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Can You Demand a Change of Venue at the Time You Get a Traffic Ticket

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  • 09-19-2018, 05:19 PM
    Undiscovered
    Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    My question involves a traffic ticket from the state of: California

    Received a citation for CVC 21461 in a city (Carlsbad) that isn't part of the county seat. I made the demand prior to signing that the case be sent to the county Seat (San Diego). It this request was ignored by the Deputy and his Corporal. I had them page in a Sergeant to the scene. He also initially tried to refuse the request under 40502b, saying that, like the previous two, that I would need to move for a change of venue. However, after 30 more minutes and reading him the law he directed his Deputy to amend it. The original court was scratched out and initialed by citing officer, and re-checked for the county seat.

    I received a courtesy notice from the court closest to where the cite was issued, not the county seat. Prior to the notice, I filed a request for extension. I called the PD records department and asked them why it was issued for the wrong court, and if they could fix it, They called the court and said because the extension was filed, I had to now go to the court to get the change of venue and they couldn't fix it. (The online request doesn't say anything about what court is responsible for the citation when you make the request, otherwise I wouldn't have done it).

    The citation shows the crossed out court and the re-checked county seat, I have video/audio of me demanding the county seat.

    My thought is to do this via TBD and cite that the court has lack of jurisdiction over the matter under Smith v. Municipal Court, 167 Cal.App.2d 534 and People v. Beltran. This may only get the matter transferred to the county seat, which is fine, but is there any reason this shouldn't be done at TBD? I really don't want to go down to the court to get the change of venue.
  • 09-19-2018, 07:04 PM
    Mr. Knowitall
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    The first issue is whether you live or work closer to the county seat than to the court where the ticket was scheduled to be heard. If not, the change of venue statute (VC 40502(b)) does not apply to you. We do not know whether you qualify or, if you do, whether you documented your qualification to the various officers involved in the issuance of the ticket, or why they changed the venue back to the local court.

    If the change of venue does apply to you then, as the court personnel informed you, you may still go to court and assert your rights under the statute. However, they appear to be indicating that once you take action on the file (in your case, seeking and obtaining a continuance) they are unable to administratively change the venue such that you must appear in court to request the change of venue. That may be a limitation of their computer system -- or it may be confusion. Try speaking to a supervisor.

    If you choose not to further address the issue of venue with the court, and do not raise any substantive defenses to the ticket, you had best be certain to document that you qualify for a change of venue to the county seat, and should be prepared for the court to take the position that, by filing a TBD without raising or renewing any prior objection to venue with the court, you waived any challenge to the venue.
  • 09-19-2018, 08:16 PM
    Undiscovered
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    Quote:

    Quoting Mr. Knowitall
    View Post
    The first issue is whether you live or work closer to the county seat than to the court where the ticket was scheduled to be heard. If not, the change of venue statute (VC 40502(b)) does not apply to you. We do not know whether you qualify or, if you do, whether you documented your qualification to the various officers involved in the issuance of the ticket, or why they changed the venue back to the local court.

    If the change of venue does apply to you then, as the court personnel informed you, you may still go to court and assert your rights under the statute. However, they appear to be indicating that once you take action on the file (in your case, seeking and obtaining a continuance) they are unable to administratively change the venue such that you must appear in court to request the change of venue. That may be a limitation of their computer system -- or it may be confusion. Try speaking to a supervisor.

    If you choose not to further address the issue of venue with the court, and do not raise any substantive defenses to the ticket, you had best be certain to document that you qualify for a change of venue to the county seat, and should be prepared for the court to take the position that, by filing a TBD without raising or renewing any prior objection to venue with the court, you waived any challenge to the venue.

    I'm eligible. I live and primarily work in Diego, the county seat and it was issued in Carlsbad. I told them this repeatedly. My license has my San Diego address on it. The 3 officers initially refused to issue cite for county seat because they were ignorant of CVC 40502. It's a small department of something about 70 something officers. I was probably the first any of the 3 had heard of it, the Sergeant read it on my phone and it was clear he'd never heard of it previously.

    I'm trying this from another route as well. I spoke to a supervisor today and he's going to have the officer issue a notice of correction to see if that will pull it out of the wrong court.

    Fair point re the challenge of venue, I'll see if the notice of correction helps. If not, I'll probably have to make an appointment with the clerk of the wrong court.
  • 09-20-2018, 01:27 AM
    Taxing Matters
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    Quote:

    Quoting EJay
    View Post
    What court did you file the extension with?

    Filing an extension (I'm assuming it was an extension to enter your plea/request an arraignment/request TBD) should not change the venue you are to be heard. As Mr. K suggested this may have been a glitch in/part of their computer system but practically speaking that's not right. No judge should tell you that filing an extension changes your venue.

    If you have yet to enter a plea, you may be able to make a jurisdiction argument via demurrer. Op to verify. If this works the officer would have to refile and your matter would not be transferred. This greatly increases the odds of the matter being dismissed for good.

    I suggest checking out Brown's book from your local library. It has excellent 40502 info.

    Requesting a TBD waives your right to be heard within 45 days, even if you lose and then request a trial de novo. If you choose to plea via arraignment and request a court trial, you must be heard within 45 days of your plea or the matter must be dismissed.

