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J

jeffbatey

Junior Member
What is the name of your state (only U.S. law)? CA

Hello,

First I want to thank for your help and pardon my ignorance regarding traffic law.

My story begins about a month ago when I was pulled over by a CHP officer (He was on a motorcycle) while driving on a 4 lane highway. He said I was going 85+ and the max is 70 mph.

He said he was in front of me, then he got off at an exit, got back on the freeway, followed me for a bit and then pulled me over. I’m not sure how he determined my speed by radar or pacing?

If he came to his estimate by pacing doesn’t he have to follow me for a certain distance? Are there other conditions that must be met for pacing to be an accurate determination of one’s speed?

I filed for an Informal Discovery Request. Initially, I sent one out to the CHP office but then I got a hold of the “Fight Ticket and Win in CA” book, and it said to have someone else send out the request. I filed for a month extension to appear in court and I had a friend mail out a copy to the CHP, DA, and City Attorney. It has been 20 days since my request and I have only received a letter from the DA informing me that they don’t involve themselves when the case is an infraction.

In the book it says “If your discovery request is ignored for over 15 days, you can make a written motion to dismiss the case or to preclude the officer who cited you from testifying.”

Pardon my ignorance but I thought a written motion means that you write a letter to the court or judge asking to dismiss the case but from what I understand I have to go to court and request that the judge dismiss the case? Furthermore, when I go to court, I have to plead Guilty or Not Guilty. The whole point of the discovery request was the ability to see the officer’s notes, to help me determine how to plead.

The “Fight Ticket and Win in CA” book is a little confusing and I am unsure of my best option:

Do I go to court, request the case to be dismissed because they failed to provide me with the documents requested?

Do I try a trial by written declaration? May I request a dismissal by written declaration?

There is also the whole “speedy” trial, that I’m a little confused about and is that affected because I requested a 30 day extension to appear in court?
 


S

StevenJ_420Law

Member
1st, dont get your hopes up... but if you want to fight you need to research.

There should be notes on your citation as to how he nabbed you. If he used a radar, the radar info (s/n etc) is on the ticket.

You can verbally do a motion or write the judge a letter .. or you can do something with punch for the best chance... but punch requires work on your part.

I would make sure I file proof's of service with the court. You can get that from courtinfo.ca.gov/forms. Presuming your friend did by mail, pos-30 will work. These would also be exhibits attached to a motion. In my motion. I would include that I personally informally requested discovery AND had them served with a request.

Unfortunately, you waived time by asking for an extension ..you are also entitled to a trail within 45 days... you coulda had two different chances at dismissal related to discovery.

You make a true motion on Pleading Paper (google it and google motions to dismiss motion for discovery etc to get samples). Try and stick with CA stuff, there is plenty on the internet. You can also verbally make the motion to the court or simply write out a Declaration (court forms site above). You obviously may have to modify the search terms but you hopefully get the idea of where to start.

You should know that the CHP charges for discovery and typically should have responded to you with a form letter telling you how much to pay for whatever you asked for (or telling you to buzz off if not available)..

IMO, since they are the prosecutor and not the DA.. and the DA was even nice enough to write you a letter (another exhibit) telling you that the CHP is the prosecutor.. the CHP should then fall under Brady v Maryland like every other prosecutor.. while I doubt that dog would hunt, I personally would include research into that Landmark SCOTUS case and just realize a criminal motion based on discovery would typically have that case as its center.. so you might want to check it out in your research.

In CA, discovery is PC 1054 et al. .. you can go to leginfo.ca.gov and start reading.

The court may impose sanctions or other orders pursuant to 1054.5(b) pc, up to and including dismissal.

A formal request for discovery IS NOT a precondition (before) sanctions are imposed (People v Jackson 15 cal.app 4th 1197 1993)...(Just FYI - since time is waived, the judge could also continue the matter to allow the CHP time to comply.. but you never know)

Now you have proof of informal discovery request and you have law and case law..and a prosecutorial agencies out of compliance with law, you can start to articulate that in writing on your pleading paper. It doesnt need to be an exciting legal brief, just use plain language... grammar .. spelled right.. all that good stuff, laying it out for the judge.

So you have some areas where you can start to research and figure out how to write out your motion and throw out some law and case law to give the judge ammo with your motion.

Good luck on your research and trial.
 
