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  1. #1
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    Jul 2012
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    Default Why Am I Not Allowed to Use a Trial by Written Declaration

    My question involves traffic court in the State of: CA

    So I have my court appearance for august 21. I wanted to fight my ticket by TWD. A few weeks ago I already plead not guilty at court, they sent me off to the clerk to schedule for a court date appearance. I asked the clerk for a trial by written declaration form and he told me to find it online. So I went to the court today to ask some questions about the TWD after already filling in most of the information. The clerk then tells me I cant use a trial by written declaration because I have a court date scheduled. I was like "WTH!!" in my mind, but remained composed of course. So then she offered me to get an extension and I took it for some time in october.

    Is this true? since I have a scheduled court date I'm not allowed a TWD?? From what I thought, I submit my TWD after my plea. where did i go wrong?

  2. #2
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting pynj130
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    where did i go wrong?

    Right here:

    Quote Quoting pynj130
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    I already plead not guilty at court
    You request a TBD from the clerk. If you enter a plea in court, you're automatically requesting a court trial!

  3. #3
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    so there is no way to get a tbwd

  4. #4
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting pynj130
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    so there is no way to get a tbwd
    Yes, however in this case, the ship has sailed. You need to request TBWD between the time you receive your ticket and you appear in court the first time.

  5. #5
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    I'm not saying you're wrong, but I am curious. Why would you now so strongly prefer a TBD to a personal appearance? I would far rather appear in person. For one thing, the judge might just give your TBD documents a cursory glance and blow them off. Guilty.

    Next, if you appear personally, the officer has to appear too. If he doesn't show up, which happens, you have some chance of an outright dismissal. He has to testify against you and you have a right to confront him. You should certainly make a verbal motion for dismissal if he doesn't show up. At worst, you get a reschedule.

    Next, in person you'll at least be able to state your case and be fully heard, and you'll be allowed to direct pointed questions (politely) at the officer. You'll know that your evidence is seen and considered. In TBD the judge might not even consult the officer. You have a US constitutional right to confront your accuser. That's your grounds for your motion for dismissal if he doesn't show up.

    This isn't advice. It's just what I'd prefer.

    $.02

  6. #6

    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting cmre3456
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    I'm not saying you're wrong, but I am curious. Why would you now so strongly prefer a TBD to a personal appearance? I would far rather appear in person. For one thing, the judge might just give your TBD documents a cursory glance and blow them off. Guilty.
    Trial de novo.
    Next, if you appear personally, the officer has to appear too. If he doesn't show up, which happens, you have some chance of an outright dismissal. He has to testify against you and you have a right to confront him. You should certainly make a verbal motion for dismissal if he doesn't show up. At worst, you get a reschedule.
    ...and if the officer doesn't file his response then it's dismissed just like if the officer doesn't show up in court. If he does submit and you're found guilty, then you can take a trial de novo.
    Next, in person you'll at least be able to state your case and be fully heard, and you'll be allowed to direct pointed questions (politely) at the officer. You'll know that your evidence is seen and considered. In TBD the judge might not even consult the officer. You have a US constitutional right to confront your accuser. That's your grounds for your motion for dismissal if he doesn't show up.
    ...and in California if you lose the trial by declaration, you have the right to a trial de novo.

    This isn't advice. It's just what I'd prefer.

    $.02
    How familiar are you with California traffic court?

    - - - Updated - - -

    Quote Quoting That Guy
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    You request a TBD from the clerk. If you enter a plea in court, you're automatically requesting a court trial!
    For what it's worth, when my demurrer was overruled the commissioner immediately offered me the option of a TBD. Whether a plea was put in during open court or not I'm not sure, but I did get a TBD after showing up at arraignment. Of course that could just be because of how the paperwork was shuffled.

  7. #7
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting California student
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    ...and in California if you lose the trial by declaration, you have the right to a trial de novo.

