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  1. #51
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    [HA]Replies inline...

    @HonkingAntelope: Hey! Seems like I just have bad bad luck with cops these days.

    **update:

    I followed your advice and simply wrote "I am not guilty" on my TBWD on my 22350 violation. The officer submitted his declaration on august 3rd and I just picked up a copy of it today. Here it is:

    "**I issued xxx the citation # xxx for traveling at an unsafe speed for conditions in violation of CVC22350. The speed of 61 mph is unsafe because xxx is traveling at a freeway speed on a city roadway and passing an extremely busy commercial strip mall with 5 unregulated entrances to west bound street. The high number of speed related accidents. No stopping signs posted on both sides of [street] and limited distance between signals.
    **"

    Few questions/thoughts related to this case

    1.) Would the standard 30-question(s) work on this case considering that :
    a.) The officer has a *pretty* good sounding argument to present in court
    b.) He's been a cop since 1993 = LOTS of experience. = Bad for me

    [HA]A rebuttal for this one would be difficult in any case, but you'll at least have a better chance if you prepare well and prepare ahead of time. A few points to consider... The ofc's testimony, if he shows up, will follow his declaration quite closely, if not word-by-word.

    [HA]All of it serves to just sell the conviction, but it can be used to your advantage. For example, the guy wrote "The view from this location has no obstructions for 1250 feet. The weather was clear with light traffic" He's just trying to prove that there's absolutely NO WAY he could've mistakenly nailed someone else's car because his hands were shaking from drinking a fifth of vodka the night before. He won't even bother to mention that it was broad daylight, there was not a single other vehicle in the vicinity, and the fact that the driver of the "speeding" vehicle must have had at least a quarter of visibility, which MIGHT have made it safe to travel at 15mph above the posted limit. It is up to you, as the defending attorney to cast the reasonable doubt.

    [HA]Likewise, 61mph as freeway speed doesn't pass muster, either. No one in their right mind drives at 61 mph on the freeway when the traffic is light. Besides, unregulated entrances are readily apparent to any driver who is not driving under some serious influence, and would be particularly known to anyone who lives in the area or drives on that street regularly.

    [HA]It's possible that the officer personall wrote up a bunch people for rear-end accidents and now goes around claiming there is an epidemic of speed-related crashes, but otherwise "The high number of speed related accidents" is hearsay. It's worth calling him out on it, in any case. If there really was an unusually high accident rate recorded by the speed survey, it would have listed as a justification for reducing the limit to 40mph as opposed to the current limit of 45mph suggested by the critical speed of 46.9mph.

    2.) The spot that I was clocked in at 61 is a DOWNHILL segment of road that comes in directly from the freeway -- and in my opinion it was perfectly safe to travel at that speed due to light traffic / road conditions. Perfect spot for catching speeders also.

    [HA]One could also argue that it takes a very attentive driver to keep the speed under control on a downhill grade

    3.) The OFFICER might have made a mistake on the cover page of his declaration.. the "The offense(s) were NOT committed in my presence" box is checked. Doesn't this statement CONTRADICT EVERYTHING he's said? (How can you describe the incident if it was never commited in your presence??)-- my guess is that the judge is going to overlook this and find me guilty, then when I declare a "Trial De Novo", this technicality (if it is even one) will be completely ignored since it is indeed a "New Trial"

    [HA]You probably won't get an outright dismissal from it, but you might be able to get a good shot or two out of it to chip away at his credibility.

    4.) Lastly, What are my options guys? do I have a shot at this? I got anally-raped last time I was in court, not to mention the judge RAISED the price. This ticket already cost $418 and I'd HATE to have it increased even further.

    [HA]Did you file an appeal?

    Unrelated-News:

    I got ANOTHER ticket 2 weeks ago for not completely stopping at a stop sign. The fine was a whopping $310. This was 7:15 in the morning WITH NO CARS etc. Ridiculous. Anything I can do to fight this thing?
    , I just renewed my insurance also but I did not see a rate increase ? Is it going to effect my next renewal?

