Do I Have to Identify the Other Driver in a Photo Ticket to Get it Dismissed
My question involves a traffic ticket from the state of: California. My wife was driving my car (her name does not appear in the registration) and made a left turn on a red arrow in Millbrae, CA. I was not in the car. Camera took a picture of her and the city sent me a ticket ($490!). I can simply send an affidavit swearing I was not the driver; however, the only options on the standard affidavit they provide are to certifiy I sold the vehicle or to fully identify the actual driver of the vehicle. It seems preposterous to me that I would have to identify a suspect for the police (and especially that I would have to identify my wife). Is there some particular State or City law I'm not aware of that could somehow force me to identify my wife so they can issue her a ticket?
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
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war_m0nger
It seems preposterous to me that I would have to identify a suspect for the police (and especially that I would have to identify my wife).
Actually, its not preposterous. Simply because this is not just any "suspect". This is a suspect that was driving your car, presumably, with your full knowledge and acceptance. If this was a serious offense, then really there would be no reason why you couldn't be charged with conspiracy. And unless, before the time this suspect committed this violation, you had contacted law enforcement and reported it stolen then you really would have no reason to hide the identity of the individual who's actions can put you in a spot where you are equally as liable as him or her in case of an accident for example. In fact, the only reason why you are finding yourself in this spot where you could theoretically find yourself liable for this citation, is simply because he/she did not care enough to protect you from such consequences, and here you are protecting him/her!
So while it is true that there is no law that requires you to identify anyone, there are laws that would allow the judge to inquire further in the ascertainment of the truth and to his or her level of satisfaction.
In this case, however, it appears that you may have "spousal privilege" to save you in that you can not be ordered to incriminate your spouse for any actions she may have allegedly committed. And while I am not saying that you will or should be convicted of the offense, I will say that none of this is to imply that you cannot be convicted for the offense. Identifying the driver based on photos on the citation is also a matter for the judge to decide.
Furthermore and since the 15 day period to issue an AETS citation can only apply to the notice to appear that is issued in the name of the registered owner, this still gives law enforcement plenty of time to further research the matter and reissue notice to appear to other drivers in the household. Again, I am not saying they should or they would, only that they can!
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
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war_m0nger
I can simply send an affidavit swearing I was not the driver; however, the only options on the standard affidavit they provide are to certifiy I sold the vehicle or to fully identify the actual driver of the vehicle.
There is no requirement to use the standard affidavit they provide. I would make my own. Their form probably has language to the effect that by signing, you agree to answer all fields, which means you could be unwittingly agreeing to provide information not required by law.
If you make your own affidavit, you will need to include the language in California Code of Civil Procedure 2015.5: "I certify (or declare) under penalty of perjury that the foregoing is true and correct" followed by date, place and signature. Probably notarization is not required, but I personally would be inclined to do it anyway just to show my resolve in the matter (usually free at your bank).
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
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searcher99
There is no requirement to use the standard affidavit they provide. I would make my own. Their form probably has language to the effect that by signing, you agree to answer all fields, which means you could be unwittingly agreeing to provide information not required by law.
This is clearly misleading and not likely to meet the requirement for a "valid/acceptable response". This is not the first time you've posted this amongst other misleading information! You really should refrain from answering topics that you are clueless about. This can in fact leave the OP in deeper trouble that he's already in.
The law enforcement agency is authorized by law to include an affidavit which contains specific language and one which meets certain criteria. No there is no requirement to use their affidavit at all but there is nothing obliging them to accept anything less or anything different. What makes you think that submitting one's own, made according to no rule and providing information that is not satisfactory would be accepted or would even account for a proper response?
Furthermore, if at the time such homemade affidavit is received and as it will likely be rejected, and since the defendant was given specific instructions as to how he can respond and yet he failed to meet those instructions, the law enforcement agency is not obligated to do anything. So the order by the court to respond to the citation by such and such a date was not fulfilled.
The defendant, according to your standards, is under the assumption that he fulfilled his duty when in fact he has not. The court date comes and goes and now he failed to appear. The court adds a misdemeanor failure to appear, adds a civil assessment of $300 on top of the fine, and possibly suspends the defendant's driver;'s license...
Great advice you're offering there... Anything else that you can suggest that might leave this OP in deeper trouble that he's already in?
As for this part:
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searcher99
If you make your own affidavit, you will need to include the language in
California Code of Civil Procedure 2015.5: "I certify (or declare) under penalty of perjury that the foregoing is true and correct" followed by date, place and signature. Probably notarization is not required, but I personally would be inclined to do it anyway just to show my resolve in the matter (usually free at your bank).
