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  1. #1
    Join Date
    Jan 2008
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    7

    Default CHP Caught Me Speeding By Aircraft - Wrote Trial By Declaration

    I was driving on SB I-280 (San Mateo County, SF Bay Area, CA) when the CHP ground officer (arresting officer) pulled me over for speeding. He said that CHP aircraft determined that I was going 92mph in a 65mph zone, although he wrote me up for 85mph. The CHP ground officer did not independently determine my speed from the ground (i.e., no radar, no pacing, etc).

    I wrote a Trial By Declaration for my defense but I later found out that the judge ruled in favor of the CHP Officer. So I had set a Trial de Novo as the next step. However, I went to the Court and requested a copy of the declarations that officer(s) wrote and turns out, only the CHP ground officer wrote the declaration. There was no declaration from the CHP air officer. In the ground officer’s statement, he concurred that my speed was determined by aircraft, and did not mention that he assessed my speed independently from the ground. In the TR-235 form, the officer declared that “the offense(s) were not commited in my presence”. One thing I noticed in the officer's declaration was that "...I wasn't going 90 but maybe 80", which I did not recall saying. I believe I verbally told the officer that I might have been going fast (hoping that the CHP officer would just give me a warning if I was cooperative), but that in itself is open to many interpretations.

    Therefore, I believe that this case should be dismissed even before we reach the Trial de Novo, since the air officer did not respond, nor will he ever respond within the 25 day deadline from the day I first submitted my declaration. If my assessment is correct, is there anything I could do between now and my Trial de Novo to the get the case dismissed? I was wondering why the judge did not catch that the first time when the judge reviewed our declarations.

    Also, the Court Clerk mentioned that only the officer on the citation (which is only the ground officer in this case) will be subpeonaed for the Trial de Novo. I understand that for the Trial de Novo, both the ground and air officers need to appear as well.

    Please advise if my assessment that the Trial-by-Declaration should be dismissed is correct. Do I have a strong case for dismissal? Thank you in advance.

  2. #2
    Join Date
    Jul 2006
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    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    Q: Do I have a strong case for dismissal?

    A: I would say you have about a 50-50 chance, more or less.

  3. #3
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    Jan 2008
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    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    Quote Quoting seniorjudge
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    Q: Do I have a strong case for dismissal?

    A: I would say you have about a 50-50 chance, more or less.
    Can I use the argument that there should be no trial de novo in the first place since only 1 of the 2 officers wrote a statement in response to my trial by declaration? In situations involving the aircraft officer radioing to the ground officer to issue the ticket, doesn't BOTH the aircraft officer and the ground officer have provide his/her side of the story as well? Thanks.

  4. #4
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    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    Since a trial de novo means that everything starts all over again as if nothing had happened in the past, then I doubt your argument will work.

    But, argue anything. You have nothing to lose.

  5. #5
    Join Date
    Jan 2008
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    7

    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    Quote Quoting seniorjudge
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    Since a trial de novo means that everything starts all over again as if nothing had happened in the past, then I doubt your argument will work.

    But, argue anything. You have nothing to lose.
    Thanks for your reply.

    I didn't realize that I will start off with a clean slate from the trial de novo. Is there anyway I would appeal the trial by declaration, or is it a done deal?

    Also, supposedly only the officer(s) listed on the citation will be subpoenaed for the trial de novo. In my case, I think only the ground officer was on the citation, because I only saw one name, and only one officer wrote a statement to my declaration. Is there some other process in which the air officer will be subpoenaed? If the air officer doesn't appear, then I think there should be good grounds for dismissal?

  6. #6
    Join Date
    Jul 2006
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    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    Q: I didn't realize that I will start off with a clean slate from the trial de novo. Is there anyway I would appeal the trial by declaration, or is it a done deal?

    A: There is no appeal; you get a trial de novo.

  7. #7
    Join Date
    Dec 2004
    Location
    Seattle
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    3,577

    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    The appeal from a decision of a Trial by Declaration, which appears to have been made in this case, is a de novo trial. SJ is right -- you start all over again, as though the TBD did not even happen.

    At that trial, if both officers are not present, you should move for dismissal. The citing officer CANNOT testify as to what the other officer did or said (If he/she tries, you must immediately object on the grounds of hearsay). He/she can only testify about what he/she observed. The officer can also testify as to what you said.

    Barry

    Edit: Sorry, SJ, simultaneous posting.

  8. #8
    Join Date
    Jan 2008
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    7

    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote TBD...

    Quote Quoting blewis
    View Post
    The appeal from a decision of a Trial by Declaration, which appears to have been made in this case, is a de novo trial. SJ is right -- you start all over again, as though the TBD did not even happen.

    At that trial, if both officers are not present, you should move for dismissal. The citing officer CANNOT testify as to what the other officer did or said (If he/she tries, you must immediately object on the grounds of hearsay). He/she can only testify about what he/she observed. The officer can also testify as to what you said.

    Barry

    Edit: Sorry, SJ, simultaneous posting.

    Thanks for your replies.

    Seems like there were some procedural errors on my trial by declaration which resulted in an unfair ruling against my behalf. I guess there is not much I could do but to move to the trial de novo. I am hoping that the air officer will not show up for the trial de novo for the same reasons he did not write a statement in response to my declaration. But I hope the result is different...

  9. #9
    Join Date
    Jan 2008
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    100

    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote Trial By Declaration

    TBWD is a nice idea by the Legislature, but the Courts abuse it terribly. I have seen many TBWD's where it is obvious that the Judge just rubber stamps "guilty". As was said earlier, if you have a problem with your TBWD, your avenue of redress is the Trial de novo. Then you have the right to appeal.

    I have thought about writing a letter to complain that the judiciary is depriving me (and you) of my right to a TBWD since due consideration is not given. You could do the same.

  10. #10
    Join Date
    Jan 2008
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    7

    Default Re: California: CHP Caught Me Speeding By Aircraft - Wrote Trial By Declaration

    Quote Quoting 2JIMinCA
    View Post
    TBWD is a nice idea by the Legislature, but the Courts abuse it terribly. I have seen many TBWD's where it is obvious that the Judge just rubber stamps "guilty". As was said earlier, if you have a problem with your TBWD, your avenue of redress is the Trial de novo. Then you have the right to appeal.

    I have thought about writing a letter to complain that the judiciary is depriving me (and you) of my right to a TBWD since due consideration is not given. You could do the same.
    Is there a formal procedure to write a letter to complain to the judiciary? Has anyone been successful by overturning the decision of the TBD? Thanks.

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