    [HA]I would recommend starting to pay more attention to your driving habits and, more importantly, vehicles/bikes painted black and white with red/blue lights on them around you.

    As always: thanks for the info.

  2. #52
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    Feb 2010
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    609

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

    huh. I've been able to file for discovery.

    Had I not been provided the items I requested, then I'd make sure at trial I created the argument that 'I asked for it, they were required to provide it, without it I am unable to mount my defense..I move for dismissal...I request the judge require these items be provided...and finally I object to the judge refusing my request"

    Then I'd appeal.

    The judge knows you are harmless and he can run you over and ignore the law. If, on the other hand, someone who knows what they are doing sets a 'trap' for him- creates a situation where he would risk a reversal on appeal- he will listen... or more likely just dismiss the case and move on to the next sucker. In my last case the judge got seriously annoyed when he realized I had proven the case and he could not say 'guilty'.

    I've lost track of your tickets...is it two or three we are discussing in this thread? Start a new thread... all the usually stuff applies..what you said, what he said, where, diagram, etc, etc

    A

  3. #53

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

    Quote Quoting adam_
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    huh. I've been able to file for discovery.

    Had I not been provided the items I requested, then I'd make sure at trial I created the argument that 'I asked for it, they were required to provide it, without it I am unable to mount my defense..I move for dismissal...I request the judge require these items be provided...and finally I object to the judge refusing my request"

    Then I'd appeal.

    The judge knows you are harmless and he can run you over and ignore the law. If, on the other hand, someone who knows what they are doing sets a 'trap' for him- creates a situation where he would risk a reversal on appeal- he will listen... or more likely just dismiss the case and move on to the next sucker. In my last case the judge got seriously annoyed when he realized I had proven the case and he could not say 'guilty'.

    I've lost track of your tickets...is it two or three we are discussing in this thread? Start a new thread... all the usually stuff applies..what you said, what he said, where, diagram, etc, etc

    A
    Interesting.

    @HonkingAntelope:

    1.) You are correct. (at least based on my limited experience) Most officer(s) DO READ word for word from his/her previous declaration.

    2.) ""The high number of speed related accidents" is hearsay--call him out on it..": If he mentions this in court, how exactly do I call him out? Do I say something like "Do you have a certified document and or traffic survey that confirms that statement? or is this your personal opinion?"

    3.) "..You probably won't get an outright dismissal from it, but you might be able to get a good shot or two out of it to chip away at his credibility..."

    Alright -- lets say he mentions this. How exactly can I chip away at his credibility? (maybe something like: Officer, on your declaration, you mentioned that the very violation you cited me for was never commited in front of you -- is this correct? OH a mistake? You say you've been a officer since 1993 but you signed under oath with incorrect information?) -- and if he *does not* bring this up, am I allowed to bring it up in court even though it is a "new trial" ?

    4.) "Did you file an appeal.."

    Negative. On what basis? AFAIK, I have NOTHING. No argument. and even if I do, doesn't it cost extra money ? (which I do not have at the moment)

    5.) "..I would recommend starting to pay more attention to your driving habits and, more importantly, vehicles/bikes painted black and white with red/blue lights on them around you..."

    Yea -- I don't want to sound like a guy who rationalizes his actions, but in my humble opinion/personal experience, I did not, nor did I potentionally harm any person(s) or property and I was pretty attentive and aware of my surroundings -- and like most people I was punished for it. Is it just me who thinks most of these idiotic "laws" are PERFECT revenue extractors and has nothing to do with safety? Maybe. But your right -- I cannot afford to "fight" for my principles at the moment

    6.) "..A rebuttal for this one would be difficult in any case, but you'll at least have a better chance if you prepare well and prepare ahead of time..."

    Alright, how can I "prepare well" for this? All I can think of is to study his declaration and memorize the 30 questions and try to torpedo his argument in court...and the biggest one for me would be keeping my nerves cool during my questioning/testimony etc.

    Thanks again for your help -- it's appreciated.

