Is a TBWD Possible After a Failure to Appear

[DanielTatenko]

My question involves traffic court in the State of: California

I completely forgot about my Red light ticket. Citation # 21453(a)

And just received my FTA fine of 300$ on top of my original bail of 436$

Must I go to court ASAP and bring a TBWD with me and bail $?

Will my TBWD be accepted? or will my case not allow me to contest the ticket?

[That Guy]

My question involves traffic court in the State of: California

I completely forgot about my Red light ticket. Citation # 21453(a)

And just received my FTA fine of 300$ on top of my original bail of 436$

Must I go to court ASAP and bring a TBWD with me and bail $?

Will my TBWD be accepted? or will my case not allow me to contest the ticket?

You should still be able to contest it. You must appear at the traffic window BEFORE the due date on the FTA notice otherwise that $300 amount will be added no matter what.

And yes, most courts will require you to post the full bail amount once you request the TBD option.

[DanielTatenko]

Thank you very much.

one more.

Say my ticket is dismissed, will the 300$ FTA fine still be charged? or will the full bail amount be returned?

[That Guy]

Say my ticket is dismissed, will the 300$ FTA fine still be charged? or will the full bail amount be returned?

An "I completely forgot about my Red light ticket" defense will not get you out of the FTA charge. So that will more than likely stick regardless of the outcome on the underlying charge...

Here is a little twist to the FTA charge... It is in fact, by definition, a misdemeanor. Typically with a misdemeanor charge, you are entitled to a "jury trial" UNLESS you waive that right on the record. Some courts will have you sign a waiver form (simply stating the you have been advised of your right to a jury trial on the misdemeanor charge and that you are thereby waiving that right and requesting that the matter be tried at the same time your infraction is tried)...., others will skip that all important step and the commissioner will simply adjudicate that violation immediately after hearing your case on the underlying charge (21453)...

If they are not advised of that right, and assuming you are found guilty of such, you can simply appeal the matter after the verdict but just keep in mind an appeal will most likely end up having the matter remanded to the trial court to re-adjudicate properly. Which means that, even then, you will likely be found guilty of it since realistically, you have not presented the court with a valid excuse to fail to appear/pay.

[HonkingAntelope]

You can still make your appearance to enter your plea to the charges against you, but TBD is out the window since your appearance was not timely.

From what I have seen, most FTAs get reduced to infractions since many judges feel that an FTA on a minor traffic crime does not justify tacking on a misdemeanor conviction unless it was willful and egregious.

To the OP: Go down to the court and schedule an appearance ASAP. If you get lucky, the judge might toss out the FTA if you plead no contest plea to the red light violation (unless you happen to have a really solid defense for that one).

[DanielTatenko]

So TBD is out the window. I will appear for court tomorrow morning.

Any advice?

May I just write out a written statement and hand it to the judge?

Or should I recite the written statement?

Or should I memorize the written statement?

anyother advice?

here is my statement by the way
I plead Not Guilty to the charge of violating CVC 21453(a).
I believe that my citation should be dismissed as the Red Light Camera Automated Enforcement System constitutes an illegal speed trap under 40802(a) of the Vehicle Code. This technology is used to determine a vehicle's speed via a time-distance calculation between sets of embedded sensors in the road. This speed is then used to allegedly determine how far behind the limit line a vehicle was when then light turned red. The use of these time-distance measurements are clearly expressed in the information provided me by the City of Sacramento:
1. 1.47 ft. (distance traveled per second for each mile per hour) X speed of your vehicle = DPS (distance per second)
2. DPS X R (elapsed red time at the beginning of the violation) = distance behind stop bar when light turned red."
CVC 40801 states: No peace office or other person shall use a speed trap in arresting, or participating in the arrest, of any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code.

A speed trap is defined in 40802(a) (1) as: "A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance."

Clearly, the speed of my vehicle was determined by a time-distance calculation between embedded sensors on a particular section of highway; clearly the distance between these sensors had to be known to determine my speed.