What purpose or benefit could that serve if in fact, the affidavit itself isn't even close to being acceptable?
You cite some random code section just to pretend you have a clue and you throw in the notary public which is not going to change the content of an affidavit that is missing the content that is required! The only thing that a notary stamp will do is to certify that the person who signed the document is who he purports to be.
You advise people to ignore an official document only to then try and make a plain piece of paper into something official, something it is not.
Where do you come up with this twisted nonsense, I don't know!!! But please refrain from posting it again and from forcing me to have to waste my time to correct you, once again, as to why you are not doing anyone any favors!
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
war_m0nger:
The previous post blows smoke and lacks substantiation. There is no such thing as a “homemade affidavit”. The California Code of Civil Procedure defines requirements for an affidavit and is not a “random code section”. An affidavit is an official document if it complies with state procedural rules. It is your personal statement of the facts.
A law enforcement agency can ask anything they want but you also have the right not to answer. They can and sometimes will engage in trick questions. As I mentioned earlier, the form they provide probably includes a stipulation that you agree by signing to answer all questions, which is why you might not want to use their form.
Having said all that, however, I admit that I really don’t know whether any form of affidavit (theirs or yours) that does not also implicate another person will be accepted in your area, so a court appearance may well be necessary.
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
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searcher99
war_m0nger:
The previous post blows smoke and lacks substantiation. There is no such thing as a “homemade affidavit”. The California Code of Civil Procedure defines requirements for an affidavit and is not a “random code section”. An affidavit is an official document if it complies with state procedural rules. It is your personal statement of the facts.
A law enforcement agency can ask anything they want but you also have the right not to answer. They can and sometimes will engage in trick questions. As I mentioned earlier, the form they provide probably includes a stipulation that you agree by signing to answer all questions, which is why you might not want to use their form.
Having said all that, however, I admit that I really don’t know whether any form of affidavit (theirs or yours) that does not also implicate another person will be accepted in your area, so a court appearance may well be necessary.
I would be very careful about speaking to a judge about it. They will try to trick you into identifying the driver too. But they have limitations with the questions they are allowed to ask you.
I'm not sure how they do it but I've heard stories about judges being able to hold a person in contempt of court if they refuse to answer his questions. It has to do with how much you speak about the case to him. I believe if you simply insist "it is not me" or only say "the prosecution does not posses evidence that the driver was me" or "I request a dismissal on lack of evidence" then the judge cannot ask you details pertaining to the case. But if you plead not guilt and start professing your innocence with details of the incident, you've opened pandoras box and the judge has the ability to ask you questions about the identity of the driver. The judge may also trick you into speaking about details of the incident. And at that point, if you boldly tell him you don't have to answer that question, he will teach you something about contempt of court. So know beforehand how to speak to the judge.
My advice, speak to an attorney first or read a lot about it before going to court to speak to the professional tricksters. I've never heard anyone on this site tell how it is done and especially do not believe 'That Guy'. He gets his kicks out of scaring everyone into paying their citations. He does no research on how to beat a citation, nor does he have any interest in that.
But one thing is for sure. You do not have to identify the driver if you proceed correctly. But beware of the potholes.
Maybe someone here can elaborate on this procedural process?
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
Wow... I hope you realize that I really thrive on making you too look like the idiots that you are. So keep challenging me.. Once again, you are wasting my time and you are misleading people.
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searcher99
The previous post blows smoke and lacks substantiation.
Says the dimwit who's yet to make one valid statement!
Substantiation? I will substantiate to you and your alter ego, the level of stupidity you are at.
I repeat... from my last post... what you offered is is not only misleading and wrong, it can and will end up costing the OP more fines, and more heartache. All while you sit here pretending it is some sort of childish immature joke for you to play!
If the registered owner (R/O) submits your worthless homemade affidavit and assumes, as you suggested that this should suffice, and if the due date happens to come and go, all while your brilliant idea for an affidavit ended up in the trash... The court then adds a $300 civil assessment:
California Penal Code section 1214.1
(a) In addition to any other penalty in infraction, misdemeanor, or felony cases, the court may impose a civil assessment of up to three hundred dollars ($300) against any defendant who fails, after notice and without good cause, to appear in court for any proceeding authorized by law or who fails to pay all or any portion of a fine ordered by the court or to pay an installment of bail as agreed to under Section 40510.5 of the Vehicle Code. This assessment shall be deposited in the Trial Court Trust Fund, as provided in Section 68085.1 of the Government Code.
