suspended license

[hatchet42]

What is the name of your state? California

My girlfriend was driving my car and we were stopped, the officer said it was for expired registration, but it is far more likely that he ran the plates and assumed I was driving (my license is suspended), since the registration didn't actually expire for another week. When I pointed out that the registration was in fact still good, he threatened to have the car impounded and told me it would cost at least $1000 to get it back. Then he said he had seen me driving the vehicle earlier in the evening, and proceeded to write me a citation for driving on a suspended license.
My main question is, can he even do this? A citation for "driving with a suspended license" when I wasn't even driving seems a bit absurd.

[JIMinCA]

Originally Posted by hatchet42

What is the name of your state? California

My girlfriend was driving my car and we were stopped, the officer said it was for expired registration, but it is far more likely that he ran the plates and assumed I was driving (my license is suspended), since the registration didn't actually expire for another week. When I pointed out that the registration was in fact still good, he threatened to have the car impounded and told me it would cost at least $1000 to get it back. Then he said he had seen me driving the vehicle earlier in the evening, and proceeded to write me a citation for driving on a suspended license.
My main question is, can he even do this? A citation for "driving with a suspended license" when I wasn't even driving seems a bit absurd.

Holy smokes!!! Are you stating the facts of the case accurately?? If so, that is an amazing story.

1) His testimony would be suspect concerning his seeing you driving earlier that day.
2) If he told your girlfriend that he pulled her over for an expired registration when in fact it was not expired, he did not have probable cause to effect the traffic stop.

I'm sure Carl will want to comment on this one. However, in addition to defending myself in court, I think I'd be filing a formal complaint with the department this cop works for.

[JIMinCA]

You too should submit a discovery request to the District Attorney to learn what notes the officer took with the case. The Discovery Request should go to the DA, not the ticketing agency. It is the DA's responsibility to provide discovery as per the Penal Code:

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.

You may have read on other threads where some people think the word "if" in this statute means the prosecutor doesn't have to provide discovery IF he doesn't personally know about it. However, in People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 96 Cal.Rptr.2d 264, the appellate court stated:

A prosecutor has a duty to search for and disclose
exculpatory evidence if the evidence is possessed by a person or
agency that has been used by the prosecutor or the investigating
agency to assist the prosecution or the investigating agency in
its work. The important determinant is whether the person or
agency has been "acting on the government's behalf"

Also, in People ex rel. Kottmeier v. Municipal Court(1990) 220 Cal.App.3d 602 , 269 Cal.Rptr. 542, one finding concerning traffic tickets was:

We note that it has been stated that the provisions of Government Code section 26500 requiring the presence of the prosecutor "are for the benefit of the people." (People v. Thompson (1940) 41 Cal.App.2d Supp. 965, 967 [108 P.2d 105].) This suggests that there is discretion not to appear, if the district attorney is willing to take the consequences of an adverse verdict or ruling

Therefore, the DA's office is the appropriate place to file your discovery request, the DA is obligated to search for and provide the discovery even if he doesn't know it exists, and if the DA chooses not to attend the trial, you can make a motion to dismiss (if he doesn't provide the discovery) and no one will be able to object to that motion.

You can get forms for filling out your discovery request at [url]www.helpigotaticket.com[/url]. I am not affiliated with that site, I just recognize it as a good source of information.

I hope there is enough statutory law and case law here to make my point. I'm sure there will be plenty of dissenters that will tell me I am wrong and "that's not how its done in practice". You can make your own decisions, but opinions are based on law... not "the way I saw it done before".

[You Are Guilty]

Originally Posted by hatchet42

My main question is, can he even do this? A citation for "driving with a suspended license" when I wasn't even driving seems a bit absurd.

Were you driving earlier that day? You failed to mention that, and it's quite critical to the answer to your questions.

[CdwJava]

Originally Posted by hatchet42

My girlfriend was driving my car and we were stopped, the officer said it was for expired registration, but it is far more likely that he ran the plates and assumed I was driving (my license is suspended), since the registration didn't actually expire for another week. When I pointed out that the registration was in fact still good, he threatened to have the car impounded and told me it would cost at least $1000 to get it back. Then he said he had seen me driving the vehicle earlier in the evening, and proceeded to write me a citation for driving on a suspended license.
My main question is, can he even do this? A citation for "driving with a suspended license" when I wasn't even driving seems a bit absurd.

If he had seen you driving earlier in the day, yes, he can charge you with driving on a suspended license. This is a misdemeanor and will possibly be filed through the DA's office for criminal prosecution as a misdemeanor. Securing counsel would be advised, if so.

He could not have towed the car when you were not driving it.

For this charge to stick, the officer is going to have articulate when and where he saw you driving, and he will also have to explain how he identified that person as you. He may also have to explain why he did not cite you for this earlier ... unless he did not know you were suspended until THIS stop.

This could be tough for the state, and i suspect if it goes through the DA's office unless the officer's report articulates the circumstances real clearly, the DA may just drop the matter.

Oh, and if the matter goes to complaint from the DA then you may not be able to obtain discovery on your own - your attorney of record will, but not you.

