Red Light Camera Demurrer Totally Ignored by Judge

[DemurrerDenied]

California

On Thursday I went to traffic court to file for a demurrer for my red light camera ticket, which was mailed over 30 days after the violation occurred. I went in and the judge asked me if I was "guilty or not guilty". I told him I wanted to demur, and he said that wasn't an option. I started telling him the facts for my demurrer case, and he said I should wait to present those facts at my trial. Then he submitted a "not guilty" plea on my behalf and sent me out of the courtroom.

I gave my demurrer request to the clerk along with a copy of my ticket, which had the sworn affidavit of mailing on it. He didn't really know what to do with it, but he took it anyway. No one in the whole courtroom even knew what a demurrer was.

Can I appeal, or say it was a mistrial or SOMETHING???

 

[HappyWanderer]

Why do you think a demurer was appropriate?

 

[DemurrerDenied]

because the notice to appear was faulty due to lateness. it should have been mailed within 15 days (traffic code section 40518).

 

[HappyWanderer]

I think you may have blown any notice problem by showing up. I don't think failure to mail in 15 days makes the elements of the crime go away.

 

[I_Got_Banned]

Can I appeal, or say it was a mistrial or SOMETHING???

How can you "appeal or say it was a mistrial" if you have not had your trial yet?

Wait until your trial date, go to court and make the same argument that the citation is defective, and if you are found guilty then you can appeal.

 

[DemurrerDenied]

i have read in multiple places that the demurrer MUST be requested before arraignment, and after a plea it is impossible to demur.

 

[I_Got_Banned]

Well, then you're no longer demurring. Instead, you are making a motion to dismiss based on the fact that the citation was not mailed within the 15 day statutory period required pursuant to CVC 40518(a).

 

[DemurrerDenied]

do you know the civil procedure for making a motion to dismiss?

 

[demurringdude]

do you know the civil procedure for making a motion to dismiss?

When your case is called at trial, immediately speak up and say "Your Honor, I move to dismiss on the grounds that the complaint does not comply with the Vehicle Code Section 40518(a), since it was delivered late."

If the police officer attempts to say anything at all, or even starts to open his mouth, immediately object. The police officer is not allowed to argue with your motion, or do anything lawyerly, he is just a witness.

Then argue your motion, using the evidence of late delivery you presumably have.

It is difficult to see how a judge could not sustain this motion, assuming you have evidence to support what you say.

The first judge should have allowed you to demurr, and should have scheduled a demurrer hearing. If you were so inclined, you could certainly have a higher court force him to do that. But it is probably not worth the bother, since you will likely prevail at your trial anyway.

If you wanted to be safe, you could make this motion in writing, and serve it ahead of time on the DA. But I think a judge will let you make the motion orally at trial, and that will save you a lot of work. If he insists on written motion, ask for a continuance so that you can prepare and serve one.

In the unlikely event that your motion is denied, immediately ask for a continuance so that you can appeal that particular ruling. If you let the trial proceed to the facts and evidence stage, you are probably sunk.

 

[HappyWanderer]

How can the facts change things here? In a demurer, you claim there is some error in the pleading. In the motion to dismiss, you claim there is an error on the law and why you will accept the pleading but have it dismissed. If you are right, how can testimony change the result on appeal?

 

[demurringdude]

Happywanderer, you make some good points. The difficulty is that Traffic Court generally is not competent to deal with complicated issues such as demurrers, and things won't turn out the way they would in a real court.

According to the statute, the remedy for a late ticket is that you don't need to answer to it. That is not a very good remedy in traffic court, because if you don't answer to a complaint, it continues through the sausage factory without you, and you end up in all kinds of difficulties later.

The next-best remedy is to go to court and affirmatively demurr. Of course, you shouldn't have to go to court to explain why you don't need to go to court, but there doesn't appear to be any other way to stop such a complaint from proceeding. As demurrer_denied discovered, this is not much of a remedy either, because traffic court generally has no clue what a demurrer is or how to handle it. Even if they do, there is a likelihood that the court will not allow you to present any evidence not on the face of the complaint (eg postmarks, the vehicle registration card, etc). There ways around that, but you will be doing a lot of work, which is presumably not quite what the legislature intended when they said you need not even respond.

