Right Turn on Red (5 Second Rule?)

[SamCA]

What is the name of your state? California

I live in San Diego and recieved a traffic ticket today for violating CA. Vehicle Code 21453(a).

When the officer pulled me over he asked me if I knew how long I needed to wait prior to making a right turn on a red signal. I stated that I thought I just had to come to a complete stop and then continue to make a right turn only when there were no pedestrians or other cars coming. He said no, you must wait 5 seconds prior to making a right turn on red and that I only waited 3 seconds by his counting.

This seems completly bogus to me. I looked up Vehicle Code 21453 and it says nothing about having to wait 5 seconds. I plan on fighting this ticket, but wanted to know exactly how I should go about doing it.

One thing to note is that the officer only wrote "21453(a) Red Light Violation" on the ticket. No mention of his 5 second rule or me only waiting 3 seconds. His verbal mention of me waiting 3 seconds proves I made a complete stop. My concern is that he'll change his story and try to say I never made a complete stop.

How should I handle this? Should I first file a discovery to get his notes to see if he mentions his made up 5 second rule in there? And if there's no mention of this in his notes then what, it's basically his word against mine.

Thanks,

SAM

[FlyingRon]

I've never heard of such a thing. As you have surmised, the code just says make a complete stop and yield.

[CourtClerk]

I seem to remember that when my oldest was going through driving school, the instructor mentioned something like that (but I thought he said 3)... however, since at the time, I was a clerk in traffic court, I just laughed and said... "ok" when he told me. Whatever he wanted to believe to make him a safer driver was alright with me.

I think it's a "rule of thumb," but it is NO WHERE IN THE VEHICLE CODE.

[baystategirl]

I thought the "5 second rule" pertained to eating a piece of candy/food off the floor....

[CourtClerk]

Originally Posted by baystategirl

I thought the "5 second rule" pertained to eating a piece of candy/food off the floor....

Now, THAT... I think you're correct in. Surveyed a schoolyard full of 6 years old..

[CdwJava]

Originally Posted by SamCA

This seems completly bogus to me. I looked up Vehicle Code 21453 and it says nothing about having to wait 5 seconds. I plan on fighting this ticket, but wanted to know exactly how I should go about doing it.

When you go to court, if the officer testifies that you stopped, but not long enough, then you will win. There IS no "five second rule."

Now, I suppose it's possible he is alleging that you did NOT stop and instead suggested that it is best for you to stop for 5 seconds before proceeding, but that's just an assumption based upon past experience.

How should I handle this? Should I first file a discovery to get his notes to see if he mentions his made up 5 second rule in there? And if there's no mention of this in his notes then what, it's basically his word against mine.

A proper discovery request would be a good idea. Serving a copy on the issuing law enforcement agency as well as the DA is usually a good idea. In many CA counties , the DA's office does not handle traffic offenses and is thus unable or unwilling to respond to such a request. You might then have to waste more time by waiting til the court date so the court can order discovery from the agency or officer directly.


- Carl

[The Occultist]

Heh, I bet the officer had just stepped out of a driving course where they often ADVISE the students to stop for 5 seconds, and misunderstood the advice. OP, you should have no trouble beating this in court.

[JIMinCA]

Originally Posted by CdwJava

When you go to court, if the officer testifies that you stopped, but not long enough, then you will win. There IS no "five second rule."

Now, I suppose it's possible he is alleging that you did NOT stop and instead suggested that it is best for you to stop for 5 seconds before proceeding, but that's just an assumption based upon past experience.


A proper discovery request would be a good idea. Serving a copy on the issuing law enforcement agency as well as the DA is usually a good idea. In many CA counties , the DA's office does not handle traffic offenses and is thus unable or unwilling to respond to such a request. You might then have to waste more time by waiting til the court date so the court can order discovery from the agency or officer directly.


- Carl

Carl makes good points here. However, we still disagree on where to file discovery. I agree that in many counties the ticketing agency handles the ticket all the way through the court trial with no intervention from the prosecuting attorney. However, the law requires the prosecuting attorney to provide the discovery. There is NO requirement for the ticketing agency to do so. Discovery request must be served at least 30 days prior to trial. Therefore, the officer can give you only half of what you ask for and deliver it to you within the 30 day window before your trial. In this scenario, you have no legal recourse.

By the law, you should properly serve your discovery request on the prosecuting attorney. He does NOT have an option of whether or not to provide it. However, he does have an option of whether or not to prosecute the case (traffic cases, contrary to populare belief, are NOT prosecuted by the ticketing agency.) Therefore, if the prosecuting attorney provides your discovery, you'll likely get the evidence you are looking for. If he doesn't, then he is simply exercising his discretion in not prosecuting your case thereby giving you grounds for dismissal.

