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  1. #1
    Join Date
    Aug 2005
    Location
    Los Banos, CA
    Posts
    27

    Default Requesting A Written Trial By Declaration

    San Jose, California

    So it's quite a complicated matter. I was pulled over for CVC 22350-I stating

    22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

    On a personal note, I do not believe I was driving 53 in the 35. Seeing that the 40MPH sign was also about 1/4 mile ahead as well, I believe the fine was unjust regardless. I drive a stick and I love my precious car, so I shift at precisely 3k RPM every shift, every time, unless I'm passing on the freeway. 53MPH would have landed me in 5th gear at the time, I was barely into 4th when he pulled me over, hence my confusion. It was 2AM in the morning, no other cars on the road, I just dropped off one of my high school kids that I advise for.

    With the section code that I was written up for, even if I were driving 53, I do not believe it was non-reasonable or non-prudent on the big empty road that I was on, and I am willing to argue my case if I must. Traffic school is not an option for me because of a previous moving violation 17 months before my second violation.

    My arraignment date was set to December 31st 2007. I placed a plea of NOT GUILTY. And when the judge asked if I waive my right to a speedy trial, I requested a Written Trial By Declaration by CVC 40902, which states

    40902. (a) (1) The court , pursuant to this section, shall, by rule, provide that the defendant may elect to have a trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of this code or any local ordinance adopted pursuant to this code, other than an infraction cited pursuant to Article 2 (commencing with Section 23152) of Chapter 12 of Division 11.

    (2) The Judicial Council may adopt rules and forms governing trials by declaration in accordance with this section. Any rule or form adopted by the Judicial Council pursuant to this paragraph shall supersede any local rule of a court adopted pursuant to paragraph (1).

    (b) If the defendant elects to have a trial by written declaration, the defendant shall, at the time of submitting that declaration, submit bail in the amount established in the uniform traffic penalty schedule pursuant to Section 40310. If the defendant is found not guilty or if the charges are otherwise dismissed, the amount of the bail shall be promptly refunded to the defendant.

    (c) Notwithstanding Division 10 (commencing with Section 1200) of the Evidence Code, the rules governing trials by written declaration may provide for testimony and other relevant evidence to be introduced in the form of a notice to appear issued pursuant to Section 40500, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant.

    (d) If the defendant is dissatisfied with a decision of the court in a proceeding pursuant to this section, the defendant shall be granted a trial de novo.
    Amended Ch. 488, Stats. 1993. Effective January 1, 1994
    Amended Sec. 1, Ch. 265, Stats. 1998. Effective January 1, 1999.


    With that, on that date December 31st 2007, the judge asked me to pay the bail that day. I told him that the bail is due with my declaration, and he disagreed and ignored my statements and asked me if I could pay today. I said no, so he set a continuance date until the 31st of January.

    I appeared at court today with a different commissioner and told her what happened previously. She told me that the Written Trial By Declaration was originally for convictions of peoples living too far away from the court, and she demanded the cash as well today, stating I need to pay it before I get my declaration. She asked if I had the money today and I do not, so she gave me until the 15th of February to pay it. Now, I'm a struggling college student with a full time job and volunteer at the local high school for advising. I don't have much money as I spend all my money paying off my tuition as well as rent and food. The fine isn't that much, but isn't something I can just fork over without some time to prepare for it.

    What should I do? It does state in the vehicle code that " Any rule or form adopted by the Judicial Council pursuant to this paragraph shall supersede any local rule of a court adopted pursuant to paragraph." Not quite positive if that means that the ruling should go in accordance to the vehicle code or if that local laws can go above these.

    Sorry about the lengthiness, I'm just between a rock and a hard spot. I can't afford to pay any more on my insurance, literally, and wouldn't mind traffic school, but they have made it unavailable to me now.

    Thank you

    -Mike

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Requesting A Written Trial By Declaration

    You're seriously going to try to beat a speeding ticket by arguing that it was reasonable and prudent to go 17 MPH over the limit?

  3. #3
    Join Date
    Aug 2005
    Location
    Los Banos, CA
    Posts
    27

    Default Re: Requesting A Written Trial By Declaration

    Once again, as stated in my first post, I really do not believe I was driving that fast. I am very particular about my car and what gears I shift at. I honestly do not believe I was driving that fast. I do my best not to speed just about every time I get into my car. I know the consequences, I know I can't afford another ticket, and I know I can't afford the premiums. I'm looking at all possible avenues to get past this ticket. The law says I do not have to admit guilt, but I can say that even if I was speeding, I don't believe that it was unsafe or not prudent. I do believe that it was a misjudgment by the officer, but how often does that stand up in court?

    I will argue whatever avenue is available. I have had tickets in the past. And when I believe I am at fault, I suck it up and pay the fine. But this is my first time actually fighting a ticket, simply because I believe I was not driving as fast as he cited me for and I was NOT driving unsafe or at an unreasonable speed.

    Granted it was 2AM in the morning, I was tired after driving my high school students which I advise for home. But even so, I am very careful with my driving as to not get a ticket. I believe this one was unfair and I will fight it.

    Regardless, my question is regarding the Trial By Declaration and not the ticket itself. I need to find out if I should go by the judges decision and pay the fine BEFORE I write my trial or if I really need to pay before I submit my declaration.

