appealing a red light traffic violation legal error?

[demurringdude]

Since it may come up that the change was made at the arraignment should I put it down as an error so they are made aware that I know they don't have this type of jurisdiction to change such a code without going through proper channels. I know I will be expected to serve my papers properly. They should be held to the same standards. I also see how they try to gloss over things when they make mistakes and not so much when I make a mistake.

Yes, this is an important issue. There has been some discussion here that if the judge read out the correct violation at your arraignment, and it seems entirely possible that he did, then that would somehow be a valid way to change your citation. That is not the case. The complaint against you can only be amended by the complainant ie the police officer. The court cannot amend the complaint. So you were possibly arraigned on a violation for which the court had not received a complaint. That is obviously appealable. You should try to find that out before you file your papers, so that you are appealing the specific incorrect acts that were made. You also need the final court order from the trial. I strongly recommend you go today to get those from the court. Then there is time to discuss what to write this evening and you will meet the filing deadline tomorrow.

 

[demurringdude]

Your proposed statements look quite good. One change that I would recommend is that you more clearly separate the issue of a) the court making a citation correction without jurisdiction, and b) the fact that you were not properly served with any amended citation. Those two different things are a bit jumbled up in your first draft.

What the appeals court likes to see is a simple legal argument along the following lines:

1. The trial court did Thing A.
2. This is evidenced by Documents BCD
3. The trial court should have done Thing E
4. This is required by statute/rule F
5. As a result, I suffered harm G

If there were multiple wrong things, make sure you separate it all out as above for each wrong thing.

I will post more specifically if I get time later,

good luck

 

[potsnpea]

Great. Thank you very very much.

I am going to file the first portion of the appeal today the CR-142. While I am there I will get the court documents stating what I was convicted of. I will see if I can get a copy of the arraignment as well.

Then I will come back here and figure out how to clearly write up the specifics on the legal errors on my CR-143 form.

Once again I truly appreciate your time and efforts.

 

[demurringdude]

So it come back to the fact of wether or not the courts believe they have a right to correct the error. The DA may have made the change but they didn't tell me they were making the change either.
.

Don't worry, they don't have that right. They wouldn't try to assert that right. Somebody just did it out of misplaced enthusiasm for getting their hand in your wallet.

The DA has the right to make a change in what you are charged with, but you can be very confident that he didn't in your case. In any case, you would have been served, and you weren't.

 

[demurringdude]

Here are some legal points and authorities you might want put in your appeal:

California Rules of Court require that a notice to appear complies with the requirements of the Judicial Council.

The Judicial Council requires that any correction to a notice to appear must be done on Form TR-100 and proof of service must be obtained.

Judicial Council Form TR-100 species that a correction can only be made by an officer of the department which issued the original notice to appear.

The Judicial Council rule is derived from Vehicle Code 40505.

The court record shows that this was not complied with, and as a result you appeared in court for trial unaware of the charges against you.

Specifically:

California Rules of Court
Rule 4.103 A notice to appear that is issued for any violation of the Vehicle Code other than a felony or for a violation of an ordinance of a city or county relating to traffic offenses must be prepared and filed with the court on Automated Traffic Enforcement System Notice to Appear (form TR-115) or Traffic/Nontraffic Notice to Appear (form TR-130), and must comply with the requirements in the current version of the Judicial Council's instructions, Notice to Appear and Related Forms (form TR-INST).

and

Judicial Council - Notice to appear and related forms

1.050. Form TR-100. Notice of Correction and Proof of Service, must be used for any corrections to the original Notice to Appear citation.

and

Judicial Council Form TR-100

1. A Notice to Appear/Notice to Correct Violation was issued to you by an officer of this department


and

California Vehicle Code
40505. Whenever any traffic or police officer delivers a notice to
appear or notice of violation charging an offense under this code to
any person, it shall include all information set forth upon the copy
of the notice filed with a magistrate and no traffic or police
officer shall set forth on any notice filed with a magistrate or
attach thereto or accompany the notice with any written statement
giving information or containing allegations which have not been
delivered to the person receiving the notice to appear or notice of
violation.

 

[demurringdude]

I am thinking if I write with conviction and purpose it will help

No, that's the worst way to write it.

The appeals court is only swayed by good legal arguments.

Keep it strictly to the point, they will appreciate that.

 

[demurringdude]

I do have a tape of the court proceedings. I also have an appeal form CR-142 ready with a low income statement so I can have a complete transcript made of the court proceedings. The court here requires that the oral tape be transcribed which would cost $100 or more dollars. I do qualify for low income and I can get the transcription for free. I have the FW-001 form filled out and ready to go.

