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  1. #1
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    Nov 2012
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    Default Process Service Requirements for a Traffic Violation

    My question involves traffic court in the State of: CA

    I found this article about fighting a photo ticket in AZ: http://blog.joemanna.com/how-to-get-...o-radar-ticket

    Does CA have similar rules for process service?

    Namely, in CA does a defendant have a right to proper service, and if you don't get served within 120 days of the alleged violation, the charge must be dismissed?

    Thanks in advance for ideas.

  2. #2
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    Default Re: California Law on Process Service Requirements Traffic

    California law requires the issuing agency to mail the first notice to appear within 15 days from the date of the alleged violation to the registered owner of the vehicle at his/her address as shown on record with the DMV. There is no requirement that the notice be "served".

    Vehicle code section 40518.

    (a) Whenever a written notice to appear has been issued by a peace officer or by a qualified employee of a law enforcement agency on a form approved by the Judicial Council for an alleged violation of Section 22451, or, based on an alleged violation of Section 21453, 21455, or 22101 recorded by an automated enforcement system pursuant to Section 21455.5 or 22451, and delivered by mail within 15 days of the alleged violation to the current address of the registered owner of the vehicle on file with the department, with a certificate of mailing obtained as evidence of service, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea. Preparation and delivery of a notice to appear pursuant to this section is not an arrest.

  3. #3
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    Default Re: California Law on Process Service Requirements Traffic

    According to Fight Your Ticket and Win in California, you could try to demur to a photo radar ticket, since the vehicle code doesn't expressly authorize a mailed notice to appear as a substitute for a complaint for speed enforcement. Details here.

  4. #4
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    Default Re: California Law on Process Service Requirements Traffic

    Quote Quoting themadnorwegian
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    According to Fight Your Ticket and Win in California, you could try to demur to a photo radar ticket, since the vehicle code doesn't expressly authorize a mailed notice to appear as a substitute for a complaint for speed enforcement. Details here.
    Then it would be a dismissal based on lack of personal and subject matter jurisdiction? One these issues are raised, the burden shifts to the party claiming that jurisdiction is proper i.e. the opposing party. So one could just attack the jurisdiction ?

  5. #5
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    Default Re: California Law on Process Service Requirements Traffic

    Thank you ThatGuy and madnorweigian.

    The book on how to fight and win a ticket is a lot of good information. My issue involves photo but not radar.

    I had read about V.C. 40518, and understand that a notice to appear constitutes a complaint, and it references evidence of service, which seems to imply a service is needed.

    Is there another V.C. section that specifically describes the requirements of proper service of a complaint to a defendant in CA?
    Because apparently in AZ the requirements are specific and time limited.

    Thanks again,

  6. #6
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    Default Re: California Law on Process Service Requirements Traffic

    Quote Quoting In pro per
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    The book on how to fight and win a ticket is a lot of good information.
    I wholeheartedly agree. Although I can tell you that there is also a lot of information that is geared at selling books and maybe even misleading.

    I'm going to jump forward to this part first:

    Quote Quoting In pro per
    View Post
    Because apparently in AZ the requirements are specific and time limited.
    I think you need to let go of the idea that AZ sets the standard or that CA has to, for some reason or another follow AZ's requirements. Once you've done that, I'm sure you'll find yourself much less disappointed when you've completed your research.

    • For starters, AZ law considers there matters as civil matters; in CA they are infractions which, for all intents and purposes are quasi-criminal matters.
    • AZ does not report a finding of guilt to the AZ-DMV and as such the violation earns you zero points; in CA a conviction will get you one violation point added to your record.
    • In AZ, if you're found to be responsible, you would in essence, be paying an "administrative fee"; in CA, you're ordered to pay a "fine + penalty assessments".
    • In AZ the standard of proof is "by preponderance of the evidence"; whereas for CA, it follows the standard of proof utilized for criminal matters, that being "beyond a reasonable doubt".


    Quote Quoting In pro per
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    I had read about V.C. 40518, and understand that a notice to appear constitutes a complaint, and it references evidence of service, which seems to imply a service is needed.
    Service *IS* needed, the "evidence of service" it references, however, is specifically described as "a certificate of mailing". Meaning just that, someone certifying under penalty of perjury that s/he mailed a particular set of documents to someone on a specific date. So while you are clearly headed in a direction where you'd like to have a requirement where you're personally served by a process server, I'm afraid you're headed down a lonely path with nothing to find at the end.

    Quote Quoting In pro per
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    Is there another V.C. section that specifically describes the requirements of proper service of a complaint to a defendant in CA?
    None that'll make you happy but here they are nonetheless:

    CVC 22.
    Whenever notice is required to be given under this code by a department or any division, officer, employee, or agent, the notice shall be given either by personal delivery to the person to be notified, by certified mail, return receipt requested, or by mailing the notice, postage prepaid, addressed to the person at his or her address as shown by the records of the department.

    CVC 23.
    The giving of notice by personal delivery is complete upon delivery of a copy of the notice to the person to be notified. The giving of notice by mail is complete upon the expiration of four days after deposit of the notice in the mail, except that in the case of a notice informing any person of an offense against him under Section 40001, the notice is complete 10 days after mailing.

    CVC 24.
    Proof of the giving of notice may be made by the certificate of any officer, employee, or agent of the Department of Motor Vehicles and the Department of the California Highway Patrol or of any peace officer, or by an affidavit of any person over 18 years of age, naming the person to whom the notice was given and specifying the time, place, and manner of the giving of the notice.

    With that said, any "certificate" used in California, is merely a form that follows the requirements under California's Code of Civil Procedure section 2015.5:

    CCP 2015.5.
    Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:
    (a) If executed within this state:
    "I certify (or declare) under penalty of perjury that the foregoing is true and correct":
    _____________ _________
    (Date and Place) (Signature)
    (b) If executed at any place, within or without this state:
    "I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct":
    _____________ _________
    (Date) (Signature)


    So basically, I can type up a form as follows:

    CERTIFICATE OF MAILING

    ◙ I .....................................,

    ◙ On the date noted below, I declare the following:

    ◙ My home or business address is as follows: ............................. City:.................... State: ................ Zip Code: ..............

    ◙ I am over the age of 18 and not a party to the action described herein.

    ◙ I placed the documents described below in an envelope addressed to the registered owner, lessee, or identified driver of the vehicle described therein to the address shown below, and by:

    a. Depositing the sealed envelope with postage fully prepaid in a United States Post Office mail receptacle located at: ................................. Or,

    b. Placing the sealed envelope with postage fully prepaid for collection and mailing following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service.

    ◙ the documents I placed in the envelope are described as:
    Notice To Appear
    This Certificate of Mailing

    ◙ The envelope was addressed and mailed as follows:

    Name of the person served: .................................................. ..........

    Address of the person served (obtained from current CA-DMV records at the time of this mailing):
    .................................................. .....................
    .................................................. .....................
    .................................................. .....................

    ◙ I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

    .................................................. ....
    Name Of party doing the mailing

    .................................................. ....
    Signature of the party doing the mailing

    ...../...../.........................................
    Date ----------- Place, County

    ... and I would be done!

  7. #7
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    Default Re: California Law on Process Service Requirements Traffic

    Does Washington state have a similar process service requirement? Where can I go to find that?

  8. #8
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    Default Re: California Law on Process Service Requirements Traffic

    Quote Quoting duracell
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    Does Washington state have a similar process service requirement? Where can I go to find that?
    You would start a new thread and ask your question. That way the Washington experts can chime in and lead you in the right direction.

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