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  1. #31
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    I don't think it makes any difference.

  2. #32
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    Quote Quoting HonkingAntelope
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    take a look at his first or second reply in this thread - he said 71 was a typo.
    You are correct and I am not... Post #6.

    I apologize for the confusion

  3. #33

    Default Re: Should I Request a "Trial De Novo" and Go to Court

    Sounds good. But a few important questions for EWYLTJ &
    HonkingAntelope:

    1.) HonkingAntelope: What exactly is the 30 Questions defense? I googled for it and couldn't find any relevent (I think) guides/lists named "30 Questions Defense". For Ticket #2, I have been literally going to court in person AND calling every other day but the court keeps saying that their "Imaging" is backed up and while we (me and the officer) turned in a declaration they are 'not in the system' yet. I am getting a bit un-easy on this since my trial is on July 1st 2010 and I STILL do not have a copy of the declaration. I also heard that me not getting a officers decleration [upon request] is also not grounds for trial-dismissal if I am not an attorney. How come I have deadlines and they don't? Should I just extend my trial date close to my existing trial if I do not have the officers declaration?

    2.) EWYLTJ: Regarding the officer brining a speed survey: You say it must be "Certified" --- what does this mean? Does it need to be signed by someone? (CalTrans? D.A? Public Works ? like some sort of a "Seal" ?)

    Thank you

  4. #34
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    Quote Quoting Luther12
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    Sounds good. But a few important questions for EWYLTJ &
    HonkingAntelope:

    1.) HonkingAntelope: What exactly is the 30 Questions defense? I googled for it and couldn't find any relevent (I think) guides/lists named "30 Questions Defense". For Ticket #2, I have been literally going to court in person AND calling every other day but the court keeps saying that their "Imaging" is backed up and while we (me and the officer) turned in a declaration they are 'not in the system' yet. I am getting a bit un-easy on this since my trial is on July 1st 2010 and I STILL do not have a copy of the declaration. I also heard that me not getting a officers decleration [upon request] is also not grounds for trial-dismissal if I am not an attorney. How come I have deadlines and they don't? Should I just extend my trial date close to my existing trial if I do not have the officers declaration?

    2.) EWYLTJ: Regarding the officer brining a speed survey: You say it must be "Certified" --- what does this mean? Does it need to be signed by someone? (CalTrans? D.A? Public Works ? like some sort of a "Seal" ?)

    Thank you
    The famous 30 questions defense is posted here: http://helpigotaticket.com/speed/30questions.html. Obviously you'll have to tune the questions somewhat to the circumstances of your case, but the idea of this line of questioning is to cross-examine the officers in a way that shows your speed didn't really endanger anybody or anything. If you get lucky, the officer will testify that he just pulled your over for your speed, and you should move for dismissal at that point for insufficient evidence.

    As for not getting the copy of the officer's declaration, have you already served the informal discovery request (with the ofc's decl. being one of the requested items) on the citing agency/court/DA's office? It's getting awfully late for this, but file it ASAP if you haven't already.

    For what it's worth, see if you can get a continuance for the TDN date. If you have to see the judge for that, do so and argue that you need a continuance because the "imaging department" and the court is denying you access to documents you have a constitutional right to see and, furthermore, documents that are vital to to planning your defense. VC22350 is a violation that involves a subjective judgment from an officer, and your case would be prejudiced if you weren't allowed access to the document that describes the officer's cause for issuing the citation. Scheduling a formal deposition is a normal process for the more serious cases, but I can't imagine any appelate court ruling that this should be the case for speeding infractions as well.

    If the court denied you a continuance request based on the reasons above, you'd probably have a great case on appeal, but I can understand that not everyone is as hellbent on sticking it to this hopelessly corrupt system as most of the regulars on here are.

  5. #35

    Default Re: Should I Request a "Trial De Novo" and Go to Court

    Quote Quoting HonkingAntelope
    View Post
    The famous 30 questions defense is posted here: http://helpigotaticket.com/speed/30questions.html. Obviously you'll have to tune the questions somewhat to the circumstances of your case, but the idea of this line of questioning is to cross-examine the officers in a way that shows your speed didn't really endanger anybody or anything. If you get lucky, the officer will testify that he just pulled your over for your speed, and you should move for dismissal at that point for insufficient evidence.

