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Can you file a motion for reconsideration? Then you can outline the law that allows for your right to a new trial. It would stay the appeal time until ruled upon. If you wish to file an appeal it would be the lowest cost appeal out there & I think a pro se filing is within the ability of some non-attnys
Wow... this is the second El Dorado ruling that is absolutely contrary to law. This is the stupidest thing I have ever seen. I am sure you will find no case law on point as there isn't another judge out there stupid enough to deny a trial de novo. The TDN is not an option for the court... it is a requirement. You were screwed. My bet is that if you file an appeal, it won't get half way through the process before your TDN is granted.
As a parallel approach, I would find out who is and write a letter to the senior judicial official in the jurisdiction. This case is such a blatant abuse, it is undeniable. Also, if you are given your TDN and then you get the same judge, I'd ask the judge to recuse himself and assign the case to a different judge. When he denies your motion and finds you guilty (and you can bet he will), you can use that as another ground for appeal.
Ya this is the Placerville court and yes I'm sure they get a ton of people that are heading to Tahoe and Reno. It makes me wonder how long this has been going on. I can't be the first person that has requested a Trial de Novo after a TBWD.
I went back to the court to try again to get a copy of the officers statement. It took a while for them to actually make a copy since she said the clerk needed to update the minutes. I had to laugh because the officer actually checked "The offense(s) were not committed in my presence" on form TR-235 that he submitted for the TBWD.
Right now I'm weighing my options. From everything I've researched I haven't found any case law on the matter. Although in David Browns book he does state counties used to try and trick people into giving up their right to a Trial de Novo. However 40902(a)(2) was amended so that state laws supersede any local rules. Given that 40902 was last amended in 1999 I imagine that happened a while ago. I haven't found a single case or even heard of anyone being denied a Trial de Novo like this. It seems like a slam dunk on appeal and then I could cite People v. Kriss and since form TR-200 (Instructions to defendant TBWD) states that I not only have a right to new trial but that at this new trial I have a right to a speedy trial among other things I'm wondering if I could argue those rights were violated too in arguing for a dismissal.
My question is do I really want a Trial de Novo at this point. It seems like I have a good chance at getting a dismissal through the appellant court. It seems like the worst case would be them just requiring a Trial de Novo. So if I go through the appellant division I have 2 chances at a dismissal vs one via a Trial de Novo.
Furthermore as I mentioned above I highly doubt I'm the only person this has happened to. Wouldn't going through the appellant division and getting a decision bolster complaints I could file against the judge as well as having an official record of what happened. I'm worried that this may end up getting swept under the rug and they are going to keep doing this to people who simply don't know better or don't want to go through the hassle of fighting it. Somebody at some point has to stand up and say this isn't right. What are people's thoughts on this?
Speed Trap
I'm also pretty sure that the road is a speed trap. It has a posted speed of 50MPH. The 85th percentile speed is 56MPH. The 10MPH Pace is 48-57. 56% of people are above the posted speed limit of 50MPH. The report also states that the Accident per Million Vehicles Miles is lower than the countywide average rate normally experienced along similar roads. The reason they state for lowering it 5MPH below what should be 55MPH as the nearest 85th percentile is:
This seems like a clear violation of VC section 22358.5 since none of the reasons listed fall under things not readily apparent to the driver. Further more the fatalities have no mention if they were speed related (it was 4 deaths over a 3 year period). The report lists 7 DUI accidents and the fatalities could easily be related to that. The report says that the accident rate is lower than the county average. From what I understand from reading People v. Goulet this seems like insufficient reasoning to lower the speed an addition 5MPH from the 85th percentile and as such this area is a speed trap.Quote:
In light of the roads alignment, numerous intersections and driveway encroachments, and multiple fatalities, a reduction in the indicated speed limit is clearly warranted.
Since the statute you are charged with is pretty much exempt from speed trap laws, I would not touch speedtrap issues in your opening brief. The bottom line is, the officer offered ZERO testimony with regard to the highway being a two-lane undivided road when he wrote his declaration or when the TDN took place. Your strongest argument is that there was insufficient evidence to convict under VC22349(b) since there was no conflicting testimony in regard to the highway being a two-lane road. You also have to keep in mind that appelate courts tend to deal with matters anywhere between dodgy jury instruction issues in a murder case and obscure maritime navigation law statutes. They will not know the ins and outs of traffic law. Keeping your opening brief relatively brief and straight to the point is better than making them read an unfocused 30+ page paper.
When it comes to arguing for dismissal rather than TDN as relief, I would argue based on the sentiments presented in the Goulet decision such as "Traffic rules account for most of the contact by average citizens with law enforcement and the courts. Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws." The process of appeals is not easy for a non-attorney. No defendant should be forced to go through the appelate courts to right a capricious and arbitrary court decision to convict. If a defendant does go throught the motions and gets it overturned, a dismissal of the charge is the only appropriate remedy to provide relief to the defendant and sanction the trial court.
Disclaimer: I am not a lawyer. The advice above should be taken with a grain of salt and at your own peril :)
Hey, this isn't my thread, hehe =)
rrborg got a 22350, and I got the 22349b
I will heed your advice in regards to the speed trap stuff though
My bad. I've let the mod know to either move that reply or delete it (so I can repost it to your thread). Good catch, though.