Ineligible for Trial by Written Declaration

[tgeorger]

My question involves a traffic ticket from the state of: CA


I received a citation for VC 22101-D Violation - Failure to obey the directions of a traffic control device.

The courtesy notice said my citation was ineligible for a trial by written declaration. Why would that be?

My court date is already set but it occurred to me there must be a reason for being ineligible for a trial by written declaration. I don't think it can be random or "just because" the clerk felt like it and I understood a trial by written declaration was part of the normal process.

I haven't had a ticket in over 10 years. So i don't think its me.
That leaves either:
1) officer involved
2) the VC involved
3) the location involved.

The officers line up on the side of the road and just wave cars over. "My officer" pulled over 7 vehicles in the 15 minutes I was there being cited.

[That Guy]

The courtesy notice said my citation was ineligible for a trial by written declaration.

It actually literally stated "(you, your violation or this citation) is ineligible for a Trial By Written Declaration"?

Why would that be?

There is absolutely no way for any of us to be able to tell you why. You will have to ask THAT court's traffic clerk.

Now, if this is simply your conclusion and only because the TBD option did not appear on the courtesy notice does NOT necessarily mean you are ineligible for a TBD. It simply means that the court requires that you post bail along with your request for a TBD and as such, you can do so by going to the clerk's window, submitting the completed for TR-205 along with a check in the amount of the full bail. Alternatively you can submit those two items by mail along with a note stating "this is my request for a TBD, please complete your portion on the attached form including the due date and return to me by mail".

^That^, is the explanation I was given when neither my courtesy notice, nor my online/over the phone case status gave me the TBD as an option.

That leaves either:
1) officer involved
2) the VC involved
3) the location involved.

None of the above would provide legal justification to deny a TBD.

By law, (VC 40902) the court , pursuant to this section (VC 40902), shall (not "may" or "can" or "should"... SHALL as in MUST) by rule, provide that the defendant may elect (your choice) to have a trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of this code or any local ordinance adopted pursuant to this code, other than an infraction cited pursuant to Article 2 (commencing with Section 23152) of Chapter 12 of Division 11.

So the ONLY exceptions are ANY charge for any/all Offenses Involving Alcohol and Drugs ~ VC sections 23152-23229.1), and so as long as it is an infraction (and 22101D is an infraction) it would qualify fort a TBD.

The rule, it mentions above, is in fact California Rule of Court # 4.210. Traffic court-trial by written declaration. Subsection (d) does address "ineligible defendants" although it does not offer any sort of list of descriptions or dis-qualifiers.

The officers line up on the side of the road and just wave cars over. "My officer" pulled over 7 vehicles in the 15 minutes I was there being cited.

So was he citing and waving people over?

What is the issue? Obviously there is a sign (otherwise 22101D would not be a citable offense)! What's the story?

[tgeorger]

The courtesy notice gave me the following 3 choices:
1) pay the the ticket ( Bail forfeiture)
2)Traffic School (pay the ticket and the school)
3) or and i quote
"Request Court Appearance
Your appearance is: OPTIONAL
To request an Arraignment date without posting bail, you may appear in person at the Clerk's office. You may also mail the "Amount Due for a Court Appearance" and select the hearing type from the two options below to schedule a court appearance by mail. If your appearance is mandatory, you MUST arrange a court appearance date. No other options are available to you and you are not eligible for a Trial by Declaration.
o ARRAIGNMENT -Appearance to hear your charges, advisement of rights and entry of plea
o COURT TRIAL - Contest the citation
(Referral to Traffic School after Trial is at the discretion of the Judicial Officer.)"


Unless I'm misinterpreting the notice, "I" am not eligible for a TBD or was my unwritten option to request an arraignment and at the arraignment request the TBD?

Yes,the officer was waiving vehicles over and as far as I could tell was writing all of us the same citation. The intersection in question is an awkward freeway on ramp to 101N with 2 parallel roads dead ending at a 3 way signal at a major cross street with the on ramp a sharp left turn in front of both roads. The road on the right has a round green light and a left arrow. The road on the left has only the left arrow. The road on the right may enter the freeway on ramp, the road on the left may not since it does not have the round green light. ( i was on the left-side road and so not allowed to enter the freeway) Interestingly both roads have left turn only signs before the signal but apparently the round green light trumps the posted sign. Clear as mud.

