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  1. #1

    Default Cell Phone Ticket Amended Based on Allegation of Distracted Driving

    I found this thread by Googling for a very similar situation.

    Same original charge, same "amended" charge, same Santa Clara County, same year and I would not be surprised if it was the same officer...

    I was flabbergasted to find out that citations can be changed willy-nilly like that. It just felt profoundly wrong to be cited for one thing, then go to court and have to answer an entirely different charge. I went to court because CVC 23123(a) has been struck down by the California Appeals Court in the Spriggs case. The Appeals Court found that there is no reason under law that drivers cannot use maps on their smartphones. I felt the ticket should never have been issued.

    The "distracted driving" argument is a red herring. If an officer believes the driver was indeed driving distracted (on a real evidence - not on a spurious reasoning that "if you hold anything in your hand you are distracted") - there is no reason to not write the ticket for that on the spot. The officer clearly did not want to defend the original charge (which was clearly the intended reason for the citation) and changed the charge to something that cannot be proven or disproved by facts - and is based entirely on his judgement. If such conduct were to be permissible that would give the police literally unlimited latitude to issue baseless citations and this should not fly under our system of constitutional government.

    Now, in my case I just took the "traffic school option" simply to avoid risking a point and insurance rate hike trying to defend myself against a charge that can be made solely on officer's judgement and not on any verifiable facts. However, I strongly feel the justice and due process have been denied to me and I was pressured into pleading guilty for the offense I have not committed. Regardless as to whether I would be able to get my fine money back, I intend to pursue this as a matter of civil rights and policing practices - by filing formal complaint(s).

    ileventh - please message via this forum (your messaging is not enabled, so I cannot contact you) to consider if we could co-ordinate. Clearly, there is a pattern in Santa Clara County of trying to sidestep the issue of invalidated handheld phone prohibitions by re-classifying the tickets retroactively. Let's do our part to keep the law enforcement honest.

  2. #2
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    Default Re: Citation Was Amended With an Additional Violation After Driver's Not Guilty Plea

    Quote Quoting justice_seeker
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    I found this thread by Googling for a very similar situation.

    Same original charge, same "amended" charge, same Santa Clara County, same year and I would not be surprised if it was the same officer...
    Doubtful, but, okay ...

    I was flabbergasted to find out that citations can be changed willy-nilly like that.
    Hardly "willy-nilly." Assuming you are referring to 22350 being charged for a driver that is looking away from the road or otherwise seriously distracted it is reasonable to assume that the only SAFE speed to be distracted is zero MPH.

    It just felt profoundly wrong to be cited for one thing, then go to court and have to answer an entirely different charge.
    What were you cited for and what were you ultimately charged with? In the case of an infraction, since these are sent directly to the court by the issuing agency, I suspect that an amendment would have been mailed to you (or, at least the address on your license) had the offense been modified prior to arraignment. But, as an arraignment is merely the answering of the charges, that is what can happen in ANY criminal matter.

    I went to court because CVC 23123(a) has been struck down by the California Appeals Court in the Spriggs case. The Appeals Court found that there is no reason under law that drivers cannot use maps on their smartphones. I felt the ticket should never have been issued.
    Is that what you were doing when you were cited? Looking at a map?

    Oh, and Spriggs didn't strike down 23123, it merely allowed for the ability of the device to be used for reference. It also did not invalidate other statutes that might reflect the actions of the driver such as unsafe speed, unsafe turning, etc.

    The "distracted driving" argument is a red herring.
    Yeah,m dang it, who needs to look at the road, anyway?

    If an officer believes the driver was indeed driving distracted (on a real evidence - not on a spurious reasoning that "if you hold anything in your hand you are distracted") - there is no reason to not write the ticket for that on the spot.
    The officer's observation IS "real evidence."

    And, not knowing what you are talking about with regards to not being issued a citation "on the spot," it is impossible to address. Again, I ask, what were you cited for and what were you later arraigned on? And, upon review, if there is a more appropriate code section for an offense, that is the one that should ultimately be filed.

    Now, in my case I just took the "traffic school option" simply to avoid risking a point and insurance rate hike trying to defend myself against a charge that can be made solely on officer's judgement and not on any verifiable facts.
    And what sort of "verifiable facts" would you expect in a traffic case? Forensics? The observations of the officer are evidence. You are free to try and cast reasonable doubt upon those observations, or, as a number of people do, take the option of traffic school.

    You realize that the overwhelming majority of criminal & traffic cases (of all types) brought to court have no forensics and are made on witness testimony, right?

    However, I strongly feel the justice and due process have been denied to me and I was pressured into pleading guilty for the offense I have not committed. Regardless as to whether I would be able to get my fine money back, I intend to pursue this as a matter of civil rights and policing practices - by filing formal complaint(s).
    And with who are you filing these "formal complaints?" You pled guilty, so there's nothing to appeal. But, I suppose you can always write a nasty letter to the local police department and even to the court if you choose.

