Whether to File for Change of Venue or File a Demurrer First
My question involves a traffic ticket from the state of: California
Because my ticket is of the automated variety (red light camera), I had no opportunity to ask that the case be heard at the county seat which is considerably closer to where I live and work. Because of this as well as the record of the commissioner at the tiny traffic court the ticket is assigned to, I would like to request a change of venue. By question is: In CA, can I do that before I demurr or will a COV preclude me from demurring especially if the COV is denied for some reason?
The specifics of the Demurrer are unimportant but are related to a substantial defect in the ticket, but just a typographical error, so I need to be sure whatever I do does not preclude my ability to Demurr.
Re: California Traffic Courts: Change of Venue or Demurrer First
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AlexDykes
The specifics of the Demurrer are unimportant but are related to a substantial defect in the ticket, but just a typographical error...
(1) Actually, they are important... The nature of the defect does give rise to whether you can demur or not, and if you cannot, then a demurrer is out of the question and you're only dealing with the uphill battle of a change of venue.
(2) I'm not getting the part about it being a "substantial defect" and yet it is just a "typographical error"... Typos can be easily corrected and have very little impact, if any, on your ability to defend yourself as compared to a substantial error which may require the citation to be reissued/refiled.
So why don't you share with us what the error is?
Re: Whether to File for Change of Venue or File a Demurrer First
Sorry, that was a typo on my part. That should have been "not a typographical error." All I need to know is whether it is actually possible to change the venue prior to demurring.
Re: Whether to File for Change of Venue or File a Demurrer First
So that those who come after me will know: It is possible to change the venue after the notice to appear and prior to arraignment if the ticket was an auto enforcement ticket. Just got my approval for COV back.
Re: Whether to File for Change of Venue or File a Demurrer First
Sure - you can ask for a change of venue, but to the extent that you had a right to a change of venue at the time of the initial traffic stop, that right would have been lost when not exercised, such that the grant of a change of venue is at the discretion of the court.
Re: Whether to File for Change of Venue or File a Demurrer First
You forget that in an automated ticket action you do not have the opportunity to change the venue prior because your first interaction with the system is after the notice to appear has been mailed to you. Therefore the right to COV never had the opportunity to be exercised prior to the notice to appear being mailed.
Re: Whether to File for Change of Venue or File a Demurrer First
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AlexDykes
You forget that in an automated ticket action you do not have the opportunity to change the venue prior because your first interaction with the system is after the notice to appear has been mailed to you.
Nobody's forgotten anything... VC 40502 start out with "The place specified in the notice to appear shall be any of the following..."... But since a notice to appear for a RLC is issued outside of the presence of the driver, he did not get the opportunity to make such a demand.
So MrKIA's point is still valid that this particular request was not made at the time the citation was issued, and as such, whether a motion for a change of venue is granted or denied, is "up to the discretion of the court".
But wait, since we're discussing logistics, subsection (b) states: "Upon demand of the person arrested...", but since you were never "arrested" (for purposes of issuing traffic citations the roadside detention/traffic stop constitutes an "arrest"), does that mean that 40502 isn't applicable to RLC citations?
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AlexDykes
Therefore the right to COV never had the opportunity to be exercised prior to the notice to appear being mailed.
There is no such thing as a "RIGHT to a change of venue", regardless of whether the citation was issued roadside by an officer, or whether it was automated. CVC 40502 simply affords you the opportunity to make such a request, but just because it uses the word "demand", does not infer a "right" or a "guarantee" that your request shall be granted. In other words, and regardless of how you phrase it, it is still "up to the discretion of the court".
Fortunately for you, your motion was granted, but in the grand scheme of things, I don't see how it improves your odds that the officer will not appear at trial. For all we know, the issuing officer might live closer to the newly assigned court... he could opt to appear because he gets paid overtime for having to drive to the other court... or he could simply choose to appear regardless of distance simply because he happens to be quite diligent when it comes to court appearances... etc.
That said, it is obvious that this is simply your attempt to weasel your way out of a properly issued, legally binding traffic citation and one where you were unable to come up with any sort of viable defense... Even your demurrer was pretty shaky (by your own admission). But hey, a loophole is a loophole, milk it all you want!