well, the amount you deposited as bail was -theoretically- never converted into the fine, nor was it ever forfeited. It simply sat in the court's general account awaiting an outcome in your case so the it can either be refunded or forfeited and converted into a fine.


As for the abstract to the DMV, the code section requiring it be done within 30 days comes under 1803.3.

If we look at 1805:

1805. The failure, refusal, or neglect of any such judicial officer to comply with any of the requirements of Sections 1802, 1803, 1804 and 1816 is misconduct in office and is ground for removal therefrom.

1. It makes no mention of a violation of 1803.3 (a failure to re-abstract a reversal or a dismissal to the DMV within 30 days).
2. The alleged “misconduct in office” is described as having been committed by a judicial officer, i.e. a Judge, magistrate, commissioner or pro-tem... But not the clerk. And completing an transmitting abstracts is a duty almost wholly delegated to the clerk;

Therefore, it is my opinion that if they fail to issue a refund or notify the DMV within the 30 days after a dismissal, then tough luck, we'll see what we can do!