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  1. #1
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    Default Officer Requested Postponement of Court Trial Date

    My question involves traffic court in the State of: California

    Got a speeding ticket (84 on 65). I plead not guilty on 2/27/14 and got a trial date for 4/9/14. However I got a letter (copy) in the mail from CHP office for the officer to postpone trial date (form RI-TR002) in which he indicates that he will be on vacation on 4/9/14 and that he will be available any time after 4/14/14 which is beyond the 45 days. I know I have the right to a speedy trial, which means the court has to handle my case within 45 days. At the bottom of the form, under "Intructions to Defendant" it mentions that I have 5 days to object to the officers request by filing form RI-TR003 "Objection to pospone of traffic court trial.

    My question is: 1) Does the simple fact that it's beyond the 45 days, can I use that (right to speedy trial) to object to his request and get it dismissed? or 2) Do I have to include another reason as to why I object to the officer's request and if so, what could be acceptable to the court as a legitimate reason, and be able to get my citation dismissed? Thanks in advance.

  2. #2
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    Default Re: Officer Requested to Postpone Court Trial Date

    If you've been arraigned and that courthouse does things like every other court in CA operates, then you waived your right to a speedy trial at the arraignment, either on record or by signing something in the clerk's office.

  3. #3
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    Default Re: Officer Requested to Postpone Court Trial Date

    [QUOTE=bahavac14;794553]My question involves traffic court in the State of: California

    Got a speeding ticket (84 on 65). I plead not guilty on 2/27/14 and got a trial date for 4/9/14. However I got a letter (copy) in the mail from CHP office for the officer to postpone trial date (form RI-TR002) in which he indicates that he will be on vacation on 4/9/14 and that he will be available any time after 4/14/14 which is beyond the 45 days. I know I have the right to a speedy trial, which means the court has to handle my case within 45 days. At the bottom of the form, under "Intructions to Defendant" it mentions that I have 5 days to object to the officers request by filing form RI-TR003 "Objection to pospone of traffic court trial.

    My question is: 1) Does the simple fact that it's beyond the 45 days, can I use that (right to speedy trial) to object to his request and get it dismissed?

    presuming the time limit is applicable, what happens if you file as you are asking and they respond with:

    ok, trial is tomorrow (or the absolute minimum time required to give adequate notice).

    There is no reason to dismiss the charges due to the speedy trial limit until the time has passed.


    of course if CC is correct, it really doesn't matter.

  4. #4
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    Default Re: Officer Requested to Postpone Court Trial Date

    The officer wrote: "unavailable from 3/21/14 to 4/11/14. Will be available 4/14/14 and beyond." That means staring tomorrow.

  5. #5
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    Default Re: Officer Requested to Postpone Court Trial Date

    Quote Quoting bahavac14
    View Post
    presuming the time limit is applicable, what happens if you file as you are asking and they respond with:

    ok, trial is tomorrow (or the absolute minimum time required to give adequate notice).

    There is no reason to dismiss the charges due to the speedy trial limit until the time has passed.


    of course if CC is correct, it really doesn't matter.

    The officer wrote: :unavailable from 3/21/14 to 4/11/14. Will be available 4/14/14 and beyond." That means staring tomorrow.[/QUOTE]

    so it changed in the last 20 minutes?

    in which he indicates that he will be on vacation on 4/9/14 and that he will be available any time after 4/14/14

  6. #6
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    Default Re: Officer Requested to Postpone Court Trial Date

    4/9/14 is the trail date. Obviously if he is saying that he will be out from 3/21/14 - 4/14/14 due to vacation, he is stating that he will be on vacation on 4/9/14. I don't see how you say that it changed in the last 20 mins.... ??

  7. #7
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    Default Re: Officer Requested to Postpone Court Trial Date

    Quote Quoting bahavac14
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    4/9/14 is the trail date. Obviously if he is saying that he will be out from 3/21/14 - 4/14/14 due to vacation, he is stating that he will be on vacation on 4/9/14. I don't see how you say that it changed in the last 20 mins.... ??
    because you originally said this:


    However I got a letter (copy) in the mail from CHP office for the officer to postpone trial date (form RI-TR002) in which he indicates that he will be on vacation on 4/9/14 and that he will be available any time after 4/14/14

    then you posted this:

    The officer wrote: :unavailable from 3/21/14 to 4/11/14. Will be available 4/14/14 and beyond." That means staring tomorrow

    in the first one you said he will not be available on Apr 9 until Apr 14. In the second one you state he said he would not be available from Mar 21 until Apr 14.

