Vehicle equipment violation: Is evidence required

What is the name of your state (only U.S. law)? California.

Generally:
If a law states a certain procedure that an "arresting" (used loosely) officer must follow in a given circumstance, and states an exception to that procedure that relies on the officer making a decision, must there be evidence for that decision?

Specifically:
I was charged with violating two equipment-related laws on my vehicle - window tint (CVC 26708 a (1)) and tinted taillights (can't find the section ATM). Pursuant to CVC 40303.5 (d), both violations are correctable "unless the arresting officer finds that any of the disqualifying conditions specified in subdivision (b) of Section 40610 exist". CVC 40610 (b) lists the following disqualifying conditions:

(1) Evidence of fraud or persistent neglect.

(2) The violation presents an immediate safety hazard.

(3) The violator does not agree to, or cannot, promptly correct the violation.

Pursuant to CVC 40522, the court shall dismiss these violations upon proof of correction (which I've obtained).

"Fraud" is clearly irrelevant. "Persistent neglect" seems untenable, as this was the first time I had been cited for any equipment violation. I agreed to and did promptly correct the violations and obtained proof of same. I don't think there's a case for "immediate safety hazard", either - the citation occurred in broad daylight and my taillights, while darker than stock, are visible when on. In any event, the question I have is whether the state is required to produce evidence of any of these disqualifying conditions, or whether it's enough to assume that since the officer marked the violations as non-correctable, that they are established to be disqualified from 40303.5.

Miscellaneous details: someone else was actually driving the car and got stopped; I wasn't there and got a ticket in the mail later. There was no speeding, accident, or other violations involved, apart from a missing registration certificate, which was marked Correctable. The tint in question was on the front side windows, not the windshield, and was 5% VLT. That's dark for night but is not a meaningful obstruction in daylight. The stop happened at ~8am so it's not like night was about to fall and turn the tint into an immediate hazard.

It's a correctable violation, correct it and pay the $25 service fee. In actuality it's the court NOT the officer that makes the decision if you can be let off with the correction.

It's not a defense that the fact that it wasn't dark makes up for your illegal tint. The evidence is the police officers testimony. Makes no difference who was driving the car at the time.

Thanks for the reply!

FlyingRon said:

It's a correctable violation, correct it and pay the $25 service fee.

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'S what I tried to do. First time, they sent it back and said I owed them $231. Second time, when I wrote a letter explaining that these are dismissable violations, they sent me the same thing, except with a jotted note to the effect that "the officer did not mark the violations as correctable".

In actuality it's the court NOT the officer that makes the decision if you can be let off with the correction.

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The law (40522 specifically) says it's automatically correctable unless the officer finds that blah blah or it's an immediate safety hazard. No mention of the court's discretion in allowing it to be dismissable or not - the word "shall", as in "shall dismiss", doesn't look like it leaves much wiggle room.

It's not a defense that the fact that it wasn't dark makes up for your illegal tint. The evidence is the police officers testimony.

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Oh, it's not a defense for having the tint to begin with; I'm not arguing that. It's a defense against the presumption that it's an immediate safety hazard, which seems to be the crux of this case.

As for the officer's testimony...well, no actual trial or pretrial has happened yet. If I sent them a request for discovery, would a hypothetical resulting lack of testimony regarding the immediacy of the hazard be enough to get them to comply with 40522?

Gedrven said:

Generally:
If a law states a certain procedure that an "arresting" (used loosely) officer must follow in a given circumstance, and states an exception to that procedure that relies on the officer making a decision, must there be evidence for that decision?

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What? If the officer can justify his decision pursuant to the law, then it can be held is valid. But, it really depends on what you are talking about.

In any event, the question I have is whether the state is required to produce evidence of any of these disqualifying conditions, or whether it's enough to assume that since the officer marked the violations as non-correctable, that they are established to be disqualified from 40303.5.

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If the state wishes to pursue it as a non-correctable, I presume the officer will testify as to his reason to believe it falls under the exception. if not, I suspect the court may well decide to allow it as a correctable violation.

The tint in question was on the front side windows, not the windshield, and was 5% VLT. That's dark for night but is not a meaningful obstruction in daylight. The stop happened at ~8am so it's not like night was about to fall and turn the tint into an immediate hazard.

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Point out where the section states that there must be any obstruction:

Further, case law and subsection (d)(1) allows that anything opaque affixed to the window must have an 88% VLT - much greater than your 5%.

- Carl

CdwJava said:

What? If the officer can justify his decision pursuant to the law, then it can be held is valid. But, it really depends on what you are talking about.

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To rephrase, does the officer have to justify their decision and undergo cross-examination regarding it, or do the courts take it as established and irrefutable?