    @ Adam:

    1.) So you are saying that even if I file a "discovery request" and do not get anything back (ie: completely ignored) -- I am actually "setting up a trap" ? (this is also asumming that the judge ignores my 'requests')

    2.) "..Having no stopping signs on the road INCREASES the safety.." Great Point. I am going to keep an eye out for this one. I am also going to keep an eye out for "..limited distance between signals.." being dangerous.


    3.) I have not done a "discovery request" before -- how exactly do I do it? (Can I just use a "Laser/Radar" template from: http://www.helpigotaticket.com/proc/discover.html)

    Then simply list out these things on the discovery request:
    - Accident frequency,
    - light timing data
    - traffic data
    - engineering studies

    ...then who do I "address it to.." ? Do I simply go to the clerk and say, "I'd like to file this discovery request"


    4.) "I've lost track of your tickets...is it two or three we are discussing in this thread?.."

    I am a cop magnet -- mostly because of my smart mouthing/asking questions from cops, so apologies for the confusion But to answer your question, we are discussing only 2 tickets. (#1 is done), #2 is in progress --> 22350 citation that I am about to file "trial de novo" on.. I would love to get any techniques on beating my 3rd -- unrelated, "not coming to a complete stop" ticket if you have any tips though.


    Thanks for the help. Appreciate it!

  4. #54

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

    Quote Quoting Luther12
    View Post
    Interesting.

    @HonkingAntelope:

    1.) You are correct. (at least based on my limited experience) Most officer(s) DO READ word for word from his/her previous declaration.
    Police officers, or any witness for that matter, are not allowed to read directly from their notes or any written material as they testify. They are expected (at least in the eyes of the law) to have an independent recollection of the incident. They may look at notes to refresh their memory (if they lay the proper foundation and those notes are admissible) but then they have to put them away and testify without reading.

    Realize that virtually no traffic court judge will prevent an officer from reading from their notes unless there is an objection. That's why as soon as you see the officer starting to read from anything, you need to object. First, the officer needs to lay the proper foundation as to what he is reading from. Next, he needs to state that he can't testify without refreshing his memory. Only then can he look at his notes, refresh his memory, and testify. BUT he can not still be looking at his notes while he is testifying. He has to look at them, put them down so he can't see them, and then continue testifying. At least that's the way it's supposed to work.

    Now even with making the officer testify in this way, you still probably won't be able to completely torpedo his case, but it will make his testimony much less fluid and professional sounding and he might forget something or misstate the facts. Then you can pounce on that.

    Also, I'm not sure if he can ever read from something he wrote later on and that was not written at the time of the incident. I believe that writings, to be admissible, must be written contemporaneous to the event, not written days, weeks or months later (like his TBWD statement) when the witness's memory of the event might be faulty. I don't have time right now to supply you with all the references to this, but you should be prepared for this before you go to trial.

  5. #55
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    If you believe something is heresay, a legal conclusion or otherwise objectionable, then do not wait for your cross; raise the objection immediately after the statement is made by the witness or document is put for an exhibit as evidence or as you see the desire.

    After you have cross-examined & the state re-directs & then rests; verbally file a motion for aquittal or summary judgment before you begin your case. Give the reasons for the motion .. I generally state what the state did not prove X & say why they did not prove X (lack of testimony supporting the claim etc.) and then they did not prove Y etc. (all the elements of the case they need to prove (that the SMD is accurate, the cop was trained well enough, etc.). The judge will rule in your favor or not & may give you hints as to the weakness of one of the elements ..... if you do not win at this time, the likelihood of winning is small.

