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.

Today, I published my first podcast over at SoundCloud. It's a discussion of the last Ventura Red Light Camera Case I won, focusing on the Evidence Authentication issue that I believe probably applies in a number of similar cases throughout California. I don't know this for sure and you should verify this issue before you bring it up in a court room somewhere. You can do this by using Trial By Written Declaration in California as suggested in the podcast or when you go to court, simply ask to look at the photographic evidence. Keep in mind that you have a 5th Amendment right not to testify and I'd suggest you exercise that right if the evidence is not properly authenticated. If you're not the driver pictured or if there are other problems with the evidence, you can bring those up as well. The prosecution may choose to charge someone else if someone else was actually driving.

You should go over to www.highwayrobbery.net to check all of the issues that might apply in your case. Additionally, www.helpigotaticket.com has very good information on California Traffic Violation Defenses. Finally, "Fight Your Ticket in California" by David Brown is one of the very best publications in this area. You can get it online as an eBook or at you local bookstore, perhaps. Listen to podcast here: https://soundcloud.com/don-hiebert/ventura-red-light-camera-case

Florida Appeals Court says corporations shouldn't be issuing citations.

At this link Florida Appeals Case you can see a decision, carefully reasoned, supporting the proposition that a for-profit corporation is not the correct entity to issue traffic citations. If your state is like California, this may not matter.

Dear Honorable Mayor and Honorable City Council Members,

I am writing this because I’m unable to attend tonight. I request that if possible, this letter be included along with other written or verbal statements you may receive regarding the CATTS Program.

My opposition to this program stems from the illegal contract in effect between the City of Ventura and Redflex Traffic Systems, INC. In particular, it is Cost Neutral. The term “Cost Neutral” is used herein to describe a contract wherein the municipality undertakes no financial risk while the contractor or vendor makes most or all of the capital investment and undertakes all of the risk. If Justice is blind, the eyes of the vendor are wide open when the question of profit and loss comes up.

Notwithstanding the creative syntax and grammatical gymnastics employed in the current contract, and in the proposed extension to camouflage its illegality, the contract currently violates the intent of CVC 21455.5(h) if not the specific wording thereof. This Contract contains terms that explicitly and directly link the vendor’s compensation to the amount of revenue generated through citations/convictions.

The Council’s legitimate task is to interpret the Law, giving it the meaning intended by the Legislature, if it is vague. Here, the Legislative intent is clear. In fact, when this language was enacted, there was a good deal of public concern about the idea of a profit-motivated contractor being involved in the law enforcement process, especially when the perception was that the private company’s profit was directly tied to the outcome of court cases as it is in the City of Ventura. This concern is all the more reasonable when the evidence collected is digital, being easily manipulated. And, it is further heightened when the vendor, Redflex of Phoenix, Arizona, is being investigated regarding bribery and other illegal activities in more than a dozen states (including California) and when there is a history of evidence falsification by Redflex (with at least one Redflex Notary Public in Arizona found to have falsified information). I am well aware of the changes made at Redflex in this regard. In fact, these changes were made necessary, in my opinion, by the rightful perception of corruption both at Redflex and in certain municipalities.

Regarding the interpretation and enforcement of CVC 21455.5(h), the mandatory prohibition regarding cost neutrality makes it illegal. It has been argued that the word “percentage” does not appear in the Contract. But, regardless of the number of citations issued, the exact amount of money owed to Redflex can be calculated calculating revenue in a given period and deducting City expenses from the total, paying Redflex up to the “fixed fee” specified. It is in fact readily apparent that the term “fixed fee” is more properly “maximum fee.” This might be looked at as a “sliding percentage.” The intent of the Legislature is clearly frustrated.

The enabling provisions of CVC 21455.5(h) are “mandatory” under the law. see People v. McGee 19 Cal. 3d 948.  Indeed, the statutory requirement is for the specific purpose of preventing a company or business with a profit motivation and a direct interest in the outcome of a case from involving itself in the Justice System. If a contract as the one in this case is enforced, and it has been in Ventura County, it stands for the proposition that the parties thereto need not comply with State Law.

Although complying with both the letter and the spirit of State Law would pose additional financial risk to the City of Ventura, it would also protect motorists from the risk, actual and perceived, that a private, for-profit corporation would involve itself in the Justice System at the potential expense of Justice. And, numerous California cities have indeed been able to comply with State Law in this regard, entering into contracts without cost neutrality provisions.

