Speedy Trial Rights After a TBD

[majestik12]

My question involves traffic court in the State of: CA

I received my ticket on 10/12/09 for crossing a divided highway 21651(a). On my ticket(notice to appear) I was given a court date of 12/15/09 at the bottom. I received my courtesy notice in the mail on 11/06. I then sent a letter to the court requesting a TBD on 12/3. I called the court prior to sending my request for a TBD and they instructed me to not pay bail, and to send a letter stating I am not guilty and to request a TBD. They said the bail is only required when found guilty. This contradicts the information on my notice to appear ticket, which states I must submit bail when I request a TBD. There was no information about TBD on my courtesy notice. Anyways, I received a return envelope with most of the necessary forms and cover letter for a TBD from the Contra Costa court on 12/23. It also said I have a bail of $0. And a court date of 5/3/10.

These TBD forms and cover letter state that I can send in the necessary forms, statements, and evidence by mail 2 weeks prior to the new court date set for 5/3/10 or I can choose to appear in person at the court on this day.

My question is, at this time, can I have this ticket dismissed because both these court dates have been set past the 45 days since I was issued the traffic infraction for a speedy trail? If so, how does one send a motion of dismissal for lack of speedy trail? Do I have to ask for a speedy trail before it can be dismissed on lack thereof?

I have seen people mention that if I submit a non guilty plea and request a TBD and submit bail by mail, I waive my rights for a speedy trail. Is this true if I have not sent bail? I have also seen other mention that according to the supreme court that you can not waive rights without doing so knowingly and willfully. Has that Supreme Court decision held up for anyone in this situation? No where on any ticket or form or letter that I have received for this ticket has it mentioned waiving rights for a speedy trial. The only things I have signed are my notice to appear ticket and my letter to the court requesting a TBD.

Additionally I believe I have a pretty good case if this does go to trial. I was just wondering if it is worth it or possible to nip it in the butt early at this point in time to improve my chances. Thanks.

[SMBI]

Your right to a speedy trial is from the date of arraignment not from the date the ticket was issued -- see 1382(a)(3) PC. Unfortunately by conducting this by mail you have indeed waived your right to a speedy trial, see 40519(b) CVC which is the section that allows you to enter a plea by mail, at the end it says doing so waives your right to a speedy trial.

Based on what you said (no notice of this waiving of speedy trial rights on court paperwork) you might try filing a motion to dismiss under the assumption that you were not notified of the effects of filing by mail. See 1382(c) PC, it reads:

(c) If the defendant is not represented by counsel, the defendant
shall not be deemed under this section to have consented to the date
for the defendant's trial unless the court has explained to the
defendant his or her rights under this section and the effect of his
or her consent.

I honestly don't know that this would work as the other statue expressly says you have waived your right. I have a feeling this has been handled by case law before and probably not to your benefit ... maybe someone else on here would know better.

It can't harm your case to file a motion with the court and have it denied.

[That Guy]

My question involves traffic court in the State of: CA

I received my ticket on 10/12/09 for crossing a divided highway 21651(a). On my ticket(notice to appear) I was given a court date of 12/15/09 at the bottom. I received my courtesy notice in the mail on 11/06. I then sent a letter to the court requesting a TBD on 12/3. I called the court prior to sending my request for a TBD and they instructed me to not pay bail, and to send a letter stating I am not guilty and to request a TBD. They said the bail is only required when found guilty. This contradicts the information on my notice to appear ticket, which states I must submit bail when I request a TBD. There was no information about TBD on my courtesy notice. Anyways, I received a return envelope with most of the necessary forms and cover letter for a TBD from the Contra Costa court on 12/23. It also said I have a bail of $0. And a court date of 5/3/10.

These TBD forms and cover letter state that I can send in the necessary forms, statements, and evidence by mail 2 weeks prior to the new court date set for 5/3/10 or I can choose to appear in person at the court on this day.

My question is, at this time, can I have this ticket dismissed because both these court dates have been set past the 45 days since I was issued the traffic infraction for a speedy trail? If so, how does one send a motion of dismissal for lack of speedy trail? Do I have to ask for a speedy trail before it can be dismissed on lack thereof?

I have seen people mention that if I submit a non guilty plea and request a TBD and submit bail by mail, I waive my rights for a speedy trail. Is this true if I have not sent bail? I have also seen other mention that according to the supreme court that you can not waive rights without doing so knowingly and willfully. Has that Supreme Court decision held up for anyone in this situation? No where on any ticket or form or letter that I have received for this ticket has it mentioned waiving rights for a speedy trial. The only things I have signed are my notice to appear ticket and my letter to the court requesting a TBD.

Additionally I believe I have a pretty good case if this does go to trial. I was just wondering if it is worth it or possible to nip it in the butt early at this point in time to improve my chances. Thanks.