    If they try to introduce a certificate of calibration regarding any SMD, object to it being admitted. Reasons could include: a) a sufficient foundation was not laid for its introduction (ie not enough testimony in respect to it as a business record, etc ... normally documents need the person who wrote it to testify but the business record exemption is almost always used ... the cop simply cannot state that they keep it in the course of business - read up on your state's business record foundation requirements) b) that the person who authored the cert. of cal. needs to testify due to SCOTUS ruling melendez-diaz v. st. of Mass - insist that the ruling covers the document (judges will try to stare you down on this but be confident) - I guarrantee you the state of CA does not want an appellate case on this, all such documents used at trial which have gone to upper courts have had the courts require the author's testimony. If they try to bring it in under another exemption then object to its relevance. If you asked for it in discovery, object that it would be surprise to have it entered as you have not had the opportunity to have an expert review the document & you would like to have an expert testify in your defense in respect to this document. c) object that the specific SMD has not been given judicial notice to your knowledge & any documents should not be admitted into evidence without such notice or testimony from the company.

  6. #56

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

    Alright guys, I need some advice here.

    I went to court several days ago and, (surprise surprise) the judge found me guilty. While my delivery and "cross examination" skills are that of a toddler (I've only been to court twice, so I am still a bit nervous), I felt that I made a decent case. I also believe that another major reason I lost was because I *assumed* that the judge was paying attention to what CVC22350 and CVC22351(b) (I brought this up also) related to the officers testimony (which had many obvious holes that were ignored by the judge--I felt)

    I Used the "30-Questions" format in this trial as I was fighting CVC22350. I also recorded the whole trial (audio) so you can actually listen to the case when evaluating this case. Download audio recording here: http://bit.ly/cA9Tvd (Click on "Save Recording To Computer")

    Anyway, here are some things I noticed:

    1.) The officer was reading DIRECTLY from his previous declaration
    * As a sidenote, the "These Offenses Were NOT commited in my presence" check box was CHECKED on the inital TBWD yet the judge ignored it.

    2.) When I asked the officer : "Was there anything inherently unsafe about the visibility at the speed at which I was traveling?" he replied "NO" --- but when I asked him the same question again several minutes later "Officer, did you not testify that there was nothing inherently unsafe about the visibility at the speed at which I was traveling" he replies "No that is NOT correct" --- contradiction? Judge didn't think so.


    3.) I also asked him "Did you not testify that I was in control of my vehicle and I was not in danger of swerving or hitting a pedestrian" and he replied "NO, those are your words" when several minutes ago he answered to the contrary. -- again, judge didn't think so.


    4.) The officer testified that:
    "I was not in danger of hitting any vehicles, pedestrians and I was in complete control of my vehicle" -- yet when asked if I was endangering any property at the speed at which I was traveling, he promptly responded "Yes" HUH?


    6.) The officer did not even have the correct license plate! When I brought this up, the judge obviously ignored that as well.

    Ok..few obvious and rookie mistakes on my behalf:

    - I don't think I was aggressive enough, even with the judge. The judge at one point said something along the lines of "The officer does not have to understand the law to enforce it" HUH?

    - I went on tangents and focused in irrelavant details. I mentioned the incorrect license plate and how the "No Stopping Anytime" signs actually increase the safety as the motorist is not forced to suddenly come to a complete stop. While I felt like these minute details would have helped, it actually hurt by pushing back what was really important: The officer's testimony and how HE LITERALLY said I was traveling in a safe manner and in complete accordance with CVC22350 and CVC22351(b).

    - I assumed that the judge knew the law. Listening back to the trial, the judge is SPECULATING about what 22351(b) ("...hmm that must mean you need a traffic engineer etc) is about and due to the obvious illusion of authority : I failed to question him about this. (He was a Commisioner, is that the same as the judge?)


    My biggest and only question is that, based on all these facts (and the audio recording of the actual case): Do I have a case for an Appeal? , the other question is that, the only thing preventing me from doing an appeal (if it is possible)---is money (which I lack at the moment). So, naturally my second question is: Are there any costs/additional fines for losing an appeal (or other negative consequences)


    As long as there are no additional costs attached to losing (or even filing) an appeal, I'd be happy to go through with an appeal. Also, from what I understand, it is a bit more complicated to file/go through than a TBWD?