Regardless of the fact that a Police Officer reviews photographic evidence and the fact that the Court makes the ultimate determination regarding driver identity, etc., the Legislature sought to prohibit the sort of contract entered into by the City of Ventura and the Vendor. In fact, this intent can be seen in a recent change in statutory language when the prior words “may not” were replaced with the words “shall not” at CVC 21455.5(h) and elsewhere in the enabling provisions. The final meaning of the words may have changed only slightly but it is reasonable to believe that the Legislature sought to emphasize certain requirements that were/are not being observed. Regardless of the assertions by Redflex that its major concern is safety, it is a publicly held, for-profit Australian corporation, operating in the State of Arizona. It has no statutory duty to uphold the Law as a Peace Officer does. The Peace Officer’s oath to uphold the law and the accompanying statutory duty to do so results in the public trust in our system of justice.

CONCLUSION

If the Contract currently in effect is allowed to remain in place, there is continuing risk of public mistrust which is exactly what the Legislature was trying to avoid with the “cost neutral” contract prohibition at CVC 21455.5(h). Furthermore, the City has no incentive to comply with the Law nor should the Vendor be expected to care about the same. For the above reasons, I request that the Council reject the renewal of the CATTS Program Contract.

While it may be true that most defendants don’t know the contract is illegal, for the ones that do are are separated from their money, regardless of whether they actually violated the law, there is created a perception of unfairness or injustice. If the City of Ventura allows an illegal contract to remain in place and the Police Department participates in the prosecution of these cases, the warning of the court in People v. Goulet is appropriate: "Traffic rules account for most of the contact by average citizens with law enforcement and the courts.  Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws."

Sincerely,

Don Hiebert

1937 Cesar Chavez Dr.

Oxnard, CA 93030

donzoh1@gmail.com

cc: Mayor and Council Members council@cityofventura.net, mike.tracy@cityofventura.net, enasarenko@ci.ventura.ca.us, cheitmann@ci.ventura.ca.us, cmorehouse@ci.ventura.ca.us, jmonahan@ci.ventura.ca.us, cweir@ci.ventura.ca.us, nandrews@ci.ventura.ca.us .

Here is a link to my recent Red Light Camera Case Decision. The Judge ruled primarily on evidence authentication. As I've pointed out previously, the evidence presented in court was "authenticated" by means of a red stamp "true and correct evidence from " either Ventura Police Department or Redflex Traffic Systems. The photos and video from the intersection cameras are properly viewed as secondary evidence which must be authenticated, either with appropriate notations on the documents or by a statement from a witness present that he or she personally made the copies and has personal knowledge that the original documents exist.

Note that the Judge also ruled on an issue of Prosecutorial Authority as the City Attorney tried to serve as a prosecutor while he has never been so authorized by the District Attorney and the City Charter authorizes him to so serve only when the City has decided to prosecute certain misdemeanors. (This was an infraction case.) Nevertheless, he assured the Judge that he's done this dozens of times at the request of a "police officer" and that the DA had abdicated his option to prosecute the instant case. I doubt that the case outcome would have been any different but felt that this issue should be addressed and dealt with.

If you examine documents before or during a trial, and they have red stamps on them without any signature or badge number on them, you should object to the introduction of all such documents and to any testimony from the prosecution based on such documents. If they are excluded, the case is out the window.

Open Letter to Chief Williams, Oxnard Police Dept.(info@oxnardpd.org) and Chief Corney, Ventura Police Dept. (lperry@vpd.org, 911@vpd.org)

Dear Chief Williams and Chief Corney,

I’m writing you about the Red LIght Camera Programs currently in place in your cities. My concern is that both of these programs are illegal within the meaning of California Vehicle Code 21455.5 as they both are “Cost Neutral.” Such contracts have been found to be illegal in several courts. In fact, the “fixed fee” language found in them are attempts to get around the statutory language prohibiting them.

The “fixed fee” language in both contracts is contradicted by the “cost neutrality” clauses in the same contracts which guarantee that the cities will never pay more than the revenue generated in a given time period. In other words, what is termed “fixed fee” is really more properly “maximum fee” or “maximum contingency fee.” For example, if no revenue is generated in a given month, no money will be paid to Redflex, the private contractor providing cameras and services, in that month. Instead, the “fixed fee” deficit amount rolls over to the next month as an amount owing. The amount of money Redflex is paid is directly dependent on the amount of money collected up to a maximum amount. There is nothing “fixed” about the fee since it can vary depending on the amount of revenue generated. The use of this confusing language in the contract might best be called “linguistic gymnastics” and the clear purpose is to violate the intent of the Legislature.

CVC 21455.5(h) (1) provides “A contract between a governmental agency [such as the City of Ventura or the City of Oxnard] and a manufacturer or supplier of automated traffic enforcement equipment shall not include provision for the payment or compensation to the manufacturer or supplier based on the number of citations generated, or as a percentage of the revenue generated, as a result of the use of the equipment authorized under this section.”

A couple of things should be noted regarding the Legislative Intent of this provision. First, when the language was originally enacted, there was significant concern among the legislators and the general public about the idea that a corporation (such as Redflex) would involve itself in the Justice System with a profit motive where the profit realized would be directly related to the revenue generated.Second, in the most recent legislative change, the language was changed from “may not” to “shall not.” While these phrases are both imperatives, this change adds emphasis to the prohibition.

