Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Quote:
Quoting
Herculator
Ok this evidence code argument seems interesting, I will try it. I really wonder if it will fly in court.
...
I look forward to your post in detail about the evidence code argument. Is there case law surrounding this?
Given the right circumstances, and if done right, it's a winner on appeal -- the trial court may, in its ignorance, shoot it down.
It's not just case law, it's THE LAW (Evidence Code -- like Vehicle Code). A "writing" (document) cannot be introduced into evidence unless it is properly authenticated. This is usually done for official records via Evid. Code § 1530/1453. Please read section II of this brief for a fuller explanation and cites (it talks about surveys, but is still applicable).
Quote:
Quoting
Herculator
I'll also try a 40803(b) defense. I know the county prosecutor won't be there, so I'll make a motion to dismiss due to lack of prosecution. The officer is there as a witness no more no less, so who will be there to say the evidence is not based on a speed trap? This argument seems tenuous to me, but it also seems worth a shot.
The speed trap laws DO NOT APPLY TO MAXIMUM SPEED LIMITS. Additionally, no prosecutor is required. That argument would be laughably ridiculous under the circumstances.
Quote:
Quoting
Herculator
I also found another website which gives me a line of questions on how to attack his visual estimate, so I'll try that too.
Unless the court throws out the radar reading, you will be wasting your time on this line of attack.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Well, after even more investigating, looks like my evidence code argument is my only shot. I'll let you know how it goes.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Quote:
Quoting
Herculator
Well, after even more investigating, looks like my evidence code argument is my only shot. I'll let you know how it goes.
Ideally, you should let go of any fear/hesitation and.... OBJECT when the officer is testifying. If he mentions "radar/lidar", immediately stand and say "Objection: lack of foundation. Must show training and that radar/lidar was calibrated." If the judge says "Let him finish first", that's fine. Then, when the officer hands you the paperwork to look at (before he hands it to the judge), you check it carefully and make your evidence code objections. They should be in the form: "Objection. Hearsay. Inadmissible as an official record because..."
Keep the following in mind:
- Officer cannot certify about calibration because he has no personal knowledge and is not an expert. Original/certified copy of document is required.
- If there is a problem with training certificates, the officer may testify about his training --- number of hours, etc., but he CANNOT testify that it was "POST certified" (that would be hearsay). Instead, the court must then take judicial notice of POST regulations to satisfy the training requirements. (BUT DON'T TELL THEM THAT!)
-
Quote:
Quoting People v. Dawkins, 10 Cal. App. 4th 565 - Cal: Court of Appeals, 1st Appellate Dist., 5th Div
In any event, there is no question that the officer can testify he or she attended the course. Judicial notice of POST regulations can then establish that the course is POST-certified.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
For what it's worth the...
1) CHP 99A he provided to you shows he recertified on 07/21/2011 (that's after your ticket on 06/08/2011, he needed to send you the prior one.).
2) the TBWD he submitted does not offer anywhere that he is radar trained. Not like it matters now, since he will bring that up in court. Plus, now there is all this stuff that shows he's qualified to operate radar (just not for the date you were written your ticket for)
3) the wrong day for his daily log really does not mean much in the long run. They are about as generic as possible, even the times. What cop ever does everything at exactly 18:30, 19:25, 19:35, 19:40. Even if he missed entering you on the daily record the fact there is a signed CHP 215 promise to appear is all the judge cares about.
In the end, nothing he has provided to you via discovery shows that he was qualified at the current time of the ticket. Heck, when it's your turn, ask him if all the evidence he provided to you shows he was qualified to operate radar at the time of your stop. I'm sure he will say yes. Then stop asking him questions, give the judge his Radar certificate and CHP99a and ask for the whole thing to be thrown out. I'm sure someone can give you the specific court language to use...
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Not to disagree with Quirky but simply to put matters in proper perspective, I'm going to go the other way on this one.
For starters...
Quote:
Quoting
Herculator
I did send a request to the CHP and to my surprise I got back everything I asked for. 18 pages worth of documents.
^They seem to be pretty confident about this one!
While the CHP is often more than happy to oblige with a discovery request, anything above and beyond the standard training certifications and single Radar calibration sheet is dealt with on a case by case basis.
Quote:
Quoting
quirkyquark
Given the right circumstances, and if done right, it's a winner on appeal -- the trial court may, in its ignorance, shoot it down.
I think it is safe to assume that by "it", Quirky is referring to the "evidence code based argument", and to that, I say even if its done right, and whether it succeeds in trial or on appeal, it'll win you the battle but not the war. Meaning, you were clocked at 81mph = 16mph over the limit.... In a MAX zone of 65. So I'm not seeing how calibration or how lack thereof will impact a 16mph over reading.