  7. #57
    Join Date
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    Quote Quoting Luther12
    View Post
    1.) The officer was reading DIRECTLY from his previous declaration
    I didn't hear you object to that... Did you? But even if you had objected, I'm not sure it would have gotten you any farther than you got!

    Quote Quoting Luther12
    View Post
    * As a sidenote, the "These Offenses Were NOT commited in my presence" check box was CHECKED on the inital TBWD yet the judge ignored it.
    You didn't mention that either, did you... But even if you did, the officer's declaration is irrelevant at the Trial De Novo... So any errors that were made there have no bearing on the final outcome in the NEW trial!
    Quote Quoting Luther12
    View Post
    2.) When I asked the officer : "Was there anything inherently unsafe about the visibility at the speed at which I was traveling?" he replied "NO" --- but when I asked him the same question again several minutes later "Officer, did you not testify that there was nothing inherently unsafe about the visibility at the speed at which I was traveling" he replies "No that is NOT correct" --- contradiction? Judge didn't think so.
    There was no contradiction. The officer testified to two elements that may have affected visibility... Reduced visibility due to weather (and his testimony indicated that weather (which was clear at the time) had no effect on visibility), and reduced visibility due to the curvature of Alicia Pkwy on the stretch where the violation occurred. The latter, contributed to his conclusion that your speed (which IMHO he properly established as being in excess of the 45mph prima facie limit), was unsafe and/or imprudent.

    Quote Quoting Luther12
    View Post
    6.) The officer did not even have the correct license plate! When I brought this up, the judge obviously ignored that as well.
    I'm not sure how relevant that is. There was obviously no doubt that the officer properly identified you as the driver at the time. So while you did in fact mention the license plate issue, the most that could have happened would have been for the judge to ask the officer to confirm the correct license plate number for the record, and that issue would have been resolved.

    Quote Quoting Luther12
    View Post
    - I don't think I was aggressive enough, even with the judge.
    For future reference, getting "aggressive" with a judge is not a great idea... In fact, and while listening to the recording, you interrupted the judge on quite a few occasions and I was surprised that he did not admonish you in some way.

    Quote Quoting Luther12
    View Post
    The judge at one point said something along the lines of "The officer does not have to understand the law to enforce it" HUH?
    That is not what was said. At first, you asked the officer to recite 22350, and he said "if I had it in front of me I would"... Then you moved on to 22351(b) and asked the officer to read and interpret 22351(b) and the judge explained to you that you were cited for 22350 and NOT 22351(b), and therefore, the officer did not have to interpret or understand that particular code section in that his testimony did not rely on him having to read/understand/interpret or prove any portion of 22351(b).

    Speaking of 22351(b), it is clear that you don't understand what it means. You spent an inordinate amount of time trying to get the officer to qualify his testimony as being "competent" or not.

    22351(b) has nothing to do with the officer being competent or with is testimony constituting "competent evidence". 22351(b) states that as long as the officer is able to establish that you were driving in excess of the prima facie speed limit (the 45mph limit) the IT IS YOUR BURDEN TO PROVE BY COMPETENT EVIDENCE THAT YOU SPEED WAS NOT IN VIOLATION OF THE BASIC SPEED LAW. And like the judge asked you, "what competent evidence do you have that shows that your speed was not in violation?" at which time you went back to the officer and his testimony and whether it was "competent" or not...
    Quote Quoting Luther12
    View Post
    My biggest and only question is that, based on all these facts (and the audio recording of the actual case): Do I have a case for an Appeal? , the other question is that, the only thing preventing me from doing an appeal (if it is possible)---is money (which I lack at the moment). So, naturally my second question is: Are there any costs/additional fines for losing an appeal (or other negative consequences)


    As long as there are no additional costs attached to losing (or even filing) an appeal, I'd be happy to go through with an appeal. Also, from what I understand, it is a bit more complicated to file/go through than a TBWD?
    There are no additional costs/fines associated with this type of appeal. However, I think the judge gave you a lot of leeway, he even went as far as to read and interpret the code sections to you, he went over the same questions that you had asked of the officer, and gave you the opportunity to expand on your questions and make a plausible argument... Which you obviously failed to do.