In the meantime, GET YOUR LICENSE CLEARED UP!

You realize that ANY car you drive can be impounded for 30 days, right? That could cost you nearly $2,000 if you drive ... and ANY car can be impounded.


- Carl

[JIMinCA]

Originally Posted by CdwJava

He could not have towed the car when you were not driving it.

This assumes the officer was acting within the law. Clearly, the State doesn't always follow its own rules to the detriment of defendants.

For this charge to stick, the officer is going to have articulate when and where he saw you driving, and he will also have to explain how he identified that person as you. He may also have to explain why he did not cite you for this earlier ... unless he did not know you were suspended until THIS stop.

This could be tough for the state, and i suspect if it goes through the DA's office unless the officer's report articulates the circumstances real clearly, the DA may just drop the matter.

Agreed. Unless the OP just rolls over and pays the fine, I think the State will have a tough row to hoe on this one.

Oh, and if the matter goes to complaint from the DA then you may not be able to obtain discovery on your own - your attorney of record will, but not you.

Carl... certainly you are better than this. Are you suggesting that a citizen cannot represent himself pro per and serve as his own attorney? Are you suggesting that our judicial system requires you to hire an attorney before it allows you your right to discovery?

In the meantime, GET YOUR LICENSE CLEARED UP!

You realize that ANY car you drive can be impounded for 30 days, right? That could cost you nearly $2,000 if you drive ... and ANY car can be impounded.

- Carl

Good points here!

[JIMinCA]

Originally Posted by You Are Guilty

Were you driving earlier that day? You failed to mention that, and it's quite critical to the answer to your questions.

He certainly wouldn't be required to answer this question in court.... why should he answer it here?

[CdwJava]

Originally Posted by JIMinCA

Carl... certainly you are better than this. Are you suggesting that a citizen cannot represent himself pro per and serve as his own attorney? Are you suggesting that our judicial system requires you to hire an attorney before it allows you your right to discovery?

Until the court recognizes his position as the attorney of record, the law enforcement agency and the DA are not obligated to release information to him. In fact, the Penal and Government Codes would prevent the release of some information to him unless he were acting pro per. Even as Pro per there is still certain information that he might not be able to obtain in their entirety. (In this type of case I doubt there would be any protected information, but in some more serious cases there could be.)

As a case of a suspended license, it is very possible this will be referred by the DA back down to traffic court as an infraction, but it is possible to file this as a misdemeanor with the possibility of jail time ... just not too likely.

- Carl

[JIMinCA]

Originally Posted by CdwJava

Until the court recognizes his position as the attorney of record, the law enforcement agency and the DA are not obligated to release information to him.

1) The law enforcement agency is not obligated to release information to him under discovery anyway

2) When he files his discovery request, he announces himself as pro per at that time... so, I'm having a problem understanding the point.

In fact, the Penal and Government Codes would prevent the release of some information to him unless he were acting pro per. Even as Pro per there is still certain information that he might not be able to obtain in their entirety. (In this type of case I doubt there would be any protected information, but in some more serious cases there could be.)

I'd really like to know what information a defendant could get with an attorney, but the Penal Code would prevent him from getting Pro Per.

- Carl[/quote]

[CdwJava]

Originally Posted by JIMinCA

1) The law enforcement agency is not obligated to release information to him under discovery anyway

No, but people often try to make "public records" requests to law enforcement for these sorts of things. Hence the reason I did not specify "discovery".

There ARE other ways people obtain information besides discovery. Many people think that if they file a "freedom of information act" request, they get what they want. Not true ... partially because the FOIA does not apply to CA. But, even a Public Records Act Request would not get this info from law enforcement.

2) When he files his discovery request, he announces himself as pro per at that time... so, I'm having a problem understanding the point.

If the DA wants to give it to him, that's fine. But until the court recognizes him as the attorney of record, he doesn't necessarily have a right to anything. In most counties the DA provides duplicate copies to the court who then provides it to the counsel of record. if that is going to be the defendant, then so be it.

I'd really like to know what information a defendant could get with an attorney, but the Penal Code would prevent him from getting Pro Per.

There are a number of things including certain information that involves victims of certain crimes and minors that he would be statutorily prevented from getting. In a traffic matter I can't see that these issues would arise. But, if he were defending himself in, say, a child molest case, it is very doubtful he would have access to all the information concerning his victims - pro per or not.

I'm a tad busy now, but I will be happy to look up the specific codes that discuss this later.


- Carl

[You Are Guilty]

Originally Posted by JIMinCA

He certainly wouldn't be required to answer this question in court.... why should he answer it here?

Oh gee, I don't know. Perhaps because this isn't a courtroom? No 5th Amendment online you know.

Besides, who said he was "required" to do anything? The only "requirement" is that if someone wants accurate advice, providing all the details is the only way to ensure it.

[You Are Guilty]

Originally Posted by JIMinCA

Nope... the point is the OP came here looking for help with his defense. He didn't come here looking for help with the prosecution.

And you really can't see the importance of knowing whether he's actually guilty in fashioning an appropriate strategy? Are you deliberately being dense?