As for P.O.S.T. certification, you're not likely to find a CHP officer out using Radar if he isn't trained/certified, and the judge is free to draw out both of those conclusions without the risk of being overturned on appeal!
Quote:
Quoting
Quirkyquark
It's not just case law, it's THE LAW (Evidence Code -- like Vehicle Code). A "writing" (document) cannot be introduced into evidence unless it is properly authenticated. This is usually done for official records via Evid. Code § 1530/1453.
No argument there but really, which part of a 22349 element is wholly (or even partly) dependent upon either of those documents? And even then, you're assuming that the officer is going to present copies that aren't certified. If his copies are certified, defendant hasn't a single issue to argue nor a shred of evidence that the Radar reading is in any way inaccurate!!
Quote:
Quoting
Quirkyquark
The speed trap laws DO NOT APPLY TO MAXIMUM SPEED LIMITS.
And therefore, none of the provisions under 40802 (related to training/certification) and calibration. So whatchoo got up yo sleeve Quirky?
Here is the case I would normally cite under these circumstances. I realize that People v. Lowe was a pace (speedometer) case while this involved Radar, the fact that this is a 22349 citation makes the "calibration" issue similarly as moot as it was for Lowe with a 22356(b) and ~85mph in 70mph... Lowe even had an additional 22356(a) twist and still failed. As for training, you're still lacking precedent simply because falls along the lines of matters that are subject to judicial discretion to weigh the evidence as he/she sees fit and decide if its totality supports a decision to convict or acquit!
I'm going to assume you're not eligible for traffic school and if so, you've got nothing to lose for trying; but if you were eligible, I think you made a mistake by opting to go this route!
Having the firm belief that an officer not appearing is more a fluke than a slim chance, my answer to your question of:
Quote:
Quoting Herculator
Have I Exhausted All Chances of Beating This Ticket?
Some may say you never had a chance to begin with, but good luck either way!
Quote:
Quoting
sniper
In the end, nothing he has provided to you via discovery shows that he was qualified at the current time of the ticket.
And yet assuming that in his discovery request, he simply asked the generic any and all documents related to training/certification, then I'd say they gave him more than what he's asked for as if to say, "here, none of it will do you any good in the end"!
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Quote:
Quoting
That Guy
Not to disagree with Quirky but simply to put matters in proper perspective, I'm going to go the other way on this one.
No disclaimers necessary, TG -- your input is ALWAYS appreciated! I know I'm prone to miss the forest for the trees, so a reality check never hurts...
Obviously, if the officer brings the appropriate documents/copies to court, you're toast. ("Given the right circumstances...").
I've seen this go both ways with CHP: some will bring in a binder with nice laminated originals, while others stroll in with a few stapled photocopies.
Also, I think that the reason for the extensive discovery response you received could just as well be a custodian-of-records or a station commander who's a stickler for the law!
I'll have to postpone the expansion of the legal mechanics of evidentiary objections re accuracy/training until later this week, because I'll have to look up stuff only available at the law library. YOU (defendant/Herc) don't need to be concerned about ANY of this at trial, as long as you say the right "magic" words at the right times.
Suffice to say that, legal theory apart, both case law (and statutes) from all over the US holds that to admit a radar reading as evidence, you must establish the accuracy of the instrument and that it was operated correctly as foundation. They differ as to the details, but for CA, VC 40802 helpfully gives us the recommended "standards" to apply to these requirements. Of course, as TG said, the judge is free to apply his own standard, BUT this is not simply a question of determining the credibility of a witness' testimony. It is a mixed question of law and fact, involving the application of law to undisputed facts, and SHOULD as such be reviewed de novo on appeal.
As the mandatory accuracy/training standards for admitting radar/lidar readings as evidence in certain situations, there is a VERY strong argument to be made that they should be applied to all cases. Legislative history backs this, and there should be case law to back this up as well; not to mention an application of equal protection. Further research/discussion is beyond the scope of Herc's current situation...
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
@Sniper – thank you for your keen observation of this.
1) The date of 7/21/2011 on the CHP 99A looks to be the date he completed LIDAR certification. That doesn't matter much to me. The date above that says 6/22/2011. That's still after my June 8th ticket date. From what I've read, Radar training for CHP is done annually. So if June 22nd was his renewal date, he most likely last did it 6/22/2010 and my date of June 8th, 2011 would fall under that 1 year time span. I guess I could always say, objection, where is the proof of when he trained in 2010? Maybe this training in 2011 was done a month late and I got my ticket in a gap. Who knows? I could easily see the Judge going who cares and moving on with the case.
@That Guy - thank you for your counter point to Quirky. I’m learning so much from you guys.