    So, based on what I read in your post and heard on that recording, I am not too optimistic that you would succeed. In other words, and just because you don't like the verdict does not mean that you have proper/sufficient ground for an appeal. But, you're free to invest the time and effort into it if you feel otherwise.

  8. #58

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

    Quote Quoting That Guy
    View Post
    I didn't hear you object to that... Did you? But even if you had objected, I'm not sure it would have gotten you any farther than you got!


    You didn't mention that either, did you... But even if you did, the officer's declaration is irrelevant at the Trial De Novo... So any errors that were made there have no bearing on the final outcome in the NEW trial!

    There was no contradiction. The officer testified to two elements that may have affected visibility... Reduced visibility due to weather (and his testimony indicated that weather (which was clear at the time) had no effect on visibility), and reduced visibility due to the curvature of Alicia Pkwy on the stretch where the violation occurred. The latter, contributed to his conclusion that your speed (which IMHO he properly established as being in excess of the 45mph prima facie limit), was unsafe and/or imprudent.


    I'm not sure how relevant that is. There was obviously no doubt that the officer properly identified you as the driver at the time. So while you did in fact mention the license plate issue, the most that could have happened would have been for the judge to ask the officer to confirm the correct license plate number for the record, and that issue would have been resolved.


    For future reference, getting "aggressive" with a judge is not a great idea... In fact, and while listening to the recording, you interrupted the judge on quite a few occasions and I was surprised that he did not admonish you in some way.


    That is not what was said. At first, you asked the officer to recite 22350, and he said "if I had it in front of me I would"... Then you moved on to 22351(b) and asked the officer to read and interpret 22351(b) and the judge explained to you that you were cited for 22350 and NOT 22351(b), and therefore, the officer did not have to interpret or understand that particular code section in that his testimony did not rely on him having to read/understand/interpret or prove any portion of 22351(b).

    Speaking of 22351(b), it is clear that you don't understand what it means. You spent an inordinate amount of time trying to get the officer to qualify his testimony as being "competent" or not.

    22351(b) has nothing to do with the officer being competent or with is testimony constituting "competent evidence". 22351(b) states that as long as the officer is able to establish that you were driving in excess of the prima facie speed limit (the 45mph limit) the IT IS YOUR BURDEN TO PROVE BY COMPETENT EVIDENCE THAT YOU SPEED WAS NOT IN VIOLATION OF THE BASIC SPEED LAW. And like the judge asked you, "what competent evidence do you have that shows that your speed was not in violation?" at which time you went back to the officer and his testimony and whether it was "competent" or not...


    There are no additional costs/fines associated with this type of appeal. However, I think the judge gave you a lot of leeway, he even went as far as to read and interpret the code sections to you, he went over the same questions that you had asked of the officer, and gave you the opportunity to expand on your questions and make a plausible argument... Which you obviously failed to do.

    So, based on what I read in your post and heard on that recording, I am not too optimistic that you would succeed. In other words, and just because you don't like the verdict does not mean that you have proper/sufficient ground for an appeal. But, you're free to invest the time and effort into it if you feel otherwise.
    Wow... Fair Enough. Looks like I totally F"ED it up --- I suppose I will quit and let go of this one. Bye bye $400+

  9. #59
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    Default Re: Should I Request a "Trial De Novo" and Go to Court

    If you got an answer that was favorable to you (Q2), why in earth would you ask him again??? And you did not ask him if he witnessed the event (he said no in his paperwork)? Did you have a prepared list of questions written down & reviewed it before trial? Thats what likely killed your case. Tough 400 buck lesson. The errors made in his verified statement can come back to haunt him in a new trial - its still a prior statement that conflicts with a new statement. I would do a trial de novo ... start cross with questions/answers that will allow you grounds to strike his testimony & ask that his testimony be stricken upon each instance. And his current testimony can be used against him in court. So, if you have his transcript available it may be helpful to you. Might cost 50 bucks to get...if one is available

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