[themadnorwegian]

I think that you're misinterpreting the courtesy notice. My notice didn't say anything about a trial by written declaration; however, when I wrote a letter to the court requesting one, they were willing to let me use that procedure. Perhaps you should contact the clerk as TG suggested.

[That Guy]

The courtesy notice gave me the following 3 choices:
1) pay the the ticket ( Bail forfeiture)
2)Traffic School (pay the ticket and the school)
3) or and i quote
"Request Court Appearance
Your appearance is: OPTIONAL
To request an Arraignment date without posting bail, you may appear in person at the Clerk's office. You may also mail the "Amount Due for a Court Appearance" and select the hearing type from the two options below to schedule a court appearance by mail. If your appearance is mandatory, you MUST arrange a court appearance date. No other options are available to you and you are not eligible for a Trial by Declaration.
.

well, it does actually state that part I underlined?

I don't see how they can do so and I would suggest -again- that you contact the clerk.

Unless I'm misinterpreting the notice, "I" am not eligible for a TBD or was my unwritten option to request an arraignment and at the arraignment request the TBD?

Well, no... Actually, a TBD can be requested from the clerk you do not need to wait to do so at the arraignment and as far as I know, the clerk is authorized to offer and grant TBD requests and as such, those are not requested from the judge. If you do request it from the judge, s/he will refer you to the clerk.

If you were to read Rule 4.210 you'll see that the defendant is doing everything with the clerk:

The defendant must file a Request for Trial by Written Declaration (form TR-205) with the clerk by the appearance date...
The defendant must deposit bail with the clerk by the appearance date....

---

Hold the presses! I think I've got it!!!

See if this makes a difference:

The courtesy notice gave me the following 3 choices:
1) pay the the ticket ( Bail forfeiture)
2)Traffic School (pay the ticket and the school)
3) or and i quote
"Request Court Appearance
Your appearance is: OPTIONAL
To request an Arraignment date without posting bail, you may appear in person at the Clerk's office. You may also mail the "Amount Due for a Court Appearance" and select the hearing type from the two options below to schedule a court appearance by mail.


If your appearance is mandatory, you MUST arrange a court appearance date. No other options are available to you and you are not eligible for a Trial by Declaration.

o ARRAIGNMENT -Appearance to hear your charges, advisement of rights and entry of plea
o COURT TRIAL - Contest the citation
(Referral to Traffic School after Trial is at the discretion of the Judicial Officer.)"

In other words, "If your appearance is mandatory, you MUST schedule a court appearance. You Have no other options and no, not even a trial by declaration! Do not pass go. Do not collect $200!

For you, however, your appearance is OPTIONAL and as such, you need not schedule a court appearance if you choose not to appear), but you also have the option of a TBD.

That takes us back to what I was told, you have to post bail along with submitting your TBD request.
My advice? Don't do anything by mail.

• Complete the basic info on a TR-205.
• Print 2 copies of the form.
• Go to court.
• Take both copies with you to court along with a check for the bail amount. (write "not guilty TRWD request + bail for [citation Number]" on the Memo part of the check).
• Turn one in with the clerk and have him/her stamp your copy with a date stamp (It'll show the court's name, the date, the word "FILED" and the clerk's name for your county).
• Now you get to wait for your TBD form in the mail (or they might complete it -write in the due date and the bail amount they received- and give it right back to you).

---

Yes,the officer was waiving vehicles over and as far as I could tell was writing all of us the same citation. The intersection in question is an awkward freeway on ramp to 101N with 2 parallel roads dead ending at a 3 way signal at a major cross street with the on ramp a sharp left turn in front of both roads. The road on the right has a round green light and a left arrow. The road on the left has only the left arrow. The road on the right may enter the freeway on ramp, the road on the left may not since it does not have the round green light. ( i was on the left-side road and so not allowed to enter the freeway) Interestingly both roads have left turn only signs before the signal but apparently the round green light trumps the posted sign. Clear as mud.

Actually, CRYSTAL clear! (I think). Though there are always questions to ask...

How many lanes are each road?

Is it safe to assume you were in the roadway on the left and your only "lawful" choice was to make a left but you went straight through the intersection in spite of the fact that your indication only shows a green arrow? And the sign only show a left turn option?

