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Speedy Trial and Stay at Home Orders
My question involves a traffic ticket from the state of: Washington
I'm understanding the "speedy trial" statute, for mitigated hearings, based on the ticket date, puts the 120 days at May 31 for the last date of hearing.
My question is this... With the shutdown, is there something that stops that from being the case? Assuming the new court date is after that date, can that be used to argue dismissal?
Thanks
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Re: Speedy Trial and Stay at Home Orders
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I'm understanding the "speedy trial" statute,
Please give us the statute number so we can see if you are interpreting it correctly.
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Re: Speedy Trial and Stay at Home Orders
Irlj 2.6 B1
Mitigation hearings shall be scheduled no more than 120 days from the date of the infraction.
Does the stay at home proclamation affect this rule and my rights to that speedy hearing rule?
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Re: Speedy Trial and Stay at Home Orders
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SandlingAllDay
Assuming the new court date is after that date, can that be used to argue dismissal?
Thanks
Probably not. The courts were/are closed for all business that is not essential. Traffic violations are not essential.
The state of emergency that was declared by the Governor likely put a stay on all non essential proceedings.
You can check your county or municipal court closings here.
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Re: Speedy Trial and Stay at Home Orders
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SandlingAllDay
I'm understanding the "speedy trial" statute, for mitigated hearings, based on the ticket date, puts the 120 days at May 31 for the last date of hearing.
My question is this... With the shutdown, is there something that stops that from being the case? Assuming the new court date is after that date, can that be used to argue dismissal?
Thanks
It’s an interesting question. Certainly there’s nothing to lose by immediately moving for dismissal based on the scheduling rule. However since the hearing is to mitigate rather than to contest I doubt there’s any way to appeal a decision but also no harm in bringing the matter up.
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I meant once the court opens back up. Because of the court closure, we would have been denied our rights given by the rule.
Is there a rule/precedent that allows for this rule to be extended or ignored for our current situation?
Does the state of emergency supercede our rights and pause our speedy trial somehow?
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SandlingAllDay
Irlj 2.6 B1
Mitigation hearings shall be scheduled no more than 120 days from the date of the infraction.
Does the stay at home proclamation affect this rule and my rights to that speedy hearing rule?
No way to predict. I suggest you read the entire Rule 2.6 and note where the word "shall" is used. "Shall" means that the rules are mandatory, no exceptions. Though I am sure that the court, or a higher court, could carve out an exception for the current crisis.
Note the requirements for notice and motions. At some point you'll have to file a motion for dismissal. If the court denies the motion you'll have to spend lots of money on an appeal to a higher court unless a higher court voluntarily dismisses infractions en masse due to the delay.
And, BTW, it's not 120 days from the date of the infraction, it's 120 days from the date of the notice of infraction.
https://www.courts.wa.gov/court_rule...eid=cljirlj2.6
While that might not be an issue if you were handed the citation on the spot, I caution you to read what is written, not what you think is written.
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Re: Speedy Trial and Stay at Home Orders
This is an interesting question and is certainly not unique to Washington. The shutdown of businesses in this country is widespread and pretty much all-inclusive, even to include court houses and their operations. In San Luis Obispo County, CA, the court issued a press release regarding the closure of the various courtrooms in the county; they're pretty much closing them down. I understand that traffic tickets are treated different in every state but my only concern in this article is the affect this shutdown will have on persons in San Luis Obispo County who were cited to appear for arraignment on a day when the court was closed. What will happen with those people who, through no fault of their own, did not (could not) show up for their hearing? In my opinion, there are three options:
1) The court could notify the defendant of a new hearing date they are to appear,
2) The citing officer could reissue the citation (Notice to Appear) or,
3) The court could dismiss the case.
I believe the court has only one option.
In California, an infraction is a criminal matter subject generally to the provisions applicable to misdemeanors, except for the right to a jury trial, the possibility of confinement as a punishment, and the right to court appointed counsel if indigent. (See PEOPLE v. SIMPSON (2014), 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396). Penal Code section 19.7 specifically states "all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof." [Emphasis added]
The original "NOTICE TO APPEAR" when issued by the officer requires the cited person to appear on or before a date specified in the Notice. This Notice, which includes the signature of both the officer and the cited person, constitutes "proof of service" and is legally binding on the cited person requiring them to appear in court. When the Notice to Appear is filed with the court by the police officer it can only be used for 1) the defendant may enter a plea and, 2) if the notice to appear is verified, upon which a warrant may be issue (PC 40513b). Once the cited person appears in court, this "Notice to Appear" loses all legal authority and the court technically still has no jurisdiction over that person. It isn't until that person appears and pleads that the court acquires jurisdiction. Because the citing officer is not representing the people, and cannot initiate criminal proceedings, the court can only acquire jurisdiction by the waiver of the filing of a complaint and by the defendant making a general appearance by entering a plea.