  4. #4
    Join Date
    Jan 2008
    Posts
    100

    Default Re: Requesting A Written Trial By Declaration

    22350 is probably the easiest to beat of all speeding tickets. See my responses in the threadhere

    You make a really good point about the bail. I think you are right and the judges are wrong. Frequently, judges replace the law with their court policy. That's wrong You just need to choose your battles. You are going to have to pay the bail sooner or later... so if you win this argument, what have you won?

  5. #5
    Join Date
    Aug 2005
    Location
    Los Banos, CA
    Posts
    27

    Default Re: Requesting A Written Trial By Declaration

    Thank you 2JIMinCA.

    Should I write up all the points from the other posts in my trial by declaration, or should I just wait until a Trial de Novo if I don't win my trial by declaration?

  6. #6
    Join Date
    Jan 2008
    Posts
    100

    Default Re: Requesting A Written Trial By Declaration

    Quote Quoting NRM
    View Post
    Thank you 2JIMinCA.

    Should I write up all the points from the other posts in my trial by declaration, or should I just wait until a Trial de Novo if I don't win my trial by declaration?
    You shouldn't wait... you should actually try to win the TBWD.

    What happened with the bail issue?

  7. #7
    Join Date
    Sep 2007
    Posts
    11

    Thumbs up Re: Requesting A Written Trial By Declaration

    Quote Quoting NRM
    View Post
    San Jose, California

    So it's quite a complicated matter. I was pulled over for CVC 22350-I stating

    22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

    On a personal note, I do not believe I was driving 53 in the 35. Seeing that the 40MPH sign was also about 1/4 mile ahead as well, I believe the fine was unjust regardless. I drive a stick and I love my precious car, so I shift at precisely 3k RPM every shift, every time, unless I'm passing on the freeway. 53MPH would have landed me in 5th gear at the time, I was barely into 4th when he pulled me over, hence my confusion. It was 2AM in the morning, no other cars on the road, I just dropped off one of my high school kids that I advise for.

    With the section code that I was written up for, even if I were driving 53, I do not believe it was non-reasonable or non-prudent on the big empty road that I was on, and I am willing to argue my case if I must. Traffic school is not an option for me because of a previous moving violation 17 months before my second violation.

    My arraignment date was set to December 31st 2007. I placed a plea of NOT GUILTY. And when the judge asked if I waive my right to a speedy trial, I requested a Written Trial By Declaration by CVC 40902, which states

    40902. (a) (1) The court , pursuant to this section, shall, by rule, provide that the defendant may elect to have a trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of this code or any local ordinance adopted pursuant to this code, other than an infraction cited pursuant to Article 2 (commencing with Section 23152) of Chapter 12 of Division 11.

    (2) The Judicial Council may adopt rules and forms governing trials by declaration in accordance with this section. Any rule or form adopted by the Judicial Council pursuant to this paragraph shall supersede any local rule of a court adopted pursuant to paragraph (1).

    (b) If the defendant elects to have a trial by written declaration, the defendant shall, at the time of submitting that declaration, submit bail in the amount established in the uniform traffic penalty schedule pursuant to Section 40310. If the defendant is found not guilty or if the charges are otherwise dismissed, the amount of the bail shall be promptly refunded to the defendant.

    (c) Notwithstanding Division 10 (commencing with Section 1200) of the Evidence Code, the rules governing trials by written declaration may provide for testimony and other relevant evidence to be introduced in the form of a notice to appear issued pursuant to Section 40500, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant.

    (d) If the defendant is dissatisfied with a decision of the court in a proceeding pursuant to this section, the defendant shall be granted a trial de novo.
    Amended Ch. 488, Stats. 1993. Effective January 1, 1994
    Amended Sec. 1, Ch. 265, Stats. 1998. Effective January 1, 1999.


    With that, on that date December 31st 2007, the judge asked me to pay the bail that day. I told him that the bail is due with my declaration, and he disagreed and ignored my statements and asked me if I could pay today. I said no, so he set a continuance date until the 31st of January.

    I appeared at court today with a different commissioner and told her what happened previously. She told me that the Written Trial By Declaration was originally for convictions of peoples living too far away from the court, and she demanded the cash as well today, stating I need to pay it before I get my declaration. She asked if I had the money today and I do not, so she gave me until the 15th of February to pay it. Now, I'm a struggling college student with a full time job and volunteer at the local high school for advising. I don't have much money as I spend all my money paying off my tuition as well as rent and food. The fine isn't that much, but isn't something I can just fork over without some time to prepare for it.

    What should I do? It does state in the vehicle code that " Any rule or form adopted by the Judicial Council pursuant to this paragraph shall supersede any local rule of a court adopted pursuant to paragraph." Not quite positive if that means that the ruling should go in accordance to the vehicle code or if that local laws can go above these.

    Sorry about the lengthiness, I'm just between a rock and a hard spot. I can't afford to pay any more on my insurance, literally, and wouldn't mind traffic school, but they have made it unavailable to me now.

    Thank you

    -Mike
    Mike

    you have to pay first and then file for trial by written declaration. Check to see in your county if you can do that over the internet, if not download the forms fill them and them go to the clerk pay the bail and file the forms at the same time.

    John

  8. #8
    Join Date
    Feb 2008
    Posts
    1,622

    Default Re: Requesting A Written Trial By Declaration

    Quote Quoting JohnF
    View Post
    Mike

    you have to pay first and then file for trial by written declaration.

    John
    Dude... read 40902(b) above.

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