VC 22348(B) and the right to have a Trial by Written Declaration

[mcshiny]

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

So I got a VC 22348(B), exceeding 100MPH, citation in Santa Clarita County. It's an infraction. So under VC 40902, I should be eligible to have a Trial by Written Declaration because my charge is an infraction and is a vehicle code. Well, the courthouse in Santa Clarita is one weird courthouse. So when I went to my arraignment, I plead not guilty and requested a TBWD. The judge tells me go to the clerk's office and they will see what they can do. That right there was awkward to me. You're the judge! You can tell them what to do, not make me go there and "see what they can do." Anyway, I go to the clerk's office and they tell me I can't do the TBWD because it's a misdemeanor! I was in shock, since my citation says it's an infraction and I received no notice at all regarding my charge being elevated to a misdemeanor. I understand that the DA can file charges and what I get on my ticket isn't necessarily what I will be charged with, but to be given no notice at all about my charge changing? I was taken aback. And even when I was before the judge, he only read that my charge was "exceeding 100 MPH" and never said anything about it being a misdemeanor or infraction, so I just assumed it was indeed an infraction since that is what it said on my ticket. Highly weird for an arraignment for him not to say it was a misdemeanor or infraction, I must say. But the clerk's office proceeds to tell me I have a misdemeanor and I can't do a TBWD and now I must proceed to trial. I was in shock and just accepted what they said to me.

After leaving and having some time to collect myself, I started to wonder...if this is a misdemeanor, aren't I given the right to a public defender? The judge made no mention of it. And if I plead not guilty, shouldn't this go to a Pretrial Conference and not a trial already? I decided to call the clerk's office the following day to get some clarification. Upon calling the first person there, I find out that I do have an infraction! I mean, what kind of crap is this?! I find it highly awkward that if I hadn't made some calls, I would have kept assuming I was charged with a misdemeanor. Anyhow, since it's an infraction, I then ask if I can do the TBWD. The person says I can't because "it's a 2 pointer" and that even if the judge had granted it, they would have had to go back to him and void it because I can't do a TBWD on my charge. Does that make any sense? I thought VC 40902 specifically says I can do the TBWD! The person even talks to their supervisor and they say I can't. I hang up and call back to talk to another person and now, this person says I should be able to do a TBWD and that it's weird the other person told me I can't. I know it's probably not their job to tell me what I can or can't do and that I should ask an attorney, but this gives me less respect for the courts with the way they are handling my case and telling me misinformation.

Bottom line: Should I be eligible for TBWD? I feel like sending in my forms for it and see if they accept it. Do you think I have any just cause regarding the way they have handled my case thus far? Ultimately, a dismissal is what every ticketer wants. Do you think I can cite some kind of code in the vehicle code book that can help me win my case by the way they have mishandled my case thus far? Any help would be greatly appreciated.

 

[Jim_bo]

You absolutely have the right to a TBWD. What waws the speed you were charged with??

 

[mcshiny]

I was charged with going 102MPH. I have issues with that because I was actually driving "in front" of two cars to the right of me who might have gotten in the line of sight of the officer's radar.

 

[FlyingRon]

That's going to be a tough one. If you were "in front" of two cars doing 100+ and you were driving legally, it should be readily apparent to the police that they were overtaking you and which ones were actually speeding.

You're going to have to come up with a better story.

 

[I_Got_Banned]

Do you think I can cite some kind of code in the vehicle code book that can help me win my case by the way they have mishandled my case thus far?

Uhm... No!

I was charged with going 102MPH. I have issues with that because I was actually driving "in front" of two cars to the right of me who might have gotten in the line of sight of the officer's radar.

Where was he when he measured you speed?

 

[CdwJava]

22348(b) is an infraction ... I am at a loss as to where the Clerk's office got that this was a misdemeanor. Even if a two point violation, I do not see an

The request for the TBWD is to be filed with the Clerk's office on or before the appearance date indicated on the notice to appear (or any extended appearance date). Someone there needs to review the Rules of Court and the Traffic Judge Bench Guide as written by the Judicial Council. And, per CVC 40902, these state rules supersede any local rules that might attempt to make a 2 point violation ineligible.

- Carl

 

[Jim_bo]

Carl is right on the money. As far as your defense, you are being charged with being 2mph over. The cop was about as dumb for charging you for 22348 instead of 22349 as the clerk for telling you that you can't do a TBWD.

Unless the judge is just hard over about a conviction, it shouldn't be hard to raise reasonable doubt with a margin of error of less than 1.5%

 

[mcshiny]

Where was he when he measured you speed?

He was on the right shoulder and at a stand still. I think it may have been a 4 lane road and I was on the 2nd lane from the left. It may have been a 5 lane road perhaps.

 

[mcshiny]

22348(b) is an infraction ... I am at a loss as to where the Clerk's office got that this was a misdemeanor. Even if a two point violation, I do not see an

The request for the TBWD is to be filed with the Clerk's office on or before the appearance date indicated on the notice to appear (or any extended appearance date). Someone there needs to review the Rules of Court and the Traffic Judge Bench Guide as written by the Judicial Council. And, per CVC 40902, these state rules supersede any local rules that might attempt to make a 2 point violation ineligible.

- Carl

I was at a loss for words as well, and when I was told about the misdemeanor to begin with, then to find out it's back to an infraction and then only to run into the whole "you can't do the TBWD anyway", I was just getting irritated. The fact that they remembered me from the previous day and had questioned if I could do it, and still came up with the answer that I can't is BAFFLING! You would think this has come up before. And then to question the supervisor about it and still come back to the notion that a TBWD isn't eligible for this VC is surprising.