Its not that the circular green trumps the sign, it is that a green circular light does give you one of three options, a right turn, a straight through move or a left turn. But the movement(s) allowed by a circular green and a green arrow are defined independently under VC 21451:

21451.

(a) A driver facing a circular green signal shall proceed straight through or turn right or left or make a U-turn unless a sign
prohibits a U-turn. Any driver, including one turning, shall yield the right-of-way to other traffic and to pedestrians lawfully within
the intersection or an adjacent crosswalk.

(b) A driver facing a green arrow signal, shown alone or in combination with another indication, shall enter the intersection only to make the movement indicated by that green arrow or any other movement that is permitted by other indications shown at the same time. A driver facing a left green arrow may also make a U-turn unless prohibited by a sign. A driver shall yield the right-of-way to other traffic and to pedestrians lawfully within the intersection or an adjacent crosswalk.

(c) A pedestrian facing a circular green signal, unless prohibited by sign or otherwise directed by a pedestrian control signal as provided in Section 21456, may proceed across the roadway within any marked or unmarked crosswalk, but shall yield the right-of-way to vehicles lawfully within the intersection at the time that signal is first shown.

(d) A pedestrian facing a green arrow turn signal, unless otherwise directed by a pedestrian control signal as provided in Section 21456, shall not enter the roadway.

Now, on the right roadway, if there is a sign that shows a left turn only and yet the traffic light shows both a left turn arrow and a circular red then there is a conflict but my guess is that there is an additional lane for the straight though movement, then the green arrow as well as the left turn sign both designate the allowed movement from that left lane on the right roadway. And the other lane on the right roadway is designated for the straight through movement.

Either way, that is the right roadway... Even if there is conflict in the signage over there, it really does not mitigate your circumstances any. I mean you were on the left roadway which has a left turn arrow sign, plus a left turn green arrow, and by definition both traffic control devices (the signal and the sign) are in agreement and yet you violated the direction of both. This is where 22101 comes in and says:

22101.

(a) The Department of Transportation or local authorities in respect to highways under their respective jurisdictions, may cause official traffic control devices to be placed or erected within or adjacent to intersections to regulate or prohibit turning movements at such intersections.

(b) When turning movements are required at an intersection notice of such requirement shall be given by erection of a sign, unless an additional clearly marked traffic lane is provided for the approach to the turning movement, in which event notice as applicable to such additional traffic lane shall be given by any official traffic control device.

(c) When right- or left-hand turns are prohibited at an intersection notice of such prohibition shall be given by erection of a sign.

(d) When official traffic control devices are placed as required in subdivisions (b) or (c), it shall be unlawful for any driver of a vehicle to disobey the directions of such official traffic control devices.

So if I'm close on my assumptions and analysis, what are you contesting? Why do you believe you are not guilty?

[tgeorger]

Before I respond, I wanted to say thank you for all the input. Its been much appreciated.

So my reason for contesting the citation is actually another matter. I don't believe the officer has any visibility to the intersection. The officer was standing on the shoulder of the on ramp. As the vehicle in front of me and my vehicle turned left onto the on ramp, the officer stepped out and waved us over. On the shoulder is his motorcycle and another vehicle already pulled over on the shoulder.The officer waves us to pull in behind them.
This is where the geography and the landscaping come into play. The cross street is a freeway overpass and so is raising in elevation while the on ramp is dropping into the free way.

From where i was parked after being waved over i could look back and not see any of the left turn lanes from either road and yet i was parked in a more advantageous location then the officer was standing when he waved me over. From his location he could only see the oncoming traffic. With no officers at the intersection, my contention is that he can only assume from which lane I entered the freeway. Also I do not believe he could see any of the signal lights, so he could not by elimination say since that light was red therefore the other must have been green. At best I believe he could determine only by the movement of cars on the road above which light was green. (The road from the left has a higher volume of traffic turning left then the road on the right) So I believe he is at best assuming from which lane I turned.

Another question:
I know I am not required to testify. I can ask questions of the officer and as long as i'm just asking question after his testimony, I've not given up my right to keep my mouth shut? (please excuse the technical legal jargon ) I have some great pictures of the limited view the officer has of the intersection. Can i present the pictures as part of my questioning or is that by default offering evidence and testifying? I intend to stop at the questioning. Also, is the judge required to inform me if I've gone to far afield in my questioning and am testifying and therefore have given up my right to silence? Meaning I can't unintentionally go to far. The judge would or should stop me and warn me that I'm crossing that line.

