Page 1 of 5 1 2 3 ... LastLast
Results 1 to 10 of 44
  1. #1
    Join Date
    Sep 2011
    Posts
    26

    Default Traffic Court Motion to Dismiss

    My question involves a traffic ticket from the state of: California

    I was stopped on a state route in July by a CHP officer for speeding. The officer claimed that I was going 85 mph on a 65-mph-posted-limit highway in violation of CV 22349(a).

    Several weeks later, I received the Courtesy Notice from the court which has jurisdiction of my case. At the end of August, I walked in to the court for arraignment. At the hearing, the judge read all of the rights we as violators are entitled to and called each one of us to plea. When it was my turn, I plead 'not guilty' and then was instructed to sit on a bench on the side while my next trial date was being set. Soon after, the court's clerk called me and handed me a paper indicating my trial date. I left for home afterward.

    One day while preparing my defense and staring at the paper containing my trial date, I got a big surprise -- the trial is set exactly 50 days since arraignment. This is definitely a violation of my right to speedy trial which calls for a public trial within 45 days of arraignment. I can't believe it! Can the court be so inept that it would schedule my trial beyond 45 days? I tried to remember all the things that happened and said inside the court at the time of my arraignment. I couldn't remember being asked or agreeing to waive time for trial. My concern though was that I didn't object against the date given to me, but of course, I still didn't realize it at that time.

    Now, my questions are: Can I file a motion to dismiss on the ground that my right to speedy trial is violated and denied? If so, when is the best time to file the motion? Is it before the trial (in written form) but after the 45-days-cutoff, or at the trial (verbally, at the beginning)?

    This is a current case, and I appreciate your immediate feedback.

    M.Q.

  2. #2
    Join Date
    Aug 2011
    Location
    South-Central Cali
    Posts
    1,274

    Default Re: Planned Motion to Dismiss

    Can it be so inept? Sure.
    Can you move to dismiss? Yes.
    Best bet is verbal motion at beginning of trial. BEFORE you are sworn in, raise your hand and say "Your Honor, I would like to make a motion". Some judges will want you to take the oath anyway. Then you can say "I move to dismiss for lack of a speedy trial. " That should be all that is needed, the judge will verify the 50 days via clerk and you should be on your way.

  3. #3
    Join Date
    Aug 2011
    Location
    South-Central Cali
    Posts
    1,274

    Default Re: Planned Motion to Dismiss

    Quote Quoting M.Q.
    View Post
    I couldn't remember being asked or agreeing to waive time for trial.
    If you're not 100% sure you didn't agree to waive time, go to the clerk (if possible) on or after day 45 and double-check so that you're not left without a backup defense if the judge claims there was a waiver.

  4. #4
    Join Date
    Sep 2011
    Posts
    26

    Default Re: Planned Motion to Dismiss

    Thank you quirky for your response!

    While it is comforting that I have this option (the move to dismiss), I am still anticipating other possibilities and preparing my defense. What if the judge deny my motion due to the fact that I did not object when the date was being set or right after I received the paper containing the date of the trial (is that called "special waiver" due to my non-objection?)? That is where my concern lies.

    Anyway, I still sent informal requests of discovery to both the city attorney and the CHP, and furnished copy to the court, in case my motion to dismiss is not granted.

    Here is a brief timeline and background history of my history:

    7/19/11 - stopped by a CHP officer, cited for violating VC 22349(a), running 85mph on 65-mph-limit highway.
    Answers given to officer appear incriminating if not outright admission of guilt. The officer didn't write on the ticket how he determined
    my speed, but apparently he paced me. This is my first speeding ticket.

    2nd week of 8/11 - Courtesy Notice arrived in the mail.

    8/24/11 - Walked in to court and attended an arraignment hearing. A paper setting the date of trial was handed to me by the clerk. The trial date is
    set on 10/13/11. Accepted the paper (without objection) and walked away.

    last week of 8/11 - Realized the trial date was 50 days from arraignment in clear violation of my right to
    speedy trial.

    9/2/11 - sent discovery requests to city attorney and the CHP concerned with a copy to the court. Ask the following:
    a.) a copy of the reverse side of the officer's Notice to Appear and other notes
    b.) names & addresses of possible witnesses
    c.) calibration records for the speed detection equipment used by the officer, including the repair
    and maintenance records and manufacturer's manual and specifications, as well as the tuning
    fork's certificate of accuracy.
    d.) the speedometer calibration certificate, repair and maintenance records of the patrol car used.
    e.) a copy of the arrest record of the CHP officer and his daily observation logs on the day of
    my alleged offense and in the previous three months
    f.) an engineering and traffic survey

    I'll provide further details of my case as it progresses (or when my discovery requests are answered).

