I
I AM ALWAYS LIABLE
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SAMPLE MOTION FOR A VERIFIED COMPLAINT - TRAFFIC TICKET
This sample motion I use every time I get cited. Why, because if the State of California is going take me to court, attempt to prosecute me and attempt to extort a fine from me, well damnit, they are going to have to play by the rules! You see, you don't HAVE to accept the citation!! Demand a verified complaint! Make the local prosecutor do his job. If he won't, demand dismissal based upon lack of prosecution. Make the state, county, city and public prosecutor earn that fine! In other words ... 'just say no.'
JOHN CONSTITUTION
2468 Ventura Blvd.
Encino, California 91436
Telephone: (XXX)XXX-XXXX
Attorney for the Accused/Defendant
JOHN CONSTITUTION, In Propria Persona
MUNICIPAL COURT OF THE VAN NUYS JUDICIAL DISTRICT
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
LOS ANGELES POLICE DEPARTMENT; and JANE DOE POLICE OFFICER,
Plaintiff,
vs.
JOHN CONSTITUTION,
Accused/Defendant.
_____________________________________
UNKNOWN REAL PARTY IN INTEREST.
Case No.: 123345
NOTICE OF MOTION AND MOTION BY THE ACCUSED FOR A VERIFIED COMPLAINT; POINTS AND AUTHORITIES IN SUPPORT THEREOF
Date : ____________
Time : ____________
Div. : ___
The above_named Accused/Defendant, JOHN CONSTITUTION (hereinafter referred to as "the accused'), demands a verified complaint on the above_entitled action. The following points and authorities are submitted in support of this motion:
I.
A "NOTICE TO APPEAR" IS A CIVIL PROCEDURE
On ___________________, the accused signed a "Notice to Appear", as referenced in Vehicle Code § 40500. Notice to Appear is defined in Blacks Law Dictionary (6th) as:
/////
"Notice to appear. Shorthand expression for the form of summons or order of notice in which the defendant is ordered to appear and show cause why judgement should not be entered against him. Federal Rules of Civil Procedure 4 (b)."
Thus a Notice to Appear is a civil procedure. No where on the instant "Notice to Appear" does the "People of the State of California" appear, which would indicate a public offense.
California Government Code § 100 reads:
"Sovereignty in people; Writs and processes
(a) The sovereignty of the state resides in the people thereof, and all writs and processes shall issue in their name.
(b) The style of all process shall be "The People of the State of California," and all prosecutions shall be conducted in their name and by their authority."
II.
A VERIFIED "COMPLAINT" MUST STATE WHETHER IT IS CIVIL OR CRIMINAL AND, IF CRIMINAL, MUST BE PROSECUTED IN THE NAME OF THE PEOPLE OF THE STATE OF CALIFORNIA
Only a verified complaint, listing the action and parties involved, can clarify:
a. Whether this is a criminal or civil action.
b. The name of the plaintiff in this action.
c. The nature of the proceeding.
Amendment VI of the United States Constitution states:
"In all criminal prosecutions, the accused shall enjoy the right . . . , to be informed of the nature and cause of the accusation . . ."
In addition, California Penal Code § 684 reads:
"A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense." (Emphasis added)
III.
A "NOTICE TO APPEAR" IS NOT A VERIFIED COMPLAINT
The Notice to Appear is not verified; the accused has the right to ask that a verified complaint be filed. The signing of a notice by the aforenamed officer under penalty of perjury that the offense occurred does not constitute a "verified Notice to Appear" to be used as a verified complaint.
Black's Law Dictionary,(6th) edition, defines verify (verified):
"Verify. To confirm or substantiate by oath or affidavit. Particularly used of making formal oath to accounts, petitions, pleadings, and other papers. The word "verified," when used in a statute, ordinarily imports a verify attested by the sanctity of an oath. It is frequently used interchangeably with "sworn"."
California Code of Civil Procedure § 2009 states:
"An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action of special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute."
The wording of California Vehicle Code § 40513(b) states:
"If the notice to appear is not verified, the defendant may at the time of arraignment, request that a verified complaint be filed." (Emphasis added)
The wording of California Penal Code § 853.9, is very specific and states:
"If, however, the defendant violates his or her promise to appear in court, or does not deposit lawful bail, or pleads other than "guilty" or "nolo contendere" to the offense charged, a complaint shall be filed which shall conform to the provisions of this code and which shall be deemed to be an original complaint; and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear. This comes after the notice to appear is established as a complaint to which the accused may enter a plea to."
