Going 80 MPH at 65MPH highway - CA

[coffeebean]

What is the name of your state? CALIFORNIA

Hi, I got a ticket going 80MPH at the I-22, in Orange County, CA. As you probably know, 65MPH is the limit. But everybody was going at 80MPH. It was in the morning when everybody is driving to work. I was going with the flow.
I was actually a bit slower than 80, around 75, but the car in front of me was acting weird, like swerving, that's when I accelerate to pass him, and then the cops pulled me over.
Do I have change of winning this in court? Do you have suggestions.

Thanks so much

 

[Zigner]

What is the name of your state? CALIFORNIA

Hi, I got a ticket going 80MPH at the I-22, in Orange County, CA. As you probably know, 65MPH is the limit. But everybody was going at 80MPH. It was in the morning when everybody is driving to work. I was going with the flow.
I was actually a bit slower than 80, around 75, but the car in front of me was acting weird, like swerving, that's when I accelerate to pass him, and then the cops pulled me over.
Do I have change of winning this in court? Do you have suggestions.

Thanks so much

Winning WHAT? You readily admit you were speeding. You have given nothing that would seem to be a reason for protesting this citation.

And, on a related note: SLOW DOWN!

 

[JIMinCA]

coffeebean,

It's unfortunate that people like you come here for help and all you really get is lectures. You'll just have to ignore those.

You were likely written for violating VC 22349. Unless the cop has made some kind of basic blunder, it is not easy to beat that charge head on. Therefore, my favorite defense is a good offense.

You got a ticket because the State is trying to hold you accountable for following its rules. They certainly have the right to do that. However, they too must follow their own rules. My experience has been they usually won't. You can take advantage of the State's unwillingness to follow its own rules.

Simply send the DA a request for discovery. Your request must be proper and a copy must be sent to the court with a proof of service. You can get directions on how to do this at www.helpigotaticket.com. Send the discovery request now. In a week or so, go to your arraingment and plead not guilty. The DA is likely to simply ignore your discovery request. Therefore, you can go into court with a copy of your discovery request, the proof of service and, if you are smart, the proof that you sent the request to the DA certified mail. If the DA has failed to provide you with the discovery he is mandated to provide, you can simply ask for a dismissal based on the fact that you have been denied your right to prepare a proper defense. It has worked for me and people I know about a half dozen times so far. If the DA ignores you, it is a great argument.

You'll likely read posts to follow this one that acuse me of advocating irresponsible behavior because you are looking for "loopholes" in the law. Don't let that discourage you. If these preachy posters were genuine, they'd preach to the DA's office about complying with the rules of discovery mandated by the Penal Code rather than preach to you about slowing down.

File the discovery request now and good luck.

 

[Zigner]

coffeebean,

It's unfortunate that people like you come here for help and all you really get is lectures. You'll just have to ignore those.

You were likely written for violating VC 22349. Unless the cop has made some kind of basic blunder, it is not easy to beat that charge head on. Therefore, my favorite defense is a good offense.

You got a ticket because the State is trying to hold you accountable for following its rules. They certainly have the right to do that. However, they too must follow their own rules. My experience has been they usually won't. You can take advantage of the State's unwillingness to follow its own rules.

Simply send the DA a request for discovery. Your request must be proper and a copy must be sent to the court with a proof of service. You can get directions on how to do this at www.helpigotaticket.com. Send the discovery request now. In a week or so, go to your arraingment and plead not guilty. The DA is likely to simply ignore your discovery request. Therefore, you can go into court with a copy of your discovery request, the proof of service and, if you are smart, the proof that you sent the request to the DA certified mail. If the DA has failed to provide you with the discovery he is mandated to provide, you can simply ask for a dismissal based on the fact that you have been denied your right to prepare a proper defense. It has worked for me and people I know about a half dozen times so far. If the DA ignores you, it is a great argument.

You'll likely read posts to follow this one that acuse me of advocating irresponsible behavior because you are looking for "loopholes" in the law. Don't let that discourage you. If these preachy posters were genuine, they'd preach to the DA's office about complying with the rules of discovery mandated by the Penal Code rather than preach to you about slowing down.