  3. #3

    Default Re: Citation Was Amended With an Additional Violation After Driver's Not Guilty Plea

    Thanks for taking time to review and comment. Let me address your points here.

    Quote Quoting cdwjava
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    Doubtful, but, okay ...
    The facts speak for themselves

    Quote Quoting cdwjava
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    Hardly "willy-nilly." Assuming you are referring to 22350 being charged for a driver that is looking away from the road or otherwise seriously distracted it is reasonable to assume that the only SAFE speed to be distracted is zero MPH.
    I stand by my characterization of this action as "willy-nilly" because there was no legitimate reason to "amend" the charge.

    No new facts have come to light between the actual traffic stop and the arraignment/trial. The officer issued the original citation based on his initial observations and determined that 23123 was the most appropriate. It is not reasonable to assume that he would have a more accurate recollection of facts after 4-5 months than on the day when the citation was actually issued.

    The only plausible explanation for changing of the charge is unsoundness of the law on which it was based (in the hindsight) and unwillingness of the officer to admit his error and lose the case.

    Quote Quoting cdwjava
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    What were you cited for and what were you ultimately charged with? In the case of an infraction, since these are sent directly to the court by the issuing agency, I suspect that an amendment would have been mailed to you (or, at least the address on your license) had the offense been modified prior to arraignment. But, as an arraignment is merely the answering of the charges, that is what can happen in ANY criminal matter.
    Just as I said, I was initially cited for 23123 which got "amended" to 22350.

    No amendment was mailed to me, I went to court expecting to defend myself against 23123 on the basis of Spriggs decision. As soon as the case opened the officer immediately moved to amend to 22350 in front of the commissioner. So I was given a few seconds to decide how to plead to an entirely different charge that I never had chance to review and consider.

    Is this kind of ambush ("willy nilly" adjective can be added here) called due process? Or is this an attempt to intimidate and confuse the defendant? Do you think a jury of ordinary citizens would consider this move OK or a miscarriage of justice? So far everyone who I had chance to discuss this with thought of the latter.


    Quote Quoting cdwjava
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    Is that what you were doing when you were cited? Looking at a map?

    Oh, and Spriggs didn't strike down 23123, it merely allowed for the ability of the device to be used for reference. It also did not invalidate other statutes that might reflect the actions of the driver such as unsafe speed, unsafe turning, etc.
    Yes, I was looking at a map.

    When the officer stopped me, I pointed this out and asked if he noticed any problems with my driving, speed, etc. According to my recollection, he did not point out any specific problems and simply said that he observed the phone in my hand and that was against the law. Then I asked why do I have to be cited and the officer seemed to get somewhat defensive over being asked such questions... I got a feeling that the officer's priority was simply asserting his authority rather than reasonably enforcing traffic safety.

    Since it happened on the freeway, there was no turning (or lane changing) involved and my car was moving within the speed limit. There was nothing to create any kind of unsafe situation.

    Quote Quoting cdwjava
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    Yeah,m dang it, who needs to look at the road, anyway?
    The assumption that I was not looking at the road is entirely without basis in fact.

    The very reason that the officer stopped me was because I was holding the phone in my hand high enough for the officer to see. Which in turn enabled me to look at the road at the same time.

    Moreover, most laws that deal with cell phone operation (across all states) have an exception for hands-free operation of mapping applications. If one is looking at a hands-free map or on a dashboard-based map, one would not be looking at the road under your reasoning. Should you start ticketing everyone for having a dashboard map?

    Quote Quoting cdwjava
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    The officer's observation IS "real evidence."
    Sure, as long as it has reasonable credibility.

    Changing to a completely different charge without any new facts and doing this in a way to deny the defendant the opportunity to review certainly does make it look like the officer did not do something right and wants to prevent substantive arguments from being made.

    Just because someone has a badge does not make them as infallible as the Pope. Just a few month ago in Chicago 5 police officers perjured themselves under oath in contradiction to the video testimony... This is just a traffic case, but the point remains the same.
    http://articles.chicagotribune.com/2...chicago-police

    Quote Quoting cdwjava
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    And, not knowing what you are talking about with regards to not being issued a citation "on the spot," it is impossible to address. Again, I ask, what were you cited for and what were you later arraigned on? And, upon review, if there is a more appropriate code section for an offense, that is the one that should ultimately be filed.
    I did outline the facts and the process above.

    It does not sound plausible that there was a legitimate reason to change the charge without any new facts coming to light. The only new fact was that I decided to contest the citation and the officer seemed very defensive about it and seemed eager to assert his authority.