  5. #5
    Join Date
    Sep 2011
    Posts
    26

    Default Re: Planned Motion to Dismiss

    Thank you again quirky for your advice. It is indeed good idea to check with the clerk if there is a waiver.

    I'm really glad to find this forum as this is my first time to contest my very first speeding ticket. I feel now I'm not alone in this fight. Hoping for a dismissal..

  6. #6
    Join Date
    Sep 2011
    Posts
    26

    Default Re: Planned Motion to Dismiss

    Quirky, with regards to your advice to check with the clerk, which clerk should I go to? Should I approach the clerk that actually handed me the paper inside the courtroom (this is the clerk that is usually partnered with a specific judge) or any other clerk like those manning the windows and receiving payments, documents, and whatnot?

    What question(s) should I ask the clerk? Should I say: "My trial date was scheduled on 10/13, exactly 50 days since my arraignment. I didn't waive time for trial neither did I agree to such a waiver. Is the judge claiming a waiver for my trial?" With that questioning though, shouldn't I be giving up/revealing my strategy (i.e. to file a motion to dismiss) to the clerk, and therefore to the judge as well, and losing my opportunity to surprise them. They might then claim a waiver when in fact I didn't consent to it.

    This is really complicated, but I appreciate your feedback.

  7. #7
    Join Date
    Apr 2009
    Location
    SF Bay Area
    Posts
    625

    Default Re: Planned Motion to Dismiss

    Want to scan a copy of your paper with the court date on it and post it here if you still have it?

  8. #8
    Join Date
    Aug 2011
    Location
    South-Central Cali
    Posts
    1,274

    Default Re: Planned Motion to Dismiss

    ^^^ What HA said. Post a copy on imageshack if possible.

    Quote Quoting M.Q.
    View Post
    While it is comforting that I have this option (the move to dismiss), I am still anticipating other possibilities and preparing my defense. What if the judge deny my motion due to the fact that I did not object when the date was being set or right after I received the paper containing the date of the trial (is that called "special waiver" due to my non-objection?)? That is where my concern lies.
    The California Penal Code (PC) section discussing dismissal in case of lack of a speedy trial is PC 1382. It allows exceeding 45 days if the defendant enters a "general waiver", requests a later trial date or consents to a waiver, express or implicit. The important part for you however, is subsection (c):

    Quote Quoting CA PC 1382(c)
    (c) If the defendant is not represented by counsel, the defendant
    shall not be deemed under this section to have consented to the date
    for the defendant's trial unless the court has explained to the
    defendant his or her rights under this section and the effect of his
    or her consent.
    Thus, unless the court explained to you your right to a speedy trial AND said something to the effect of: "If you don't object to the trial date we're giving you, you're implying consent to waive your right to a speedy trial", you have not waived your rights.

    To be more specific and perhaps jog your memory about what happened at arraignment, we can look at the sample arraignment script from the CA Judicial council for pro-tem judges:
    Quote Quoting Sample Arraignment Script for Pro-Tem Judges
    To have your case tried within 45 days if you plead not guilty, unless you waive this right. If you do not waive this right and your case is not tried within 45 days, all charges against you must be dismissed.
    or, alternatively, the Traffic Proceedings Bench Guide, a more solid reference:

    Quote Quoting Traffic Proceedings Bench Guide, PDF page 7, Checklist for Arraignment Calendar
    (1) Call the calendar.
    (2) Advise the defendants of their constitutional rights, i.e., the right
    to be represented by an attorney, to cross-examine the arresting officer
    and any other prosecution witnesses, to subpoena witnesses to testify on
    the defendant’s behalf, to refuse to testify, to have a trial within 45 days of
    the arraignment, and to have a jury trial in a misdemeanor case.
    (3) Call the first group of defendants forward, and ask the first
    defendant to step up to the podium.
    (4) Inform the defendant of the charge, and ask the defendant how
    he or she wishes to plead.
    (5) If the defendant pleads guilty or no contest, impose sentence,
    assuming the defendant has waived time for sentencing.
    (6) If the defendant pleads not guilty, ask the defendant if he or she
    waives time for trial. If not, set the case for trial within 45 days.
    Quote Quoting M.Q.
    View Post
    7/19/11 - stopped by a CHP officer, cited for violating VC 22349(a), running 85mph on 65-mph-limit highway.
    Answers given to officer appear incriminating if not outright admission of guilt. The officer didn't write on the ticket how he determined my speed, but apparently he paced me. This is my first speeding ticket.
    ...
    9/2/11 - sent discovery requests to city attorney and the CHP concerned with a copy to the court. Ask the following:
    a.) a copy of the reverse side of the officer's Notice to Appear and other notes
    b.) names & addresses of possible witnesses
    c.) calibration records for the speed detection equipment used by the officer, including the repair
    and maintenance records and manufacturer's manual and specifications, as well as the tuning
    fork's certificate of accuracy.
    d.) the speedometer calibration certificate, repair and maintenance records of the patrol car used.
    e.) a copy of the arrest record of the CHP officer and his daily observation logs on the day of
    my alleged offense and in the previous three months
    f.) an engineering and traffic survey
    Couple of FYI. If you're not sure you were paced, post a redacted copy of the ticket on imageshack, etc. and we can help you figure it out. Re your discovery request, the survey (f) is of no use for a max speed (22349a) citation, it only comes into play on 22350. (c) is also irrelevant if radar wasn't used. The CHP will hopefully send you some of what you asked for.

    Since you said your answers are incriminating, you should have asked for a copy of any audio/video recordings in discovery. Anyway, hopefully this is all moot since your case should be dismissed.

    Quote Quoting M.Q.
    View Post
    Quirky, with regards to your advice to check with the clerk, which clerk should I go to?
    Here's the important part: do not go before the 43rd day or so. You will have to wait in limbo till then, sorry! At that point, you can go to the regular clerk and say you noticed that your trial was scheduled past 45 days, and you did not agree to a waiver...what happens now? The clerk (or someone in the office) will tell you if they have a waiver, or they will tell you how to get a dismissal.

  9. #9
    Join Date
    Sep 2011
    Posts
    26

    Default Re: Planned Motion to Dismiss

    Sorry for the delay in posting this reply. It was my first time to use ImageShack. I also didn't know how to insert or attach a scanned document.

    After several attempts, I finally managed to attach them. Here they are:









    I hope this helps..

  10. #10
    Join Date
    Aug 2011
    Location
    South-Central Cali
    Posts
    1,274

    Default Re: Planned Motion to Dismiss

    Quote Quoting M.Q.
    View Post
    Sorry for the delay in posting this reply. It was my first time to use ImageShack. I also didn't know how to insert or attach a scanned document.
    Actually, please also include the link(s) to your folder -- the attached images are much smaller and harder to read than the originals!

    On the traffic docket, the TW box is NOT checked. I assume this means Time Waived, and that time was NOT waived in your case. My best guess is that the remaining boxes stand for AW: Arraignment Waiver (presumably when you have your lawyer present instead of you), JW: Jury trial waiver (for misdemeanors) and TWS: Time Waived for Sentencing.

    So it appears that you have a document, whose original is on file with the court, which shows you DID NOT waive time and the trial was still scheduled past the 45-day limit. This is almost certainly a dismissal, unless you encounter a judge like this guy from 2008. However, his TW box WAS checked and his case was dismissed upon "review."

    You may want to give the court a friendly call, without revealing your citation # or other identifying info, and ask exactly what the TW box means....

    1. Sponsored Links
       

Page 1 of 5 1 2 3 ... LastLast

Similar Threads

  1. Motions: How to File a Motion to Dismiss in Federal Court
    By Jakie in forum Civil Procedure
    Replies: 5
    Last Post: 09-07-2011, 07:31 PM
  2. Motions: When Can You File a Motion to Dismiss in Traffic Court
    By Standtall in forum Moving Violations, Parking and Traffic Tickets
    Replies: 12
    Last Post: 03-14-2011, 07:11 PM
  3. Motions: Motion to Dismiss Filing Procedure in Civil Court
    By David M in forum Civil Procedure
    Replies: 4
    Last Post: 02-19-2011, 04:19 PM
  4. Motions: Motion to Dismiss a Traffic Infraction
    By dbenjami in forum Moving Violations, Parking and Traffic Tickets
    Replies: 4
    Last Post: 04-10-2010, 02:02 PM
  5. Motions: Motion to Dismiss a Traffic Ticket in Texas
    By jat5560 in forum Moving Violations, Parking and Traffic Tickets
    Replies: 1
    Last Post: 05-06-2009, 09:10 PM
 
 
Sponsored Links

Legal Help, Information and Resources