File the discovery request now and good luck.

Jim -

OP - my next statement is based on the assumption that you were cited by the CHP.

Jim -Your advice is flawed. If our OP follows your suggestion, he will lose, as you are not advising him on the proper discovery process.

 

[JIMinCA]

Jim -

OP - my next statement is based on the assumption that you were cited by the CHP.

Jim -Your advice is flawed. If our OP follows your suggestion, he will lose, as you are not advising him on the proper discovery process.

Zigner,

You have rebutted many of my posts with absolutely nothing to back up your opinions. On the other hand, my opinion is backed up by the Penal Code, the Vehicle Code and the fact that I have participated in this process at least a half dozen times.

In this case, you are doing the same thing. You are also mentioning the CHP as if it has anything to do with the process at all. The law does not distinguish between CHP, Sherrif's dept, local cops etc. This is true because the rules of discovery do not place any mandates on the ticketing agency... rather it places mandates on the DA's office.

So, if you can substantiate WHY my opinion is flawed, I'd love to learn why all those mentioned cases shouldn't have won. However, if you can't substantiate why my opinion is flawed, then maybe you should keep your comments to yourself so as to not provide additional confusion to the OP.

 

[Zigner]

Zigner,

You have rebutted many of my posts with absolutely nothing to back up your opinions. On the other hand, my opinion is backed up by the Penal Code, the Vehicle Code and the fact that I have participated in this process at least a half dozen times.

In this case, you are doing the same thing. You are also mentioning the CHP as if it has anything to do with the process at all. The law does not distinguish between CHP, Sherrif's dept, local cops etc. This is true because the rules of discovery do not place any mandates on the ticketing agency... rather it places mandates on the DA's office.

So, if you can substantiate WHY my opinion is flawed, I'd love to learn why all those mentioned cases shouldn't have won. However, if you can't substantiate why my opinion is flawed, then maybe you should keep your comments to yourself so as to not provide additional confusion to the OP.

You would also have to serve the discovery request on the CHP

 

[JIMinCA]

You would also have to serve the discovery request on the CHP

Maybe you should do some research before you make such statements. The Penal Code states:

1054.1. The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.
(e) Any exculpatory evidence.
(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements or experts made in conjunction with the case, including the results of physical or mental examinations, scientific test, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.


Notice the first words are "The prosecuting attorney SHALL..." It does NOT say CHP. CHP has no statutory mandate to provide any discovery, so a discovery request on them is wasted. The Penal Code is clear that discovery is the burden of the prosecuting attorney.

 

[CdwJava]

Note, however, that the language does mention that the information from the DA must be disclosed if the DA KNOWS that the information or evidence is in the possession of the investigating agency.

The problem that often arises is that the DA is not involved in the process at all and does not have any knowledge of notes or other documents held by the officer or his/her agency. This muddies the water even though the legal presumption is that the DA is in possession of the information even if they do not know it exists.

In my county the DA forwards the discovery request to the agency - provided the discovery request mentioned the agency that stopped the defendant. They have received such requests that have failed to include that important little snippet of info ... and with a name only, the DA here would have no information on the citation at all.

Attorneys I know (that handle traffic matters) generally advise their clients to serve copies of discovery on BOTH the DA and the investigating agency ... it saves time going back to court and asking the court to compel discovery from the agency. I suppose it has happened, but I have yet to see a court dismiss a case when the DA was served a discovery request on a traffic matter that was not handled through the DA's office and discovery was not also requested from the investigating agency. They generally seem to order discovery instead.

- Carl

 

[CourtClerk]

I wonder if Jim knows that traffic tickets are handled by the City Attorney and not the District Attorney...

At least in LA and Orange Counties, the District Attorney's office could care less about a traffic infraction. It isn't their function. Also, with LA County, you send the City Attorney a request for Discovery and you'll get a form letter sending you to the agency that wrote the ticket.

 

[JIMinCA]

Note, however, that the language does mention that the information from the DA must be disclosed if the DA KNOWS that the information or evidence is in the possession of the investigating agency.