I wouldn't get too hung up about getting a transcript, for two reasons:

1. Your appeals court probably will accept an audio recording, in fact they will likely just obtain it themselves directly from the trial court without you doing anything. Check with your court to see how they normally do it before you go to this trouble.

2. You don't really need a transcript or a recording to establish your particular arguments in this case. All you need is the paper you walked in with and the paper you walked out with. There could have been juggling elephants at the trial for all the difference it makes to your legal argument. I doubt the appeals court will even listen/look at it.

 

[demurringdude]

You correctly raised the issue that the DA could have changed the charges against you. This never happens in minor cases like yours, because the DA never even gets your paperwork. However, to demonstrate conclusively to the appeals court that this could not have occurred, you may want to make the following argument.

For the people to amend the charges, they would, at the very least, have to file a motion to do so.

California Rules of Court require this to be done in writing 10 days prior to trial with proof of service.

The court record shows that this was not done.

Specifically:

2010 California Rules of Court

Rule 4.111. Pretrial motions in criminal cases

(a) Time for filing papers and proof of service

Unless otherwise ordered or specifically provided by law, all pretrial motions, accompanied by a memorandum, must be served and filed at least 10 court days, all papers opposing the motion at least 5 court days, and all reply papers at least 2 court days before the time appointed for hearing. Proof of service of the moving papers must be filed no later than 5 court days before the time appointed for hearing.

 

[potsnpea]

Wow that is good stuff. There is no way I would ever have been able to put it that way.


So my question is how many errors do I break this down into
or do I just put it all together as one error.


I had to basically cut and paste and put it in the personal "I" context but this is how I put it all together as one error. Would this suffice or do I need to split it up more and elaborate more? I obviously wouldn't be putting all this in my own words.








Describe the error

Error #1

California Rules of Court require that a notice to appear complies with the requirements of the Judicial Council.

The Judicial Council requires that any correction to a notice to appear must be done on Form TR-100 and proof of service must be obtained.

Judicial Council Form TR-100 species that a correction can only be made by an officer of the department which issued the original notice to appear.

The Judicial Council rule is derived from Vehicle Code 40505.

The court record shows that this was not complied with, and as a result I appeared in court for trial unaware of the charges against me.

Specifically:

California Rules of Court
Rule 4.103 A notice to appear that is issued for any violation of the Vehicle Code other than a felony or for a violation of an ordinance of a city or county relating to traffic offenses must be prepared and filed with the court on Automated Traffic Enforcement System Notice to Appear (form TR-115) or Traffic/Nontraffic Notice to Appear (form TR-130), and must comply with the requirements in the current version of the Judicial Council's instructions, Notice to Appear and Related Forms (form TR-INST).

and

Judicial Council - Notice to appear and related forms

1.050. Form TR-100. Notice of Correction and Proof of Service, must be used for any corrections to the original Notice to Appear citation.

and

Judicial Council Form TR-100

1. A Notice to Appear/Notice to Correct Violation was issued to me by an officer of this department


and

California Vehicle Code
40505. Whenever any traffic or police officer delivers a notice to
appear or notice of violation charging an offense under this code to
any person, it shall include all information set forth upon the copy
of the notice filed with a magistrate and no traffic or police
officer shall set forth on any notice filed with a magistrate or
attach thereto or accompany the notice with any written statement
giving information or containing allegations which have not been
delivered to the person receiving the notice to appear or notice of
violation.





For the people to amend the charges, they would, at the very least, have to file a motion to do so.

California Rules of Court require this to be done in writing 10 days prior to trial with proof of service.

The court record shows that this was not done.

Specifically:

2010 California Rules of Court

Rule 4.111. Pretrial motions in criminal cases

(a) Time for filing papers and proof of service

Unless otherwise ordered or specifically provided by law, all pretrial motions, accompanied by a memorandum, must be served and filed at least 10 court days, all papers opposing the motion at least 5 court days, and all reply papers at least 2 court days before the time appointed for hearing. Proof of service of the moving papers must be filed no later than 5 court days before the time appointed for hearing.


Describe how it harmed me

I was not able to properly defend myself which resulted in a guilty verdict and I am being fined $461.00 for the verdict.

 

[potsnpea]

I did ask the courts about the transcript vs audio vs having nothing question.

They said they have a new rule in the court where an audio tape will not be accepted anymore.

