What Happens After You Request a Trial De Novo

[HawkMan]

If you had TBD and are now requesting TDN, there will not be another arraignment, just the court trial. To get a motion hearing scheduled, I'd go in at a time when your assigned court does arraignments, and tell the traffic clerk you want to schedule a motion hearing. This will likely make him/her either confused or adversary, or both. If so, just ask to be re-arraigned, i.e., to come before the judge/commissioner on that very day. Ask the judge for a motion hearing. He will likely try to set it at the date of the trial. Object to that - if police/prosecutor have unduly withheld discovery from you, you don't want this addressed at the trial itself. It is too late to do anything about it then, other than continue the case, which would violate your speedy trial rights. A dismissal is unlikely at the court trial, with the office there and ready to testify. For the motion hearing itself, you will need to prepare and file a written motion explaining legal points and authorities.

Thank you very much for your help, I really appreciate it. This has been the type of answer I have been looking for!
I'm trying to understand the process and what to prepare for

If the Informal Discovery Request is ignored, what can I do at arraignment if I want to have a Trial by Written Declaration first? (e.g. Can I file a motion at arraignment and get a court order for the prosecution to compel discovery before I have to submit a TBWD?)

[free9man]

It is extremely rare from what I have seen for the law enforcement agency to completely ignore a discovery request. The prosecutor isn't going to give you anything except maybe a letter saying they don't handle traffic cases.

[thewiseone]

If you go to arraignment, asking for TBWD there is not an option. As I already mentioned, asking for a motion hearing to address the denial of discovery is. If you want to try TBWD, you can and should do so without going to arraignment, simply by responding appropriately to the courtesy notice or, if you don't get one, by going to court and speaking to a clerk. I don't see a way to ask for dismissal or sanctions due to failure to provide discovery before TBWD is concluded. If you still have not been provided discovery by the time TBWD is over and you have asked for TDN, you can ask for the motion hearing then. Usually the police agency will respond to discovery requests; if they don't, the officer may not be planning to show up for trial at all. But you should nonetheless prepare as if he/she will.
If you have more questions, you should provide details of the offense you are charged with and the circumstances around the incident.

[HawkMan]

If you go to arraignment, asking for TBWD there is not an option. As I already mentioned, asking for a motion hearing to address the denial of discovery is. If you want to try TBWD, you can and should do so without going to arraignment, simply by responding appropriately to the courtesy notice or, if you don't get one, by going to court and speaking to a clerk. I don't see a way to ask for dismissal or sanctions due to failure to provide discovery before TBWD is concluded. If you still have not been provided discovery by the time TBWD is over and you have asked for TDN, you can ask for the motion hearing then. Usually the police agency will respond to discovery requests; if they don't, the officer may not be planning to show up for trial at all. But you should nonetheless prepare as if he/she will.
If you have more questions, you should provide details of the offense you are charged with and the circumstances around the incident.

I was cited on 9/17/2015
The IDR was mailed 11/9/2015 (certified mail, return receipt requested)
The date on the ticket says to show up on or before 11/17/2015 (No time, so probably just to show up and schedule an arraignment date)
I have not received a courtesy notice

I plan to show up before 11/17/2015 and request the clerk to extend the deadline so I have time to receive discovery.

Facts:
I was charged with and Infraction of VC 22350 for allegedly going 50 mph in a zone with a 35 mph posted speed limit.
The officer used Lidar and got the speed from aiming at the back plate of the vehicle. (He also showed me a Lidar with the numbers '50' on it)
He was looking for cars speeding in the opposite direction, which is why he aimed the Lidar at my back plate.
It took him a while to pull over the vehicle from where he had clocked the speed. (I was pulled over ~0.7 miles from the intersection he clocked the vehicles speed at)
It was a dry, clear, day and almost an empty road



If I go to trial and the officer could not identify me as the driver that passed him (which would make sense because he was looking on the other side of the road), does this seem like a reasonable defense?

(Possible Defense?)
It is possible the vehicle had been driven by another driver when the officer clocked the speed, and when out of the officers view, the vehicle had pulled into a home driveway, where the original driver entered the home and the accused subject (me) entered the vehicle and pulled out onto the road, then the new driver (me) was pulled over by the officer and cited for speeding. (Basically what I would argue is that because the officer could not identify the "speeding" driver and the vehicle had gone out of sight, that it is possible that a different person had started driving and the "speeding" driver was already gone.)