The problem that often arises is that the DA is not involved in the process at all and does not have any knowledge of notes or other documents held by the officer or his/her agency. This muddies the water even though the legal presumption is that the DA is in possession of the information even if they do not know it exists.

In my county the DA forwards the discovery request to the agency - provided the discovery request mentioned the agency that stopped the defendant. They have received such requests that have failed to include that important little snippet of info ... and with a name only, the DA here would have no information on the citation at all.

Attorneys I know (that handle traffic matters) generally advise their clients to serve copies of discovery on BOTH the DA and the investigating agency ... it saves time going back to court and asking the court to compel discovery from the agency. I suppose it has happened, but I have yet to see a court dismiss a case when the DA was served a discovery request on a traffic matter that was not handled through the DA's office and discovery was not also requested from the investigating agency. They generally seem to order discovery instead.

- Carl

It is irrelevant who is in possession of the discovery materials, it is the mandated burden (not the language "Shall Disclose") of the prosecuting attorney to provide the requested discovery if he intends to prosecute the case. Just because the prosecuting attorney doesn't normally show up in court, doesn't mean that he isn't still the prosecutor. The ticketing agency certainly is not the prosecutor, nor is the judge. CA case law calls the cop who appears at the trial, "... a witness... nothing more, nothing less".

I understand that many places practice the incorrect assumption that discovery is the burden of the ticketing agency.... just as they believe that the ticketing agency prosecutes the case. But, they are wrong on both accounts.

Although the prosecuting attorney may ask the ticketing agency to provide the discovery, it is still clearly the prosecuting attorney's statutorily mandated responsibility.

I'm sure you have not seen a case be dismissed for a failure to provide discovery. However, as I have said before, I have seen about a half dozen of them. It works quite well if you simply ask for the dismissal.

 

[You Are Guilty]

It is irrelevant who is in possession of the discovery materials, it is the mandated burden (not the language "Shall Disclose") of the prosecuting attorney to provide the requested discovery if he intends to prosecute the case.

Jim, do you see those two little letters that come right after this section in the statute? (Carl gave you a big hint). Here's another - define "conditional statement".

So while your response may be correct in some circumstances, there are many in which it would be in[/]correct, which is what the other posters are trying to point out. All the arguing in the world doesn't change the statutory language.

 

[JIMinCA]

Jim, do you see those two little letters that come right after this section in the statute? (Carl gave you a big hint). Here's another - define "conditional statement".

What??? Is this some kind of cryptic message??

Why is the language of the statute so hard to understand? It says the PROSECUTING ATTORNEY shall disclose. It doesn't say the investigating agency shall disclose. If the prosecuting attorney does not provide the requested information, then he cannot use it in court. If he doesn't have the material requested in discovery to use in his prosecution, he can't win. Why is that hard to understand?

 

[CdwJava]

Shall disclose IF the information is in his possession or he knows it to be in the possession of the investigating agency.

1054.1. The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:​

It does not say he has to disclose the information whether the agency is involved or not.

It is that conditional "if" that provides the wiggle room for many instances of a failure to comply with a timely disclosure. It is also why many attorneys suggest dual service of discovery on both the issuing agency and the DA (or city attorney, as appropriate).

In counties such as mine, the DA does not even SEE the traffic citations! They do not go to his office at all! If a person were to send a request for discovery to the DA his office would not even have a record of the defendant's name. We send our infractions straight to the court. Traffic MISDEMEANORS are culled through the DA's office, and if filed as infractions they are sent to the court and all the info comes back to us - they do not keep it. Whether they have a record of the name or not when they kick it to the court as an infraction, I could not say.

Further reading of 1054 et al also finds that a dismissal shall generally only be granted when other remedies have been exhausted. Hence the reason most courts will make an order to compel discovery before dismissing a matter. The fact you have seen such dismissals in your area may indicate only that your court has little tolerance for delays and the local DA or agencies have never made an issue out of it.

- Carl

 

[JIMinCA]

Shall disclose IF the information is in his possession or he knows it to be in the possession of the investigating agency.

