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  1. #1
    Join Date
    Oct 2005
    Location
    California
    Posts
    1,206

    Default Trial by Written Declaration Where Officer Filed Late

    I was found guilty (in California) for a traffic infraction after pleading not guilty by written declaration. I filed my declaration in plenty of time but the officer dated his 2 days later than the deadline and it was filed (I assume submitted, as well) almost 2 weeks past the deadline.

    What should I do now? I've been led to believe that I can get the matter dismissed..is that right? Under the circumstances, how is the best way to go about it....by letter or by showing up in court and pointing it out? By the way, I have requested a trial de novo, which has been scheduled for the end of the month. Thank you!!

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

    Default Trial by Written Declaration

    The court rule governing trials by declaration provides in part,
    Quote Quoting 2006 California Rules of Court, Rule 828. Traffic court - trial by written declaration
    (b) [Procedure]

    (5) (Instructions to arresting officer) If the clerk receives defendant's Request for Trial by Written Declaration (form TR-205) and bail by the due date, the clerk shall deliver or mail to the arresting officer's agency Notice and Instructions to Arresting Officer (form TR-210) and Officer's Declaration (form TR-235) with a copy of the Notice to Appear and a specified return date for receiving the officer's declaration. After receipt of the officer's declaration, or at the close of the officer's return date if no officer's declaration is filed, the clerk shall submit the case file with all declarations and other evidence received to the court for decision.

    * * *

    (c) [Due dates and time limits] Due dates and time limits shall be as stated in this rule, unless changed or extended by the court. The court may extend any date, but the court need not state the reasons for granting or denying an extension on the record or in the minutes.
    It thus appears that if the officer's response was late the case should have been submitted to the court for decision on the basis of your declaration alone. Not having seen your declaration, I don't know if it would have supported the traffic court's finding. There seems to be a possibility that the court granted an extension.

  3. #3
    Join Date
    Oct 2005
    Location
    California
    Posts
    1,206

    Default Thanks

    Thank you, Aaron. That's very good information.

  4. #4

    Default

    This happens a lot in a TBD. The officer doesn't submit and the judge or the clerk gives him a call. The problem is they don't have to justify or even enter into the record giving the officer a time extension. It comes down to the judge can do want he wants.

    Two of the major problems with a TBD are you may be assigned the same judge in your de novo and you usually lose the oportunity to take traffic school.

  5. #5
    Join Date
    Oct 2005
    Location
    California
    Posts
    1,206

    Default Yes

    Yes, I understand the first part having read paragraph (c). The entire process seems terribly one-sided and I feel fortunate that this is my first exposure to it in many, many years. (1984, I think)

    As I said before, I've observed traffic court trials twice recently and the only people not offered traffic school were those who had attended within the last 18 months or those ineligible because of some prior conviction. The judge was very, very nice about it.

  6. #6
    Join Date
    Oct 2005
    Location
    California
    Posts
    1,206

    Default The end

    In case anyone is interested, here's what happened. I went to trial today. Even though the judge was the same one that ruled against me, he seemed very fair so I decided to take my chances.

    I immediately asked for dismissal based on the officer turning in his paperwork after the required filing date. The judge said he would consider it after the trial.

    Thanks to Aaron and others and some serious thought and preparation, I was able to offer a very good defense. I was found not guilty. Even though I truly felt I was innocent, I think this whole, sordid mess has probably made me a better driver.

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