Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Yes, Quirky I'm thinking along the same lines as you. I was offered traffic school and have paid it as included in my bail due. I think it would be very difficult for the judge to deny me it. Provided I'm not a complete a$$hole.
I was thinking the same thing as you regarding my motion and having to file it 10 days before, etc. I purchased it from a legit attorney Christopher Dort (#196832 Current Status: Active) and I wrote him with those concerns. He said this: "take them in with you. present them to judge to start. bring 2 copies: 1 for cop, 1 for judge; hand it to court clerk or bailiff when your case starts. instructions included." Those were the exact words from a licensed attorney in the state of California. Who knows...if it matters, the motion is technically a motion in limine. Maybe, it's ok for these type of motions to be ruled on last minute.
If the motion is denied, I will be making those objections are you instructed me to.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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Herculator
Who knows...if it matters, the motion is technically a motion in limine. Maybe, it's ok for these type of motions to be ruled on last minute.
Motions in limine are typically used in jury trials where some issue is to be decided outside the presence of the jury.
ALL written motions are subject to notice requirements and the 10-day rule. The judge has the discretion to "shorten time" and rule on these at the last second, but they may want a good reason as to why you didn't comply with the rules. They can also deny it simply on procedural grounds.
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Herculator
If the motion is denied, I will be making those objections are you instructed me to.
Absolutely. Even if a motion in limine to exclude evidence is granted, attorneys will still object if (related) evidence is introduced to preserve the issue for appeal.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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quirkyquark
I can confirm that some counties automatically include the traffic school fee in the "bail" due, per the courtesy notice.
Yes, but can you confirm or even suggest that ANY court will guarantee a defendant the option to traffic school merely by including the traffic school fee in the bail amount?
Fact of the matter is, a trial, is not the only avenue out of a courtesy notice. There are other options.
OP in this case is using "revoking the traffic school offer. Well, as far as I know and regardless of which court this is, the mere mention of traffic school on the courtesy notice is not an guarantee you'll have that option under all circumstances; it is simply an option to take traffic school, pay the fine and be done. You choose to go any other direction and -as we discussed at length in another thread- the traffic school option becomes -up to the discretion of the judge-!
Now, if you choose to front the state the $60, well that's pretty generous of you, but you don't get any special privileges for that.
That is how I understand it. I've been wrong before so this isn't any different!
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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That Guy
Yes, but can you confirm or even suggest that ANY court will guarantee a defendant the option to traffic school merely by including the traffic school fee in the bail amount?
Of course not. As I said, it would be "difficult" to refuse, i.e. out of a sense of fairness and equity -- he's already paid for it, and he was offered it after being found guilty at TBD. That doesn't mean a judge can't refuse it, with no explanation required.
Interestingly, the changes made to Rule 4.104 as a result of the new traffic school requirements (no more dismissal) may create a possible challenge to the judge's "discretion" to refuse traffic school to an otherwise eligible defendant.
Before July 1, 2011, the clerk was authorized to grant requests "as pretrial diversion." Now, it simply says "upon request by the defendant". The purpose, in other words, was to automatically hand out the reward of a dismissal in return for accepting traffic school and not going to trial. The judge also had the discretion to order traffic school more than once in 18 months.
After the change in July, no dismissals are possible -- instead the DMV simply "holds confidential" one point per 18 months. That creates the conundrum I'd referred to in our earlier thread on the subject. The clerk is now authorized to hand out traffic school upon request by the defendant for certain violations --- there's no reward any more. Arguably, this creates a prima facie assumption that the Judicial Council "believes that [such] defendant's circumstances indicate that [such a] defendant would benefit from attending school." And, there should be no effect of the "order in which the plea, explanation, and request for traffic violator school are presented." So, if the clerk is authorized to grant traffic school simply upon request, why should the judge also not do so for "automatically eligible" defendants, even if it is post-conviction?
I'll try to take that up on appeal if I'm in this situation..
