22349(a) in CA, with a request for Discovery on a TBD

[mr elu]

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

Hello all I am trying to fight a 22349 (a) states above max speed

I paid the fine and selected not guilty trial by declaration. However I think I picked the wrong option, because a written trial by declaration might not go in my favor so it seems. I am assuming it might not, I hope I am wrong. I selected this option in hopes of actually appearing in court with a plea. Funny thing is on the TBD date which was 12/26/08 I had to chose a am or pm or night court. funny how both am and pm are scheduled all the way until april, so rather than wait that long I selected night court which was the only soonest option available. Now the date scheduled which is next month, I actually appear in court. I was given the room to appear in. So my question or one of the few questions I have is. If i am getting a written tbd why do I have to appear in court still?. back on dec 5th I submitted a request for discovery to the District Attorneys office I was cited by the CHP. I received a response to my request for discovery by the district attorneys office stating they do not handle traffic requests. I did certify the letter and delivery confirm the request for discovery. Now is there any other agency I am supposed to send this request for discovery?. I am not sure what else to do from here?. I did receive another letter from the courthouse with this piece of information.

1. [X] We have received your request to plead "Not Guilty"

2. [X] We have received your request for a [Blank] court trial (both parties present) [X] Trial by Declaration (no appearance, written declarations only). [] Summary Trial* (officer not present).

in bold caps it says:

IT IS YOUR RESPONSIBILITY TO MEET THE INDICATED REQUIREMENTS BELOW BY (January 21, 2009) IF YOU ARE UNABLE TO COMPLY WITH ANY OF THE ITEMS CHECKED BY THIS DATE YOU MUST CONTACT THE COURT AT LEAST 10 COURT DAYS BEFORE YOUR SCHEDULED DATE.

6. [X] Regarding the Trial by declaration, you MUST complete and return the enclosed Trial by Declaration form to the Court. You will be notified by mail of the Court's ruling.

Now heres the thing I still have to appear in court Feb 5th so that's why im confused?. Any insight or help is greatly appreciated, I received a TR200 form and the next page is a TR205 form, I will scan and post later on.
____________________________________

Now im wondering what is my best strategy, and also to just go in person tomorrow on my lunch break and see if I can get a trial and retract the online plea that was stated?. again not sure whats my best angle. Am I screwed or is there some sort of hope for me. Any insight is much appreciated... A freaking out new forum user.

[I_Got_Banned]

First you say:

Originally Posted by mr elu

I paid the fine and selected not guilty trial by declaration.

Then two sentences later, you say:

Originally Posted by mr elu

I selected this option in hopes of actually appearing in court with a plea.

You could not have selected both options A TBD which is done by mail AND a court appearance to enter your plea.

Originally Posted by mr elu

Funny thing is on the TBD date which was 12/26/08 I had to chose a am or pm or night court. funny how both am and pm are scheduled all the way until april, so rather than wait that long I selected night court which was the only soonest option available.

There is no AM or PM choice when you choose the TBD. You can file it in person at the Traffic Clerk’s window at any time (before your due date) during court hours OR mail that in and the court receives it whenever the mailman decides to show up at the courthouse…

Originally Posted by mr elu

Now the date scheduled which is next month, I actually appear in court. I was given the room to appear in. So my question or one of the few questions I have is. If i am getting a written tbd why do I have to appear in court still?.

My guess is that your court appearance, if it ever existed, was cancelled by who ever received your bail check and your request for the TBD forms… But don’t quote me on that. A simple 5 minute call to the Courthouse or a friendly visit to the Clerk’s window wold have cleared this confusion up. I suggest you do that immediately. What I or anyone else on here tells you in answer to this question has a 50% change of being wrong.

Originally Posted by mr elu

back on dec 5th I submitted a request for discovery to the District Attorneys office I was cited by the CHP. I received a response to my request for discovery by the district attorneys office stating they do not handle traffic requests. I did certify the letter and delivery confirm the request for discovery. Now is there any other agency I am supposed to send this request for discovery?. I am not sure what else to do from here?