While it can be argued that the cost neutral contracts do not violate the specific wording of the statute, they definitely frustrate its Legislative Intent. This is why a number of cities have either modified their contracts to remove the cost neutral language or they have eliminated the programs altogether. On the question of Legislative Intent, as noted above, several courts have found these sorts of contracts illegal. When a statute is ambiguous (either unclear in its actual language or as here, not specifically addressing a specific contract provision) a court’s task is to give the statute the intended meaning.

The Legislative Intent embodied in the “number of citations” and “percentage of the revenue generated” phrases covers any incentivized contract where a contractor is given a motive to participate improperly in the administration of justice. This could include transmitting evidence where there clearly was not a violation, falsifying or fabricating evidence, etc. (As you may know, Redflex is being investigated in more than a dozen states, including California, regarding bribery and improper payments and gifts to government officials.) Neither the Legislature nor the General Public are comfortable with the idea of a profit motivated corporation being involved in the Justice System while having no duty to uphold the law, such as a public official or police officer does.

One case in particular that relates to this issue is California v. Evelyn McGee. What this case says is that when a statute contains enabling provisions such as the cost neutral prohibition here, and the government violates it, that violation is a bar to prosecution and any sanction against a defendant cannot be upheld. Similarly, the recently decided Gray case, which echoed the earlier McGee case, indicates that the enabling provisions of CVC 21455.5 are mandatory provisions that must be complied with. Similarly, California v. Gray held that a Defendant could raise the failure to abide by enabling provisions as a defense, assuming those provisions were intended to protect that group of persons to which the Defendant belongs.. Hopefully, defendants will start doing this  in Ventura County and the violations will be dismissed.

Additionally, it’s possible that a Class Action Lawsuit will be filed in the future that will require refunds to thousands of motorists. This could be a substantial financial liability. But, the bigger question is whether your Agency should participate in a program that is operating contrary to State Law. My suggestion is that either the contracts should be amended to comply with State Law or the programs should be discontinued. And, in view of your responsibility to follow and enforce the law, I believe one of these two things should be done immediately.

Sincerely,

__________________________ _________________

Don Hiebert Date

Oxnard, CA

donzoh1@gmail.com

cc: Editor, Ventura County Star (jmoore@vcstar.com), Judge Brian Back, Presiding Judge, Ventura County Superior Court (800 S. Victoria Ave., Ventura, CA 93009)

General thoughts on Red Light Cameras

First, they're all about the money, not safety. For example, regarding the program in Ventura, CA, the contractor's procedure manual indicates that all potential violations relating to emergency vehicles in a non-emergency status and those relating to vehicles with protected license plates are not processed. If safety was the motivator, these would be processed just like the others because either of these vehicle types can cause an accident just as easily as the rest of the vehicles.

Second, regardless of the actual motivation, they increase rear end accidents while reducing side impact collisions and doing nothing meaningful to the overall safety equation. Regardless of this, cities that choose to continue using them will conduct "studies" purporting to show improvements in safety.

Third, in California at least, the fine is way too high considering the relative seriousness of the offense.

Fourth, many cities maintain illegal contracts within the meaning of the law (in CA it's CVC 21455.5). They employ tricky contract lingo in order to confuse courts on this question. Fortunately, a number of cities have discontinued their programs altogether because the programs are not profitable or represent too much of a political risk without the illegal Cost Neutral provisions.

Fifth, the majority of the revenue generated is sent out of town, with much of it going to the corporate contractor.

For these reasons, and others, these citations should be fought at every turn. This means filing an Informal Discovery Request. It means requesting a Trial by Declaration. It means disqualifying a Commissioner if you appear in front of one. It means using a 170.6 challenge on the first Judge you appear in front of when legally appropriate. It means challenging all of the prosecution evidence when appropriate. It means appealing your case at least to the appellate division when appropriate. All of this takes time, but not a whole lot of it. And it takes very little money, especially when you consider that you might get by without paying any fine at all. I’ve received three of these. They all resulted in not guilty verdicts...two at Trial by Declaration and one in a Court Trial. The last one took eight months...but the look on the City Attorney’s face (who was apparently trying to prosecute the case with no legal authority) made it all well worth it. Well, he didn’t say he was actually prosecuting, but he was arguing and acting like a prosecutor until the judge agreed with me that he had no legal right to do that.

Red LIght Cameras are receiving less and less public support. Some people believe they do help with safety. If you’re one of those, and you ever get a citation, pay it with a smile on your face. The rest of you should consult www.highwayrobbery.net and www.helpigotaticket.com. If you’re willing to invest your time and effort, you can win your case!