If the state wishes to pursue it as a non-correctable, I presume the officer will testify as to his reason to believe it falls under the exception. if not, I suspect the court may well decide to allow it as a correctable violation.

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Can I get them to produce (or fail to produce) such testimony/evidence by a Request for Discovery, or some other means other than physically showing up for a trial/pretrial?

Further, case law and subsection (d)(1) allows that anything opaque affixed to the window must have an 88% VLT - much greater than your 5%.

- Carl

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Er...yes, they decree 88% Visible Light Transmission, that is, how much light goes through the window/material. Less light = more dark. That 88 is a minimum, not a maximum .

Gedrven said:

To rephrase, does the officer have to justify their decision and undergo cross-examination regarding it, or do the courts take it as established and irrefutable?

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The court may make inquiry, but if the court does not, and the officer does not justify it during his testimony, it would seem prudent for you to inquire on cross examination. The court is free to make its own decision.

Can I get them to produce (or fail to produce) such testimony/evidence by a Request for Discovery, or some other means other than physically showing up for a trial/pretrial?

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You can ask, but I doubt they will have any evidence to provide you, unless it is in the form of past citations for the same offense.

Er...yes, they decree 88% Visible Light Transmission, that is, how much light goes through the window/material. Less light = more dark. That 88 is a minimum, not a maximum .

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Yes ... and you said that YOURS was 5% VLT ... significantly BELOW the minimum.


- Carl

CdwJava said:

The court may make inquiry, but if the court does not, and the officer does not justify it during his testimony, it would seem prudent for you to inquire on cross examination.

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I'm hoping to resolve this by mail instead of going through the meat grinder that is the local court (they call it a "superior" court? Can't wait to see what the "inferior" one's like...).

Would it really make sense to bring it up if they don't? I'm no lawyer, but it seems like a prosecution's failure to establish all the facts and conditions in a case is best brought up at the end with a Motion to Dismiss?

You can ask, but I doubt they will have any evidence to provide you, unless it is in the form of past citations for the same offense.

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Nope, first time. So...if they have no evidence (in this case, an officer's judgement call at the time of the citation), they have no case, no?

My specific question at this point is what language to use (legal terms, motions, aso.) to compel them to either 1. Comply with 40303.5 and 40522 (that is, change it to a correctable & dismissable violation, then dismiss it upon proof of correction, which exists); or 2. Make an argument for why 40610(b) is an exception to doing No. 1.

Gedrven said:

I'm hoping to resolve this by mail instead of going through the meat grinder that is the local court (they call it a "superior" court? Can't wait to see what the "inferior" one's like...).

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I suppose you intend to keep such snarky remarks out of your TBWD affidavit. The disadvanatge to a TBWD is that you do not have an opportunity to cross examine the officer. However, you can always point out whay it SHOULD be correctable ... and, I would be sure to submit some kind of PROOF of said correction with your TBWD so that the judge will actually have that as an option.

Would it really make sense to bring it up if they don't? I'm no lawyer, but it seems like a prosecution's failure to establish all the facts and conditions in a case is best brought up at the end with a Motion to Dismiss?

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The issue of correction is not an element of the offense, it is merely one that effects the potential penalty. Since you won't be at court, you won't be able to make a motion to dismiss ... not that it would be appropriate anyway.

Nope, first time. So...if they have no evidence (in this case, an officer's judgement call at the time of the citation), they have no case, no?

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They have a case for VC 26708(a)(1). If the court agrees with you that there is no justification for VC 40610(b) then they will allow you to correct and pay the appropriate fine ... but, with a TBWD they may not HAVE that option unless you have made the corrections prior to court.

However, the officer may articulate that the tinting was an immediate hazard ... you never know.

And you say you were cited for tinted lights - what section was used for that?

My specific question is what language to use (legal terms, motions, aso.) to compel them to either 1. Comply with 40303.5 and 40522 (that is, change it to a correctable & dismissable violation, then dismiss it upon proof of correction, which exists); or 2. Make an argument for why 40610(b) is an exception to doing No. 1.

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I would simply articulate the section and try and articulate why the exceptions were, in your opinion, not present and that you ask to be permitted to pay the lower Admin fee only as you have already made the appropriate corrections.

- Carl

CdwJava said:

I suppose you intend to keep such snarky remarks out of your TBWD affidavit. The disadvanatge to a TBWD is that you do not have an opportunity to cross examine the officer. However, you can always point out whay it SHOULD be correctable ... and, I would be sure to submit some kind of PROOF of said correction with your TBWD so that the judge will actually have that as an option.

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Like I said, I have proof of correction, signed by the local PD. If they have officer's testimony that it was an immediate hazard, I'm showing up and crossexamining the officer in an attempt to refute that. But they need to argue that first, I think.

