Thursday, February 9, 2017

Strategies and Techniques for Defending California Traffic Tickets

First, get David Brown's book, Fight Your Ticket in California. It comes in eBook form and can be found at bookstores. Much of what follows is based on that book.

1. When you're pulled over, don't make waves. Don't say things like "I'll see you in court" and don't give the officer any idea that you'll contest the violation. You might want to ask whether you can pay the fine by mail, etc. just to give the impression that you are not interested in defending yourself. You might want to ask what courtroom you'd be appearing in, especially if you're in an outlying or rural area of your county. You have a right to a trial at the county seat, especially if that's closer to where you live or work. Tell the officer you'd rather appear at the county seat and if he or she doesn't assign the county seat, write below your signature "requested county seat." Don't argue about it. This request will tell the officer you really know what you're doing (which is probably a net negative) while making your violation much more difficult and costly to prosecute.

2. Know what you're charged with. Look up the violation code online and find the elements of the offense. Consider whether you actually did each and every one of those. You probably did, but you still need to know this information. Later at trial, the state is required to prove each of these elements. For example, if the Vehicle Code says "a driver shall not hold a cell phone while driving" and the officer only testified that you touched the phone while driving, that element would not be proven and you would not have violated that code provision. You may have violated others, but if you're not charged with the others, it doesn't matter. At trial, you want a list in front of you of all the elements of the offense. As the officer testifies, check these off and if the officer fails to prove one of the elements, wait until it's your turn to present a defense. Then, tell the judge which element was not proven and move for dismissal of the case.

3. Delay your case for as long as possible. Wait until a day before your appearance date and call the court clerk or go online and request a 30 day extension. You'll get a new appearance date. Repeat as many times as allowed for maximum delay of arraignment. Then, at the last appearance date allowed, request Trial by Written Declaration. Write a short letter to the Court Clerk saying you are requesting Trial by Written Declaration and take two signed copies with you to the clerk's window. The letter should state that you're expecting to receive your mailed TR205 Form and the newly assigned due date (new appearance date) in the mail. If you're offered printed forms on the spot, politely refuse. You should not be required to post bail at this time. Some clerks don't know the rules of court very well so you might need to copy 4.104

4. Do Trial by Written Declaration. All vehicle code infraction defendants have the option of Trial By Written Declaration (sometimes called TBD). You can find the TBD rules in the California Rules of Court online or at the Law Library. You might win at this stage, especially if the officer forgets to respond to the Clerk's notification. Even if you lose, you can find valuable information in your case file at the courthouse. As soon as you're notified, if you lost, go to the Court Clerk's office and ask to see your case file. Make copies of any evidence submitted and the officer's statement. This could come in handy later in court in terms of impeaching the officer's credibility.

5. Request Trial de Novo after TBD. Request more delays of trial dates for as long as possible. Since the court already has your bail amount, this is likely to be approved for no reason at all or for good reasons if you can come up with them. If the officer shows up, and if the judge is Pro Tem, disqualify him for that reason. If not, disqualify based on PC 170.6. These are basically delay tactics that may or may not help anything.

6. When you appear in court, address the judge only as "Your Honor." Similarly, address others as "Officer Smith" or "the prosecution", etc. This shows the proper respect in court, even if you disagree with statements or rulings made. Wait until the officer is finished presenting the case and then determine whether all elements of the offense have been proven. If not, move for dismissal on that basis. Only testify if you have evidence contradicting what the officer said. Generally, your best approach may be simply to question the officer and/or challenge evidence presented by the prosecution while also refusing to testify on your own behalf.