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  1. #1
    Join Date
    May 2020
    Posts
    10

    Default How to Request a Dismissal for Court Closure and Notice to Appear

    My question involves a traffic ticket from the state of: C.A
    I have been trying to get a ticket dismissed on the grounds of Notice to appear and court closures and some interesting points in a thread called speedy trial and court closures.
    I sent in a letter asking for it to be dismissed on the grounds of Notice to appear and the date since the court was closed.
    The Judge said I did it wrong and has allowed me to
    try again.
    Can anyone help please?
    Best Regards
    Dave Hume

  2. #2
    Join Date
    Jul 2018
    Posts
    2,745

    Default Re: How to Request a Dismissal for Court Closure and Notice to Appear

    Quote Quoting Hume1234
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    I have been trying to get a ticket dismissed on the grounds of Notice to appear and court closures and some interesting points in a thread called speedy trial and court closures.
    Huh? What does "dismissed on the grounds of [n]otice to appear" mean? Why would you think that "court closures" would warrant dismissing a ticket? What does "some interesting points in a thread called speedy trial and court closures" mean?


    Quote Quoting Hume1234
    View Post
    Can anyone help please?
    No one here is likely to be of any help unless you present your situation a bit more coherently. Otherwise, retain the services of a local attorney.

  3. #3
    Join Date
    May 2020
    Posts
    10

    Default Re: How to Request a Dismissal for Court Closure and Notice to Appear

    I am sorry for my legal inadequacies but there is a thread labeled Speedy trials and stay at home orders in which a gentleman called Jim brought up some points about the Notice to Appear and court closures. I was hoping to maybe get a little direction on this topic and whether I "can" get a dismissal around these points

    This is an interesting question and is certainly not unique to Washington. The shutdown of businesses in this country is widespread and pretty much all-inclusive, even to include court houses and their operations. In San Luis Obispo County, CA, the court issued a press release regarding the closure of the various courtrooms in the county; they're pretty much closing them down. I understand that traffic tickets are treated different in every state but my only concern in this article is the affect this shutdown will have on persons in San Luis Obispo County who were cited to appear for arraignment on a day when the court was closed. What will happen with those people who, through no fault of their own, did not (could not) show up for their hearing? In my opinion, there are three options:

    1) The court could notify the defendant of a new hearing date they are to appear,
    2) The citing officer could reissue the citation (Notice to Appear) or,
    3) The court could dismiss the case.

    I believe the court has only one option.

    In California, an infraction is a criminal matter subject generally to the provisions applicable to misdemeanors, except for the right to a jury trial, the possibility of confinement as a punishment, and the right to court appointed counsel if indigent. (See PEOPLE v. SIMPSON (2014), 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396). Penal Code section 19.7 specifically states "all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof." [Emphasis added]

    The original "NOTICE TO APPEAR" when issued by the officer requires the cited person to appear on or before a date specified in the Notice. This Notice, which includes the signature of both the officer and the cited person, constitutes "proof of service" and is legally binding on the cited person requiring them to appear in court. When the Notice to Appear is filed with the court by the police officer it can only be used for 1) the defendant may enter a plea and, 2) if the notice to appear is verified, upon which a warrant may be issue (PC 40513b). Once the cited person appears in court, this "Notice to Appear" loses all legal authority and the court technically still has no jurisdiction over that person. It isn't until that person appears and pleads that the court acquires jurisdiction. Because the citing officer is not representing the people, and cannot initiate criminal proceedings, the court can only acquire jurisdiction by the waiver of the filing of a complaint and by the defendant making a general appearance by entering a plea.

    Because of the mandate of VC 40513(b) (…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…) the officer cannot change the date on the original citation, so the only recourse the officer would have is to issue another citation and file it with the court. The problem that arises then is that the officer doesn't have your signature with your promise to appear in court on a certain future day, and without that signature and notice, there is no proof of service and no failure to appear charge can be filed. At this point, the court lacks jurisdiction over you as the defendant (CCP 410.50(a) Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent to personal service of summons on such party.). Keep in mind that the citing officer is not the prosecutor, he is only a witness and cannot initiate criminal proceedings. If criminal proceedings have not been initiated, the court has no authority to order you to appear at a future date.

    Legally, the courts only option would be to dismiss, although technically, at this point, the court still lacks jurisdiction over the person and there is nothing to dismiss.

    It will be interesting to see how the court handles these cases

  4. #4
    Join Date
    Jul 2016
    Location
    Paso Robles, California
    Posts
    544

    Default Re: How to Request a Dismissal for Court Closure and Notice to Appear

    There are three (3) documents I would like to see:

    1. The letter you sent to the court,
    2. The response you received from the court, and
    3. A copy of the Case Summary from the court.

    These should provide all the information needed to better understand your case and therefore provide a more informed response.

  5. #5
    Join Date
    May 2020
    Posts
    10

    Default Re: How to Request a Dismissal for Court Closure and Notice to Appear

    Ok thank you Jim will do ASAP

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