What form to use to request discovery?

[coffeebean]

CA

My previous post "Going 80 MPH at 65MPH highway - CA" has been closed and I was unable to get an answer for the question of which form should I use to request discovery in my case. Should I use the pacing form or the radar/laser form?

As I stated, I don't know if the office was pacing me or using radar.

You can see the original topic here.
[url]http://forum.freeadvice.com/showthread.php?t=386647[/url]

I hope we can keep the discussion at a level that might actually help me, without getting too technical. Any suggestions that might help me have a chance to fight the ticket in court will be appreciated.

BTW, I would also appreciate if someone can tell me how many points go on my driving record if I can't successfully fight the ticket?
Thanks

Thanks again

[JIMinCA]

coffeebean,

Go to [url]http://www.helpigotaticket.com/proc/discover.html[/url]. There are free forms that you can simply fill in the blanks. You should combine the one for Radar and Pace to cover both areas. You'll also need to do a proof of service (on that web page also). Make sure you have a friend fill it out and mail your discovery requests for you. The page also has the addresses for all the DAs in the state. Find the one for the county your ticket is in. It's not hard, just do it.

[Hey There]

1-2-08

Coffee bean.

Requesting Discovery is a simple process in CA.
The following steps are based on a blank form in the back of the book Fight Your Ticket & Win in California. The form can be copied and used by the driver to make an Informal Discovery Request.
An Informal Discovery Request cosists of:
1. The driver's name and address
2. Superior Court of CA.
County Court is in
City--Name of Branch & address.
3.The case#(# assigned by court)
The citing agency(Police Dept? CHP?)
Citation #(the # on the ticket)
Date of Citation
The People of the State of California
vs.
(The Driver)
4. Who the Request is sent to
(a) D.A. or
City Attorney (in L.A.)
(b)Police Dept.
5. Per Penal Code 1054 & 1054.5(b) the driver referred to above
requesting a copy of the officer's notes, a copy of a video & or
recording if made, a copy of the front and back of the citation,
and names and addresses of any prosecution witnesses who
will testify at trial.
If a speeding ticket is involved the driver requests the method
used to determine speed as well as maintenance records of
radar or laser if used, certification records involving use of
laser or radar unit if used by the citing officer.
6. Driver dating request and signing it.

**************************
If the driver has a printer the form (Radar or Laser ) found on Help!I Got A Ticket! addressed specifically to the D.A. is simple to complete.
If the driver decides to notify the police department as well and still wants to use this particular form he can note on the form that a copy has been sent to the D.A. and the police department.
Some police departments use video to record a traffic violation. If the driver wants a copy of the video if one was made this should be included in the Discovery Request.
The driver can't mail the request himself.
A friend CAN mail a copy to to the D.A. (and the police agency if the driver wants this done) certified, return receipt. The driver should obtain a copy of Proof of Service from his friend and keep it with the original Informal Discovery Request.

As JIMinCA says "It's not hard"

Best Regards,
Hey There

[coffeebean]

Thanks guys. I have it almost complete, but I do have a couple questions and would appreciate if you could help one more.

- Case number - I don't have a case number just a citation number, should I use it instead? Do I need to make it clear it's a citation number?

- <JUSTICE CENTER or BRANCH> - I know the County, but not sure which would be the JC or branch. On my ticket it says that I must appear at West Justice Center. So, is this the one I should use in form?

- 6. Driver dating request and signing it. - So I can fill it up and sign it, but need a friend to mail it and have the friend's address as the sender? And the friend is the one that signs the proof of service, right? not the post office clerk?

- driver decides to notify the police department - Do you know where I can find the proper address for the police department in my county? Do I just send to their general mail box?

Thanks so much!

[JIMinCA]

Originally Posted by coffeebean

Thanks guys. I have it almost complete, but I do have a couple questions and would appreciate if you could help one more.

- Case number - I don't have a case number just a citation number, should I use it instead? Do I need to make it clear it's a citation number?

That's the citation number.

- <JUSTICE CENTER or BRANCH> - I know the County, but not sure which would be the JC or branch. On my ticket it says that I must appear at West Justice Center. So, is this the one I should use in form?

That should be fine. Don't get too wrapped around the axle about stuff like that. The address you list for the court makes it obvious which court you are talking about.

- 6. Driver dating request and signing it. - So I can fill it up and sign it, but need a friend to mail it and have the friend's address as the sender? And the friend is the one that signs the proof of service, right? not the post office clerk?

That's right, the friend signs the proof of service. He can simply drop it off in a mailbox, but it would be smart to get delivery confirmation.

- driver decides to notify the police department - Do you know where I can find the proper address for the police department in my county? Do I just send to their general mail box?

Thanks so much!

There really is no need to notify the police department. There is no legal requirement for the police to respond to a discovery request. This is based on the Penal Code and case law. I'm sure there will be plenty of people here to argue that point. If you would like to serve the Police with your request, it won't invalidate the request sent to the DA. However, if the DA does not provide the discovery you request, it can be used as a defense for dismissal.

[coffeebean]

JimCa, HeyThere and all others that been helping me. Here is what is going on now.

I have sent the discovery request about 1 month ago to the DA. I have proof of service and also return receipt.

I am supposed to appear on or before February 11. I have tried to get another extension but they said that I couldn't. Only if I appear in court I could get an extension.

I was thinking, if I need to appear in court anyway, should I just go ahead with my defense of not getting any information about my case even though I sent a discovery request? Or should I go and get an extension?

Should I ask to respond by mail? Is this still a possibility?

Well, I have only 2 business days left now. I know it's my fault, but I really through I would be able to get another extension.