...And notifies the DMV of the FTA and orders a hold on his license (a suspension of his driving privilege),
CVC 40509.5
(a)*Except as required under subdivision (c), if, with respect to an offense described in subdivision (e), a person has violated his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court or before the person authorized to receive a deposit of bail, or violated an order to appear in court, including, but not limited to, a written notice to appear issued in accordance with Section 40518, the magistrate or clerk of the court may give notice of the failure to appear to the department for a violation of this code, a violation that can be heard by a juvenile traffic hearing referee pursuant to Section 256 of the Welfare and Institutions Code, or a violation of any other statute relating to the safe operation of a vehicle, except violations not required to be reported pursuant to paragraphs (1), (2), (3), (6), and (7) of subdivision (b) of Section 1803.
All because you want to pretend you have a clue!
Feeling stupid yet, because I'm only getting started...
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searcher99
There is no such thing as a “homemade affidavit”. The California Code of Civil Procedure defines requirements for an affidavit and is not a “random code section”.
The homemade affidavit is what you suggested the OP should write. As if he can dictate what they can accept and what the can reject. Your suggestion is a worthless waste of time simply because if the affidavit that was enclosed with the citation is not completed, anything less will be rejected. And if your affidavit is worthless, then so is your mention of what code the CCP indicates what an affidavit should include.
But let me substantiate that for you. So you can stop pretending that you know anything about California law... Or court procedures...
[INDENT][I][FONT=Arial]CVC 40520
(a) A notice to appear issued pursuant to Section 40518 for an alleged violation recorded by an automatic enforcement system shall contain, or be accompanied by, an affidavit of nonliability and information as to what constitutes nonliability, information as to the effect of executing the affidavit, and instructions for returning the affidavit to the issuing agency.
So the citation SHALL, not can, not may and not should, but SHALL contain or be accompanied by an affidavit, along with “information as to what constitutes nonliability”... Sound to me like the issuing agency decides what information suffices, not you... and it must contain specific instructions on how to complete it and return it. It doesn't say you can use your own, it doesn't require any citations from the CCP and it certainly does not even mention a notary public.
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searcher99
An affidavit is an official document if it complies with state procedural rules.
Uhm... Excuse me... What procedures and what rules? Stop pretending you are making any sense. Besides your pretentious and made up “procedural rules”, which you made up on the fly as you were pretending to be knowledgeable, which procedural rules did your homemade affidavit complying with?
How about NONE! Would you like me to substantiate that for you as well? Here... Same section as above, but subsection (c) states:
CVC 40520
(c) Nothing in this section precludes an issuing agency from establishing a procedure whereby registered owners, other than bona fide renting and leasing companies, may execute an affidavit of nonliability if the registered owner identifies the person who was the driver of the vehicle at the time of the alleged violation and whereby the issuing agency issues a notice to appear to that person.
There is the procedural requirement. Only one simple one! That the R/O identify the person who was the driver of the vehicle at the time of the alleged violation and whereby the issuing agency issues a notice to appear to that person. Yet, it is your suggestion that the R/O avoid complying with that “one procedural requirement” and instead, he should follow the ones you made for him instead. As if to suggest that he is in control of what happens from that point forward.
But wait, you weren't done shooting your mouth off proving how stupid you are. You still added this:
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searcher99
It is your personal statement of the facts.
In one breath, you suggest that the registered owner refrain from providing the LEA with who in “fact” was driving, and in another breath you're suggesting that he should submit a statement of “facts”. And still that isn't all...
While the R/O still has not entered a plea yet, has not decided what if anything to do about this citation, and yet it is your opinion that he should submit a “statement of facts” to the POLICE?
All while we all know that he should “remain silent, because anything he says can and will be used against him in court... not talk to the police or provide them with any information?
Feeling stupid yet? Well, I am not done...
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searcher99
A law enforcement agency can ask anything they want but you also have the right not to answer.
Well, they can... But in these cases, the state legislature decided for them what they can ask. That's right, the law dictates what they can ask for and what if anything must be provided. As the code section describes it: the R/O “*MAY*” execute an affidavit “*IF*” he identified the driver. Otherwise, don't bother. Better yet, otherwise, remain silent.
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searcher99
They can and sometimes will engage in trick questions.
They sure can... In this case, your half brained suggestion was to not only avoid providing them with a straight forward answer to a straight forward question, but instead, that he should provide them with “a statement of facts” and he should notarize it as well!!! :hopelessness:
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searcher99
As I mentioned earlier, the form they provide probably includes a stipulation that you agree by signing to answer all questions, which is why you might not want to use their form.