1054.1. The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:​

It does not say he has to disclose the information whether the agency is involved or not.

It is that conditional "if" that provides the wiggle room for many instances of a failure to comply with a timely disclosure. It is also why many attorneys suggest dual service of discovery on both the issuing agency and the DA (or city attorney, as appropriate).

Certainly the prosecuting attorney can rely on the "if" (weren't you the one who was chastising me about taking advantage of "loopholes"??). However, if he chooses not to disclose the discovery, then the evidence he chooses not to disclose is inadmissable. I'm not sure how you could get a prosecution with no records of calibration, maintenance or training concerning the radar unit.

In counties such as mine, the DA does not even SEE the traffic citations! They do not go to his office at all! If a person were to send a request for discovery to the DA his office would not even have a record of the defendant's name. We send our infractions straight to the court. Traffic MISDEMEANORS are culled through the DA's office, and if filed as infractions they are sent to the court and all the info comes back to us - they do not keep it. Whether they have a record of the name or not when they kick it to the court as an infraction, I could not say.

I agree... in most counties there is no prosecuting attorney involved at all with an infraction. However, that does not relieve him of the burden of providing discovery when requested. And again, filing a discovery request with the ticketing agency is done so at the liesure of that agency. The ticketing agency is NOT required to comply with a discovery request.

Further reading of 1054 et al also finds that a dismissal shall generally only be granted when other remedies have been exhausted. Hence the reason most courts will make an order to compel discovery before dismissing a matter. The fact you have seen such dismissals in your area may indicate only that your court has little tolerance for delays and the local DA or agencies have never made an issue out of it.

- Carl

Can you reference which specific section of 1054 says that? The only section I found that makes any reference to dismissal is 1054.5(c) which states:

The court shall not dismiss a charge pursuant to subdivision (b) unless
required to do so by the Constitution of the United States.

I think that the courts I have been in were very proper in dismissing the cases that I have spoken of.

I think the issue here is that people accept common practice to be the law. Just because people do things a certain way does not negate a defendant's protection under the law.

 

[SMBI]

I know I'm new around here but I'll weigh in with some personal experience regarding discovery and traffic citations. I was cited in Jan 07 and in August of 07 my case was dismissed (pursuant to a motion I filed) basically resulting from a lack of discovery.

1054 does state that the DA shall disclose and yes it does say what they know to be in possession. As long as you ask for basic items (copy of citation and all notes by officer pertaining to the stop, video/audio of traffic stop if avail, radar logs if applicable, etc) than I would imagine the court would assume that the DA would have the reasonable knowledge that these items are indeed in possession of the investigating agency. It is a courtesy to notify the investigating agency but it is NOT a requirement according to the law.

Remember the officer in court (who cited you) is a witness for the state, nothing more (this is established in case law). This frame of mind helped me when I was working on my defense and on questions to ask the witness (officer). You are allowed to question the officer but they are not allowed to cross-examine your testimony (the judge may ask questions in order to clarify something). You are also not required to testify (in OP's case they probably wouldn't want to ... if you lie it is perjury) but you can question the officer testimony, or try to show that all the elements of the crime were not met.

In my case, I made a request of discovery to the DA (the prosecuting attorney for my county) which was pretty much ignored. When I showed up for court I objected to the lack of discovery, showed proof of the discovery request (including a signed certified receipt). The judge ordered discovery directly to the officer and set a court date for 2 weeks later.

When we came back 2 weeks later (with no discovery) the court bailiff allowed him to "disqualify" the pro tem judge who made the decision and sent us off before the judge came out ... saying the court would reset the trial date. Since the new trial date was past 45 days of I filed a dismissal pursuant to 1382pc and the court ultimately dismissed the matter without any further appearances. (one note on this in order to "preserve" your 45 day rights under 1382 you need to file your not guilty plea in person, it can be to the clerk but it must be in person).

In my case I had not committed the infraction and that was my motivation. In the OP's case he admits to committing the infraction. I can't say I totally agree with the idea of trying to get a matter dismissed on a technicality alone but to each their own.