Moving Forward with a Motion to Compel & TBWD

[AgentSmithers]

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

Alright, I have no entered by plead yet and I got another 15 days left till my Arraignment. I sent a Discovery letter to the Citing Agency and the D.A., The Response from the D.A. said we don't handle traffic cases blah blah blah and you should of sent this to the Agency. Little did they know I did, so now its been approx 26 days and they still have not sent me anything so its time to file a Motion so I can get the content before time is up.

Looking through Nolo's book I can using it to help me file a Motion to Preclude or in Alternative for disclosure and monetary sanctions.

Going over this I recall reading a law stating that I need to file $40 dollars, which is the cost of filing a motion. From what I read all I need to do is

Create the Motion
Serve all members of the party, in this case the DA, Again... The citing Agency and the court all with a proof of service.
Attach a 40dollar check.

and then wait for a response. Do I need to make a Notice for Motion to compel, Nolo goes over covering the hearing in person but do I need to file a notion for a TBWD?

Anyone have another template for a motion to compel, It would be most helpful so I can see differences between the on in NOLO and some others and how they are worded... Thanks!!

-Agent

 

[AgentSmithers]

Is there any more information I can give to get pointed in the right direction? =)

 

[AgentSmithers]

Have you contacted the citing agency?

If you want sanctions, you should send them a letter demanding a reply w/i 7 days or sanctions will be requested from the court.

The DA said they have nothing, so there is nothing to get from them...the citing agency? Call them up & find if they have anything - if they don't then there is no need for a motion to compel.

If they try to introduce documents or what you asked for in discovery then an objection with the court should be spoken up.

yes I will contact them as my next option, then what else? Is that a legal requirement making a 2nd form of contact?

 

[Zigner]

The blind leading the blind...


(No offense to the blind)

 

[demurringdude]

The blind leading the blind...
)

Why don't you give the right answer then? What's the point in floating around sniping at people for being wrong, if you never actually correct the mistake?

 

[Zigner]

Why don't you give the right answer then? What's the point in floating around sniping at people for being wrong, if you never actually correct the mistake?

 

[I_Got_Banned]

Why don't you give the right answer then? What's the point in floating around sniping at people for being wrong, if you never actually correct the mistake?

Safe to assume that you're in the process of posting the right answer(s) to AgentSmithers? Or are you just floating around snipping at people who are allegedly snipping at others for not providing the right answers?

Fact of the matter is, AgentSmithers has received his answer to this same question numerous times... If he's not willing to spend some time using the "search" feature on this forum, I (personally) am not willing to spend the time to regurgitate the answers for him knowing full well he'll be back in a few weeks asking the same question in a different thread!

ETA: what the heck.. I have a few minutes...

Agent, you won't get sanctions and unless the officer failed to bring with him the documents you requested (assuming you're not asking for something off the wall) you won't get anything excluded. File whatever motions you want (and I don't know where you got the $40 fee thing from)... but at the end of the day, you can simply make a verbal motion to compel prior to the start of you trial, the judge will order the officer to provide you with the items in your request, and your trial will continue!

 

[demurringdude]

Agent,

I don't follow where this all gets you in the end. It's quite a bit of work to request the discovery, and then file motions to compel it, or motions to exclude, or motions for sanctions. That's assuming you can even get a Judge to look at those motions or rule on them, given that you haven't entered a plea yet.

But all that happens is that either they produce nothing or they produce something. If they produce something, it's probably not going to be very interesting or useful. If they produce nothing, then the best you can do is get a continuance while you look at whatever the Police Officer shows up with at your trial. But that isn't worth anything either. Just means you have to come back again.

Unless you have some reason to think that the discovery will reveal something, it seems like an unfruitful strategy to me. It's very unlikely that any sanctions would ever be applied for failure to produce your discovery, apart from just granting you a continuance. Seems to me like it just makes a lot of work for you, and isn't likely to change anything.

Is there some underlying reason why you think the discovery will be useful?

 

[Jim_bo]

I don't agree.

Let's face some facts:

1. The DA is wrong. Period. He likely cited people v carlucci incorrectly. Despite the DA's letter, there is NOTHING in any law (statutory or case law) that relieves the prosecuting attorney of his prosecutorial responsibilities (other than appearing at trial). In fact, statutory and case law actually cites specific responsibilities that the prosecuting attorney is to perform (including providing discovery).

2. Serving the discovery request on the citing agency has no legal value. There is no legal responsibility for the cop or his agency to respond to a discovery request. The cop is a witness. Period. The prosecuting attorney is the ONLY person who is legally required to respond to the discovery request. I would challenge anyone who would recommend you serve a discovery request on the police to cite any law or any case that validates that action.

3. All of this doesn't really matter because the trial judge is almost assuredly going to ignore the law anyway. This is a huge conspiracy being perpetrated by the state on the public. This issue is just BEGGING for some smart person to take it to trial, lose, appeal and get some case law clarifying that which any rational person already can see as being clear.