You're still way off... What you mentioned earlier and no matter how many times you repeat it, it still leaves you looking like a doofus!
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searcher99
Having said all that, however, I admit that I really don’t know whether any form of affidavit that does not also implicate another person will be accepted in your area, so a court appearance may well be necessary.
You “really don't know?” You spew all the shit you did all while claiming that my post was blowing smoke and was not substantiated? Are you seriously this obtuse, this hateful and this bitter? How many times must I make a total idiot out of you before you learn not to challenge me!
This still will not shut you up.... It won't be long before you come back to post some more of your idiotic blubber... You're like a punching bag. The harder you get hit, the faster you come back for more.
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
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That Guy
If this was a serious offense, then really there would be no reason why you couldn't be charged with conspiracy.
Except for the fact the elements of a conspiracy would not be there. (Unless, of course, this purported red light running was planned beforehand.) "Here, honey, take the keys and go run a red light." while handing over the keys would be. Not telling after the fact, would not. Nor would the failure to tell be an aiding or abbetting. Nor would it consist of being an accessory as long as all that happened is the OP failed or refused to give incriminating information to the police and did not provide a false alibi.
And, all that is without consideration of any testimonial privileges that are involved.
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
Thanks for all the responses. I do know that I have the right to remain silent and that I have a 5th amendment right not to incriminate myself that the courts have extended that privilege to spouses. I responded with the enclosed affidavit but did not identify the driver - I simply swore that I was not the driver. If they reject that, I'll still have plenty of time to respond with letter (which is another authorized response). I know something about criminal law and I certainly know not to antagonize a judge. I'll come back and let you all know how it turns out.
Re: Do I Have to Identify the Other Driver in a Photo Ticket (Millbrae, Ca)
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war_m0nger
Thanks for all the responses. I do know that I have the right to remain silent and that I have a 5th amendment right not to incriminate myself that the courts have extended that privilege to spouses. I responded with the enclosed affidavit but did not identify the driver - I simply swore that I was not the driver. If they reject that, I'll still have plenty of time to respond with letter (which is another authorized response). I know something about criminal law and I certainly know not to antagonize a judge. I'll come back and let you all know how it turns out.
As you may have read I received a red light camera citation. I retained a traffic attorney to handle it for me and he appeared on it last Friday. He got it dismissed and I finally spoke to him about it this morning.
Of course I asked him how he did it. He said mine was very easy. The photo of my face appeared to me to be somewhat clear but definitely not hi-res. My attorney said it was rated as a 4 on the 1 - 10 scale. He said the prosecutor took one look at it and threw it out. He said he didn't even have to get into the details of the chin, the hairline, the nose etc. It was just thrown out. He also said it isn't rocket science. He has certain criteria that he argues rather than reinventing the wheel of defenses.
We spoke for about ten minutes because I have an interest in this stuff and I thought I'd bend his ear as long as I could. He said when the police issue those red light camera citations they do not look at the driver or compare it to a drivers license photo. If an infraction looks to be violated they send out the citation irrespective of identity hoping it finds a sucker who will ID the driver. When my attorney appeared on my case it was the first time anyone ever compared the photos. That is why they so quickly threw it out.
In your case, I would assume it might be handled like mine. Wherein, when you stand up to them and contest the identity, it may be the first time anyone actually compares the photos between you and the female driver. Once they see you are not the driver, they have two choices. 1) Try to get that identity out of you by further intimidation, or 2) Drop the charges and move on to the next sucker.
I went on to ask him about appearing in front of a judge and trying not to disclose the driver. He said it is very hard and has never seen it done. They will hold you in contempt of court if you do not disclose. So be very careful about that. He said as soon as you say "it is not me " you relinquish your right to remain silent. This gives the judge a right to question you. If you then refuse you are in contempt. He said the only way to theoretically do it is if you say you are there as a witness, not a defendant. But you are dealing with courtroom tricksters and they will get you say something that will allow them to prosecute you for contempt. So, my advice and my lawyers advice, hand it over to a lawyer for a certain win. Mine was only $250 and I never appeared in court. And yours is easier than mine.
- - - Updated - - -
I'm casting my vote right now. The courts will send you a notice of dismissal in about two weeks. Anyone else care to wager on it.
TG obviously thinks a SWAT Team will show up at your front door with a battering ram and you'll be sent to Guantanamo to be waterboarded. :)