Speedy Trial: When is a Motion for Dismissal Possible

[ranma5080]

My question involves traffic court in the State of: California

Hi all,

I've been reading this forum for a while and have found it very helpful. However, there seems to be some disagreement when it comes to the whole "right to a speedy trial." It seems some members believe it can be used and some don't.

Anyway, I'm currently fighting a speeding ticket. My arraignment was at the beginning of April and I pleaded not guilty. My trial date has been set for June 21. I did not delay this trial date in any way, so it's beyond the 45-day window. It says right on my Request for Trial form that I am entitled to a speedy and public trial within 45 days.

My question is this: can I actually file a motion for dismissal based on this? And if so, would I have to go to court or would I be able to fill out a form and mail it? The fact that the trial has passed the 45-day mark has genuinely effected me; I recently started a new job and now I'll have to take time off from work to go to court. If it were before 45 days, I'd have no problem going to court, as I wouldn't have started my job yet.

Let me know! Thank you in advance!

[jjevans]

At arraignment, you should never waive your right to a speedy trial because you will have more opportunities for a dismissal than if you waive it. A judge at the beginning of the arraignment proceeding will announce the trial schedule in the room your sitting in. The schedule dates will be well beyond the 45 day window. This is to assure that they can schedule everyone who protests their ticket. In a speedy trial, if the officer does not show up it's dismissed. In a non-speedy trial format, the judge can reschedule the trial date if the officer cannot attend. Bigger cities often have over crowded scheduling. If they cannot schedule your trial within the 45 days, you can motion a dismissal based on the fact you were denied the right to a speedy trial if they have no choice to schedule it beyond the 45 days. But the judge may require a written motion in writing with points and authority supporting that motion. It's rare but can happen.

Unfortunately, in your case, you may have already waived your right and I don't know if you can 'unwaive' that right and reschedule it within the 45 days. If the judge didn't mention your rights to a speedy trial or give you an option not to waive it, you may have an argument, but I highly doubt it since it's in writing on their forms. The judge usually will briefly mention they will accommodate a trial date within the 45 days. Marin County a few years ago got in trouble when the forms gave no option but to waive their right to a speedy trial but they corrected that.

[That Guy]

I've been reading this forum for a while and have found it very helpful. However, there seems to be some disagreement when it comes to the whole "right to a speedy trial." It seems some members believe it can be used and some don't.

I'd like to think that I was part of those discussions, at least the most recent ones and frankly, I do not remember anyone saying "it cannot be used". I thknk the question is more about whether it applies or not, and whether you can successfully argue such motion before the court.

The question in your case is "where was all this when you were notified of your court date back in April?"

Anyway, I'm currently fighting a speeding ticket. My arraignment was at the beginning of April and I pleaded not guilty. My trial date has been set for June 21. I did not delay this trial date in any way, so it's beyond the 45-day window. It says right on my Request for Trial form that I am entitled to a speedy and public trial within 45 days.

How and where did you enter your plea?
And on your arraignment day, were you given any forms to sign, read, acknowledge somehow and turn over to the bailiff or clerk when your case was called?
Did you have to sit there and listen to a video/audio recording of "some important information"?

What I meant by my question about "where was all this...", is this: you were notified of your trial date being beyond the 45 day statutory time limit, you did not object, you accepted it and as a result, that, in my opinion, is interpreted as an "implied waiver of your right to a speedy trial" (as opposed to an expressed waiver).

My question is this: can I actually file a motion for dismissal based on this? And if so, would I have to go to court or would I be able to fill out a form and mail it?

I think you're being a bit too optimistic if you're assuming that you simply mail a few pages and this whole thing will go away. You will have to file the motion with the court, serve it on all parties (presumably the D.A.'s office) and then appear in court to argue your motion. When filing a typical criminal motion you would follow certain guidelines to set the hearing date to a specific date and then you'd appear to argue your motion. In traffic court, your motion will likely be heard on your trial date. So you're not going to get out of appearing in court.

The fact that the trial has passed the 45-day mark has genuinely effected me; I recently started a new job and now I'll have to take time off from work to go to court. If it were before 45 days, I'd have no problem going to court, as I wouldn't have started my job yet.

I think the question is, "how has the delay impacted your ability to defend yourself?". And no, a "I can't appear in court to defend my self because I now have a job" is not likely to work for you!

The effects it is asking you about relate to availability of evidence, testimony of witnesses... etc, not the defendant's ability to be there or not!

If you request a trial, of course you are expected to appear in court, and the fact that you now have a job whereas you did not before, how different would it have been if you were employed at the time?

Lastly, of course if there was the hint of you possible not being able to appear in court simply because you do not want to take any time off, then you should have elected a trial by declaration.

You are, of course, free to file your motion and see what the judge will say. But you're not going to get much without appearing!

Good luck!

