Officer Has No Declaration for TBWD
This is concerning this case
I got my ruling a couple weeks ago and lost my TBWD. Of course no reason was given. So I requested a trial de novo and asked for the officer's statement. I got a return letter last week, with a print out detailing my court date etc. there was a hand written note on this typed page that said.
"Note: Officer Blank testified in person, no declaration filed."
So they couldn't give me anything. This seems kinda fishy, as I would imagine that even if it was given in person by the officer that it should be transcribed and that there be some official document or something. As per these court rules.
Rule 4.210. Traffic court—trial by written declaration http://www.courtinfo.ca.gov/rules/in...nkid=rule4_210
"If the clerk receives the defendant's Request for Trial by Written Declaration (form TR-205) and bail by the due date, the clerk must deliver or mail to the arresting officer's agency Notice and Instructions to Arresting Officer (form TR-210) and Officer's Declaration (form TR-235) with a copy of the Notice to Appear and a specified return date for receiving the officer's declaration. After receipt of the officer's declaration, or at the close of the officer's return date if no officer's declaration is filed, the clerk must submit the case file with all declarations and other evidence received to the court for decision."
As stated it says nothing about the officer being able to testify in person, nor that testimony not being documented.
Is there anything I can do? Is this normal? Thanks.
Re: Officer Has No Declaration for TBWD
I think it would be pushing the plain language of the court rule to have the officer make a declaration by live testimony, having missed the deadline for submitting a written declaration, but I can see how a judge might disagree. Your recourse for the adverse finding is to request a trial de novo. You can attempt to appeal the traffic court's actions as contrary to the court rule, but that could be an expensive fight and I can't guarantee that you would prevail.
Re: Officer Has No Declaration for TBWD
Thanks, sorry for the noob question, how doe sone appeal a TBWD, why would it be expensive, and can I also proceed with by trial de Novo if I am appealing?
Re: Officer Has No Declaration for TBWD
Per existing case law, you MUST seek a timely trial de novo in order to raise anything on appeal. There is no option to take a TBD straight to appeals.
Re: Officer Has No Declaration for TBWD
HA is right, there is no such thing as an appeal for a TBWD. Furthermore, a TDN is NOT relief. It is a new trial. In this case, your rights were violated and the state wants to ignore that by allowing you a TDN. That's card blanc for judges to be as prejudicial as they like in a TBWD.
If it were me, I would file a complaint with the senior trial judge. What the judge in your case did is he heard ex-parte communication and ruled based on that. I don't know that a complaint would change anything on your case, but it couldn't hurt.
Re: Officer Has No Declaration for TBWD
There's a shortage of good case law on traffic violations, and I haven't seen any case law involving gross judicial abuse on TBDs. That being said, try to find out when exactly the case was decided and if the officer was present for any other cases on that particular calendar. If there is no evidence of the officer having to be present for some other matter, this is a good point to raise on a later appeal as gross abuse of judicial discretion and judicial bias.
I know for a fact that some courts schedule TBDs to be heard on the same calendar as "live" cases. This probably just means the judge gets to read the declarations at the end of the calendar.
Form TR-200 aka instructions to the defendant explicitly informs all TBD defendants that they waive the right to remain silent and to not incriminate themselves (still, the defendant is NOT OBLIGATED to give self-incriminating testimony).
There's one little problem, however... Any defendant in United States has a right to a public trial per the 6th amendment, and the TBD process does not involve the defendant waiving the right to a public trial.
If an officer files his written declaration, there is no problem because the defendant can always come to court and examine the officers declaration (with the except of the LA country who illegally hinder traffic defendants who wish to obtain access to documents filed with the court). If an officer testified in person without any detailed and readily available record of this taking place, this could be argued as a violation of the defendant's constitutional rights by an attorney who knows the law and is willing to take the case. :D
Re: Officer Has No Declaration for TBWD
thanks for all the info. Yeah I defintley feel this is a violation. I just tried calling the court to double check on there actually being no statement (been meaning to do this for a long time, but been really, really busy at work, and the court closes at 2pm every day.) Work has slowed down a bit now but it seems the courts phone system is down today. At least that is what the automated operator says, so I cant get a hold of anyone. Anyways, I took note of everything you guys said to ask a clerk.
-Is there really no statement on file?
-If not then bring up this is an ex-parte decision.
-get the name of the judge on this trial, and the senior judge name.
-when was the case decision made?
-how to properly file a complaint?
anything I am missing or should not ask/tell the clerk. Any tips on how to file a complaint?
Can I bring all this up at the TDN? Or does it not matter because it is an entirely separate trial now?
Also I don't have a lot of money or know much at all about court cases. Is it possible to talk to an attorney for free, to see if there are grounds for taking the case? If I win or beat the case does the court pay the attorney fees? Thanks again.
Re: Officer Has No Declaration for TBWD
If you want to file a complaint, look here
Re: Officer Has No Declaration for TBWD
I got a hold of the court, there is no declaration filed by the officer I was told again. I was told the trial was handled the "old way" by the officer appearing in court. I asked how is this a public trial if there is no declaration or transcript of the hearing and I was not present. I was then told I could order the court transcript for $25.00 and it would take 2 weeks, as it is an audio recording on CD. I don't know what to make of that. I shouldn't have to pay to read my own trial I would think.
Anyways, I got all the other info, deciding judge name, supervisor judge name, date of ruling, etc. I also got a continuance for the TDN. Would you still think it wise to file a complaint with this new info? Thanks.
Re: Officer Has No Declaration for TBWD
I wouldn't file a complaint, but $25 is considered a reasonable fee to get a transcript of the proceedings. I suggest you get it ASAP and post the cop's testimony on here so we can take a better look at your case.
I've read your other thread and I can tell you right now that the whole county line defense probably won't fly. On the other hand, you might be able to find some technicality or another in the cop's testimony and try to run with that.