    As for not getting the copy of the officer's declaration, have you already served the informal discovery request (with the ofc's decl. being one of the requested items) on the citing agency/court/DA's office? It's getting awfully late for this, but file it ASAP if you haven't already.

    For what it's worth, see if you can get a continuance for the TDN date. If you have to see the judge for that, do so and argue that you need a continuance because the "imaging department" and the court is denying you access to documents you have a constitutional right to see and, furthermore, documents that are vital to to planning your defense. VC22350 is a violation that involves a subjective judgment from an officer, and your case would be prejudiced if you weren't allowed access to the document that describes the officer's cause for issuing the citation. Scheduling a formal deposition is a normal process for the more serious cases, but I can't imagine any appelate court ruling that this should be the case for speeding infractions as well.

    If the court denied you a continuance request based on the reasons above, you'd probably have a great case on appeal, but I can understand that not everyone is as hellbent on sticking it to this hopelessly corrupt system as most of the regulars on here are.
    Ok. Good news and bad news. Good news is that I got the officers declaration. Bad news is that the trial is in 7 days AND he ended up quoting my sarcastic comments during the traffic stop. (I admit to doing this -- mostly out of situational/in-the-moment-anger, and not sure if it will adversely effect my case)

    TheHonkingAntelope, The following is the exact copy of the officer(s) declaration:

    Quote Quoting OFFICER'S DECLARATION

    Your Honor,

    On 2-12-2010 at approximately 1625 hours, I was working uniformed patrol for the City of Irvine in the County of Orange. On the date and time of the violation I was riding a marked Irvine police motorcycle and dressed in full police uniform. I have been a police officer for approximately 10 years.

    I have completed a 24 hour POST approved course in the use of Radar. I've also completed an 8 hour POST approved course in the use of a Lidar. I'm a certified operator of both of these pieces of equipment. As a component of this class, I also completed a vishual speed determination test where I was able to visually estimate the speed of a moving vehicle within 2.4 mph.

    I was parked on the right shoulder of Jamboree south of the Warner on ramp for the primary purpose of speeding violations. From my location, I have a clear and un-obstructed view of southbound traffic on Jamboree.

    The defendant, Luther Johnson, was in the #2 lane of southbound Jamboree accelerating past two vehicles in the #3 lane. Surrounding traffic was moving at a rate of speed I visually estimated to be 65 mph. Traffic was moderate at this time of the day due to the begining of the evening rush hour traffic. The posted speed for this area is 60mph. I visually estimated Johnson's speed to be 80 mph; using an LTI Lidar (Serial UXO1XXXX), last calibrated 1/18/2008, not due for calibration until 1/18/11). The Lidar initially confirmed a reading of 79 mph and locked in a reading of 77 mph at a distance of 712.0 feet. As I followed Johnsons Volkswagon, I watched him merge into the #3 lane southbound Jamboree Road and then cut across the #4 lane into a designated right turn lane to westbound Barranca Pkwy. Johnson cut off two vehicles as he made this unsafe lange change. I made an enforcement stop for speeding and an unsafe lange change on Johnson's Volkswagon.

    I contacted Johnson and explained the circumstances as to why I had stopped him. His first words to me were "Do you ever think we are just a revenue source for you?": Johnson continued to argue with me and denied speeding or making and unsafe lane change. I Issued Johnson a citation for CVC 22349(a) (Maximum speed 65MPH) only. As I issued him the citation, he became more argumentative stating, "You guys are just like a criminal street gang I have to pay. Do you know the definition of a criminal street gang?" Johnson continued to try to provoke me into an argument. I explained and encouraged Johnson to request a court appearance if he did not agree with the citation he received. His response was "I don't even believe in your system."