To use the Notice to Appear as a complaint it must have the same qualifications as a verified complaint:
"Verification. Confirmation of correctness, truth or authenticity, by affidavit, oath or deposition . . . For example, a verified complaint typically has an attached affidavit of plaintiff to the effect that the complaint is true." (ibid, Black's Law Dictionary 6th Edition) The certified notice to appear with the officers's "signature" under penalty of law constitutes only certification, and only "certifies" to what was written on the notice to appear at the time it was written: "Certificate. A written assurance, or official representation that some act has or has not been done, or some event occurred, or some legal formality has been complied with. A 'certificate' by a public officer is a statement written and signed, but not necessarily sworn to, which is by law made evidence of the truth of the facts stated for all or for certain purposes." (Blacks Law Dictionary 6th Edition)
IV.
THE NOTICE TO APPEAR CANNOT BE USED AS A COMPLAINT AS IT IS A VIOLATION OF THE ACCUSED'S RIGHT AGAINST SELF_INCRIMINATION
". . . Nor shall [any person] be compelled in any criminal case to be a witness against himself. . ." (Amendment V, United States Constitution)
Due to the amount of revenue generated (received by the government) from the traffic system it is tempting to argue against this for the sake of judicial economy. In Municipal Court v. Superior Court, 199 Cal.App.3d 19, 244 Cal.Rptr. 591 (Feb. 1988), this argument was presented:
"Despite these benefits to the judicial system, persons charged with crimes are accorded by the United States and California Constitutions a privilege not to testify against themselves. A sacrifice of judicial economy and certainty of the facts is inherent in the privilege against self-incrimination." (Emphasis added)
V.
THE INSTANT "NOTICE TO APPEAR" IS NOT ACCEPTED AS A VERIFIED COMPLAINT BY THE ACCUSED
The Notice to Appear is on a form approved by the Judicial Council. Therefore the provisions of California Vehicle Code § 40513 (b) apply to the Notice to Appear. Since the Notice to Appear "shall constitute a complaint to which the defendant may enter a plea . . ." (California Vehicle Code § 40513 (b)); it is a permissive act and not required by law. If the action is criminal, it may be considered as a complaint "as otherwise provided by law" (California Penal Code § 740)but, it is not required to be pled to by the accused. The Notice to Appear may be used as a complaint
This sample motion I use every time I get cited. Why, because if the State of California is going take me to court, attempt to prosecute me and attempt to extort a fine from me, well damnit, they are going to have to play by the rules! You see, you don't HAVE to accept the citation!! Demand a verified complaint! Make the local prosecutor do his job. If he won't, demand dismissal based upon lack of prosecution. Make the state, county, city and public prosecutor earn that fine! In other words ... 'just say no.'
JOHN CONSTITUTION
2468 Ventura Blvd.
Encino, California 91436
Telephone: (XXX)XXX-XXXX
Attorney for the Accused/Defendant
JOHN CONSTITUTION, In Propria Persona
MUNICIPAL COURT OF THE VAN NUYS JUDICIAL DISTRICT
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
LOS ANGELES POLICE DEPARTMENT; and JANE DOE POLICE OFFICER,
Plaintiff,
vs.
JOHN CONSTITUTION,
Accused/Defendant.
_____________________________________
UNKNOWN REAL PARTY IN INTEREST.
Case No.: 123345
NOTICE OF MOTION AND MOTION BY THE ACCUSED FOR A VERIFIED COMPLAINT; POINTS AND AUTHORITIES IN SUPPORT THEREOF
Date : ____________
Time : ____________
Div. : ___
The above_named Accused/Defendant, JOHN CONSTITUTION (hereinafter referred to as "the accused'), demands a verified complaint on the above_entitled action. The following points and authorities are submitted in support of this motion:
I.
A "NOTICE TO APPEAR" IS A CIVIL PROCEDURE
On ___________________, the accused signed a "Notice to Appear", as referenced in Vehicle Code § 40500. Notice to Appear is defined in Blacks Law Dictionary (6th) as:
/////
"Notice to appear. Shorthand expression for the form of summons or order of notice in which the defendant is ordered to appear and show cause why judgement should not be entered against him. Federal Rules of Civil Procedure 4 (b)."
Thus a Notice to Appear is a civil procedure. No where on the instant "Notice to Appear" does the "People of the State of California" appear, which would indicate a public offense.
California Government Code § 100 reads:
"Sovereignty in people; Writs and processes
(a) The sovereignty of the state resides in the people thereof, and all writs and processes shall issue in their name.
