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  1. #11
    Join Date
    Aug 2011
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    South-Central Cali
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    1,274

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Sorry to bump this old post, but all the misinformation by OP seems to be confusing newbies, so here's the gist (most of which was said earlier):

    • Most traffic infractions (excluding parking) are a crime in CA, and come with all the bells and whistles applicable to misdemeanors (Penal Code/PC 19.7), except the right to a jury trial and appointed counsel (PC 19.6)
    • You can certainly file motions and demurrers in traffic court, although traffic clerks may say "huh?" when you try to ask them about procedure. You'll get better information from either the clerk in the actual traffic courtroom, OR the criminal/misdemeanors clerk in that court building/system.
    • The "verified complaint ploy" is a no-go, either at first appearance or after an FTA, because of VC 40513(b), which overrides 40513(a) ("notwithstanding") if the citation is on a form approved by the Judicial Council (they all are), and if it's verified (that's the part saying "under penalty of perjury" beneath which the officer writes/signs his name).
    • A commissioner is a magistrate, by virtue of Gov. Code secs. 72190, 72190.1 and 72190.2. This citation explains it best:
      Quote Quoting Branson v. Martin (1997) 56 Cal.App.4th 300, 306
      Under Penal Code section 808, all judges of the Supreme Court, Courts of Appeal, superior courts, municipal courts and justice courts are automatically deemed to be "magistrates." By its wording, Penal Code section 808 does not make that an exclusive list. It does not say that other judicial officers cannot be magistrates.

      Penal Code section 807 defines a magistrate as "an officer having power to issue a warrant for the arrest of a person charged with a public offense." Government Code sections 72190.1 and 72190.2 specifically provide that, if assigned the task by the presiding judge, a commissioner may conduct arraignments and may issue and sign bench warrants. Thus, under those sections, if, on the initial date of appellant's court appearance, Commissioner Martin had the general power to conduct traffic infraction arraignments and to issue bench warrants, Commissioner Martin qualified as a magistrate.
      So, unless your commissioner was appointed after the NTA was filed but before your arraignment, or the court cannot provide you paperwork showing that the commissioner was properly appointed, this argument isn't going to go anywhere either.

  2. #12

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Quote Quoting quirkyquark
    View Post
    Sorry to bump this old post, but all the misinformation by OP seems to be confusing newbies, so here's the gist (most of which was said earlier):

    • Most traffic infractions (excluding parking) are a crime in CA, and come with all the bells and whistles applicable to misdemeanors (Penal Code/PC 19.7), except the right to a jury trial and appointed counsel (PC 19.6)
    • You can certainly file motions and demurrers in traffic court, although traffic clerks may say "huh?" when you try to ask them about procedure. You'll get better information from either the clerk in the actual traffic courtroom, OR the criminal/misdemeanors clerk in that court building/system.
    • The "verified complaint ploy" is a no-go, either at first appearance or after an FTA, because of VC 40513(b), which overrides 40513(a) ("notwithstanding") if the citation is on a form approved by the Judicial Council (they all are), and if it's verified (that's the part saying "under penalty of perjury" beneath which the officer writes/signs his name).
    • A commissioner is a magistrate, by virtue of Gov. Code secs. 72190, 72190.1 and 72190.2. This citation explains it best:

      So, unless your commissioner was appointed after the NTA was filed but before your arraignment, or the court cannot provide you paperwork showing that the commissioner was properly appointed, this argument isn't going to go anywhere either.
    A traffic infraction is not a "public offense" and, in my opinion, not even a crime. In fact, here is a letter from the Riverside County DA's office, supporting the fact:



    Also, on wikipedias website, there is an interesting write-up on the history of infractions.

    http://en.wikipedia.org/wiki/California_criminal_law

    Either way you look at it, since an infraction typically does not involve corpus delicti, then there is no injured party (unless you consider the "state" the injured party) but regardless, the constitution only allows the government to try people for "Treason, Bribery, or other high Crimes and Misdemeanors" - since an infraction does not fit into this Constitutional guideline, it is in and of itself unconstitutional. Infractions started out as parking tickets and have evolved into a number of types and kinds of nonsense.

    No body? No crime.

  3. #13
    Join Date
    Sep 2005
    Location
    California
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    20,594

    Default Re: Demurrer and is a Traffic Infraction a Crime

    What you believe should or should not be a crime is irrelevant.