Edit: Alternately, since there's no "pretrial diversion" in the clerk's authorization section, you could just not bother with asking the judge at trial, and if convicted, go request it from the clerk! Must grant it....upon request. :)
If I were appealing on this basis, I would do the above too and contest both the direct denial by the clerk, and the implicit lack of discretion to deny traffic school.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
Anyone see a problem with the certificate of calibration by IACP? The analyst does not note why he is qualified to run these tests ... alas, another unknown person running unknown tests..
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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davidmcbeth3
The analyst does not note why he is qualified to run these tests ... alas, another unknown person running unknown tests..
If you look carefully, you will see that there is NO MENTION of who's running the tests or doing the analysis. The person authenticating it as a certified copy is this guy, who is undoubtedly (over)qualified to be doing the testing. I doubt he does it personally though....got a department to run!
The tests are not unknown and are extensively specified in the NHTSA publication on LIDAR.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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quirkyquark
Of course not. As I said, it would be "difficult" to refuse, i.e. out of a sense of fairness and equity -- he's already paid for it, and he was offered it after being found guilty at TBD. That doesn't mean a judge can't refuse it, with no explanation required.
The contrast between the underlined sentences is like night and day...
Quirky, I realize you're not going to admit it or even hint at it... But I will: Paying for traffic school in conjunction with the bail amount for a TBD/Trial is in no way shape or form a guarantee to have that option available at any and all times during the process.
I will qualify the above and every thing i am stating below by saying that this is the way it worked prior to the most recent change dated July 1. 2011. In all honesty, (and yes, shame on me) and while I have in fact glanced at the related code sections, I am yet to read them or even attempt to understand what the changes are all about!
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Herculator
Yes, you make good points and I'm fully aware that traffic school is not guaranteed to be given, even if I'm eligible.
And yet the rest of your post indicated that you are guaranteed and are sure you will be granted traffic school.
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Herculator
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.
Again, the judge is NOT "revoking" anything... Instead, it is YOU who has decided to forgo the traffic school option at each and every stage.
When you initially received the courtesy notice, you had the option to pay the fine, take traffic school to avoid the point. Once you opted to do a TBD, you opted to forgo that process to try and fight the charge by TBD.
When you lost your TBD, and *IF* you were offered the traffic school option, you had the option to take the traffic school option to avoid the violation point as a result of being found guilty in the TBD. Once you filed a request for a TDN, you essentially opted to decline that offer, as well as to negate the conviction by TBD and to go for an in court trial.
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Herculator
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.
Yeah, don't leave out these case law citations:
A court has discretion to grant or not grant traffic violator school. (People v. Schindler (1993) 20 Cal.App.4th 431, 433; People v. Levinson (1984) 155 Cal.App.3d Supp. 13, 21.) - A court is not required to state its reasons for granting or denying traffic violator school following a defendant’s conviction for a traffic violation. (Schindler, supra, at p. 433.) - and this court rule 4.104(c)(1) "A judicial officer may in his or her discretion order attendance at a traffic violator school in an individual case for diversion under Vehicle Code section 41501(a) or 42005(b); sentencing under Vehicle Code section 42005(a); or any other purpose permitted by law.
In fact, rule 4.104(c) part of which you cited above, is titled "JUDICIAL DISCRETION"... If that does not tell you the entire story, I don't know if I can say anything that will convince you!
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Herculator
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.
No, it means you misinterpreted the process and are trying to manipulate it into a guarantee that you'll have the traffic school option as an ace up your sleeve if you lose your TDN! More power to you if it happens to slip by the court and work in your favor. But please, don't try and change the way things have worked for years!
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Herculator
In Ventura county it is standard procedure for the court to offer traffic school to anyone that is eligible.
That's the way it woks in every county...