(b) The style of all process shall be "The People of the State of California," and all prosecutions shall be conducted in their name and by their authority."
II.
A VERIFIED "COMPLAINT" MUST STATE WHETHER IT IS CIVIL OR CRIMINAL AND, IF CRIMINAL, MUST BE PROSECUTED IN THE NAME OF THE PEOPLE OF THE STATE OF CALIFORNIA
Only a verified complaint, listing the action and parties involved, can clarify:
a. Whether this is a criminal or civil action.
b. The name of the plaintiff in this action.
c. The nature of the proceeding.
Amendment VI of the United States Constitution states:
"In all criminal prosecutions, the accused shall enjoy the right . . . , to be informed of the nature and cause of the accusation . . ."
In addition, California Penal Code § 684 reads:
"A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense." (Emphasis added)
III.
A "NOTICE TO APPEAR" IS NOT A VERIFIED COMPLAINT
The Notice to Appear is not verified; the accused has the right to ask that a verified complaint be filed. The signing of a notice by the aforenamed officer under penalty of perjury that the offense occurred does not constitute a "verified Notice to Appear" to be used as a verified complaint.
Black's Law Dictionary,(6th) edition, defines verify (verified):
"Verify. To confirm or substantiate by oath or affidavit. Particularly used of making formal oath to accounts, petitions, pleadings, and other papers. The word "verified," when used in a statute, ordinarily imports a verify attested by the sanctity of an oath. It is frequently used interchangeably with "sworn"."
California Code of Civil Procedure § 2009 states:
"An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action of special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute."
The wording of California Vehicle Code § 40513(b) states:
"If the notice to appear is not verified, the defendant may at the time of arraignment, request that a verified complaint be filed." (Emphasis added)
The wording of California Penal Code § 853.9, is very specific and states:
"If, however, the defendant violates his or her promise to appear in court, or does not deposit lawful bail, or pleads other than "guilty" or "nolo contendere" to the offense charged, a complaint shall be filed which shall conform to the provisions of this code and which shall be deemed to be an original complaint; and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear. This comes after the notice to appear is established as a complaint to which the accused may enter a plea to."
To use the Notice to Appear as a complaint it must have the same qualifications as a verified complaint:
"Verification. Confirmation of correctness, truth or authenticity, by affidavit, oath or deposition . . . For example, a verified complaint typically has an attached affidavit of plaintiff to the effect that the complaint is true." (ibid, Black's Law Dictionary 6th Edition) The certified notice to appear with the officers's "signature" under penalty of law constitutes only certification, and only "certifies" to what was written on the notice to appear at the time it was written: "Certificate. A written assurance, or official representation that some act has or has not been done, or some event occurred, or some legal formality has been complied with. A 'certificate' by a public officer is a statement written and signed, but not necessarily sworn to, which is by law made evidence of the truth of the facts stated for all or for certain purposes." (Blacks Law Dictionary 6th Edition)
IV.
THE NOTICE TO APPEAR CANNOT BE USED AS A COMPLAINT AS IT IS A VIOLATION OF THE ACCUSED'S RIGHT AGAINST SELF_INCRIMINATION
". . . Nor shall [any person] be compelled in any criminal case to be a witness against himself. . ." (Amendment V, United States Constitution)
Due to the amount of revenue generated (received by the government) from the traffic system it is tempting to argue against this for the sake of judicial economy. In Municipal Court v. Superior Court, 199 Cal.App.3d 19, 244 Cal.Rptr. 591 (Feb. 1988), this argument was presented:
"Despite these benefits to the judicial system, persons charged with crimes are accorded by the United States and California Constitutions a privilege not to testify against themselves. A sacrifice of judicial economy and certainty of the facts is inherent in the privilege against self-incrimination." (Emphasis added)
V.
THE INSTANT "NOTICE TO APPEAR" IS NOT ACCEPTED AS A VERIFIED COMPLAINT BY THE ACCUSED
The Notice to Appear is on a form approved by the Judicial Council. Therefore the provisions of California Vehicle Code § 40513 (b) apply to the Notice to Appear. Since the Notice to Appear "shall constitute a complaint to which the defendant may enter a plea . . ." (California Vehicle Code § 40513 (b)); it is a permissive act and not required by law. If the action is criminal, it may be considered as a complaint "as otherwise provided by law" (California Penal Code § 740)but, it is not required to be pled to by the accused. The Notice to Appear may be used as a complaint
