How to file motions before submitting TBWD

[wanttobelawyer]

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

I am in the process of filing for a TBWD but I want to do this very carefully to try and get my case dismissed since I really can't afford the time to drive 6 hours for this trial.

My question is how does one file a motion if they have not opened a court case yet? I don't have the ability to submit my TBWD, be found guilty, file for trial de novo, file the motions (in court), and then also physically appear for court.
I can supply details of my traffic case but I do not think these are entirely relevant here.

Thanks for your time!

 

[tranquility]

I don't think you can. There is no motion practice I'm aware of for TBWD. You tell your side the officer tells his.

 

[wanttobelawyer]

I don't think you can. There is no motion practice I'm aware of for TBWD. You tell your side the officer tells his.

Thanks for your response!

That is unfortunate, so in order for a DA to respond to your request for discovery does there need to be a court case?

What I was trying to accomplish and why I am asking these questions:
I am trying to figure out if I can request informal for discovery from the DA before TBWD, hope they do not respond. Motion for withholding the officers evidence since I did not receive it as requested. And just write in not guilty in the TBWD. Of course this could pan out if I went into court but I cannot take off work for this... I am guessing because its a TBWD I waive my right to a speedy trial and the court could order discovery.

I'm sorry if I am not using exactly the correct terminology. I have been doing lots of research (actually reading CA codes not just blog posts haha) but its not the same as law school

 

[tranquility]

Even in a true trial regarding a traffic ticket, it is quite often discovery requests are not presented in a timely fashion and only end up being given in court. The sanctions are not generally followed and the evidence gets admitted.

 

[wanttobelawyer]

Even in a true trial regarding a traffic ticket, it is quite often discovery requests are not presented in a timely fashion and only end up being given in court. The sanctions are not generally followed and the evidence gets admitted.

For the sake of educating me and helping me think through the process:

PC §1054.5(b):

(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.

This would suggest that the court could order the discovery there. But why can the officer submit the evidence if he is just a witness? It is the DAs responsibility (California Penal Code §1054.1 and California Government Code §26500 “The district attorney is the public prosecutor, except as otherwise provided by law.”)

So lets say it is ok for the officer to submit the requested materials. Then I do not have sufficient time to prepare my defense and a continuation would not be acceptable because of my right to a speedy trial. Leaving the only acceptable solution 1054.5(c).

Basically I am trying to figure out how to apply the same principle to a TBWD. Which doesn't seem possible.

 

[HighwayMan]

So what happens if everything works out the way you DON'T want it to? What then? Give up and pay the fine?

 

[wanttobelawyer]

So what happens if everything works out the way you DON'T want it to? What then? Give up and pay the fine?

Ultimately what you're telling me is that the legal system doesn't work? I'm following all procedures and codes. Is there a problem with how I am going about this? I have already submitted my informal request for discovery and not heard from the DA. Do you have any constructive comments?

 

[Zigner]

Ultimately what you're telling me is that the legal system doesn't work? I'm following all procedures and codes. Is there a problem with how I am going about this? I have already submitted my informal request for discovery and not heard from the DA. Do you have any constructive comments?

If you can't afford the six hours to fight this, then the TBWD is your only choice. If you lose, you can ask for a trial de novo, but you're going to need to spend that six hours (at least) then. You're not going to get this thrown out as you hope.

 

[tranquility]

Ultimately what you're telling me is that the legal system doesn't work? I'm following all procedures and codes. Is there a problem with how I am going about this? I have already submitted my informal request for discovery and not heard from the DA. Do you have any constructive comments?

Are you kidding? It works PERFECTLY to collect traffic fines and prevent litigation that causes expense and hassle to the government. You are not going to win on a technicality regarding discovery in the place you are. In trial, maybe. It depends on the commissioner's load that day. (Besides, they don't get reappointed if they let everyone go. It is a cushy job and they want to keep it.)

 

[HighwayMan]

Ultimately what you're telling me is that the legal system doesn't work? I'm following all procedures and codes. Is there a problem with how I am going about this? I have already submitted my informal request for discovery and not heard from the DA.

You never said you submitted any informal request. YOU are counting on the system NOT working so you can get off on a technicality. I merely asked what you're planning on doing of everything works the way it should.

These are your words:

I am trying to figure out if I can request informal for discovery from the DA before TBWD, hope they do not respond.

To me this sounds like you did nothing yet - you're still trying to figure it out.

 

[wanttobelawyer]

If you can't afford the six hours to fight this, then the TBWD is your only choice. If you lose, you can ask for a trial de novo, but you're going to need to spend that six hours (at least) then. You're not going to get this thrown out as you hope.

Thank you for the reply. It is more that I do not want to give the government a sick day or vacation day from work to drive down to LA to fight this ticket.

 

[wanttobelawyer]

Are you kidding? It works PERFECTLY to collect traffic fines and prevent litigation that causes expense and hassle to the government. You are not going to win on a technicality regarding discovery in the place you are. In trial, maybe. It depends on the commissioner's load that day. (Besides, they don't get reappointed if they let everyone go. It is a cushy job and they want to keep it.)

No I am not kidding. It is not my fault the DA is not doing their job that I pay taxes for them to do. It is a lot easier to get the ticket thrown out then trying to argue entrapment. I've had speeding tickets before where I've said to myself, "yup I screwed up, I'll pay the fine" but this particular instance was the epitome of LA fundraising via traffic tickets. (edit: this ticket is not a speeding ticket but another traffic ticket)

You also just admitted that the system doesn't work. The commissioner is not going to throw my ticket out because he wants to keep his cushy job? Are YOU kidding?

Thank you for answering my question about the TBWD process.

 

[wanttobelawyer]

You never said you submitted any informal request. YOU are counting on the system NOT working so you can get off on a technicality. I merely asked what you're planning on doing of everything works the way it should.

These are your words:

I am trying to figure out if I can request informal for discovery from the DA before TBWD, hope they do not respond.

To me this sounds like you did nothing yet - you're still trying to figure it out.

I also said at the start that "I can supply the details of my ticket but i do not think they are relevant"
I was trying to keep this conversation as non-specific as possible so others might be able to learn something. You could also surmise from the title of my post that I had already not received the letter from the DA and was trying to figure out how to file a motion in TBWD. Which according to the wealth of knowledge here, does not seem possible.

I'm sorry for jumping down your throat but looking at the majority of your posts you just like to bash everyone that comes in here asking questions. You did not answer any of my hypothetical questions, yet through it all to the side and said what if it doesn't happen.

You cannot get mad at me for using the system against the system. In order for the system to work everyone has to do their job. Really you should be writing an angry letter to the DA that has not returned my request for discovery. IF they had done their job this would not have even been a question as to whether or not I can apply the technicality

 

[HighwayMan]

You cannot get mad at me for using the system against the system.

Who said I was mad? Go ahead, knock yourself out.

 

[wanttobelawyer]

Who said I was mad? Go ahead, knock yourself out.

That is what you're going to take away from what I said? haha oh man.....