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A judge at the beginning of the arraignment proceeding will announce the trial schedule in the room your sitting in. The schedule dates will be well beyond the 45 day window. This is to assure that they can schedule everyone who protests their ticket.

You certainly have the strangest way of explaining things! I have no idea where you get that information from!

[ranma5080]

I entered my plea in the courtroom before a judge. I didn't sign anything before I told the judge that I intended to plead not guilty, nor did we watch a video. The judge explained a bit of the process when he arrived, but I don't remember him saying anything about waiving the right to a speedy trial.

In the case of being notified beyond the 45 day time: I actually received my court date in the mail a week after my arraignment. The reason for this is that I elected to pay for my bail via mailed check.

How do I go about filing the motion in court? Do I need a specific form?

I didn't realize the question was, "How has the delay impacted your ability to defend yourself?" I assumed that my right to a speedy trial meant just that: that everyone was entitled to their trial within 45 days, regardless of whether or not it actually effects them. I guess it's not that simple?

[That Guy]

I entered my plea in the courtroom before a judge. I didn't sign anything before I told the judge that I intended to plead not guilty, nor did we watch a video. The judge explained a bit of the process when he arrived, but I don't remember him saying anything about waiving the right to a speedy trial.

"Don't remember" does not necessarily mean it didn't happen! Right?

In the case of being notified beyond the 45 day time: I actually received my court date in the mail a week after my arraignment.

OK, so.... You didn't have since early April to reassert your right, you've had since MID April....

The reason for this is that I elected to pay for my bail via mailed check.

BINGO....

You did not enter your plea before the judge, in the courtroom (well, you did but it was not recorded or accepted). Or I should say that plea did not count...

You were simply given an extension to enter your plea until you can submit bail in the required amount.

Plea entry is usually accompanied by either payment of the fine or posting bail in an amount equal to the fine (pursuant to VC 40519).

In other words, since posting bail is required before your trial can be scheduled, not posting bail will usually mean that trial has not been scheduled and that also means that a plea was not entered. You later mailed in a check and probably included a note about pleading "not guilty", even if that was limited to the memo on the check... Which essentially constituted a written plea and a request for a trial and arraignment at the same time unless you request a separate arraignment, which, pursuant to VC 40519(b) constitutes a waiver of your statutory right to a speedy trial.

V C Section 40519 Trial Scheduling Written Not Guilty Plea

Trial Scheduling; Written Not Guilty Plea

40519.

(a) Any person who has received a written notice to appear for an infraction may, prior to the time at which the person is required to appear, make a deposit and declare the intention to plead not guilty to the clerk of the court named in the notice to appear. The deposit shall be in the amount of bail established pursuant to Section 1269b of the Penal Code, together with any assessment required by Section 42006 of this code or Section 1464 of the Penal Code, for the offense charged, and shall be used for the purpose of guaranteeing the appearance of the defendant at the time and place scheduled by the clerk for arraignment and for trial, and to apply toward the payment of any fine or assessment prescribed by the court in the event of conviction. The case shall thereupon be set for arraignment and trial on the same date, unless the defendant requests separate arraignment. A deposit of bail under this section does not constitute entry of a plea or a court appearance. A plea of not guilty under this section must be made in court at the arraignment.

(b) Any person who has received a written notice to appear may, prior to the time at which the person is required to appear, plead not guilty in writing in lieu of appearing in person. The written plea shall be directed to the court named in the notice to appear and, if mailed, shall be sent by certified or registered mail postmarked not later than five days prior to the day upon which appearance is required. The written plea and request to the court or city agency shall be accompanied by a deposit consisting of the amount of bail established pursuant to Section 1269b of the Penal Code, together with any assessment required by Section 42006 of this code or Section 1464 of the Penal Code, for that offense, which amount shall be used for the purpose of guaranteeing the appearance of the defendant at the time and place set by the court for trial and to apply toward the payment of any fine or assessment prescribed by the court in the event of conviction. Upon receipt of the plea and deposit, the case shall be set for arraignment and trial on the same date, unless the defendant requests separate arraignment. Thereafter, the case shall be conducted in the same manner as if the defendant had appeared in person, had made his or her plea in open court, and had deposited that sum as bail. The court or the clerk of the court shall notify the accused of the time and place of trial by first- class mail postmarked at least 10 days prior to the time set for the trial. Any person using this procedure shall be deemed to have waived the right to be tried within the statutory period.

(c) Any person using the procedure set forth in subdivision (a) or (b) shall be deemed to have given a written promise to appear at the time designated by the court for trial, and failure to appear at the trial shall constitute a misdemeanor.

How do I go about filing the motion in court? Do I need a specific form?

You're asking a question that cannot be answered in one paragraph... or two. You can start by writing out the legal basis for your motion, a synopsis of how your right was violated (which it wasn't), and why a dismissal is the only fair and appropriate remedy here. Once you're done witrh that, you can follow California Rules of Court regarding motions, which basically dictates a bunch of formatting requirements which include several elements including that your motion be split into 3 major sections:

A Notice of Motion;
Memorandum of Points and Authorities in support of defendant's Motion; and
Defendant's Declaration...