You win either way.

[justalayman]

Just a note to samCA. cdwjava is a california police officer and is a straight shooter. I would follow his suggestions of

Serving a copy on the issuing law enforcement agency as well as the DA is usually a good idea.

by following jiminCA's advice, as Carl posted, you will simply delay the process.

The fact is, the DA is required to provide all the info you request that he has.

The problem is, the DA may not have the info you are actually looking for and he is not required to hunt down info for you.

the officers notes are something you would definately want to see prior to trial and the DA is not going to have them.

[CourtClerk]

And the other thing you have to remember is at least in LA and Orange Counties... the DA could care less about a traffic infraction, so know where you are requesting discovery from...

In those counties, it's the City Attorney, not the District Attorney.

[CdwJava]

I suggest also serving the issuing agency as well as the DA because that way the agency is already on notice that you are seeking the info. The alternative is you get no response from the DA and then have to ask a judge to compel discovery from the agency thus delaying the process for you. If you want to keep going to court, that's fine. But if you want to get the info and get the matter resolved, then serving BOTH the agency and the DA can assist in that process in many instances.

In counties such as mine, the DA could not help you because not only would they have no idea what agency issued the citation, they would have no record of the citation or the name of the person cited.

- Carl

[SamCA]

CdwJava,

When you say "I suggest also serving the issuing agency..." how do I do that? Do I send the discovery request to the division in which the issuing officer works out of, or where exactly would I send it?

I was planning on sending one to the DA as you suggest. I have the address of the DA for San Diego, but I'm not sure where to send the second discovery request to the "Issuing Agency"

Thanks!

Sam

[JIMinCA]

Originally Posted by CdwJava

I suggest also serving the issuing agency as well as the DA because that way the agency is already on notice that you are seeking the info. The alternative is you get no response from the DA and then have to ask a judge to compel discovery from the agency thus delaying the process for you. If you want to keep going to court, that's fine. But if you want to get the info and get the matter resolved, then serving BOTH the agency and the DA can assist in that process in many instances.

But you are simply compromising your case by doing so. Since the issuing agency is not compeled by law to provide any discovery, complete discovery, or accurate discovery, then you leave yourselve subjected to the whims of that agency.

If you are smart enough to go to your arraignment in person, then you can preserve your right to a trial within 45 days of arraignment. Therefore, a simple timeline can be followed:

1) File Discovery request.

2) Wait a couple weeks and go to arraignment

3) plead not guilty at arraignment.

4) get a court date approx. 30 - 45 days later.

5) show up to court. If district attorney has not provided discovery, request dismissal. If granted, you win. If denied, go to step 6.

6) ask the court to order the DA to provide the discovery requested.

7) court makes such order and reschedules court date

It is likely that the court will not be able to make the order, have the DA provide discovery and reschedule the hearing before the 45 day requirement. If the trial does not take place within the 45 days after araignment, dismissal is practiacally garunteed.

Therefore, my suggestion is to force the State to follow its own rules. If you send the discovery requests to the issuing agency, make phone calls, prematurely ask for court orders, etc... you simply are doing the prosecution a favor. He has a 45 day clock ticking. If he doesn't want to work within that time period, I certainly wouldn't want to help him.

In counties such as mine, the DA could not help you because not only would they have no idea what agency issued the citation, they would have no record of the citation or the name of the person cited.

- Carl

Well, in your county I would submit that your DA simply has chosen not to prosecute any case where he is asked to provide discovery. That is pretty simple.

[JIMinCA]

Originally Posted by CourtClerk

And the other thing you have to remember is at least in LA and Orange Counties... the DA could care less about a traffic infraction, so know where you are requesting discovery from...

In those counties, it's the City Attorney, not the District Attorney.

The following is from the Government Code:

Government Code
26500. The district attorney is the public prosecutor, except as otherwise provided by law.
The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.

The DA is the public prosecutor. He has the right to delegate the prosuctorial tasks to ADAs, DDAs, and City Attornys. However, he is still responsible for prosecutions, hence, he is responsible for discovery.

[JIMinCA]

Originally Posted by justalayman

The fact is, the DA is required to provide all the info you request that he has.

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.

The prosecution knows that the cop has notes, there are speed surveys, there are calibration/maintenance records, etc. Therefore, he has to provide them whether he is actually in possession of them or not.