    Section 22349(a) CVC does not require a speed survey based on the fact this is the maximum speed limit on any roadway in California

    Respectfully,

    M. WrXXX #XXX

    I have a feeling I am screwed. Primarily because:

    1.) My primary argument was going to be on the basis of the basic speed law (22350?) and how I was simply going over the speed limit according to the flow of traffic and going any slower would have caused a safety hazard -- he mentions that he visually estimated the surrounding vehicles to be moving @ ~65 MPH

    2.) My sarcasm/questions at the time of the stop. Not sure if the judge will see this or not, but I WAS angry, and while I was not confrontational, I did ask him some -- what I thought would be some valid questions - at the time. (I was calm though) Not sure if this will make the judge frown upon my argument/case.

    3.) Unsafe lane change. I don't exactly remember this one, but he says I made a unsafe lane change also. If I did make an unsafe lane change, why did he not charge me with it? why is he bringing it up now? Whats his motivation behind this other than making me look even more guilty?

    4.) The LIDAR locked me in @ a speed of 77 MPH at a distance of 712 feet. I am not sure, but any mathematical arguments I can make behind this?



    I have my trial in about 7 days and as adviced by TheHonkingAntelope/EW, I will be following the 30 Questions and also going to attempt to base my argument on trying to follow the basic speed law at the expense of potentially creating a safety hazard for other drivers. That's all I can come up with at the moment.

    Any help would be appreciated.
    P.S: This will be my first court/trial -- so I am a little nervous as well

  6. #36
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    First of all, the 30 questions is for the ticket #2, since the 30 questions only applies to VC22350 citations. In general, the majority of VC22349a are virtually impossible to beat in a court trial, but yours might have a fairly technical technical defense and a SLIM shot at winning.

    1) Take a look at this thread where we had a rather lively discussion of cases such as yours where the defendant is cited for a max speed violation in a zone posted with a prima facie limit (as opposed the vast majority of VC22349 citations that are issued on freeways posted with the max speed). http://www.expertlaw.com/forums/show...8&postcount=10 I realize your trial is in 7 days, but what have you got to lose, really?

    2) Cops call that "flunking the attitude test." Make absolutely sure you dress up conservatively for court, and make sure to apologize for the attitude if the officer testifies to that as soon as it's your turn to talk. If the cops shows up and you lose the trial, you don't want both the cop and the judge hating your guts when you ask the court to let you attend traffic school.

    3) He mentioned those things as part of writing a complete and detailed description of what happened during the incident. An officer gets a lot of discretion on whether to cite a driver or to let them go for a certain offense. Considering your attitude, I'm surprised he didn't go ahead and scratch you up for both.

    4) Nope. When LIDARs were new, a good attorney had a decent chance of discrediting one in court, but right now most judges know and trust LIDARs way too much for any technical argument like this fly.


    I don't think you're completely screwed, but most VC22349a/b cases are pretty bleak to start with.

  7. #37

    Default Re: Should I Request a "Trial De Novo" and Go to Court

    Quote Quoting HonkingAntelope
    View Post
    First of all, the 30 questions is for the ticket #2, since the 30 questions only applies to VC22350 citations. In general, the majority of VC22349a are virtually impossible to beat in a court trial, but yours might have a fairly technical technical defense and a SLIM shot at winning.

    1) Take a look at this thread where we had a rather lively discussion of cases such as yours where the defendant is cited for a max speed violation in a zone posted with a prima facie limit (as opposed the vast majority of VC22349 citations that are issued on freeways posted with the max speed). http://www.expertlaw.com/forums/show...8&postcount=10 I realize your trial is in 7 days, but what have you got to lose, really?

    2) Cops call that "flunking the attitude test." Make absolutely sure you dress up conservatively for court, and make sure to apologize for the attitude if the officer testifies to that as soon as it's your turn to talk. If the cops shows up and you lose the trial, you don't want both the cop and the judge hating your guts when you ask the court to let you attend traffic school.

    3) He mentioned those things as part of writing a complete and detailed description of what happened during the incident. An officer gets a lot of discretion on whether to cite a driver or to let them go for a certain offense. Considering your attitude, I'm surprised he didn't go ahead and scratch you up for both.

    4) Nope. When LIDARs were new, a good attorney had a decent chance of discrediting one in court, but right now most judges know and trust LIDARs way too much for any technical argument like this fly.


    I don't think you're completely screwed, but most VC22349a/b cases are pretty bleak to start with.