    Quote Quoting cdwjava
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    And what sort of "verifiable facts" would you expect in a traffic case? Forensics? The observations of the officer are evidence. You are free to try and cast reasonable doubt upon those observations, or, as a number of people do, take the option of traffic school.

    You realize that the overwhelming majority of criminal & traffic cases (of all types) brought to court have no forensics and are made on witness testimony, right?
    Correct, I am not expecting full forensics in traffic cases.

    And there is plenty of reasonable doubt to cast here, mainly based on officer's actions, as outlined above - in particular the move to amend and deny me the opportunity to prepare to respond to an entirely different charge. As I said I went to the courtroom expecting to argue 23123 based on Spriggs and instead was blindsided with a totally different charge. Is this due process or a dirty move to prevent defense? Lots of reasonable doubt to go around...

    Quote Quoting cdwjava
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    And with who are you filing these "formal complaints?" You pled guilty, so there's nothing to appeal. But, I suppose you can always write a nasty letter to the local police department and even to the court if you choose.
    I promise to pursue the complaints in the way that would not be easy to ignore.

    As I am sure you know full well, there are plenty of mechanisms for concerned citizens to hold law enforcement accountable for their practices. You know the full range of possible outcomes as well.

  4. #4
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    Default Re: Citation Was Amended With an Additional Violation After Driver's Not Guilty Plea

    Quote Quoting justice_seeker
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    I stand by my characterization of this action as "willy-nilly" because there was no legitimate reason to "amend" the charge.
    So you say. But, that will be an issue for a court. It will be the judge who will have the last say in that matter.

    No new facts have come to light between the actual traffic stop and the arraignment/trial.
    It is NOT uncommon for booking or cited charges to be amended (changed, added and even subtracted from) by the time of arraignment. Take a look sometime at the charges under which a prisoner is booked and the charges filed by the DA at arraignment. The facts have not changed, only a review of the facts have resulted in an amendment of the charges. While this is rare in traffic matters, it is neither improper nor unlawful in any way.

    No amendment was mailed to me, I went to court expecting to defend myself against 23123 on the basis of Spriggs decision. As soon as the case opened the officer immediately moved to amend to 22350 in front of the commissioner. So I was given a few seconds to decide how to plead to an entirely different charge that I never had chance to review and consider.
    Then you do as criminal defendants have done forever ... you plead "not guilty" and then set about preparing a defense. Even if the matter had remained as 23123 you would not have been permitted to mount a defense at the arraignment anyway.

    Is this kind of ambush ("willy nilly" adjective can be added here) called due process? Or is this an attempt to intimidate and confuse the defendant? Do you think a jury of ordinary citizens would consider this move OK or a miscarriage of justice? So far everyone who I had chance to discuss this with thought of the latter.
    Then "everyone" you have talked to has no practical knowledge of how the criminal justice system operates, or the purpose of an arraignment.



    The booking charges, even the cited charge, is not necessarily the offense under which a person will be charged. The difference being that with a citation there is no prosecutor to review and amend these matters after evaluating the facts. In misdemeanor and felony criminal matters, the DA gets the reports, reviews the facts, and then files the charges that he or she feels are appropriate - and these may not even include the booked or cited charges at all.

    Yes, I was looking at a map.
    Okay. Then you will STILL be able to relate that to a judge or commissioner at trial.

    Then I asked why do I have to be cited and the officer seemed to get somewhat defensive over being asked such questions...
    Perhaps he should have asked why you feel you should NOT have been?

    Since it happened on the freeway, there was no turning (or lane changing) involved and my car was moving within the speed limit. There was nothing to create any kind of unsafe situation.
    Aside from not watching the roadway ... kinda inherently unsafe.

    The assumption that I was not looking at the road is entirely without basis in fact.
    But ... uh ... you said you were looking at a map on your phone? So, which was it? The map, or the road?

    Not saying that it was inherently reckless as I did not see what happened, but, taking your eyes off the road IS dangerous - often, even if for a second.

    The very reason that the officer stopped me was because I was holding the phone in my hand high enough for the officer to see. Which in turn enabled me to look at the road at the same time.
    If you were using it as a GPS, you should have mounted it appropriately on the dash. Otherwise it is arguably a distraction. Now, a judge or commissioner will have to decide the matter.

    I promise to pursue the complaints in the way that would not be easy to ignore.
    Okay ...

    As I am sure you know full well, there are plenty of mechanisms for concerned citizens to hold law enforcement accountable for their practices. You know the full range of possible outcomes as well.
    Let's see ... personnel complaints come to mind, but, other than that, your legal avenues are few. Sure, a letter to the editor, a three minute diatribe at the mic on a Council meeting night, and a poison penned letter to the City Manager might make you feel good, but, ultimately the only action that will mean a thing to the officer would be a personnel complaint that resulted in a finding that he did, in fact, commit some form of malfeasance in violation of the law or agency policy.

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