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I

I_Got_Banned

Senior Member
jeffbatey said:
Do I go to court, request the case to be dismissed because they failed to provide me with the documents requested?
Click to expand...
You first and most logical step after their failure to provide discovery is to file a "motion to compel"... More likely than not, you will be given the opportunity to argue that motion on the date of your trial (you're not going to get to argue it on a separate date prior to the trial date). And what is likely to happen is that the judge will order the officer to provide you with the items you requested via discovery at that time. So you'll have your discovery at that time... Now what?
jeffbatey said:
Do I try a trial by written declaration? May I request a dismissal by written declaration?
Click to expand...
You can try to request a dismissal in your TBD... But since a "dismissal" is not the only remedy that the court can offer, you are less than likely to get a dismissal because of their failure to provide it in a timely manner.

jeffbatey said:
There is also the whole “speedy” trial, that I’m a little confused about and is that affected because I requested a 30 day extension to appear in court?
Click to expand...
The speedy trial provisions mean that your trial must be scheduled within the 45 day period following your arraignment. Since you have not been arraigned as of yet, the 45 day clock will not start until you appear in court and enter a plea of "not guilty" in front of the judge.
 
I

I_Got_Banned

Senior Member
StevenJ_420Law said:
1st, dont get your hopes up... but if you want to fight you need to research.

There should be notes on your citation as to how he nabbed you. If he used a radar, the radar info (s/n etc) is on the ticket.

You can verbally do a motion or write the judge a letter .. or you can do something with punch for the best chance... but punch requires work on your part.

I would make sure I file proof's of service with the court. You can get that from courtinfo.ca.gov/forms. Presuming your friend did by mail, pos-30 will work. These would also be exhibits attached to a motion. In my motion. I would include that I personally informally requested discovery AND had them served with a request.

Unfortunately, you waived time by asking for an extension ..you are also entitled to a trail within 45 days... you coulda had two different chances at dismissal related to discovery.

You make a true motion on Pleading Paper (google it and google motions to dismiss motion for discovery etc to get samples). Try and stick with CA stuff, there is plenty on the internet. You can also verbally make the motion to the court or simply write out a Declaration (court forms site above). You obviously may have to modify the search terms but you hopefully get the idea of where to start.

You should know that the CHP charges for discovery and typically should have responded to you with a form letter telling you how much to pay for whatever you asked for (or telling you to buzz off if not available)..

IMO, since they are the prosecutor and not the DA.. and the DA was even nice enough to write you a letter (another exhibit) telling you that the CHP is the prosecutor.. the CHP should then fall under Brady v Maryland like every other prosecutor.. while I doubt that dog would hunt, I personally would include research into that Landmark SCOTUS case and just realize a criminal motion based on discovery would typically have that case as its center.. so you might want to check it out in your research.

In CA, discovery is PC 1054 et al. .. you can go to leginfo.ca.gov and start reading.

The court may impose sanctions or other orders pursuant to 1054.5(b) pc, up to and including dismissal.

A formal request for discovery IS NOT a precondition (before) sanctions are imposed (People v Jackson 15 cal.app 4th 1197 1993)...(Just FYI - since time is waived, the judge could also continue the matter to allow the CHP time to comply.. but you never know)

Now you have proof of informal discovery request and you have law and case law..and a prosecutorial agencies out of compliance with law, you can start to articulate that in writing on your pleading paper. It doesnt need to be an exciting legal brief, just use plain language... grammar .. spelled right.. all that good stuff, laying it out for the judge.

So you have some areas where you can start to research and figure out how to write out your motion and throw out some law and case law to give the judge ammo with your motion.

Good luck on your research and trial.
Click to expand...
Before you can jump to sanctions and dismissals, the remedies that are typically offered in traffic court under these circumstances will usually proceed as follows:
  • Compel the officer to produce discovery (like I said, that will probably occur on the date of the trial thereby giving the defendant a short period of time to study the material before being ordered to proceed... Defendant is free to request a continuance of the matter but keep in mind that a continuance might be limited by that same 45 day speedy trial provision... So you want a continuance, then you have to waive time... You don't consent to a time waiver, then proceed on that same date).
    (^This^ is where 99% of these "discovery" issues are resolved)
  • Exclusion of evidence which was not provided in discovery(which almost NEVER happen because the officer will be more than happy to provide the defendant with copies of his documents long before a motion to exclude evidence is heard by the court)......
  • Prohibit testimony: See 1054.5(c) which states (in part): The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.
  • Sanctions... If by sanctions, you mean "monetary sanctions" then it ain't going to happen. Even if it is, then how does that benefit the defendant?
  • Dismissal (read 1054.5(c) which states (in part): The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.
 
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J

jeffbatey

Junior Member
Thanks for the feedback. i finally received info from the CHP about the informal discovery request. The only issue the Officer's notes are completely illegible.

Now does it behoove me to write them another letter asking for a legible copy or should I just show the judge what they sent me (he sees the he can't read it either) when I plead?

I did not see anything on the ticket that indicated the officer used radar. However, I was sent a speedometer/radar calibration chart, with a date of 3-17-10, I'm not sure how often it must be calibrated but I was stopped nearly a month ago.