You can also send a discovery request to the City attorney (for the city where you were cited) AS WELL AS to the CHP Office where the officer who cited you works out of. To find that out you would have to call the CHP office nearest you and read the officer’s name or “Beat #” and they should be able to tell you the address where you need to mail it.

Originally Posted by mr elu

I did receive another letter from the courthouse with this piece of information.
1. [X] We have received your request to plead "Not Guilty"
2. [X] We have received your request for a [Blank] court trial (both parties present) [X] Trial by Declaration (no appearance, written declarations only). [] Summary Trial* (officer not present).
in bold caps it says:

IT IS YOUR RESPONSIBILITY TO MEET THE INDICATED REQUIREMENTS BELOW BY (January 21, 2009) IF YOU ARE UNABLE TO COMPLY WITH ANY OF THE ITEMS CHECKED BY THIS DATE YOU MUST CONTACT THE COURT AT LEAST 10 COURT DAYS BEFORE YOUR SCHEDULED DATE.
6. [X] Regarding the Trial by declaration, you MUST complete and return the enclosed Trial by Declaration form to the Court. You will be notified by mail of the Court's ruling.

That’s the packet you receive as a result of your requesting the TBD. It is the instructions as well as the TBD forms you must complete and submit by (as it says in the letter( January 21, 2009) otherwise, you lose your case.

If you don’t want to do TBD anymore, I would suggest that you call the courthouse or go to the Clerk’s window and they could change it for you. Also keep in mind that unless by some fluke, your February 5th court appearance still exists, chances are, you court appearance will not happen anytime soon… If this is L. A. County then my guess is you will probably get a date around late march or April… But that’s just my guess… Call the court and ask.

Originally Posted by mr elu

I received a TR200 form and the next page is a TR205 form, I will scan and post later on.

Don’t do that… Here’s a link to both forms:

TR200: [url]http://www.courtinfo.ca.gov/forms/documents/tr200.pdf[/url]

TR205: [url]http://www.courtinfo.ca.gov/forms/documents/tr205.pdf[/url]

[mr elu]

Thanks for replying I got banned. Ok so now im wondering what is my best angle of approach?. lets say i send both the city attorney and chp office the request for discovery and get a response. Thats the part im scared of. I just want this to some how go in my favor I really doubt I have a speedy trial, and also by going in person and entering a plea of not guilty, and then trying to go against the chp officers notes and request for discovery Im not sure how much of a chance I have?. However if I dont hear from both agencies then I think im the game to file a dismissal which is what im hoping for. I chose TBD thinking I could fight that but it doesnt look like I can. I even bought the NOLO traffic book about beat your traffic ticket. I will definetly head to the courthouse on my lunch break I have tried calling the actual courthouse # and got a busy signal all the way throughout the 8 hours of calling. So in person is my attempt, i will bring all the documents that have been given to me so I can provide accuate information without being caught offguard and unprepared.

Thanks again Mr elu.

[Zigner]

WERE you exceeding 65 mph? If so, then anything you are doing is merely a delaying tactic...

[mr elu]

correct i was going with the flow of traffic which was around 70's, but I happened to be right next to the chp officer which was going 55, so of course I looked like a total ass speeding. He didnt care if i was going 71, its that he said i was going 84 but put 81. Funny how the guy in the fast lane was doing the same speed but it was my fault for going 71 next to the chp and not noticing it.

[I_Got_Banned]

Originally Posted by mr elu

cHe didnt care if i was going 71, its that he said i was going 84 but put 81.

Was this in a 65mph zone? What a nice guy this guy must be ... Either that or he's really bad at math. He gives you a 3 mph break and yet still leaves the citation in 2nd tier where it will cost you approximately $266 whereas he could have done you a real favor by writing you up for 80mph thereby making it a violation in the 1st tier which would make the fine approximately $146.