The third-best remedy is to go to trial and make a motion to dismiss. There are defects with this that you noted. However, traffic court is not so formal a place that a judge is not going to notice that a ticket is not valid if you point it out to him, and even though a motion to dismiss may not be the perfect vehicle, it is likely to succeed. Especially if you have been denied a demurrer, as in this case. What else can you do?

It would be appropriate to appeal a denial immediately, because you have a good remedy available - the appellate division overrules the denial. If there is already a guilty verdict, less likely, for the reasons you pointed out.

A fourth remedy is to wait until the verdict, and then before sentencing make a Motion in Arrest of Judgement. You would need to have demurred initially to be able to make this motion.

The trouble with all of this is that you are likely in front of a judge who has no detailed knowledge of these procedures, so you will be appealing everything he does. It's a far cry from not having to respond, which is your right.

 

[demurringdude]

I think you may have blown any notice problem by showing up. I don't think failure to mail in 15 days makes the elements of the crime go away.

That would be true in any other type of case. I don't think it holds in 40518 cases, because the legislature specifically recognized the difficulty of a defendant having to remember something if his attention was not drawn to it at the time by a police officer. They put a specific limit of 15 days for this reason. So in this case, improper service makes the underlying crime go away. Or it makes it unprosecutable. That's how I read the stature anyway, and I know many people, including myself, have made this exact argument successfully in court.

I did actually have a judge ask me 'How were you harmed" and I argued that the harm was implicit in the statute, and couldn't be double-guessed by the court, and the judge accepted that.

You are perfectly correct that generally, imperfect service does not make the crime go away, and showing up in court to say you weren't served would be a really bad idea.

 

[demurringdude]

i have read in multiple places that the demurrer MUST be requested before arraignment, and after a plea it is impossible to demur.

Technically speaking, you did demurr. A judge can't allow or disallow you to demurr. As soon as you said "I demurr", then you demurred. This might be important later, for example if motions you make to dismiss, or to arrest judgement, are denied on the grounds that you should have demurred but didn't. You did.

 

[demurringdude]

Happywanderer

There is another useful peculiarity about improper service in 401518 cases that I forgot to mention. In most (all?) other types of case, it doesn't really serve much purpose to challenge the service of the complaint, because even if you are successful, the plaintiff can fix the problem immediately by simply serving you again, but correctly this time, probably as you are walking out of court. In a 40518 case, if you can prove the service was defective, then the plaintiff cannot fix the defect, because the 15 days will have long since expired, and no valid ticket can be issued.

 

[HappyWanderer]

According to the statute, the remedy for a late ticket is that you don't need to answer to it.

Do you have a citation for that? What I see is:

40518. (a) Whenever a written notice to appear has been issued by a peace officer or by a qualified employee of a law enforcement agency on a form approved by the Judicial Council for an alleged violation of Section 22451, or, based on an alleged violation of Section 21453, 21455, or 22101 recorded by an automated enforcement system pursuant to Section 21455.5 or 22451, and delivered by mail within 15 days of the alleged violation to the current address of the registered owner of the vehicle on file with the department, with a certificate of mailing obtained as evidence of service, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea. Preparation and delivery of a notice to appear pursuant to this section is not an arrest.

(b) A notice to appear shall contain the name and address of the person, the license plate number of the person's vehicle, the violation charged, including a description of the offense, and the time and place when, and where, the person may appear in court or before a person authorized to receive a deposit of bail. The time specified shall be at least 10 days after the notice to appear is delivered.
Added Ch. 1216, Stats. 1994. Effective January 1, 1995.
Amended and repealed Sec. 8, Ch. 922, Stats. 1995. Effective January 1, 1996. Repeal operative January 1, 1999.
Amended Sec. 6, Ch. 54, Stats. 1998. Effective January 1, 1999.

I see nothing about the elements being forfeit if the 15 days is not met. While there may not be valid service, that is not something with which a demurer is the appropriate remedy. By answering (going to court), the defendant waived notice requirements. At least by my understanding.

At the end of the day, I see nothing about which a "valid" ticket can not be issued (beyond statute of limitations--a year?) it's all just procedural.

Even on appeal, I don't see this going away.