1) I actually am eligible for traffic school. I've never been convicted of a traffic ticket and the last ticket I received (not that it matters) was back in 2004, which I beat on TBWD. The local cop never sent his letter in. Thus, when I got my ticket this time, I figured what the heck, I'll do that again. On my courtesy notice it said, Pay $442 with proof of correction (I had no front plate, I got that taken care of) and to attend traffic school. I paid the $442, so the way I look at this is, if I'm found guilty, I'll just be ordered to attend the traffic school that I already paid the court for. I believe it's $60 more for this option...they've had my extra $60 for over 6 months now. You say if I was eligible, I made a mistake by opting to go this route? How so? By exercising my rights to defend myself in a trial de novo? You think the judge will be so peeved that I tried to defend myself, he’ll revoke my traffic school request and refund me $60? If that’s the case, I’ll appeal his sentence to the appellate court. It's probably costing the state more than the $442 they collected from me to convict me. I'm might as well defend myself as vigorously as possible. I'm kinda hard-nosed about that kind of stuff.
2) I agree, and think the chances of the officer not showing up are slim to none. The only thing I have going for me is that all trial de novo cases are done at the County seat in Ventura county. His CHP station is in Moorpark, CA and the county seat court is in Ventura, CA. That’s a good 40 minute drive. I’m hoping he won’t want to make the 80 minute drive roundtrip.
@Quirky - once again, thank you for your time in responding to my posts.
1) Yes, I agree, if he brings in the proper documentation (either originals or certified copies) I’m toast. I’m only going to cross-examine him and I won’t be giving any testimony myself. I’ll take my guilty verdict like a man and go to traffic school like the rest of the population. I agree about the station commander being a stickler for the law..I even got a DVD that shows my stop. It’s like watching an episode of COPS, just not as much drama. He pulled me over...I gave him my papers, he went to his car, wrote me my ticket..I signed it and that was that. Very quick.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Quote:
Quoting
Herculator
On my courtesy notice it said, Pay $442 with proof of correction (I had no front plate, I got that taken care of) and to attend traffic school. I paid the $442, so the way I look at this is, if I'm found guilty, I'll just be ordered to attend the traffic school that I already paid the court for. I believe it's $60 more for this option...they've had my extra $60 for over 6 months now.
Well, as far as I know, court will not normally accept a check for more than the amount due for bail when you submit your TBD; if they did in this case and even if it is specified that it was for traffic school, then I still don't see that as a guarantee that you will be granted that option if you were to be found guilty. Unless the judge specifically allows that option after a TDN, the clerk is not likely to make it available
Quote:
Quoting
Herculator
How so? By exercising my rights to defend myself in a trial de novo?
Nice twist there... Realistically, a judge cannot deny you your right to plead not guilty or request a TDN. In fact, I'd like to think they'd encourage it, if and when it is substantiated with a hint of a defense.
But to simply request a TDN in hopes the officer won't show up, (and you can be sure that a judge has a keen sense of what a decent defense is and what a pretentious meaningless cross examination will entail)... Might tick off a judge or two that I've come across!
Quote:
Quoting
Herculator
You think the judge will be so peeved that I tried to defend myself, he’ll revoke my traffic school request and refund me $60?
The question is not "revoking" your request, it is more like "approving" it. In other words once you're past the arraignment stage, there is no guarantee that traffic school will be available. In most courts- it is no longer an automatic option for those who were eligible; instead, it becomes a discretionary matter for the judge to decide.
Dare you ask the reason why it was denied if it was? The judge is under no obligation to state a reason for the denial on the record!
Quote:
Quoting
Herculator
If that’s the case, I’ll appeal his sentence to the appellate court.
Appealing your guilty verdict and sentence on the grounds that you were denied traffic school (if the denial is within the guidelines) will not get you much; appealing the traffic school denial simply because it was denied will also likely be a waste of your time.
For a judge who's aware of what he can and cannot do, the rules are clear and the precedents have been set. And you're not likely to outsmart a knowledgeable informed judge! But you can try!
One thing I would NOT try is using the same line you used here: "(I want what I want. Or else).... I'll appeal".
Quote:
Quoting
Herculator
It's probably costing the state more than the $442 they collected from me to convict me.
Again, your threats aren't likely to sway the outcome... The state has already lost money on your case, so what's a few more hundred dollars!
We all deserve to be treated equally, and these are matters that have already been settled as far as who gets what and when!
So just because you opted to pay an additional $60 when it wasn't needed or required does not grant you any special privileges or any guarantees that you'll be treated any differently than any other 22349 case if you're found guilty....
Quote:
Quoting
Herculator
I'm might as well defend myself as vigorously as possible. I'm kinda hard-nosed about that kind of stuff.
Might as well, and by all means, please, go for it... It certainly is your right to defend yourself, and its your time to invest if you prevail or waste if you lose. Just keep in mind that you have no right to dictate the outcome!