Because of the mandate of VC 40513(b) (…an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea…) the officer cannot change the date on the original citation, so the only recourse the officer would have is to issue another citation and file it with the court. The problem that arises then is that the officer doesn't have your signature with your promise to appear in court on a certain future day, and without that signature and notice, there is no proof of service and no failure to appear charge can be filed. At this point, the court lacks jurisdiction over you as the defendant (CCP 410.50(a) Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent to personal service of summons on such party.). Keep in mind that the citing officer is not the prosecutor, he is only a witness and cannot initiate criminal proceedings. If criminal proceedings have not been initiated, the court has no authority to order you to appear at a future date.
Legally, the courts only option would be to dismiss, although technically, at this point, the court still lacks jurisdiction over the person and there is nothing to dismiss.
It will be interesting to see how the court handles these cases.
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Yes, thank you. Since most traffic infractions are handed to you on the spot, the notice of infraction date and date of infraction were, indeed, the same.
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cdwjava
I am appreciative, but as that covers CA courts, I'm not sure how I can make that apply to WA. The court with jurisdiction is closed at this time.
**
I'd hoped that somewhere this would have been touched on, and would find that information. Alas, I seem to be a trailblazer with this specific inquiry.
I did get the initial notice with a hearing date. At the closure, I then received a notice that it would he delayed and I'd hear at some point with a new date to appear in court.
They are continuing court cases with more priority (criminal matters),I can only assume because of the laws regarding speedy trials... And have written into the proclamation wording that extends the statute of limitations on filing of charges for things. It seems like a good assumption that if they had wanted to put some verbiage that allows laws like this to be postponed/extended etc, they would have.
Without it, that law should still be intact...
One would think.
Anyway, I appreciate your insight, as always.
I will go look for information on how to make that motion for dismissal. (previously I did that at the beginning of my contested hearing. Perhaps mitigating is different?)
Thank you!
I'll update when I know something.
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SandlingAllDay
Yes, thank you. Since most traffic infractions are handed to you on the spot, the notice of infraction date and date of infraction were, indeed, the same.
I am appreciative, but as that covers CA courts, I'm not sure how I can make that apply to WA. The court with jurisdiction is closed at this time.
Sorry ... I saw Jim's reply mentioning San Luis Obispo and leapt to a conclusion.
Perhaps this will be of better assistance:
http://www.courts.wa.gov/index.cfm?f....courtClosures
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SandlingAllDay
I did get the initial notice with a hearing date. At the closure, I then received a notice that it would he delayed and I'd hear at some point with a new date to appear in court.
Than all you can do is wait until you get your next notice for the new date. If the new date is beyond the 120 days then you file your motion for dismissal, citing the rule. Keep in mind that when you file a motion with the court you have to serve a copy on the opposing party which, in your case, should be whoever the prosecutor is. He'll have the opportunity to respond saying why your motion shouldn't be granted. In his response he'll cite the law and/or case decisions that support his response and the judge will make a decision to dismiss or not.
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SandlingAllDay
I will go look for information on how to make that motion for dismissal. (previously I did that at the beginning of my contested hearing. Perhaps mitigating is different?)
For infraction cases at most traffic courts in Washington State, motions are presented orally just after the case is called. The main exception is in Spokane County, where written motions are required to be filed and served. However I’m a bit concerned about doing a preliminary motion at a mitigation hearing where sometimes there is a magistrate instead of a judge, and where the defendant is essentially admitting to having committed a civil infraction. Also a prosecutor will probably not be present at this type of hearing. Contested hearings are really the best way to go because all options are preserved. If a motion is either denied or not permitted I would ask to switch over to a contested hearing.
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Jim Kozlovich
This is an interesting question and is certainly not unique to Washington.
The ABAJOURNAL has an article which discusses this subject: How the coronavirus is upending the criminal justice system
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searcher99
Thanks, that was an interesting article. It seems that this is going to be another part of our society that is going to come crashing down if these stay-at-home orders aren't lifted SOON.
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Jim Kozlovich
Thanks, that was an interesting article. It seems that this is going to be another part of our society that is going to come crashing down if these stay-at-home orders aren't lifted SOON.
Yep!