    How familiar are you with California traffic court?
    I'm not very familiar at all.

    Are you saying that only the TBD will get you a trial de novo, and a court hearing won't? See, I'll always take two bites at the apple if I can get them, and I like to appear in person and question the officer as well as show my evidence and make my arguments in front of the judge. But that's just me. I feel more assured of being heard and maybe acquitted. That doesn't mean I'm right.

    If you're saying that you can get a trial de novo in state court only after a TBD, then I'd take that of course. There's my two bites in that case.

  8. #8
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting California student
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    For what it's worth, when my demurrer was overruled the commissioner immediately offered me the option of a TBD. Whether a plea was put in during open court or not I'm not sure, but I did get a TBD after showing up at arraignment. Of course that could just be because of how the paperwork was shuffled.
    And for what its worth, the request whether it came in the form of a written letter AND a form TR-205 or only a form TR-205, it was not submitted to the commissioner, it was submitted to the clerk. Correct?

    Or maybe you were given an extension by the commissioner to submit your request for a TBD and when you do that, you are not submitting the request to the commissioner, you are submitting it to the clerk. Correct?

    If you know anything about the information I post on here, you know better than to assume I am simply making things up. In this case, my answer comes from California Rule of Court 4.210:

    Rule 4.210. Traffic court—trial by written declaration
    (3) Election

    The defendant must file a Request for Trial by Written Declaration (form TR-205) with the clerk by the appearance date indicated on the Notice to Appear or the extended due date as provided in (2). The Request for Trial by Written Declaration (form TR-205) must be filed in addition to the defendant’s written request for a trial by written declaration, unless the defendant’s request was made on the election form.

    You're free to interpret that into meaning that you can plead guilty in open court and that should indicate your desire to request a TBD. I, on the other hand, think it means something else.

    Quote Quoting California student
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    Whether a plea was put in during open court or not I'm not sure
    Oh come on now... You're the defendant, you've been here long enough to know the difference of whether you entered a plea or not, you know better than to claim ignorance... Did you or did you not enter a plea?

    Quote Quoting California student
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    but I did get a TBD after showing up at arraignment.
    You did not appear to be arraigned, you appeared to demur. BIG difference.

    And in the case of a demurrer, an extension subsequent to a demurrer being overruled is implied within the law:

    PC 1007. Upon considering the demurrer, the court must make an order either overruling or sustaining it. If the demurrer to an indictment or information is overruled, the court must permit the defendant, at the defendant's election, to plead, which the defendant must do forthwith, unless the court extends the time. If the demurrer is sustained, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury. If the demurrer to a complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding 10 days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court.

    So the court was obligated to take your plea, if you elected to enter a plea at that point, unless the court decided to offer an extension or if you had requested that the time to plea be extended.

    Let me also add this, the fact that the commissioner opted top mention (or offer) the TBD option was not in any way shape or form an attempt to allow you two bites at the apple, or two opportunities to explore a non-response/appearance by the officer. You can bet that the one and only reason you were offered a TBD was to relieve the court from having to schedule one more trial date, not because they don't want to hear your case, but simply because the trial calender is swamped with cases.

    But that's not all... Even if you did enter a plea with the commissioner, even if you did go to the clerk's window, even if a trial date was set and put on calender, even if you did leave the court only to return on a certain date/time to request the TBD, as long as you're not doing so within days of the trial date, I suspect you will still be able to get a TBD.