If I don't request the transcript on my appeal the transcript/audio supposedly can not be used in my appeal at all.

I am thinking the court proceedings can help me since the officer did testify that he only saw the mistake that morning when he arrived in court. He clearly asks the judge if he can amend the mistake, and the Judge clearly states that he can and will amend it and goes onto say that the records show a change has already been made.

If I do not ask for the transcript in my appeal I supposedly can not use that information later.

I also understand that regardless of how much juggling was done I still stand a good chance of successfully appealing this case based on the before and after charges. So I guess it doesn't matter which way I go.

As I fill out my appeal papers I have these choices to make.

 

[potsnpea]

So this is in my own language. I am trying to wrap my head around the arguments. This is the basic wire frame of the arguments if I were to break it down into multiple errors. Of course I would then have to put the elaborate legal codes and jargain into my appeal.




Error #1

The officer made a mistake on the code. He wrote one code intending to write another code.

Error #2

The officer acted as an attorney in the trial when making a motion to correct this error.


Error #3

The Judge made an error allowing the officer to act as an attorney. Judge did not follow proper guidelines when correcting the error.



Error #4

Court had no jurisdiction to change the code the way it did before the arraignment. Officer did not notify court of this change. Court took it upon themselves to change the code without notification.

Error #5

Notification was not properly given to me the defendent before the trial. Papers should have been served according the rules and regulations to give me time to properly prepare and object.



Either way I went into court thinking I was being charged with one violation code and I came out being charged with a new violation code.

Proper channels according to the rules and regulations were not followed.

 

[potsnpea]

I wouldn't get too hung up about getting a transcript, for two reasons:



2. You don't really need a transcript or a recording to establish your particular arguments in this case. All you need is the paper you walked in with and the paper you walked out with. There could have been juggling elephants at the trial for all the difference it makes to your legal argument. I doubt the appeals court will even listen/look at it.

I am not hung up on this part. I have those papers all ready to go. I would actually have to just make sure I got part two asap if I don't go with the transcript because the second part of the appeal would be due as of tomorrow.

Ordering the transcript actually buys me a little more time.

 

[demurringdude]

If you don't have to pay for the transcript, then I guess there's no downside to ordering one. They are expensive if you are paying.

 

[demurringdude]

There were lots of errors made in your case. I would focus on #4 and #5 on your list.

There are two schools of thought on appeals: throw up every mistake the court made, on the grounds that only one has to stick so your odds are multiplied; or pick the one error that will win, and argue that one really well, with minimal distractions.

There's pros and cons with each approach, and it's a decision you have to make yourself. If it was me, I would just argue the one basic point that your ticket was not amended in accordance with the rules of court. I wouldn't go into a lot of detail of what happened in court and who said what. The record shows clearly that the rules were not followed.

Your post that begins "wow" is the way to go I think.

 

[potsnpea]

I went to court and filed the appeal papers C-142 so now I am on the C-143 set of papers where I have to be specific about what I am appealing.

I was convicted of the 21453aVC violation.

I asked about what I was arraigned on and they said I was arraigned on the 21453aVC.

I explained that the reason I wanted to know was that the citation I had said 21463aVC. The courts said no it said 2143aVC. They showed me the citation and the officer changed the code and initiated it on his citation. That change is not on my original citation that he gave to me. I have a copy of the changed citation that the courts have on record. I also have my original citation that does not have the change made on it.

Hopefully this is narrowing down the details.


According to the information you have given me DD the officer was not in legal compliance to how he should have made the change.

I should have been served or made aware that a change was being made besides it just being changed when I was arraigned. I do think they should have pointed this change out to me. The change was pointed out to the courts by the scribbling out and the initials but this change was not to made obvious to me. Sure the change was on the arraignment papers and sure the judge probably said the new code number but it was not made obvious.

It is a very small technicality but one in deed. I was standing in line waiting to flle my papers and I heard the clerks telling this other woman that she had to read the notice appear carefully. They seem to expect all the details when it comes to the defendents so the courts should be held to the same rules.

I think I will go ahead and really fight this one clear point since most of my other points would be not considered legal errors.

There is probably something to be said to be clear and concise. Is there a legal error or not. If the appeals court has to say yes I don't think they can say yes....but.....

It will be either yes or no.

That is what I am thinking. Who knows how it really works or will work. Time will only tell.

So I will go with the one error approach.

There seems to be some good law in it and some good codes and case law to back it up.

I think it sounds really good.