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  1. #1
    Join Date
    Apr 2009
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    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    For the sake of disclosure, I am a bit under the influence right now, but what the hell...

    I see one issue with your train of thought. If you read Rule 4.210(b)(5) carefully, the officer only gets the notice to submit his side of the story once the defendant submits TR-205 (the two-page form where you write your current mailing address and 'I am not guilty ^_^'), not the just the initial written notice requesting the TBD. The officer's deadline is NOT the same as defendant's. A couple of clerks from different courts also gave me similar info about TBD procedures, as well. IMO, arguing that the entry in the docket minutes trumps the deadline prescribed by Rules of Court is going to be tough, to say the least...

    Besides that, there's also Rule 4.210(c), which gives the court a lot of discretion in extending the due dates for TBDs.

    That being said, in my opinion, your best bet is to keep quiet and hope is that the Ofc. doesn't submit a reply by the 15th. Unfortunately, the law and the Rules of Court are not fully on your side on this one. If he submits a reply and you lose the TBD, time to prepare for TDN and figuring out how to set up as many grounds for appeal as possible.

  2. #2
    Join Date
    Aug 2011
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    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    Quote Quoting HonkingAntelope
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    I see one issue with your train of thought. If you read Rule 4.210(b)(5) carefully, the officer only gets the notice to submit his side of the story once the defendant submits TR-205 (the two-page form where you write your current mailing address and 'I am not guilty ^_^'), not the just the initial written notice requesting the TBD. The officer's deadline is NOT the same as defendant's. A couple of clerks from different courts also gave me similar info about TBD procedures, as well.
    Well, that whole rule is ambiguous in a lot of essential parts. As far as I see, though, the notice is sent on or shortly after the ORIGINAL appearance date which is what the rule defines as "due date.":

    Quote Quoting CRC 4.210(b)
    (5) If the clerk receives the defendant's Request for Trial by Written Declaration (form TR-205) and bail by the due date, the clerk must deliver or mail to the arresting officer's agency Notice and Instructions to Arresting Officer (form TR-210) and Officer's Declaration (form TR-235) with a copy of the Notice to Appear and a specified return date for receiving the officer's declaration.

    (1) Definition of due date: As used in this subdivision, "due date" means the last date on which the defendant's appearance is timely.
    Now, it also says that when the clerk receives a written request, the "appearance date" must be extended by 25 days. However, three different sub-rules 2, 3 & 4 explicitly refer to this date as the extended due date, thus making a distinction between that and the original "due date."

    I know that (5) implies the "due date" is when the clerk receives the form and the bail, while (4) allows bail to be submitted on the "extended due date", but we all know that courts demand the bail upfront when you request a TBD, in person or by mail.

    I don't know about what goes on up north, but I know that around SoCal, at least, the TBD forms get sent out to both the officer and the defendant when the request/bail are made, and usually with the same date, i.e. the "return date" = "extended due date" = 25 days (usually).

    Quote Quoting HonkingAntelope
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    IMO, arguing that the entry in the docket minutes trumps the deadline prescribed by Rules of Court is going to be tough, to say the least...
    Actually, 12/01 as the return date is listed in the TR-210 'subpoena' sent to the officer, in the docket AND in the court's official ruling of that day ("papers due by 12/01". And hey, 4.210(c) allows the court to change or extend any date, so I guess it's good

    Quote Quoting HonkingAntelope
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    Besides that, there's also Rule 4.210(c), which gives the court a lot of discretion in extending the due dates for TBDs.
    True, but the only case law around indicates that the court must ORDER the extension on the record (but no reason is needed). So absent an order in the docket/minutes, doesn't mean much.

    Quote Quoting HonkingAntelope
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    That being said, in my opinion, your best bet is to keep quiet and hope is that the Ofc.
    With the benefit of some sleep, I conclude similarly Since the subpoena has NOT been received by the officer and he IS on vacation until well after the trial date, I doubt he'll submit and it's best to keep mum. I *think* that this commissioner decides TBDs in the courtroom at 3 PM, right after he concludes the 1:30 arraignment -- I may just show up to keep an eye on things. BTW, if the officer had missed the 12/01 date because of oversight though and were still around, I'd most definitely do the motion to exclude to nip it in the bud at this stage.

  3. #3

    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    Quote Quoting quirkyquark
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    With the benefit of some sleep, I conclude similarly Since the subpoena has NOT been received by the officer and he IS on vacation until well after the trial date, I doubt he'll submit and it's best to keep mum. I *think* that this commissioner decides TBDs in the courtroom at 3 PM, right after he concludes the 1:30 arraignment -- I may just show up to keep an eye on things. BTW, if the officer had missed the 12/01 date because of oversight though and were still around, I'd most definitely do the motion to exclude to nip it in the bud at this stage.
    What actually happens in the court room when the judge or commissioner is ruling on TBDs? I just kinda of imagined that the judge would be sitting in an office going over them instead of in a court room that was presumably empty.

  4. #4
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    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    Quote Quoting California student
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    What actually happens in the court room when the judge or commissioner is ruling on TBDs? I just kinda of imagined that the judge would be sitting in an office going over them instead of in a court room that was presumably empty.
    I'll let you know on the 15th!

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