Hi guys,
This past June I was cited for violating CA VC 22356(b), caught by radar going 88 in a 70. Tired of laying down whenever I got a ticket, I decided to educate myself and fight this one. A coworker told me about TBD's (via ticketassassin) and I referenced codes for speed traps, radar calibration, engineering surveys, etc and opened the envelope today to find out out that I lost that argument. I can't say I'm very surprised because my argument was all over the place. After filing my TBD, I moved residences. The Barstow courthouse is about 2-3 hours drive from my house.
The TR-215 says the decision was entered on 11/12 and that it was mailed 12/2. Since the datestamp on my envelope that I just received says 12/16, I'm guessing that the judgement was mailed to my old house, returned, and then remailed to the new address. Being as 12/22 is today's date and also the 20 days from the initial mailing, here are my questions:
First, I'm assuming I have to file in writing and can't request the new trial over the phone. is that right? Second, if it has to be in writing, can I fax it or do I need to drive out there because of the deadline and file in person OR do I have more time because I didn't receive it until the day before the deadline?
Thanks!
Trial De Novo Deadline
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12-22-2009, 03:39 AMswisscheezTrial De Novo Deadline
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12-22-2009, 10:11 AMThat GuyRe: Trial De Novo DeadlineHere is California Rule of Court 4.210(b) which states in part:Quote:
Quoting swisscheez
(7)Trial de novo If the defendant files a Request for New Trial (Trial de Novo) (form TR-220) within 20 calendar days after the date of delivery or mailing of the Decision and Notice of Decision (form TR-215), the clerk must set a trial date within 45 calendar days of receipt of the defendant’s written request for a new trial. The clerk must deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to Defendant of New Trial (Trial de Novo) (form TR-225). If the defendant’s request is not timely received, no new trial may be held and the case must be closed.
So, in answer to your question, request it by phone? I highly doubt it... Although you may be able to file it by fax. You can check the particular court rules regarding electronic filing HERE, (see Title 2), but you should also contact that particular court to see if they have any local rules above and beyond those mentioned in the California Rules of Court.
In the end, I think that you would be better off driving to court, especially considering the fact that the phone numbers that are published will not get you to a live person with whom you can speak to (most courts have an automated phone system that only allows you to pay for fines and/or schedule appearances).
And just as an FYI, and considering the fact that you were cited for CVC 22356(b), there is no requirement for the prosecution to establish that no speed trap existed (22356(b) is a statutory speed limit, not one set pursuant to an Engineering & Traffic Survey) and therefore referencing codes for and arguing speed traps, engineering surveys... etc is not in any way a viable defense in this case.Quote:
Quoting swisscheez
The only legitimate argument here might have been the Radar calibration but even then and in most if not all cases with a CHP issued citation (who's standards for maintenance and calibration are far more strict than those required by law), that will eventually turn out to be an argument that is less than fruitful. -
12-22-2009, 02:31 PMswisscheezRe: Trial De Novo Deadline
Thanks for the followup on why some arguments weren't relevant. I was pretty much grasping at straws and hoping something would work. I see now that preparing a much more logical (and relevant) argument would likely be more effective for my case's dismissal.
After calling the Barstow district court a couple times, 2 clerks independently informed me that I would indeed be able to fax in my request for a trial de novo. I thought it was interesting that one told me it just needed to be a regular piece of paper with my name and case number and that I was requesting a new trial without mentioning the TR-220 form. I printed one out and faxed it in anyway.
Just to make sure I'm on the right track, I'd appreciate any comments on my thought process moving forward:
More research tells me that 22356(b) is pretty much a maximum speed law regardless of conditions and seems rather black and white: I was either over the limit or I wasn't. Defense of this VC appears to be limited to crossing fingers that a witness fails to appear OR submitting a discovery request to the city attorney or DA late in the process so they have minimal time to provide it. If they don't provide any evidence in discovery, then I can object to any evidence presented against me at trial (written or witness testimony).
Am I missing anything? Do I submit the discovery request to the CHP as well since the officer is likely the one that will appear in court? -
12-22-2009, 03:16 PMThat GuyRe: Trial De Novo DeadlineI am surprised you got through to someone. Good for you... And by "I printed one out and faxed it in anyway", you mean a TR-220 form, correct?Quote:
Quoting swisscheez
Well, it might also depend on how the officer testifies and what evidence he will present. For example, in a Radar case, he must establish that he has been trained in using Radar, he must present Radar calibration certificates...Quote:
Quoting swisscheez
Basically, the same officer qualifications/measuring device accuracy requirements as you'll find in a speed trap arguments except that a speed survey is not required.
Although exclusion of evidence in in fact one of the remedies offered by PC 1054.5 (in cases where the DA/City Atty fails to provide discovery), making such a motion before requesting relief in the way of an order to compel discovery will more than likely be rejected by the court. In other words, if they fail to provide you with discovery within 15 days of your request, your first step would be to file a motion to compel and if they do not respond to that, then you can move to exclude evidence.Quote:
Quoting swisscheez
And yes, personally, I would serve a copy of the Informal Discovery Request on the CHP as well.
Good luck!