California Rules of Court 4.104(b) Authority of a court clerk to grant pretrial diversion
(1) Eligible offenses
Except as provided in (2), a court clerk is authorized to grant a request to attend traffic violator school when a defendant with a valid driver’s license requests to attend an 8-hour traffic violator school as pretrial diversion under Vehicle Code sections 41501(a) and 42005 for any infraction under divisions 11 and 12 (rules of the road and equipment violations) of the Vehicle Code if the violation is reportable to the Department of Motor Vehicles.
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Herculator
A clerk informed me that the computer figures this out and does this automatically.
Nothing new there either.... Once the citation information is entered into the system, the courtesy notice is automatically generated and on it, is information related to traffic school eligibility. So unless your citation or the information on it falls under the disqualifying conditions under 4.104(b)(2), then you are automatically eligible!
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Herculator
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.
If the $60 was in fact the determining factor in deciding whether a defendant qualified for traffic school or not, then NO ONE will be denied that option at any stage during the process. Fact of the matter is, and you're free to search the forums for proof that there are times where traffic school is flat out denied. Whether it is after a trial, after a TBD or after a TDN.
Here is one of many recent examples:
How to Ask for Traffic School During Trial De Novo
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RandaChino
So, I went to my trial, and the result was very disappointing - the judge denied to let me do traffic school.
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Herculator
I have 2 instances of paperwork from the county in which they offered me traffic school.
Which language on those "2 instances of paperwork from the court" does it state that the traffic school offer is a standing offer that lasts throughout the entire process?
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Herculator
1) the courtesy notice
Nothing out of the ordinary there... The majority of defendants receive a courtesy notice telling them the have the option for traffic school at the outset.... (unless they are made ineligible by one of the disqualifying conditions under 4.104(b)(2)
You declined that offer by requesting a TBD...
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Herculator
and 2) the decision of the judge that ruled on my TBWD.
Nothing out of the ordinary there either...
And you declined THAT offer when you requested a TDN!
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Herculator
Note that on my letter I simply wrote, "I am not guilty". I did not write in my letter that I request traffic school.
There are plenty of judges who will voluntarily offer it....
There are some who will outright refuse to!
Its a crap shoot!
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Herculator
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.
No, no.... You declined to attend traffic school by virtue of your request for a TDN. Now, while your judge might voluntarily offer it to you if you are found guilty, that does not mean that this is the way it happens nor is it the way it is supposed to happen. In fact, even Quirky, and despite his apprehension to step off the fence on this one, will confirm to you that the judicial office making that decision is supposed to consider and evaluate each request independently. So lets hope, for your sake, that that one judge is not on vacation on Friday!
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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).
Motion denied... The Evidence Code does not contemplate that a machine, a Radar gun in this case, can make a statement.
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Herculator
...let's be honest
Hopefully, you'll be practicing what you preach on Friday when you report back!
Good luck!
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
@ That Guy,
Wow, thats a nice line by line anaylsis. I appreciate all the effort you put into it. Your devils advocate approach is enlighting. I'm getting a bit confused now. In your opinion, what should my next move be? For example, if you were in my shoes and had to go to court on Friday, would you immediately ask the judge before the trial begins for traffic school?
I'm sorry but I don't think I did justice in explaining the motion I bought from Attorney Christopher Dort. In a nutshell, it basically says in a bunch of legalese, that if the officer is going to testify to radar evidence of my speed, he needs to have the proper foundation for it. i.e, he needs to present the calibration and radar daily log, and they need to be original or certified copies. He essentially says that in 3 pages of legal mumbo jumbo. Maybe it gets denied or maybe not.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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That Guy
Quirky, I realize you're not going to admit it or even hint at it...
:confused: I thought I just did!?
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That Guy
....[Will] ANY court ... guarantee a defendant the option to traffic school merely by including the traffic school fee in the bail amount?
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quirkyquark
Of course not. As I said, it would be "difficult" to refuse, i.e. out of a sense of fairness and equity -- he's already paid for it, and he was offered it after being found guilty at TBD.
That ... mean[s] a judge [can] refuse it, with no explanation required.