    Apparently the Riverside County DA did not read the Penal Code. He also did not see where Burks stated: "In California 'a public offense' is synonymous with 'a crime.'" I don't know what part of that ruling that DA was trying to lean on. And the AG opinion is so old I cannot even locate it anywhere.

    Refer to my prior post from 3 years ago.

    EDIT: ... uh, where did Scott's Post go (where he linked a letter from the Riverside DA where he indicated that an infraction is NOT a "public offense")??? Huh ... that's twice now it appeared and then disappeared.

  4. #14

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Sorry I was editing my post and deleted it by accident.

    OK something interesting. The case the Dep. DA cited was from 1961 and the infraction in California was not "created" until 1968......go figure.

    But I am gonna stick with my original post

    No body - No crime. Corpus Delicti.

  5. #15
    Join Date
    Sep 2005
    Location
    California
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    20,594

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Quote Quoting scott747
    View Post
    Sorry I was editing my post and deleted it by accident.

    OK something interesting. The case the Dep. DA cited was from 1961 and the infraction in California was not "created" until 1968......go figure.

    But I am gonna stick with my original post

    No body - No crime. Corpus Delicti.
    Stick with it all you want. What you erroneously BELIEVE, is not relevant on any legal proceeding.

  6. #16

    Default Re: Demurrer and is a Traffic Infraction a Crime

    The question is whether or not a traffic infraction is a crime. The answer is no, it is not a crime and California Penal code defines this clearly. In PC 17 (a) it clearly states:

    17. (a) A felony is a crime that is punishable with death, by
    imprisonment in the state prison, or notwithstanding any other
    provision of law, by imprisonment in a county jail under the
    provisions of subdivision (h) of Section 1170. Every other crime or
    public offense is a misdemeanor except those offenses that are
    classified as infractions.

    So since every other crime or public offense is a misdemeanor except those classified as infractions - infractions are not a crime. Which leads us to the point at hand - are traffic infractions crimes? No. So next time initiate a traffic stop for a non-crime and use your probable cause or reasonable suspicion to initiate the stop - consider that your stop may be illegal, since the reason of your stop all depends on there being an element of a possible crime. Expired tags - not a crime. Speeding (within certain elements) - not a crime, and so on. Like the statute states - it's an offense and not a crime. It's not really even a public offense - it's just referred to as an offense.

    - - - Updated - - -

    Here is that paper you were referring to on the Riverside County DA's office.



    Although I don't agree that the case reference is completely accurate, I still hold that a traffic infraction is not a crime, but more like an administrative action taken against drivers - it really should be played out in a DMV court - but then that would be the executive trying a person in the executive and not in the judicial, like its supposed to be - as a crime and not as an infraction.

  7. #17
    Join Date
    Sep 2005
    Location
    California
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    20,594

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Scott, you can "hold" whatever you want. The fact of the matter is that an infraction is a "public offense" and a "crime" under the Penal Code.

    - - - Updated - - -

    And there's this:

    The terms "crime" and "public offense" mean the same thing. They include felonies, misdemeanors, and infractions. (Hamilton (1986) 191 Cal.App.3d Supp. 13.)

    And, then, from the California Attorney General:

    Kinds of Crime (Pen. Code, § 16)

    1. Felony (Pen. Code, § 17, subd. (a))
    "A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170."

    2. Misdemeanor (Pen. Code, § 17, subd. (a))
    "Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions."

    3. Infraction (Pen. Code, § 19.6)
    "An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury . . . [or] to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail."

    The only time a person would be taken into physical custody for an infraction, thus possibly having a public defender assigned, is if he refused to give his written promise to appear in court on a notice to appear (citation), and then only if he was subsequently refused bail or was not released on his own recognizance. However, failure to appear in court, even at a lawfully continued date, or to otherwise comply with the requirements of the citation received for an infraction, amounts to a misdemeanor or a Penal Code section 19.8 infraction. (Pen. Code, § 853.7.)

    In other words, an accused who fails to appear may face a separate misdemeanor prosecution for that offense in addition to prosecution for the underlying infraction.

    "Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers . . . ." (Pen. Code, § 19.7.)

  8. #18
    Join Date
    Nov 2007
    Location
    Officially across the country from where I've been all my life
    Posts
    4,494

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Traffic infractions are quasi-criminal actions

  9. #19

    Default Re: Demurrer and is a Traffic Infraction a Crime

    Quote Quoting CourtClerk
    View Post
    Traffic infractions are quasi-criminal actions
    And you get quasi-rights, quasi-courts, quasi standing, and quasi-everything else....but actual fines paid with actual money and are actually pissed off.


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