    The way it happened to me, I requested a continuance so that I can prepare a motion for formal discovery (as opposed to "informal discovery"). My request was denied, I plead with the court to allow me some time to try and obtain discovery through other means, request was still denied, and to expedite matters, the court entered a "not guilty" plea on my behalf and I was "Ordered" to attend trial on a date to be determined by the clerk. By the time I got to the clerk's window, and after thinking about it, I decided to go for a TBD, and get my discovery "that way"... Approached the clerk's window and asked her for the TBD forms, she said "I'll give you the forms but according to your file, you were ordered to a court trial, and I was ordered to schedule you for a court date, not a TBD, so you can't do a TBD". I said "an order by the court can only be rescinded by the court; I'm going back in, cover me... "... went back to court and specifically told the judge I would like to do a TBD before going to trial. The response the judge gave me "that is certainly within your rights, I cannot deny you that right"... (Interesting how he went from denying me my right to discovery and my right to a continuance so that I can exercise my rights, to his being unable to deny me my right to a TBD)... At this point, the judge's clerk jumped in and said, I can do that from here... Not only was I granted my request for a TBD, I was given a 3 week extension to submit my request along with a check for the bail amount. At this point in time, I indicated my appreciation for the additional time but wondered why is an extension a possibility now and yet it was not just five minutes ago. I will not disclose what I was told by the judge at this time but I will say that he requested that he be taken off the record before saying what he had to say. And no, he was not and did not by any means chew me out. But I simply choose to not disclose what he had to say!

    Either way, when I submitted my request along with my bail check, I did that with the clerk.

    Quote Quoting California student
    View Post
    Of course that could just be because of how the paperwork was shuffled.
    If by shuffled you "mean you submitted your request with the commissioner and it got lost/misplaced, then yes, that is because you don't submit it with the commissioner/judge, you do so with the clerk so that the clerk could enter it into the system and so on... But shuffled or not, where did you submit your request for a TBD? It was not in court, was it? It was not in Judge's chambers? It was/should have been submitted at the clerk's window. And from there on, anything and everything related with the TBD process will be done at the clerk's window. That is until you appear for your TDN assuming there is a need to go that far. But you know all of that already!




    Quote Quoting cmre3456
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    I'm not very familiar at all.
    And the question that got asked and ignored several times finally ^gets answered^!


    Quote Quoting cmre3456
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    Are you saying that only the TBD will get you a trial de novo, and a court hearing won't?
    A trial de novo (the term "de novo" from the latin for "new") means a "new trial", so yes, a trial de novo can only come subsequent to a TBD. You cannot have a court trial and then request a trial de novo.

    Quote Quoting cmre3456
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    See, I'll always take two bites at the apple if I can get them, and I like to appear in person and question the officer as well as show my evidence and make my arguments in front of the judge. But that's just me. I feel more assured of being heard and maybe acquitted. That doesn't mean I'm right.
    See, you're contradicting yourself... To have two bites at the apple, you would have to request a TBD as your first bite, and a trial de novo as your second.

    But what you'll find here more often than not, is that most people carelessly and selfishly abuse the system in hopes that they will have two chances at having no response/appearance by the officer.

  9. #9
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting That Guy
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    See, you're contradicting yourself... To have two bites at the apple, you would have to request a TBD as your first bite, and a trial de novo as your second.
    Reading comprehension is an wonderful skill. Give it a try.

    Does California have municipal and/or justice courts which are inferior to the state courts? We do. I know I'm wandering off topic but in most states which have those inferior courts, they can be appealed to the lowest state court (circuit courts here) de novo any time a party is found guilty.

    I'd like to add a thought because it was valuable to me once. Here, municipal and justice courts are empowered upon application by the chief justice of the state supreme court. So is the judge (usually an area lawyer) for that court.

    I once won a routine traffic citation because I called the office of the chief justice in the Capital (Salem, Oregon) to verify that a municipal court and its judge were properly authorized by the chief justice and - shock - they hadn't been. Case and court dismissed. It's always worth checking the credentials of the people charging and trying you. An officer may not me certified in a needed area, a judge may not have the proper swearing in papers on file... Just check.

  10. #10
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    Default Re: Why Am I Not Allowed to Use a Trial by Written Declaration

    Quote Quoting cmre3456
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    Does California have municipal and/or justice courts which are inferior to the state courts? We do.
    We don't. They are all consolidated into the Superior Court.

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