Face it... in CA traffic court, the law is only a suggestion.

 

[I_Got_Banned]

This issue is just BEGGING for some smart person to take it to trial, lose, appeal and get some case law clarifying that which any rational person already can see as being clear.

Is your friend whom you mentioned in another thread (https://forum.freeadvice.com/speeding-other-moving-violations-13/ca-traffic-ticket-complaint-up-defendant-542062.html) "smart" enough to try that out??? (See your post below)!!!

This is really interesting. I have a friend with a ticket and I am going to tell her to submit a motion to request a verified complaint.

I am surprised that in spite of his purported "four decades of fighting traffic tickets", your buddy Geo McCalip hasn't been successful in finding a guinea pig to experiment with in all that time... Maybe he can use some money from his "legal fund to end the corruption" (or whatever he calls it) to compensate someone in lieu of having them run the full course with it!

 

[Jim_bo]

IGB,

I'm confused. You are typically one of the more rational posters. So, exactly what is the point of your post above? Are you suggesting that anything I said is incorrect? Are you suggesting that the prosecuting attorney IS relieved of all responsibilities for traffic cases? Or are you suggesting that I am right and this is just a big conspiracy that has so much inertia it will never be defeated by one little motorist?

I'm having a hard time determining if your post is based on law or emotion. Hopefully, you can clear it up.

 

[AgentSmithers]

Agent,

I don't follow where this all gets you in the end.

Well lets say for instance, You are 100% obeying the law, and you get pulled over and cited a speeding ticket for a bad radar reading, and in your trial by written deceleration you are going to say something along the lines of, I was not speeding the Cop is crazy. Well that's great cause your now found guilty. BUT! If you get a copy of the calibration records and find that its not up to par, you now can create a decent defense. Something you cannot do with out discovery.

 

[Maestro64]

Look i know where you are coming from and there are defense strategies of inundating the other side with all these request and motions to comply so when you are found guilty you can raise an appeal on the ground they failed to comply and your rights were violated. Great strategy if you have the time, energy and resource to do this but there are far easier ways to achieve the end results without going this path.

On your request for calibration record for the radar unit, the most it will says it was calibrated. It does not say how or if it was done correctly, or even if it was calibrated against a national standard. If you want to prove the unit was out of whack, which it could very well be, you would be required to get the calibration method they use, and the cal certs of all the equipment that was used to calibrate the radar unit and see if they all meet their requirements. Even then that may not prove a thing since the unit might have worked when it was last cal which i believe in CA it could be 3 yrs or whatever the manufacturer recommends. With that, you would have to get your hands on the unit now and have it retested, and find out if it was out of whack, however, just because it is out of whack now does not mean it was out of whack when the ticket was issued.


I will also tell you that most all manufacturers of radar units have removed the daily tuning fork test from their manuals due to the fact that it was not done right and the forks get damaged and it cause more headache for police to win ticket. The manual have removed any text that would allow someone to challenge the ability of the unit to work properly and the officer to use it correctly. There is even case law on the subject that officer is not required to even understand how radar works. Reason being they do not want the police to be an expert witness on your behalf, they can plead ignorance when you asked them question about possible errors or miss readings.

I read a number of your posts and you are definitely taking the hard way around. I know since I read similar thing to the strategy you are using.

 

[AgentSmithers]

Look i know where you are coming from and there are defense strategies of inundating the other side with all these request and motions to comply so when you are found guilty you can raise an appeal on the ground they failed to comply and your rights were violated. Great strategy if you have the time, energy and resource to do this but there are far easier ways to achieve the end results without going this path.

On your request for calibration record for the radar unit, the most it will says it was calibrated. It does not say how or if it was done correctly, or even if it was calibrated against a national standard. If you want to prove the unit was out of whack, which it could very well be, you would be required to get the calibration method they use, and the cal certs of all the equipment that was used to calibrate the radar unit and see if they all meet their requirements. Even then that may not prove a thing since the unit might have worked when it was last cal which i believe in CA it could be 3 yrs or whatever the manufacturer recommends. With that, you would have to get your hands on the unit now and have it retested, and find out if it was out of whack, however, just because it is out of whack now does not mean it was out of whack when the ticket was issued.


I will also tell you that most all manufacturers of radar units have removed the daily tuning fork test from their manuals due to the fact that it was not done right and the forks get damaged and it cause more headache for police to win ticket. The manual have removed any text that would allow someone to challenge the ability of the unit to work properly and the officer to use it correctly. There is even case law on the subject that officer is not required to even understand how radar works. Reason being they do not want the police to be an expert witness on your behalf, they can plead ignorance when you asked them question about possible errors or miss readings.

I read a number of your posts and you are definitely taking the hard way around. I know since I read similar thing to the strategy you are using.

So the question is, Whats the better way?

 

[I_Got_Banned]

So the question is, Whats the better way?

Pretty simple, "drive within the limits of the law"!!!