I know better than to be snarky in court .

They have a case for VC 26708(a)(1).

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No arguing that.

If the court agrees with you that there is no justification for VC 40610(b) then they will allow you to correct and pay the appropriate fine ... but, with a TBWD they may not HAVE that option unless you have made the corrections prior to court.

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I did make the corrections and have proof of same. They've already seen it twice, when I mailed it in with the "processing fee".

However, the officer may articulate that the tinting was an immediate hazard ... you never know.

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Yes, but is it true that without doing so, there's no case (for it being non-correctable, not for the violation itself)? Can I get them to articulate this before the trial, like with a request for discovery?

And you say you were cited for tinted lights - what section was used for that?

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CVC 26100. Like the windowtint, that's also correctable according to 40303.5.

I would simply articulate the section and try and articulate why the exceptions were, in your opinion, not present and that you ask to be permitted to pay the lower Admin fee only as you have already made the appropriate corrections.

- Carl

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Articulate why the exceptions aren't present? Shouldn't I get them to argue why they are, first? There's a presumption of innocence until proof of guilt; is there a corresponding one of "no exception under 40610 until proof of same", and no proof until argument?

Gedrven said:

Like I said, I have proof of correction, signed by the local PD. If they have officer's testimony that it was an immediate hazard, I'm showing up and crossexamining the officer in an attempt to refute that. But they need to argue that first, I think.

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If you handle the matter in writing - via TBWD - then you will not have the option of cross examination.

I did make the corrections and have proof of same. They've already seen it twice, when I mailed it in with the "processing fee".

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Did they accept the proof of correction? I assume they did not because you are still apparently going to trial, correct?

Yes, but is it true that without doing so, there's no case (for it being non-correctable, not for the violation itself)? Can I get them to articulate this before the trial, like with a request for discovery?

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I doubt it. The officer is not going to have to provide his testimony prior to court. You can request any notes he made or reports he wrote on the matter, however.

CVC 26100. Like the windowtint, that's also correctable according to 40303.5.

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However, the officer does not have to issue it as such. Here's a note from the 2009 Uniform Bail and Fee Schedule:

Violation cited on a notice to appear as not eligible for correction. (VC 40303.5, VC 40522, and VC 40610.) A citing officer may issue a noncorrectable notice to appear for an equipment,
driver's license, or registration offense that is potentially eligible for correction if the officer determines that the violation presents an immediate safety hazard, there is evidence of fraud or
persistent neglect, or the violator does not agree to, or cannot, promptly correct the violation. (See California Highway Patrol v. Superior Court (2008) 158 Cal. App.4th 726 [riding a
motorcycle without wearing any helmet presents an "immediate safety hazard" when an officer makes that determination and issues a noncorrectable citation].) If a citation does not indicate
that an offense is eligible for correction under VC 40522, a court may presume that the offense is cited as noncorrectable. (See also Id . at p. 740 [a court may infer from the type of citation
issued that the officer did or did not find disqualifying circumstances].)​

So, the officer may believe that the situation was an immediate hazard. Therefore, I would presume it is incumbent upon you to articulate why it was not, and ask the court to allow the proof of correction as submitted.

Articulate why the exceptions aren't present? Shouldn't I get them to argue why they are, first?

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The officer will be there to testify as to the nature of the violation, not the correction as that is not a crime. he is not necessarily going to bring that up ... he might, and the court might ask, but I know of no law requiring the state to prove that the violation is not correctable. Besides, the court has the option to make it correctable in any event.

There's a presumption of innocence until proof of guilt;

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Correct. But, the issue of correction is not a matter of guilt or innocence, only the issue of the cited violation is. The violation is the criminal allegation, the correction issue is administrative.

is there a corresponding one of "no exception under 40610 until proof of same", and no proof until argument?

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None that I have ever seen.

- Carl

Thanks for your help!

So the court will tend to presume that 40610b was followed, and I need to dispute that that was appropriate.

Would it be enough to request a Discovery (specifically, of the officer's notes), and if there's no mention of safety hazard or whatnot, request in writing a reclassification to "correctable", based on that? (And if there is, then I have no choice but to show up and crossexamine)

Gedrven said:

Thanks for your help!

So the court will tend to presume that 40610b was followed, and I need to dispute that that was appropriate.

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That would be my take on it, yes.

Would it be enough to request a Discovery (specifically, of the officer's notes), and if there's no mention of safety hazard or whatnot, request in writing a reclassification to "correctable", based on that? (And if there is, then I have no choice but to show up and crossexamine)

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You can REQUEST anything. But, I would not expect them to amend the citation. Sorry.

- Carl