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  1. #1
    Join Date
    Sep 2010
    Posts
    9

    Default Late Notice of Hearing

    I am so glad I found this thread...thanks for the guide, blewis! I have a question regarding something you wrote in Part III:

    If you decide to contest your ticket, this is where the fun (and work) begins. After you receive your court date notice, be sure to check to see if it is within the proper time frame. Be sure to carefully read through IRLJ 2.6. Here are the salient points:


    • Written notice must be sent within 21 days. See paragraph (2).
    • If a pre-hearing conference is scheduled, it must be at least 14 days from the day the notice is sent and within 45 days of the infraction. See paragraph (a)(1)(i).
    • The contested hearing must be at least 14 days from the day the notice is sent and with 90 days of the pre-hearing conference (in one is scheduled) or 120 days of the date of the infraction (if no pre-hearing conference is scheduled). See paragraphs (a)(1) and (a)(1)(ii).
    • If your hearing is outside these times, you can make a motion for dismissal. See paragraph (f).
    • As long as the delay is not YOUR fault. See paragraph (e).
    • However, before you can move for dismissal, you must first file a motion for a speedy trial – WITHIN 10 DAYS OF RECEIVING THE NOTICE. See paragraph (d).

    *********************

    I am contesting an infraction from the City of Tacoma. The infraction occurred on July 7, 2010. I requested a hearing (contesting the infraction) within the 15-day window. But I only received the hearing notice the other day (it is dated 9/8). This is way too late (not the hearing date itself, but the notice). My read of IRLJ 2.6 indicates the city has 21 days from my request to send me a Notice of Hearing.

    I'm thinking all I need to do is file a single Motion to Dismiss, since the issue is not the hearing date itself, but the timing of the Notice. Is that correct?

    Also, do you have any tips on actually filing the Motion? Never done this before...

    Thanks again!

    PS

    I am having trouble locating my copy of the original infraction. And even if I had a copy, there would be nothing on it to indicate that I mailed the original back on any specific date, requesting the hearing. Is this going to be a problem? I know for sure I mailed the form back within 15 days.

    If I move to dismiss, is the city just going to say, "Prove we didn't send your Notice of Hearing within 21 days?" What if they claim my request rattled around in the mail or whatever, justifying their late Notice? Do I ask for a copy of my Request for Hearing in the discovery process?

    I know for big cases everything is done registered mail and what-not, but does a municipal traffic court hold you to the same standards? Logically, since I'm required by law to request my hearing 15 days from the infraction, the court should be able to look at the timeframe and realize the city was late with the notice.

  2. #2
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Late Notice of Hearing

    First of all you must realize that there is NO remedy specified by law for a late notice. IRLJ 2.6 (2) simply states:

    Quote Quoting IRLJ 2.6
    (2) The court shall send the defendant written notice of the time, place, and date of the hearing within 21 days of the receipt of the request for a hearing.

    It DOES NOT say that failure to do so must result in a dismissal. In my own case about 6 years ago, the court failed to schedule the "pre-hearing conference" within the 45 day requirement. I moved for dismissal based on that, but the court said he didn't think the remedy was dismissal. I asked what the remedy would be. The judge said he didn't know, but it was NOT dismissal. So be prepared. It's a good idea to have a backup plan and more than one line of defense.

    You will have to make your motion at the time of the hearing. Just say, "Your Honor, I have a pre-hearing motion." If the court allows you, continue with, "I'd like to move for dismissal due to the fact that the court did not send the Hearing Notice within the 21 day time frame required by IRLJ 2.6 (2)."

    That may work, it may not, depending on the judge.

    As far as your other concerns, a call to the Clerk may be helpful. They should be able to send you another copy of your citation. They can also tell you WHEN they received your response and WHEN the Hearing Notice was actually sent.

    And, no, "certified mail" is RARELY used for "big" cases. Most attorneys use a carrier or delivery service -- you cannot take ANY chances.

    Barry

  3. #3
    Join Date
    Sep 2010
    Posts
    9

    Default Re: Late Notice of Hearing

    [QUOTE=blewis;456870]First of all you must realize that there is NO remedy specified by law for a late notice. IRLJ 2.6 (2) simply states:




    It DOES NOT say that failure to do so must result in a dismissal.

    Thanks! But did you see IRLJ 2.6 (4)?

  4. #4
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Late Notice of Hearing

    Yes, and how are you going to show "prejudice" that the court failed to send the notice within the 21 day time period?

    Barry

  5. #5
    Join Date
    Sep 2010
    Posts
    9

    Default Re: Late Notice of Hearing

    Well, I don't know. You mean the defendant has to show (prove?) "prejudice?" What does "dismissed upon a showing of prejudice" even mean when it's used that way? Here's the exact wording:

    "The infraction may be dismissed upon a showing of prejudice if the court does not send a defendant written notice of a hearing within 21 days of receipt of the request for a hearing."

    I agree with you that "showing of prejudice" is a necessary ingredient - I just have no idea what that means as a practical matter, including who has to do the "showing." Any idea?

    By the way, I took your advice and called the clerk. However, she could not tell me when my request was received, other than it was "timely." So, even if I waited until the fifteenth day, and allowing a whopping five mailing days in the mail, that still puts my request in the court's hands by 7/28. Counting 21 days forward, that puts 8/18 as the final day the court had to mail my Notice.

    The Notice I received says it was mailed 9/8 - 42 days after the latest possible date the court could have reasonably received my request. In my mind, except for not having a clue about the "prejudice" part, this timeframe obviously calls 2.6 (4) into action. Otherwise, what's it there for?

    Definition of PREJUDICE

    : injury or damage resulting from some judgment or action of another in disregard of one's rights; especially : detriment to one's legal rights or claims

  6. #6
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Late Notice of Hearing

    Yes, your definition of "prejudice" is correct. YOU must prove that the court's delay in sending the Hearing Notice has injured you, prevented you from presenting a defense, or in some way put you at a disadvantage. That is a VERY difficult thing to do.

    As I said, I'd simply move for dismissal pursuant to IRLJ 2.6 (2). If you get a good judge, you'll lose, but if you get a pro tem, who may not be intimately familiar with paragraph (4), you just might pull it off -- especially if there's no prosecutor. Which is why I said it may work, it may not.

    In any case, as I stated, it's best to have a multi-prong defense. Submit your Discover Request and post the materials you receive. Several folks here have a good eye for finding "discrepancies" that lead to dismissals.

    Barry

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