Let us skip the cover letter (and the dates stated on that) for a moment. Does the TBD form you received (Form TR-205 - REQUEST FOR TRIAL BY WRITTEN DECLARATION (Trial by Written Declaration—Traffic) (top of page 1) have a DUE DATE on it?

This certainly is an oddity. There are 2 ways that I have seen it done. It used to be that the defendant must post bail at the time he/she submits his/her declaration (see CVC § 40902)... However, California Court Rules recently (a couple of years ago) were worded in such a way where now the defendant must post bail upon submitting the request for a TBD.

Also, and although I am not clear as to which way you plan on proceeding a TBD or an in court trial), as far as I understand it, the right to a speedy trial (within 45 days from the arraignment date) does not apply during the TBD process. In other words, and assuming you do opt to go with a TBD, the process from the date of entry of plea, until the decision is rendered, will typically take longer than 45 days.

Although that should not, by any means, prevent you from filing a motion to dismiss (on a "speedy trial" issue) if you choose to do so... File it, argue it and let us know what happens.

[majestik12]

Ok, thanks for the replies, I will definitely try to dismiss it, as you said, it can't hurt. That Guy, as for the forms I got there is no due date on the cover letter. Just a date for when it was printed up top. It does say among other things,
"...
(2) Return the completed forms and bail to this office within two weeks of receiving this packet."

*Bolded items are handwritten on the form.

But on the TR-205 page, in what I assume is the clerk's handwriting. At the top it says "Trial: 5-3-10".
B. Bail amount required: $0
C. Bail amount already deposited by defendant: $0

In the middle of the page it says, also in writing, "Return declaration by 4-19-10"

I called the court house yesterday morning, and they confirmed this as my court date and said I need to return the forms 2 weeks before my court date, which is 4-19. Also on this TR-205 in print it says. "1. I have reviewed the Instructions to Defendant (Trial by Written Declaration) (form TR-200)" But this form was not included in the packet mailed to me. When I was speaking with the court I told them this. She said they must have made an error and that she would send the form immediately.

Ok, so more importantly how does one exactly motion for a dismissal? Or can someone point me in the correct direction. I have seen some people's motions, but it looks like they were written by a lawyer, and was a little difficult to understand. Do I personally take the forms to the court, who do I talk to and what do I need to know. Thanks again, the info is much appreciated.

[That Guy]

"...
(2) Return the completed forms and bail to this office within two weeks of receiving this packet."

I called the court house yesterday morning, and they confirmed this as my court date and said I need to return the forms 2 weeks before my court date, which is 4-19.

Which is it? "2 weeks of receiving the packet"... or ... "2 weeks before 4-19"... ?

[majestik12]

Sorry if it wasn't clear. But as mentioned above that is why I called the court to get clarification on this. My trial date is 5-3-10. On the phone the court told me I need to return the forms 2 weeks before my trial date. 2 weeks before 5-3, is 4-19. This is also what is written on the TR-205, more or less. It seems most of their old printed forms and letters have outdated procedures or info. For example, the citation I initially received, the courtesy notice and the cover letter all had contradictory information. So far, when I have spoken with the court in person, the information they give me over the phone is correct, so far.

[That Guy]

Point is, and come April or May, you're not going to have a good argument saying "the clerk told me on the phone that the forms are due April 19" when you have a letter from the cout saying that you must submit the forms "within 2 weeks of receiving the packet".

I would call the court again and ask to speak to a supervisor to have him/her clarify the process.

[majestik12]

Point is, and come April or May, you're not going to have a good argument saying "the clerk told me on the phone that the forms are due April 19" when you have a letter from the cout saying that you must submit the forms "within 2 weeks of receiving the packet".

I would call the court again and ask to speak to a supervisor to have him/her clarify the process.

I see your point, but wouldn't the info on the TR-205 actually be more official than the cover letter? On the TR-205 Court form it says "Return Declaration by 4-19-10" It has the superior court stamp on it. And in Print it says "To be filled out by Court Clerk" This document would hold up better in court than the cover letter. I am usually a stickler for getting peoples names on the phone. the lady mentioned her name very quickly, and I didn't catch it. i will call again so I can get a full name. But I'm 99% sure that the TR-205 dates are correct, as it's an official document, and the court told me the same dates over the phone.

Anyways, upon verifying these dates again, what is the next step for filing for a motion? Maybe, I could get some more questions ready when I do call them about this matter.

[PeytonFarquhar]

[...] what is the next step for filing for a motion? Maybe, I could get some more questions ready when I do call them about this matter.

Go to http://helpigotaticket.com

[majestik12]

I have seen that site mentioned here before. Not sure how I havent seen it come up in all the google serching I have done. But I think I have found what i am looking for there. Thanks.