As the automated enforcement system constitutes an illegal speed trap, the court is without jurisdiction to render a conviction in this case pursuant to CVC 40805: "Every court shall be without jurisdiction to render a judgment of conviction against any person for violation of this code involving the speed of a vehicle if the court admits any evidence or testimony secured in violation of, or which is inadmissible under this article."

Please dismiss my case in the interest of justice.
If the court does not find in my favor in this case, I request a Trial de Novo.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

[That Guy]

From what I have seen, most FTAs get reduced to infractions since many judges feel that an FTA on a minor traffic crime does not justify tacking on a misdemeanor conviction unless it was willful and egregious.

Not to argue, but I disagree... And I will cite "People v. Foster, 107 Cal. Rptr. 2d 612 - Cal: Appellate Div., Superior 2001.

For one, the judge cannot reduce the charge...

Also, it is my understanding that a misdemeanor FTA charge simply gets handled in traffic court (where infractions are typically adjudicated) rather than having the case transferred to criminal court (where misdemeanors are typically handled). That does not mean that the charge is/was reduced.

From "People v. Foster":

The Legislature has specifically declared that a violation of Vehicle Code section 40508, subdivision (a), constitutes a misdemeanor and not an infraction. (Veh. Code, § 40000.25.) A defendant charged with a misdemeanor has the right to a trial by jury. (Cal. Const., art. I, § 16; Mills 614 v. Municipal Court (1973) 10 Cal.3d 288, 298, 110 Cal.Rptr. 329, 515 P.2d 273.) Where a defendant is charged with an offense other than an infraction, a jury trial must be held unless the defendant is advised of, and affirmatively waives, the right to trial by jury. (See People v. Ernst (1994) 8 Cal.4th 441, 446-448, 34 Cal. Rptr.2d 238, 881 P.2d 298.) The record must clearly and affirmatively show the defendant personally waived the right to a trial by jury; a waiver will not be implied from silence or conduct. (People v. Ernst, supra, 8 Cal.4th at p. 448, 34 Cal.Rptr.2d 238, 881 P.2d 298; People v. Holmes (1960) 54 Cal.2d 442, 444, 5 Cal.Rptr. 871, 353 P.2d 583.) The failure to obtain a proper jury trial waiver constitutes a structural defect requiring reversal of the conviction. (People v. Ernst (1994) 8 Cal.4th, supra, 441, 449, 34 Cal.Rptr.2d 238, 881 P.2d 298.)

Prior to the start of the day's session, defendants facing a misdemeanor FTA charge will usually get an explanation from the court (either read by the judge or via a video recording that is shown prior to the beginning of the session) that they may request their case to be transferred to criminal court if they so choose.

Even with that admonishment, the court MUST receive a statement -on the record- that the defendant is waiving his/her right to a jury trial on the FTA matter. And since most traffic cases are not recorded or transcribed, that statement is usually obtains in the form of a signed waiver.

As for willful and egregious, it is my understanding that unless the defendant has a medical emergency, a death in the family or that he /she is in the military and was therefore unable to attend court on the scheduled date, the FTA charge will stick regardless of the excuse.

[DanielTatenko]

Ok well that clears up the FTA charge, but how do you feel about my statement? and what is the best way in presenting it?

[That Guy]

May I just write out a written statement and hand it to the judge?

Or should I recite the written statement?

Or should I memorize the written statement?

Your court appearance tomorrow, and based on what you posted is NOT your trial. It is your arraignment. During the arraignment, the judge will call your case, read you the charge (the violation you were cited for), ask you for a plea (“Guilty”, “No Contest” or “Not Guilty”). If you plead “Guilty” or “No contest”, he/she will simply order you to pay the fine. If, on the other hand, you plead “Not Guilty”, he will set a trial date when you can return to argue your case. In other words, you're not going to be allowed to present your case, read your declaration or submit it in written form. That comes later.

here is my statement by the way
I plead Not Guilty to the charge of violating CVC 21453(a).
I believe that my citation should be dismissed as the Red Light Camera Automated Enforcement System constitutes an illegal speed trap under 40802(a) of the Vehicle Code.