    There are pros and cons to both. If you plan on making a technical argument, it can be better done in person. If you have convincing evidence a TBD is usually sufficient. TBD is less formal, court trial is more. TBD delays the overall process which could increase the likelihood of non-appearance. There is less personal aspect with TBD, a court trial you can make a personal impression. The court will consider body language, tone of voice, character etc which could potentially help (or ruin!) credibility. TBD is quick and easy, 1-3 hours, court trial will take ~2-4 hours + 4 hours minimum prep. TBD is exempt from hearsay, court trial is not. TBD you get a free trial de novo, Court trial you do not. TBD you can not call the officer out on his BS, court trial you can.

    Many people believe it is near impossible to win with a TBD but I tend to disagree. If you make a valid legal argument, the odds go up significantly.

    Example TBDs can be found at ticketassassin.com/forms.

    You quoted CVC § 40502(b) as follows for the proposition that the officer must change the venue on demand:

    Upon demand of the person arrested, before a judge or other magistrate having jurisdiction of the offense at the county seat of the county in which the offense is alleged to have been committed. This subdivision applies only if the person arrested resides, or the person's principal place of employment is located, closer to the county seat than to the magistrate nearest or most accessible to the place where the arrest is made.

    The passive voice used in the opening clause unfortunately does not specify to whom the demand must be made: the cop issuing the citation, a judge or magistrate? The statute is not clear. Nor does the statute specify how the demand must be made. On the whole, the statute is badly drafted. The statute you quoted does not support your contention that the officer must change the venue. It turns out you are correct, but you need to go to the case law to get there:

    We are of the opinion that it was the intent of the Legislature to permit the person arrested upon a charge such as that involved here to designate the place at which he should appear and be tried. The section requires the officer to specify in the notice or citation the place at which the person shall appear and provides that this place shall be either before the nearest or most accessible magistrate within the county with reference to the place where the arrest is made or upon demand of the person arrested, before a magistrate in the county seat or a magistrate in the judicial district in which the offense was alleged to have been committed.

    Smith v. Mun. Court of Glendale Judicial Dist., Los Angeles Cty., 167 Cal. App. 2d 534, 537–38, 334 P.2d 931, 934 (1959).

    Legislatures really need to get people who understand how to draft laws and rules to avoid this kind of sloppy writing. I spent a number of years drafting regulations as a significant part of my work with a federal government agency. I learned how to write rules that were clear and avoid the kinds of problems that this statute presents. If I can do it surely the California legislature can hire lawyers capable of doing the same thing to review and edit all the proposed legislation.

    Even Congress suffers from this problem, though it often does a bit better job of it than the states. For tax statutes Congress has a permanent professional staff to aid it in writing the statutes, the Joint Committee on Taxation. But Congress lacks that same kind of expertise in other areas of law.
  • 09-20-2018, 02:09 AM
    cdwjava
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    The request per VC 40502(b) happens so rarely that many officers may not know where the court is or how to cite into it. An officer in Carlsbad likely has no idea of the address or times for the Superior Court on Clairemont Mesa in SD. Clearly the request had never been made before to the officers on scene. I worked for years in San Diego County and had only one person (?? that I can recall ??) ever make the request. Fortunately, I possessed the information in my cite book and squeezed into a tiny blank space on the citation as I had been aware that this was a remote possibility. (I had a new baby so I was looking forward to the overtime to drive down and back ... but, apparently he pled out because there was no trial. On the other hand, the court may have kicked it back to my local court in North County and then he pled.)

    Such a request often has the side effect of significantly prolonging the detention as the officer might have to call into Dispatch or Admin/Records to have them check the county seat's traffic court for location, dates, and appearance times. These are not pre-printed on citations and have to be added somewhere in the margins unless a space is provided to fill such info in (and that's rare).
  • 09-20-2018, 02:19 AM
    Undiscovered
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    I called a Deputy City Attorney and spoke with them. They're going to do some research and my recommendation was that they advise the chief of police of their findings as the chief legal counsel for the city.
  • 09-20-2018, 03:00 AM
    cdwjava
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    It's really not all that complex - I'm not sure why the City Attorney needs to be in that particular loop. The agency can simply have an administrative sergeant or records employee contact the Traffic Court (Or SDPD) and get the necessary info for the Traffic Court on Clairemont Mesa in SD (arraignment dates and times, and the address of the court). I'm not sure what "research" needs to be done. Heck, I worked right next to Carlsbad and we were doing it 25 years ago!

    Oh,and the department is authorized about 115 sworn officers, not the 70 you supposed. I recently met with a pair of their officers at a training event and was told that they are at or darn near full staff.
  • 09-20-2018, 04:45 AM
    Undiscovered
    Re: Can You Demand a Change of Venue at the Time You Get a Traffic Ticket
    Quote:

    Quoting cdwjava
    View Post
    It's really not all that complex - I'm not sure why the City Attorney needs to be in that particular loop. The agency can simply have an administrative sergeant or records employee contact the Traffic Court (Or SDPD) and get the necessary info for the Traffic Court on Clairemont Mesa in SD (arraignment dates and times, and the address of the court). I'm not sure what "research" needs to be done. Heck, I worked right next to Carlsbad and we were doing it 25 years ago!

    Oh,and the department is authorized about 115 sworn officers, not the 70 you supposed. I recently met with a pair of their officers at a training event and was told that they are at or darn near full staff.

    It is apparently very difficult. It took 3 officers to finally get my 40502b demand acted upon and even then... They still screwed it up.

    My conversation with the CA had more to do with the lack of training at Carlsbad and officers/staff acting outside the scope of law denying 40502b demands. The city attorney has city employees willfully or negligently running afoul the law.

    The CPD had the citing officer file a notice of correction, so we're going to see if that gets it pulled out of the improper court.
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