 

[mcshiny]

Carl is right on the money. As far as your defense, you are being charged with being 2mph over. The cop was about as dumb for charging you for 22348 instead of 22349 as the clerk for telling you that you can't do a TBWD.

Unless the judge is just hard over about a conviction, it shouldn't be hard to raise reasonable doubt with a margin of error of less than 1.5%

After the fact, I kind of thought the same thing. The officer really didn't need to charge me with a 22348, but I guess maybe the CHP is getting pressured to charge a higher crime to get more money for the state? =P I hope to at least get the charge reduced to a 22349. Does anyone know what the margin of error is on a radar?

 

[I_Got_Banned]

I was charged with going 102MPH. I have issues with that because I was actually driving "in front" of two cars to the right of me who might have gotten in the line of sight of the officer's radar.

Where was he when he measured you speed?

He was on the right shoulder and at a stand still. I think it may have been a 4 lane road and I was on the 2nd lane from the left. It may have been a 5 lane road perhaps.

OK, so he's on the right shoulder, at a stand still, waiting... You're the lead car in the #2 lane and approaching him, 2 other cars are to the right of you, he's using his rear facing radar (CHP has front and rear mounted antennas that they can use independently), he measures your speed... My guess is that he did that way before you got "next" to him, so arguing that the cars to the left and behind you would not in any way interfere with the radar beam.

Does anyone know what the margin of error is on a radar?

Do a discovery request, get the Radar calibration certificate and find out. I can tell you that based on the few that I've seen, your "margin of error argument" won't work. Had this been a "pace", you've got a good chance while arguing a margin of +/-2%... but with Radar...

 

[Jim_bo]

After the fact, I kind of thought the same thing. The officer really didn't need to charge me with a 22348, but I guess maybe the CHP is getting pressured to charge a higher crime to get more money for the state? =P I hope to at least get the charge reduced to a 22349. Does anyone know what the margin of error is on a radar?

How do you plan on getting a reduced charge? Who would you be bargaining with? The prosecutor will not be at trial.

Do what IGB suggests. Get the calibration certificate. My guess is that it won't even be calibrated at 100mph.

 

[mcshiny]

OK, so he's on the right shoulder, at a stand still, waiting... You're the lead car in the #2 lane and approaching him, 2 other cars are to the right of you, he's using his rear facing radar (CHP has front and rear mounted antennas that they can use independently), he measures your speed... My guess is that he did that way before you got "next" to him, so arguing that the cars to the left and behind you would not in any way interfere with the radar beam.


Do a discovery request, get the Radar calibration certificate and find out. I can tell you that based on the few that I've seen, your "margin of error argument" won't work. Had this been a "pace", you've got a good chance while arguing a margin of +/-2%... but with Radar...

I'm not familiar with how radar works so I didn't know he had something in the rear that can detect me. So he was most likely clocking my speed the entire time I was driving towards him? Does he need a clear line of sight to clock me? To me, it seemed almost like a little bit of an uphill drive as I drove towards him because the natural reaction to most drivers, including me, is when you see a cop car on the side, you hit the brake and slow down. I never saw the cop car until it was too late and I had no clue he was there, as if I went over the hill and then saw him at the top. Just wondering if that factors into the equation at all in regards to him clocking me at 102MPH.

In regards to doing a discovery request, is there an official document to do this request? I checked California Courts: Forms and didn't see one. And I would be sending this request to the DA's office, correct? I've researched a little bit and I understand that a DA *must* be present at the court trial? Sounds weird that they would be there, but I read somewhere that a prosecutor must be there and the police officer can't be designated as a prosecutor and witness at the same time, so if a DA is not present, it's not legal? Any truth to this?

 

[mcshiny]

How do you plan on getting a reduced charge? Who would you be bargaining with? The prosecutor will not be at trial.

Do what IGB suggests. Get the calibration certificate. My guess is that it won't even be calibrated at 100mph.

I could ask for leniency from the judge. Also, as I was mentioning to IGB, I read that a prosecutor has to be present because a police officer can't be designated as a prosecutor and a witness at the same time? Any truth to this? Or is it perfectly legal for the police officer to be the only one there? Because don't I need to be prosecuted against by someone?

 

[I_Got_Banned]

I'm not familiar with how radar works so I didn't know he had something in the rear that can detect me. So he was most likely clocking my speed the entire time I was driving towards him? Does he need a clear line of sight to clock me? To me, it seemed almost like a little bit of an uphill drive as I drove towards him because the natural reaction to most drivers, including me, is when you see a cop car on the side, you hit the brake and slow down. I never saw the cop car until it was too late and I had no clue he was there, as if I went over the hill and then saw him at the top. Just wondering if that factors into the equation at all in regards to him clocking me at 102MPH.

Does what factor in? The fact that you didn't see him? Not sure how that will affect his reading, so no, it doesn't factor in.

In regards to doing a discovery request, is there an official document to do this request? I checked California Courts: Forms and didn't see one. And I would be sending this request to the DA's office, correct?

Search the forum here or Google “California Informal discovery” and you'll find plenty of resources to read through.

I could ask for leniency from the judge.

You could... however, judges usually don't show much leniency to someone driving at 102mph.

Also, as I was mentioning to IGB, I read that a prosecutor has to be present

Not true... A prosecutor will not be present. Had this been a misdemeanor, then you can bet he/she will be there. Not for an infraction though.

because a police officer can't be designated as a prosecutor and a witness at the same time?

The officer is not substituting for the prosecutor. He's there only as a witness.

Or is it perfectly legal for the police officer to be the only one there?

The way things are set up, it's perfectly legal.

Because don't I need to be prosecuted against by someone?

Just pretend the prosecutor is there... He's there in spirit. Besides, it should make you role as a defendant much easier if the prosecutor is not there.