[flyingron]

LIDAR works in both directions and it can take time for the officer to take you down. Neither is going to be a valid defense. You can invent any story you want and perjure yourself on the stand but it's hardly going to be considered credible. The office is going to testify he observed you continuously anyhow.

[thewiseone]

No, that's a terrible defense.

IMO, you first shot should be to seek, by informal discovery request, the traffic and engineering study justifying the posted speed limit. If the citing police agency does not provide you one, it should not be admissible in court. Without it, the whole case falls apart based on CVC 40804(a). For your discovery request to be valid, though, you need someone else to mail it - regular mail is OK - and sign proof of service for you.

[HawkMan]

LIDAR works in both directions and it can take time for the officer to take you down. Neither is going to be a valid defense. You can invent any story you want and perjure yourself on the stand but it's hardly going to be considered credible. The office is going to testify he observed you continuously anyhow.

I don't ever plan on committing perjury. I chose my words very carefully in that defense.

Also it was physically impossible for him to continuously observe the vehicle due to the curvature of the road.


I don't plan to make a case against the direction of travel and the interaction of LIDAR, my point was that the officer was looking the opposite direction and could only see the back of the vehicle when it entered his view, leaving him unable to identify the driver.

My argument would be that because of the time elapsed and he could not identify the driver, it is possible that a new driver could have been introduced.
To prosecute do they not have to be certain who was driving?
If asked if I was the one driving past the officer could I not assert my 5th Amendment right to not self-incriminate?
Why would that defense be invalid?

Thank you for any advice and help, I'm just not sure what is invalid about the defense.

No, that's a terrible defense.

IMO, you first shot should be to seek, by informal discovery request, the traffic and engineering study justifying the posted speed limit. If the citing police agency does not provide you one, it should not be admissible in court. Without it, the whole case falls apart based on CVC 40804(a). For your discovery request to be valid, though, you need someone else to mail it - regular mail is OK - and sign proof of service for you.

I had the IDR properly served to the District Attorney and the Office of the Sheriff and have the Proof of Service signed too, it was certified mail, return receipt requested.

The IDR requested:
Defendants statements and any and all relevant written or recorded statements of witnesses
The officers statements, diagrams, or drawings
Names and addresses of all prosecution witnesses who will testify at trial
Engineering and traffic survey


What's wrong with this (for future reference)?
If it is the prosecutions job to provide discovery (District Attorney) and the officer is only a witness, why should I have the agency of the citing officer served too?
Would it not be the DA's job to get the information from the agency and provide it?
Then if the DA responds saying, "We don't handle that," then the evidence would not be admissible because they did not provide discovery?

[flyingron]

What makes you think you're going to be asked to testify at all? The officer is going to make a persuasive case that your car was observed speeding and then he pulled you over. Your someone else was driving and we magically switched places isn't going to fly.

Thewiseone brings up perhaps the only thing you have going for you. Did you request the speed survey? Unless this is on a road where it doesn't apply (local road, school zone, etc...), the prima facie speed has to be backed up with a current (and correctly applied) speed survey.

[HawkMan]

What makes you think you're going to be asked to testify at all? The officer is going to make a persuasive case that your car was observed speeding and then he pulled you over. Your someone else was driving and we magically switched places isn't going to fly.

Thewiseone brings up perhaps the only thing you have going for you. Did you request the speed survey? Unless this is on a road where it doesn't apply (local road, school zone, etc...), the prima facie speed has to be backed up with a current (and correctly applied) speed survey.

I requested the engineering and traffic survey, is that the same as a speed survey?

Also I just received a courtesy notice today with a due date of January 8th, so does this mean the date of 11/17/2015 on my notice to appear is extended to 1/8/2016?

[flyingron]

I requested the engineering and traffic survey, is that the same as a speed survey?;

Yes.

Also I just received a courtesy notice today with a due date of January 8th, so does this mean the date of 11/17/2015 on my notice to appear is extended to 1/8/2016?

Yes, I've lost track of all your machinations here. Have you requested a TDN at this point?