Thanks for the help.

[That Guy]

So my reason for contesting the citation is actually another matter. I don't believe the officer has any visibility to the intersection. The officer was standing on the shoulder of the on ramp. As the vehicle in front of me and my vehicle turned left onto the on ramp, the officer stepped out and waved us over. On the shoulder is his motorcycle and another vehicle already pulled over on the shoulder.The officer waves us to pull in behind them.
This is where the geography and the landscaping come into play. The cross street is a freeway overpass and so is raising in elevation while the on ramp is dropping into the free way.

From where i was parked after being waved over i could look back and not see any of the left turn lanes from either road and yet i was parked in a more advantageous location then the officer was standing when he waved me over. From his location he could only see the oncoming traffic. With no officers at the intersection, my contention is that he can only assume from which lane I entered the freeway. Also I do not believe he could see any of the signal lights, so he could not by elimination say since that light was red therefore the other must have been green. At best I believe he could determine only by the movement of cars on the road above which light was green. (The road from the left has a higher volume of traffic turning left then the road on the right) So I believe he is at best assuming from which lane I turned.

You know my ears started to hurt... Because my head could hurt no more...

Make it easy for us to picture and for you to explain and provide a Google Maps link where we can at least pretend we see what you're talking about. Thanks...

Another question:
I know I am not required to testify. I can ask questions of the officer and as long as i'm just asking question after his testimony, I've not given up my right to keep my mouth shut? (please excuse the technical legal jargon ) I have some great pictures of the limited view the officer has of the intersection. Can i present the pictures as part of my questioning or is that by default offering evidence and testifying? I intend to stop at the questioning. Also, is the judge required to inform me if I've gone to far afield in my questioning and am testifying and therefore have given up my right to silence? Meaning I can't unintentionally go to far. The judge would or should stop me and warn me that I'm crossing that line.

I think you're getting into an area that most seasoned attorney would stumble through, and this is before we even consider that your evidence is in fact pictures that would require proper foundation and authentication before they can be utilized as exhibits. Then you get to the fun part of trying to ask the officer about certain views and whether that can be construed as you testifying, simply rebutting the officer's version of events, you trying to impeach him... etc, and my guess is you're bound to slip and fall.

I will say that if I was on a jury (not that juries trials are allowed for traffic infractions, but I don't want to claim to be a judge so lets pretend) and you gave as much as a hint that you're avoiding testifying, you might as well spill your beans and let it all hang!

At any rate, this is obviously covered on two different levels; you have federal protections offered by way of the U.S. Constitution and the Fifth as well as the 14th amendments; and it is also protected under article I, section 15 of the California Constitution.

You'll get that part in California Evidence Code section 930:

Evid Code 930.

To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify.

Or, the equally as obvious one under 940:

940.

To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.

So yeah, you could refuse but if you do, I say you're done!


You want to see how convoluted it gets? Just read some of the relevant evidence code sections:

Evid Code 404.

Whenever the proffered evidence is claimed to be privileged under Section 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.

In reality ^that^ is part of a group of code sections (Evidence code 402 - 405) which apply during the preliminary hearing stage of a criminal trial, and you're providing such evidence to the judge to rule on is different in those cases simply because the matter is eventually decided by a jury, not a judge! You could alternatively have separate 402 or 403 or 404 hearings, in addition to the preliminary hearing!

But when you have the judge deciding your case, it'll obviously be impossible for you to presume that after he decides if the evidence will or will not incriminate you, that he can simply erase it from memory and hear and subsequently decide your case!

---

But lets do this for a second... And this is a question that you will not get asked, but if you did, this would clearly sink your boat:

The officer obviously will testify that somehow, he was able to determine that you committed the infraction, otherwise, you would not have been cited.

You on the other hand, and while you have not come out stating that you did not commit the infraction, are attempting to give the impression that the officer simply lied by claiming he had reason to believe you committed the infraction.

Question is, why would he lie? What could possibly motivate him to do so?

And do you seriously believe for a minute that the court will believe your story over his?

---

Last but not least, I thought you were doing a TBD so why all ^^that^^?