Thanks
 
I

I_Got_Banned

Senior Member
jeffbatey said:
They also didn't send a copy of the engineering and traffic survey.
Click to expand...
Sounds to me like you were cited in violation of VC 22356(b) for driving in excess of the maximum 70mph speed limit... If that is correct, then this is NOT a possible "speed trap" case and therefore, they are not required to utilize a copy of the engineering survey as part of their case against you. And since they won't produce it in court, they are not required to provide you with a copy!
 
Zigner

Zigner

Senior Member, Non-Attorney
jeffbatey said:
Now does it behoove me to write them another letter asking for a legible copy or should I just show the judge what they sent me (he sees the he can't read it either) when I plead?
Click to expand...
You are not entitled to what YOU feel is a "legible copy". You are entitled to a copy of the actual notes, period. It doesn't matter if you can read them and it doesn't matter if the judge can read them.
 
I

I_Got_Banned

Senior Member
SuperLitigator said:
California Courts: Rules


here you will find the rules ... a speeding ticket is covered in the criminal section & vehicle code so you need to review both ...
Click to expand...
Actually, neither of those references will do the OP any good. "Discovery" (in criminal cases) is covered under the California Penal Code as well as the California Evidence Code (if you want to stretch it that far)...

I agree with Zigner in that they are not required to provide the defendant with a translation or an analysis of what was written on the citation... The defendant's only recourse here would be to question the officer (in court) about what he wrote on the citation.
 
D

davidmcbeth3

Senior Member
jeffbatey said:
Literally, I cannot read the notes, I would love to find someone who could. The copy is that bad, I can only make out the first three words in the notes section.

Imageshack - discoverys.jpg
Click to expand...


MOTOR TRANSPORT MANUAL - CHP a link to the CHP requirements.

The radar readings are checks of the speedometer ... they are not calibrations! The speedometers need to be CALIBRATED every quarter, not just checked.
And even their checking was last done in MAR 2010. And its clear the radar chk of the speedo is paper-whipped ... every one dead on?? I dont think so. So, you were PACED. If you need a written method for pacing PM me. I have one from an authority... you will win this case based on what they provided you.
 
I

I_Got_Banned

Senior Member
davidmcbeth3 said:
The speedometers need to be CALIBRATED every quarter, not just checked.
Click to expand...
Can you cite a California Vehicle Code Section, a case law citation... anything that states or even implies that a speedometer "need to be CALIBRATED (or even 'checked') every quarter"?

Hint: It doesn't exist.... In fact, here is proof of the opposite (that there is no such requirement):

Quoting: People v. Lowe, 130 Cal. Rptr. 2d 249 - Cal: Appellate Div., Superior 2002 speedometer calibration lowe - Google Scholar

Appellant contends the officer's testimony cannot be considered reliable evidence of speed because it is uncorroborated by speedometer calibration test results. However, appellant offers no authority supporting this assertion. While we are aware of no California case directly on point, courts in other jurisdictions have permitted the fact finder to consider testimony of speedometer readings even absent calibration results. The courts reason that the general accuracy of speedometers is a matter of general knowledge and although speedometers "like other machines, may get out of order ... they may be relied upon with reasonable certainty to determine accurately the speed at which a vehicle is driven." (State v. Tarquinio (1966) 3 Conn.Cir.Ct. 566, 221 A.2d 595, 596-597; see also People v. Tyler (Ct.Spec.Sess. 1952) 109 N.Y.S.2d 756, 757.) In Tarquinio, the court held an officer's testimony concerning a speedometer reading was admissible prima facie evidence of speed. The officer's failure to present evidence of calibration would go to the weight of that evidence. Similarly, in (Village of Schaumburg v. Pedersen (1978) 60 Ill. App.3d 630, 18 Ill.Dec. 99, 377 N.E.2d 252, 254), the court held that even absent proof of calibration, the accuracy of a speedometer was a question of fact. As one court observed, "our courts receive evidence daily of readings on watches, scales and other measures without affirmative proof of their testing; the defendant is, of course, at liberty to attack the readings through cross-examination and otherwise and the ultimate determination is fairly left to the trier of facts." (State v. Dantonio (1955) 18 N.J. 570, 115 A.2d 35, 41.)​
Coincidentally, "Lowe" was also cited for 85 in 70 and in violation of VC 22356... :eek:

At any rate, it seems to me that the officer in this case, will likely present the calibration certificate as part of his testimony.

The current CHP policy (as far as I know) is to calibrate once every six months... Then again, that is that agency's "policy"... It is not a legal requirement.

With that being said, the calibration certificate is dated 3/17/2010, the OP started his thread on 9/6/2010, and it would be safe to assume that he was cited prior to 9/6/2010... Speedometer was calibrated within the 6 month period prior to the violation date.
 
J

jeffbatey

Junior Member
Tomorrow, is my first court appearance, based on what you have read, should I plead not guilty? Make a motion to...? Thanks
If it's not too much trouble, maybe outline the steps I should take, this is all a bit intimidating.
 
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