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Re: Speedy Trial and Stay at Home Orders
Hi Jim,
Could you please clarify in layman's terms I have a notice to appear for a traffic infringement for 06/01/2020 and received a violation notice stating bail due on the same date, then received a second notice stating the bail was due on the 07/31/2020.
Firstly If I turn up at the court on Monday to plead not guilty, and it is closed due to social distancing, would I then have the ability to plead for dismissal, per your post, and if so how do I prove I could not plead on that date.
I believe the second date would have no valid signature to appear then, would that still stand.
I hope you may be able to spare a few moments to help in this matter.
Best Regards Dave Hume
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Hume1234
Hi Jim,
Could you please clarify in layman's terms I have a notice to appear for a traffic infringement for 06/01/2020 and received a violation notice stating bail due on the same date, then received a second notice stating the bail was due on the 07/31/2020.
Firstly If I turn up at the court on Monday to plead not guilty, and it is closed due to social distancing, would I then have the ability to plead for dismissal, per your post, and if so how do I prove I could not plead on that date.
I believe the second date would have no valid signature to appear then, would that still stand.
I hope you may be able to spare a few moments to help in this matter.
Best Regards Dave Hume
Was this ticket in California?
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Re: Speedy Trial and Stay at Home Orders
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Hume1234
Hi Jim,
Could you please clarify in layman's terms I have a notice to appear for a traffic infringement for 06/01/2020 and received a violation notice stating bail due on the same date, then received a second notice stating the bail was due on the 07/31/2020.
Firstly If I turn up at the court on Monday to plead not guilty, and it is closed due to social distancing, would I then have the ability to plead for dismissal, per your post, and if so how do I prove I could not plead on that date.
I believe the second date would have no valid signature to appear then, would that still stand.
I hope you may be able to spare a few moments to help in this matter.
Best Regards Dave Hume
If I were in your situation, I would do nothing. I would not appear on Monday because I'm sure the court will be closed. If there is any doubt, you can just check the courts website. I would also not appear on July 31 either. The only authority the "Notice to Appear" has is to get you before a magistrate on a specific date.
Keep in mind that this is an extremely unique situation and I think even the courts aren’t sure how they are going to handle many of these cases. Your appearance date has passed and, through the courts own fault, you couldn't appear on the time and date as promised. There was no request by either party for a continuance and there is no promise to appear on July 31 by you.
If it were me, I would leave the ball in the court's court, and let them figure out how to get me back into court legally.
Just out of curiosity, what were you cited for and in what county?
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i was given a ticket for VC22349a exceeding 65 by pacing I requested the video and have a copy. It was Orange county, their court says partial open and I was going to appear on Monday and hope to be turned away and ask for something stating that.
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Hume1234
i was given a ticket for VC22349a exceeding 65 by pacing I requested the video and have a copy. It was Orange county, their court says partial open and I was going to appear on Monday and hope to be turned away and ask for something stating that.
The courthouse is CLOSED. More than likely you won't even get in the front door. As far as "something" saying you were turned away, you won't get anything, however, the court can take judicial notice of the fact the courthouse was closed.
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Hume1234
...I was going to appear on Monday and hope to be turned away and ask for something stating that.
If you decide to try and make an appearance on Monday, let us know what happens.
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Hi I did try to appear and they did turn me away, I asked for some form of proof of appearance and they denied that however i did speak to the case manager and she gave me her details to use if there was an issue.
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Any suggestions on where to go from here as obviously they will come after me?? Should I write to the court and request a dismissal due to the 45 day speedy trial failure??
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Hume1234
Any suggestions on where to go from here as obviously they will come after me?? Should I write to the court and request a dismissal due to the 45 day speedy trial failure??
At this point, there is nothing you can do unless you just want to pay the fine. If you do nothing, the problem the court has is what are they going to come after you for. It can't be for a Failure to Appear, because of the court closure you couldn't appear.
No, you can't request a dismissal because the 45-day requirement doesn't start until you are arraigned.
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Hume1234
i did speak to the case manager and she gave me her details to use if there was an issue.
What details did she give you?
I don't think the California Judicial Council has figured out how to handle the backlog of cases the courts are going to be hit with when they reopen.
At this point, all you can do is wait, it's in the courts hands now.
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Her position and name, she is the case processing manager at the court for Orange county. I asked for proof of appearance and while she said she couldnt give anything she said she would allow me to use her for a witness of appearing at the court
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What did you do that makes you think she will remember YOU several months down the road? In any case, she is irrelevant. As I said before, the court will know that they were not open on the day you were to appear in court and could not make your required appearance.