Unfortunately, a speed trap argument is NOT going to get you a dismissal of a red light violation.
Why?

Short answer: You are not charged with speeding. You are being charged with crossing the limit line while the light is red.

Long answer:

The element of the offense that must be met by the prosecution in a red light violation is “proving that you crossed the limit line while the light was in its red phase”. And yes, although your speed may have been mentioned on the picture or the video, the violation itself is not predicated on how fast you were traveling, nor was any of the evidence based on a speed measurement. Speed, is irrelevant in this case.

Furthermore, CVC section 40803 (et seq) forbid the prosecution from introducing evidence -in a speeding case- if the conditions in 40802(a) existed. The prosecution can (and most likely will) prove that the alleged violation (you crossing the limit line while the light was red) did occur -by presenting pictures and/or video- showing your actions (or lack thereof) at the time.

40803. (a) No evidence as to the speed of a vehicle upon a highway shall be admitted in any court upon the trial of any person in any prosecution under this code upon a charge involving the speed of a vehicle when the evidence is based upon or obtained from or by the maintenance or use of a speedtrap.
(b) In any prosecution under this code of a charge involving the speed of a vehicle, where enforcement involves the use of radar or other electronic devices which measure the speed of moving objects, the prosecution shall establish, as part of its prima facie case, that the evidence or testimony presented is not based upon a speedtrap as defined in paragraph (2) of subdivision (a) of Section 40802.

So while your argument may result in the ”speed evidence” that is on the citation being ruled as inadmissible, it still leaves you with having to argue against other evidence -you crossing the line while the light is red- which IS admissible... That little bit of evidence (a video showing you crossing the line while the light is red) is more than sufficient to establish that the alleged violation did in fact occur.

This technology is used to determine a vehicle's speed via a time-distance calculation between sets of embedded sensors in the road. This speed is then used to allegedly determine how far behind the limit line a vehicle was when then light turned red.

That is not such an accurate description of how the system works. The sensors, and while they do activate the system camera to snap a picture/start a video recording, are not intended to measure your speed per se. They are intended to establish your position relative to the limit line so as to establish that you failed to stop. Not to establish that you were speeding. Again, the element of the offense is “crossing the line” not “how fast you were traveling when you crossed it”.

The use of these time-distance measurements are clearly expressed in the information provided me by the City of Sacramento:
1. 1.47 ft. (distance traveled per second for each mile per hour) X speed of your vehicle = DPS (distance per second)
2.DPS X R (elapsed red time at the beginning of the violation) = distance behind stop bar when light turned red."

Again, if the officer were to testify to any of that info, you're free to make a timely objection that such evidence should be inadmissible. That still leaves them with a picture that established that you crossed the line while the light is red and therefore, the violation did occur.

CVC 40801 states: No peace office or other person shall use a speed trap in arresting, or participating in the arrest, of any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code.

A speed trap is defined in 40802(a) (1) as: "A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance."

Clearly, the speed of my vehicle was determined by a time-distance calculation between embedded sensors on a particular section of highway; clearly the distance between these sensors had to be known to determine my speed.

Same points as I stated above...

As the automated enforcement system constitutes an illegal speed trap, the court is without jurisdiction to render a conviction in this case pursuant to CVC 40805: "Every court shall be without jurisdiction to render a judgment of conviction against any person for violation of this code involving the speed of a vehicle if the court admits any evidence or testimony secured in violation of, or which is inadmissible under this article."

Re-read the portion I underlined... specifically, the bolded part: “...render a judgment of conviction... involving the speed of a vehicle...”. This is NOT a case of a speeding vehicle...

[DanielTatenko]

The system MUST know the speed at which my vehicle was travelling to take a picture.

If I was travelling under 15 MPH then it would not have taken the picture.