By "tier" I mean the following... California's speeding citations are tiered by how many miles over the speed limit one is cited for. So...
Tier 1 <-------------> 0mph to 15mph over the limit <-------------> $146
Tier 2 <-------------> 16mph to 25mph over the limit <-------------> $266
Tier 3 <-------------> 26mph + <-----> over the limit <-------------> $380

Also, Mr elu.... Not to dispute anything you're saying or argue that he's justified in writing you for 81mph when in fact you were only doing 71mph... BUT, maybe you glanced at your speedometer the moment you realized he was next to you and saw that you were doing 71 but moments before that, you may have been going a bit faster -although his estimate at 84 from your 71 is quite a stretch-

[mr elu]

First question was this a 65MPH Zone. (yes it is) ticket was $273.00 actually. The citation does say 81. When asked do you know the posted speed limit I said 65. I will go to the courthouse on my lunch break and talk to a clerk, I was wondering if I should void the TBD and make an arraignment plea of not guilty unless ive already shot that down by paying the fine and selecting not guilty and TBD. Im wondering if I could argue that I was cited from the wrong speed and have the request for discovery dismissed due to requesting the information stating the facts and not receiving them?.

Response to the speed, he asked me how fast were you going I said yes I know I was going between 71 to 74, he tacked on 10, and he paced me since he did not use a radar but this is going downhill on the freeway , which would draw an increase of speed. I was aware of my speed but I didnt think I would stand out, but I did since he was going at 55 while others are going between 68-70's

thanks again

mr elu

[I_Got_Banned]

I'm gonna tackle the 2nd paragraph first...

Originally Posted by mr elu

Response to the speed, he asked me how fast were you going I said yes I know I was going between 71 to 74, he tacked on 10, and he paced me since he did not use a radar but this is going downhill on the freeway , which would draw an increase of speed. I was aware of my speed but I didnt think I would stand out, but I did since he was going at 55 while others are going between 68-70's

Mr elu...

You keep saying he was going 55... If he was going 55, and by the definition of a "pace", he could not have paced you at 71, 74 or 78 for that matter. In fact, get him to admit he was doing 55 and you'd have a pretty good chance of shaking this case loose.

Also, if he was going 55 and you were going 71, that again is 16mph difference which is a lot. Meaning he was not next to you for that long.

As for you stating that you were doing 71 to 74... while others are doing 68 to 70; that is a range (difference between your speed and everyone else's) that varies from 1mph (you at 71 and everyone else at 70). . . to 6mph (you going at 74 and everyone else at 68). .

Lets average that at a 3mph higher speed than everyone else... You were going the fastest... Not by much but if he watched you for a 1/2 a mile (which is not too long @those speeds) or for a full mile, heck yeah you were going the fastest. Also, you passed him up (and most of them do not appreciate that)... Sounds to me like you set yourself up by not paying attention to your surroundings.

Originally Posted by mr elu

First question was this a 65MPH Zone. (yes it is) ticket was $273.00 actually. The citation does say 81. When asked do you know the posted speed limit I said 65. I will go to the courthouse on my lunch break and talk to a clerk, I was wondering if I should void the TBD and make an arraignment plea of not guilty unless ive already shot that down by paying the fine and selecting not guilty and TBD. Im wondering if I could argue that I was cited from the wrong speed and have the request for discovery dismissed due to requesting the information stating the facts and not receiving them?.

Let me, again, take the last point first...
California Penal Code 1054.5(b) and (c) states the following;

(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the
jury of any failure or refusal to disclose and of any untimely disclosure.

(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.

Point is, don't count on a dismissal... At least I wouldn't even go in expecting one.

Considering the fact that you have to send in a new request for discovery from the CHP now, I would stick to the TBD... Even if you don't get your requested items by the date it is due... Still file it on time. Assuming you lose that, you can file a trial de novo and by then... Well, by then you have your discovery items and you'll also have a clear view of how solid their case is and how to mass your defense.

Ultimately, the choice is yours... Good luck!

[mr elu]

saying I file a TBD, I have an arraignment date of feb 5th in night court which is why im still kind of confused, whats that for the verdict?. I thought TBD was all done in writing?. unless there's another side to it?. yes on the 21st I have to mail in or they have to receive it by the 21st of this month. I'll read up on my book I bought from NOLO its a pretty darn good book but facing a 22349(a) I don't think there is much defense on that, according to the book. There's always trying though the chances are slim, I will still go to the court and ask whats up with feb 5th since im kind of like (huh???) that's the appearance for. I hope the chp doesnt send it in time (cross fingers)