I coiuld go onto explaining filing and serving requirements, and arguing the motion in court, but really, honestly... in this case it would be a waste of both our times... For one, the "Points and Authorities" section would be pretty much blank!

I didn't realize the question was, "How has the delay impacted your ability to defend yourself?" I assumed that my right to a speedy trial meant just that: that everyone was entitled to their trial within 45 days, regardless of whether or not it actually effects them. I guess it's not that simple?

The main purpose for enacting statutes mandating specific periods for speedy trials (on both, the state and federal levels) is simply to limit the amount of time a defendant is incarcerated before he the opportunity at a timely disposition of his case and if innocent, to have his freedom again. It also makes sense that in some cases, witnesses may only be available for a period of time, memories do fade eventually and evidence may simply disappear (or spoil) as it were back then. So when it comes to infractions, and since jail time is not a possibility, your main reason for such mandates is poof, GONE... Makes any claim that one's so called "rights to a speedy trial being 'violated'" a silly ridiclulous claim, and more often than not, a waste of everyone's time.

One last thing, everybody forget that there are two parties to a traffic infraction case.... And just like you are entitled to a speedy trial, the "people of the State of California" are also entitled to a speedy disposition of the case without any undue delay or any extra ordinary impact on the court's schedule or its resources.

The funniest arguments are usually the ones where someone will claim "my right to a speedy trial was violated" my case was scheduled for 49 days after my arraignment, and yet after a few questions you find out that not only did the request a 60 day extension, but they asked for another 30 days and then would have liked to have had a few more...

[jjevans]

You certainly have the strangest way of explaining things! I have no idea where you get that information from![/QUOTE]

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To clarify the statement you highlighted, courts would schedule outside the 45 days rather than scheduling w/i the 45 days because the trial schedules would fill up rather quickly which would deny the right for a speedy trial for the other defendants in that time frame. This would put judges in an awkward position to either deny their rights to speedy trial and see if they are OK with that or dismiss the ticket. In the alternative, they safe guard the 45 day widow by scheduling outside the 45 days so they can schedule all the defendants and if a defendant objects, then they will arrange to schedule w/i that timeframe. There are also other debates to it as well. If the judge was to offer the right to a speedy trial, is this considered legal advice or offering "waive time" considered legal advice? So the courts procedure is to just schedule it outside the 45 day window b/c there will always be room to do so and briefly ask if they waive time as the option so they are not directing the defendants what to do. Courts assume defendants who defend 'pro per" they know their rights and the law.

[That Guy]

To clarify the statement you highlighted, courts would schedule outside the 45 days rather than scheduling w/i the 45 days because the trial schedules would fill up rather quickly which would deny the right for a speedy trial for the other defendants in that time frame. This would put judges in an awkward position to either deny their rights to speedy trial and see if they are OK with that or dismiss the ticket. In the alternative, they safe guard the 45 day widow by scheduling outside the 45 days so they can schedule all the defendants and if a defendant objects, then they will arrange to schedule w/i that timeframe. There are also other debates to it as well. If the judge was to offer the right to a speedy trial, is this considered legal advice or offering "waive time" considered legal advice? So the courts procedure is to just schedule it outside the 45 day window b/c there will always be room to do so and briefly ask if they waive time as the option so they are not directing the defendants what to do. Courts assume defendants who defend 'pro per" they know their rights and the law.

You're still way off simply because you make it sound as it judges have to manipulate defendants into accepting matters one way or another, or that the courts intentionally do thing a certain way simply to disadvantage the defendant.

A judge must ensure that all such waivers, are properly entered as required by law, and that defendants are or at least should be fully aware of what their rights are under the law (and hence my question about disclosures nd/or written/signed documents); I said it above and I will repeat it here, a judge's role is a balancing act, really, of the rights of BOTH parties in a case, not just one... The defendant as well as the People!

The intent is to allow everyone a trial that is fair, impartial and timely... And yet there are times where out of 100 arraignments, the number of contested cases exceeds the capacity for some courts and yes, they may have to dismiss some cases BUT that is not the first and only option the way everyone sees it. They can still have the option to schedule extra sessions, or schedule cases to be tried by pro-tems... etc. There are several methods that can be tried to ensure that everyone's rights are protected, and not simply swept under the rug.

If the judge was to offer the right to a speedy trial, is this considered legal advice or offering "waive time" considered legal advice?

Are you asking a question?
You really don't understand the difference between a judge offering a defendant legal advice as compared to a judge who's making an attempt to ensure that no one's right to a speedy trial is compromised without their full knowledge and understanding?

Again, judges don't "offer the right to some" and "exclude it from others"... So your "if" is totally misplaced!