Do you have any suggestions? Once more, I appreciate your help.

Thanks

[JIMinCA]

There is no need for an extension. You are not going to your trial... you are going to the arraignment. You will only be pleading "not guilty". You will argue the discovery issue at trial. BTW... I assume you served your discovery request on the D.A.... right?

[coffeebean]

Hi Jim,

yes, I did serve it to the DA, like instructed.

So, all I do is go there and plead not guilty?
When time that I went to court, everybody that pleaded not guilty had to stay until the whole thing was over and then each one did their defense. There was really not another date for trial. But I might be wrong. It was also in San Diego.

And I do have to go on the 11th right? There is no other way to do that?

Thanks

[CdwJava]

Hopefully the DA has that information. If they don't, hopefully they forwarded the request to the court who could then pass it on to the issuing agency (which is the process in many counties where the DA is not involved in traffic prosecutions). But, even while Jim disagrees with me on this, the statute requires the DA to turn over the information IF he has knowledge of it. Since state law requires traffic citations to be submitted to the court and NOT to the DA, most DA's offices have no clue as to what is going on in traffic court and would be unable to find the information by name, citation number, etc. because they do not have that info.

You can go to court and ask the court to compel discovery from the agency, however.

- Carl

[coffeebean]

I thought the whole plan it to claim that the due process has not been followed and that should cause dismissal of my case. If I ask them to produce discovery, more likely they will, and then I won't have any base for my claim for dismissal. Does it make sense?

[CdwJava]

Originally Posted by coffeebean

I thought the whole plan it to claim that the due process has not been followed and that should cause dismissal of my case. If I ask them to produce discovery, more likely they will, and then I won't have any base for my claim for dismissal. Does it make sense?

There may be other avenues for a defense. I just wouldn't count on a failure of the DA to produce discovery in a case they are not directly involved in to result in such a dismissal. However, Jim has some sort of case he suggests you apply for lack of prosecution (he says it works, I've seen it tried and fail, but his experiences and mine obviously differ). I am sure Jim will be along with more ideas. All I wanted was to give you the head's up on the discovery issue ... most DA's don't have it or even have knowledge of the traffic citation at all as they are not part of the loop.

- Carl

[coffeebean]

I understand the DA might not have any info, but still, it's the process. and the process needs to be followed. Dont'they have to produce discovery if requested?

[CdwJava]

Originally Posted by coffeebean

I understand the DA might not have any info, but still, it's the process. and the process needs to be followed. Dont'they have to produce discovery if requested?

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:

The DA must provide it only if they are in possession of the requested information or know it to be in the possession of the investigating agency. However, if they never get a copy of the cite or info from the issuing agency, they cannot know what agency is involved. This is why many DA's offices forward these requests to the court who then pass it along to the issuing agency.

- Carl

[JIMinCA]

Coffeebean,

I'm not sure why Carl still disagrees with me on this issue. It is quite clear for the following reasons:

1. The discovery you are asking for will be things like maintenance/calibration records, notes, certificates of training, etc. The prosecuting attorney DOES know the investigating agencies have that information as there could not be a prosecution without it. The prosecuting attorney could no more claim that he didn't know the agency had that information than he could claim he didn't know if the chief of police wore shoes with his uniform. If a prosecutor claimed he didn't have to provide discovery because he didn't know the ticketing agency had this type of information available, I would demand that he be held in contempt of court and I would file a formal complaint with the Bar association for unethical conduct.

2. Case law requires it: 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" (Kyles v. Whitley, supra, 514 U.S. at p. 437 [115 S.Ct. at p. 1567]) or "assisting the government's case." (In re Brown, supra, 17 Cal.4th at p. 881.) – People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 96 Cal.Rptr.2d 264 (emphasis added)

3. The ticketing agency has no legal obligation to provide discovery. The DA does. If the DA blows you off, you have grounds for dismissal. If the ticketing agency blows you off, you are just stuck.

4. Prosecution is an executive act. As a member of the judiciary, the judge cannot perform an act of prosecution. The cop is a witness... nothing more, nothing less... so he cannot perform an act of prosecution. Just because the DA decides to waive appearance at traffic court, doesn't mean he is not still the prosecutor. And as the prosecutor, he still has all of the responsibilities as such... regardless of his policies or absences.




BTW... you have to go on or before the 11th. You can go on any day the court hears traffic arraignments.

[CdwJava]

But, what you fail to understand is that most traffic citations are sent ONLY to the court - not to the DA (per statute, not choice). Asking the DA for discovery on a citation is about the same as sending you a request for discovery on a traffic cite issued in your county of residence and asking YOU to provide the information ... you don't have it and you don't know who or what issued it. The DA's office is under no obligation to assign a functionary to call every law enforcement in the area and ask about the citation ... "Did you cite John Smith?"

The practice by the Los Angeles and the San Diego DA (as well as our local DA offices) is to pass on the request to the court (with a notice, as I understand, directing the agencies in possession of the requested info to comply). The court will then pass along the request to the agencies that are in possession of the information. Typically, the agencies comply if they have the information requested. If there is no compliance, the court can compel discovery ... which, again per statute, is supposed to be done prior to an adverse ruling for failing to provide the info.

Certainly, you can try to argue a lack of compliance by the DA but that nasty "IF" gets in the way. And, you can try to argue a lack of prosecution. While your experience may be different, I have never seen or heard of those arguments succeeding in practice ... I will venture to guess that somewhere at some time they have, but by and large, I doubt it.

Anyway, it's all yours, Jim - have at it. Just be forewarned, Coffeebean, that these things don't always work the way that they are presented.

- Carl