    See, Apr 9; Mar 21. Two different dates.

    or you were simply very incomplete when you posted initially and while he stated he would not be available on Apr 9, you failed to state that he stated he was actually not available starting Mar 21.

    anyway, until the time has expired, there is no basis to grant a dismissal.


    here is a link some threads discussing the speedy trial issue:

    http://www.expertlaw.com/forums/showthread.php?t=135000

    http://www.expertlaw.com/forums/showthread.php?t=124949

    in at least one of them the issue of TBD and TDN are discussed and how they apply to the issue. I don't know what you have done to date so I do not know if they apply to you or not.

  8. #8
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    Feb 2014
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    Default Re: Officer Requested to Postpone Court Trial Date

    Ummm.. yeah. You just answered your own question. On one I said ON such date, in the second statement I simply specified FROM what date unavailable. So no two different dates, as it were. In either case, the officer is requesting a date beyond the 45 days which goes beyond the statute for a speedy trial. Which I think the court will try to find a way around it either way. Bunch of crooks!!

    Anyhow, thanks for the info. Although I didn't do TBD or TDN, I'll look at the articles.

  9. #9
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    Default Re: Officer Requested to Postpone Court Trial Date

    Quote Quoting bahavac14
    View Post
    However I got a letter (copy) in the mail from CHP office for the officer to postpone trial date (form RI-TR002) in which he indicates that he will be on vacation on 4/9/14 and that he will be available any time after 4/14/14 which is beyond the 45 days.
    When did you receive the letter?

    Quote Quoting jk
    View Post
    here is a link some threads discussing the speedy trial issue:

    http://www.expertlaw.com/forums/showthread.php?t=135000

    http://www.expertlaw.com/forums/showthread.php?t=124949

    in at least one of them the issue of TBD and TDN are discussed and how they apply to the issue. I don't know what you have done to date so I do not know if they apply to you or not.
    And here is one more: Speedy Trial Rules

    Here is how I see this...

    Assuming your plea entry date is in fact 02/27/2014, adding 45 days to that takes us to 04/13/2014 which is actually a Sunday...

    California Code of Civil Procedure Section 10

    Holidays within the meaning of this code are every Sunday and any other days that are specified or provided for as judicial holidays in Section 135.

    Followed by:

    California Code of Civil Procedure Section 12

    The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.

    And if the officer is available on the 14th of April, then the 14th is still the 45th day...

    And this scenario isn't going to work for you...

    Next... Assuming the court is busy that day...

    Quote Quoting bahavac14
    View Post
    At the bottom of the form, under "Intructions to Defendant" it mentions that I have 5 days to object to the officers request by filing form RI-TR003 "Objection to pospone of traffic court trial.
    And this is why it is critical for us to know when you received the notice, not only because you have a deadline you must meet, but the fact the he is unavailable starting tomorrow, and assuming you received the notice longer than 5 day before today, then your failure to object to the delay in a timely manner can constitute a waiver of your right to a speedy trial.

    If you've received it exactly five days ago, it is (again) too late to object which will likely end up resulting in your motion getting overruled...

    And, the last scenario involving when you received the notice, the minimum he must serve it is two days and the came conditions and results apply if you've only received it two days ago...

    Additionally, and in all cases where you may opt to make a motion to dismiss, you also have to articulate how the delay impacted your ability to defend yourself. in light of the type of violation you were cited for, and the high speed differential, you really do not have any hint if a viable defense, the delay will have zero impact on the outcome of your case...

    Quote Quoting bahavac14
    View Post
    1) Does the simple fact that it's beyond the 45 days, can I use that (right to speedy trial) to object to his request and get it dismissed?
    You can use it to move for a dismissal but it does not necessarily mean you will get a dismissal..