I think I mis-phrased my answer to your question, and then further confused you via the unnecessary double negative...sorry!
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That Guy
I will qualify the above and every thing i am stating below by saying that this is the way it worked prior to the most recent change dated July 1. 2011. In all honesty, (and yes, shame on me) and while I have in fact glanced at the related code sections, I am yet to read them or even attempt to understand what the changes are all about!
It still works the same. Let me try to put this simply (since the above confusion may have leaked into the rest of that post!) --- the rule change does not change anything for now, and anyone who thinks my speculative argument re the effects of change is their ticket to guaranteed traffic school should have their head examined!
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Herculator
For example, if you were in my shoes and had to go to court on Friday, would you immediately ask the judge before the trial begins for traffic school?
Here's what I would do. If your officer is there before the judge enters the courtroom, ask him straight up for the paperwork. You have a right to look at it before trial (discovery). If the documentation is properly certified, just ask the cop if you can do traffic school straight up. If he asks the judge on your behalf, there is no realistic way the judge will refuse it.
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Herculator
I'm sorry but I don't think I did justice in explaining the motion I bought from Attorney Christopher Dort. In a nutshell, it basically says in a bunch of legalese, that if the officer is going to testify to radar evidence of my speed, he needs to have the proper foundation for it. i.e, he needs to present the calibration and radar daily log, and they need to be original or certified copies. He essentially says that in 3 pages of legal mumbo jumbo. Maybe it gets denied or maybe not.
Look, you know I disagree with the motion. If this were a medium or large county superior court, I would strongly discourage you from even bringing in that motion. No judge there is going to read through "3 pages of legal mumbo jumbo" --- especially if you can't explain it, or give a summary to the judge.
This is probably a tiny court. The judge may be patient, and even look at the motion and try to understand it. I very much doubt he will simply say -- "OK, no radar evidence admissible. Case dismissed!" See, this kind of motion works when you actually know what the evidence is and how it is authenticated (or not). Here, you don't. Bottom line is, there's nothing the motion does which the evidentiary objections don't. And you don't run the risk of pissing off the judge at the beginning by making it look like you're wasting time with something you didn't write yourself.
Re: 22349(A) Case in California - Have I Exhausted All Chances of Beating This Ticket
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Herculator
Your devils advocate approach is enlighting.
You can call it "devil's advocate. I call it the reality of traffic court!
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Herculator
I'm getting a bit confused now.
(a) Lose the entitlement + (b) quit being so stubborn = you won't be so confused!
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Herculator
In your opinion, what should my next move be? For example, if you were in my shoes and had to go to court on Friday, would you immediately ask the judge before the trial begins for traffic school?
I won't be in your shoes and if I were, you left yourself very few options, so my opinion would not be of any value. But to address your example, by looking at it from the judge's point of view, and if I were the judge, I would simply decline your request pending the conclusion of your trial. Some may even ask the judge if he/she would allow them the traffic school option if they were to lose, and a knowledgeable judge who is aware of the rules would simply see right through that and wouldn't touch that question with a 20 foot pole. Simply because you're asking the judge to either offer you a guarantee or an outright refusal of the traffic school option before a trial -i.e. a decision that is contradictory to all known case law examples known on the topic!
There are some courts who (I assume to simply reduce the court's workload fro the day) will offer the traffic school option prior to trial and without telling you whether your officer is there or not. Other than that, you gotta take your lumps and see what happens!
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Herculator
I'm sorry but I don't think I did justice in explaining the motion I bought from Attorney Christopher Dort. In a nutshell, it basically says in a bunch of legalese, that if the officer is going to testify to radar evidence of my speed, he needs to have the proper foundation for it. i.e, he needs to present the calibration and radar daily log, and they need to be original or certified copies. He essentially says that in 3 pages of legal mumbo jumbo. Maybe it gets denied or maybe not.
I'm curious as to how much you "bought" that for!