Quote:
Quoting
Herculator
The only thing I have going for me is that all trial de novo cases are done at the County seat in Ventura county. His CHP station is in Moorpark, CA and the county seat court is in Ventura, CA. That’s a good 40 minute drive. I’m hoping he won’t want to make the 80 minute drive roundtrip
Well, if that is typical procedure, then it makes me wonder how many officers opted not to appear simply because of the distance, how long that lasted, and what their commanding officers did to change that. Then again, I do see a chunk of overtime on that time-sheet you received via discovery, not sure how many officers will turn that down these days. As for the 80 minute drive, its not like they don't spend entire shifts driving around. Not likely to sway his decision one way or another!
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Yes, you make good points and I'm fully aware that traffic school is not guaranteed to be given, even if I'm eligible. Is there any case law in regards to someone being offered traffic school and then having it revoked because they did a Trial De Novo? I can't find any. I'm really curious as to why a judge would revoke traffic school for someone in a normal 22349(a) case if they are eligible.
I know this case law exists: The court may nor arbitrarily refuse to entertain such a request because the defendant enters a plea other than guilty or exercises his or her right to trial. Cal Rules of Ct 4.104(c)(3); People v Enochs, supra (court’s ruling on the request should not be affected by the order in which plea, explanation, and request for school are presented; judge’s policy of denying requests made after plea and explanation was capricious and arbitrary); People v Schindler, supra, 20 C4th at 433; People v Wozniak (1987) 197 CA3d Supp 43, 44, 243 CR 686.
Traffic school is a very common practice and the fact that the court has already offered me the option, which I paid for, means I expect to go that route. Of course, when I am in court I will be presenting myself and my defense in the most humbling of fashions and I will try my best not to say anything that might piss him off. From my first encounter with the Judge, he seemed like a straight shooter.
It's is true that in each county, each judge will vary. In Ventura county it is standard procedure for the court to offer traffic school to anyone that is eligible. A clerk informed me that the computer figures this out and does this automatically. It makes sense too, as they get an extra $60 for me choosing this route. If he denies my traffic school request, which I'm eligible for, the county coffers will be out $60. Quite frankly, I don't really see any point in that. It's not like they don't need the money.
I have 2 instances of paperwork from the county in which they offered me traffic school. 1) the courtesy notice and 2) the decision of the judge that ruled on my TBWD. Note that on my letter I simply wrote, "I am not guilty". I did not write in my letter that I request traffic school. Below where it says guility on the TBWD ruling, the clerk of ventura county wrote the dates that I have to complete traffic school by. This was some date in late November. Obviously, since I chose to do a Trial de Novo, I ignored that date.
So in conclusion my strategy on Friday will be as such:
If the officer doesn't show up...wow I get lucky.
If he does show up..I'm filling a pre-trial motion (EXCLUDE HEARSAY STATEMENTS BY MACHINES NOT PRESENT IN COURT(CA EVID CODE 1200) and will asked for it to be ruled on before the officer gives his testimony. The argument in this motion is exactly what Quirky told me about foundation for the radar evidence. I got this from Dort Law (http://store.payloadz.com/details/95...et-trials.html). If the judge denies my motion, I probably won't cross examine him and I won't give testimony myself. I'll go straight to closing arguments and there I will humbly ask the judge to honor my traffic school request if he finds me guilty (which we all know will happen...let's be honest).
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Quote:
Quoting
That Guy
Well, as far as I know, court will not normally accept a check for more than the amount due for bail when you submit your TBD...
I can confirm that some counties automatically include the traffic school fee in the "bail" due, per the courtesy notice.
If you were offered traffic school after TBD too, and have paid the fee, I think it will be difficult for the judge to deny traffic school if you lose. Whenever you make the request for traffic school (if not automatically offered), include the payment and that it was offered after TBD in your request!
Quote:
Quoting Herculator
If he does show up..I'm filling a pre-trial motion (EXCLUDE HEARSAY STATEMENTS BY MACHINES NOT PRESENT IN COURT(CA EVID CODE 1200) and will asked for it to be ruled on before the officer gives his testimony. The argument in this motion is exactly what Quirky told me about foundation for the radar evidence. I got this from Dort Law (
http://store.payloadz.com/details/95...et-trials.html). If the judge denies my motion, I probably won't cross examine him and I won't give testimony myself. I'll go straight to closing arguments and there I will humbly ask the judge to honor my traffic school request if he finds me guilty (which we all know will happen...let's be honest).
Filing a (written) motion on the eve of trial is a VERY BAD IDEA (as in, make the judge very mad bad). Court rules usually require written motions to be noticed and served AT LEAST 10 days before hearing. The judge will DENY that motion, on procedural grounds or on merit. All it says anyway is that foundation is required to include radar evidence (DUH). Make foundation objections -- MERELY to require introduction of the documents at the appropriate time -- and then see if they are properly authenticated. <--- that is the crux of the "evidence code" strategy, not the foundation objections themselves!!