    Quote Quoting bahavac14
    View Post
    Do I have to include another reason as to why I object to the officer's request and if so, what could be acceptable to the court as a legitimate reason, and be able to get my citation dismissed?
    As I stated above, you have the burden to convince the judge that the delay impacted your defense somehow... Really a difficult task when it comes to traffic cases, simply because the typical traffic case, the evidence doesn't go stale, you don't have any witnesses who might disappear or do they have to leave town...

    Quote Quoting bahavac14
    View Post
    In either case, the officer is requesting a date beyond the 45 days which goes beyond the statute for a speedy trial.
    Actually, it looks like he is back on day 45, so you might get your wish of having your trial within 45 days. The court will apply

    Quote Quoting bahavac14
    View Post
    Which I think the court will try to find a way around it either way.
    The court will apply the law... Laws that have existed long before you were a twinkle in your Momma's eyes.... (CCP 12 was enacted in 1872).

    Quote Quoting bahavac14
    View Post
    Bunch of crooks!!
    So they are a bunch of crooks for applying the law.... And you must be on the straight and narrow trying to get around a definite conviction!!!

  10. #10
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    Default Re: Officer Requested to Postpone Court Trial Date

    I don't agree with a lot of what's been written here so far.

    Quote Quoting CourtClerk
    View Post
    If you've been arraigned and that courthouse does things like every other court in CA operates, then you waived your right to a speedy trial at the arraignment, either on record or by signing something in the clerk's office.
    If the defendant is unrepresented, he cannot waive the statutory time period under PC 1382 unless the court clearly explains his rights and the effect of the waiver. (In re Smiley (1967) 66 C2d 606, 630)

    Quote Quoting That Guy
    View Post
    Assuming your plea entry date is in fact 02/27/2014, adding 45 days to that takes us to 04/13/2014 which is actually a Sunday...

    And if the officer is available on the 14th of April, then the 14th is still the 45th day...

    And this scenario isn't going to work for you...
    Right. If the continuance puts the new trial date within the statutory period then the prosecution need not show good cause in its request for a continuance. (People v. Graves (2010) 189 CA4th 619)

    However, if the trial date is set past the 45th day, then a PC 1382 dismissal would be in order. If I were the defendant, I'd object to the continuance on the ground that the prosecution's motion is defective because it doesn't meet the requirements of PC 1050 and wasn't brought by the People. There's no law on the books that allows a witness to request a continuance in a trial. The police officer is a witness. (People v. Marcroft (1992) 6 Cal. App. 4th Supp. 1) In Marcroft the appellate court held that it's inappropriate for the court to have ex parte communication with a witness, who in this case was a police officer. CVC 40506.5 refers only to granting a continuance to the defendant. PC 1050 refers only to the prosecution and the defense. This continuance is an ex parte motion from a witness and should be denied.

    More than that, the statute requires the continuance under PC 1050 to be served as a noticed motion including a memorandum and affidavits or declarations that establish the facts showing that the continuance is necessary. The local form that was provided here doesn't meet these requirements either for notice of motion, establishment of fact, or proof of service. The court has no local rule permitting its use. The court is supposed to hold a hearing to determine whether a continuance is warranted and enter its factual finding in the minutes. This also doesn't appear to be the procedure that is being used here.

    Assuming for a moment that the court does attempt to set the new trial date outside of the statutory period, the prosecution has failed to demonstrate good cause for the delay. The people are required to show diligence in obtaining the presence of their witnesses at trial. This includes the use of court process to compel their attendance. In situations where the People have failed to subpoena an officer and instead let him take a vacation, the court has found that the people failed to exercise this diligence and thus did not demonstrate good cause. (Caputo v. Municipal Court (1960) 184 CA2d 412) More generally, the court puts defendant's right to a speedy trial before the convenience of the prosecution's witnesses. Simply having a witness be on vacation is insufficient to establish good cause, unless the prosecution actually legitimately tries, and fails, to secure the presence of the witness using court process. Baustert v. Superior Court (2005) 129 CA4th 1269 is particularly on point here as it specifically addresses scenarios where peace officers as witnesses were on vacation. In Baustert, the prosecution either failed to issue the officer a subpoena, or rescinded the subpoena for the duration of the officer's vacation only to attempt to renew it later.

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