    1.) I am confused on this one. I took a brief look @ People Vs. Studley (1996) and I am a bit more confused now -- how exactly does this case fit in my case? Do I have to check speed survey's and/or check if a speed trap was maintained at that location? Not sure how this fits in exactly. As for "..what have you got to lose, really?..." Is it possible for them to tack on EXTRA costs on top of my already-paid ticket? (IE: Court costs etc..) ? I'd hate this ticket to be EVEN more expensive than it is.

    2.). Got it. Should I only apologize *IF* the officer brings this up? (my attitude) and does the judge see the above mentioned Officer's Declaration? (even though its a new trial) If the judge sees the officer's quotes regarding my behavior I feel like the judge would prematurely decide the end result of the case.

    3.) Got it.
    4.) Got it. No technical defense.


    Thanks HonkingAntelope.

  8. #38
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    People v Studly bascally says that the defense is protected by speed trap laws even when charged with a max speed violation if there is a prima facie speed limit (i.e. 60mph on a multi lane hiway). There is more recent case law that contradicts Studley, but you can certainly argue Studley. I did it before and won. When the cop gets done testifying, you should move for dismissal because the prosecution has failed to make a prima facie case as per VC 40803b due to lack of a speed survey being presented. When the judge says surveys are not required in 22349 cases, that's when you produce a copy of studley. Give a copy to the cop and ask the bailiff to give a copy to the judge for you.

    It may not work, but if you are confident in your argument, it may.

    Good luck.

  9. #39

    Default Re: Should I Request a "Trial De Novo" and Go to Court

    TheHonkingAntelope/EWYLTJ: I *Sort of* get the premise of that argument, but I might need more help -- if you don't mind.

    So Basically, After the officer finishes testifying, I will simply say (without any cross-examination):

    Me: Your Honor, I move for dismissal because the presecution has failed to make a prima facie (I know it means "..at first sight.." , is it pronounced as PREEMA-FAH-SEE?) case as per VC40803(b) due to lack of a speed survey being presented.

    Officer/Judge: You are misinformed. A speed survey is NOT required in CVC 22349(a) cases.

    Me: Your Honor, consider People Vs. Studley .. It clearly says that (I am not sure what exactly to say here that will make me sound fairly logical -- I don't want to just parrot/read directly off of people vs. studley case paper)

    ** Also, Can I just print the case (People VS. Studley) off the internet and bring it to court? is that valid?

    I have another question, the officer (in his declaration) says:

    Quote Quoting Officer's Declaration
    ...Surrounding traffic was moving at a rate of speed I visually estimated to be 65 mph. Traffic was moderate at this time of the day due to the begining of the evening rush hour traffic. The posted speed for this area is 60mph. I visually estimated Johnson's speed to be 80 mph; using an LTI Lidar...
    The max speed limit (as posted by the highway/road AND written on my ticket) is 60 MPH. Few things I don't clearly understand:

    1.) The Officer says that he visually estimated the surrounding traffic to be moving at ~65 MPH.
    ** Aren't they technically BREAKING the law by going over the max speed limit of 60 MPH ? (which he mentioned/wrote on the ticket)

    2.) People's vehicle speed cannot be constant (Can it?? unless your on cruise control), So since its contantly varying/speeding up/down, how can the officer be sure about the surrounding traffic STILL moving at 65 MPH, if he had to STOP visually estimating the traffic, Pick up the radar gun, point it at me, then get a lock on my speed? You cannot visually estimate surrounding vehicles speed AND get a lock on my speed at the same time can you? That does not make sense. (ie: the surrounding vehicle(s) speed could have been faster during his radar speed lock -- especially the vehicle(s) in front and behind me)


    I am also wondering if the above mentioned points also (possibly) present a argument in addition (or on its own) to the People vs. Studley argument.

    Thanks, Really appreciate it.

  10. #40
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    I wouldn't even try your other arguments. They are all going to be rejected. I think you should stick to the studley argument. If the judge tells you that there is case law that overrides studley, you should ask the judge which case law he is refering to. If he can't tell you which case, then you should again state that you have presented case law that clearly demonstrates the prosecution didn't meet its burden and the prosecution has not provided any contrary evidence nor has the court shown that it has specific knowledge of any contrary case law.

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