appealing a red light traffic violation legal error?

[potsnpea]

If the officer used a diagram was that a motion to use the diagram?

 

[demurringdude]

No, none of those statements by you or the officer count as motions. A motion is when one party, or the court itself, asks the court to make a specific ruling.

I don't think the officer made any difference to your sentence. You got the standard outrageous fine that everyone gets. I don't think the judge has any flexibility on it.

I don't believe the court had any obligation to listen to a witness pontificate unbidden about sentencing. If you had brought a witness, you can be sure the judge would not have allowed him to speak about sentencing. But that's traffic court for you. If the judges were any good, they would be sitting in a real court. Traffic court is pretty much the bottom of the barrel.

 

[potsnpea]

Would it be considered an error if the officer acted as a prosecutor. I know he is not supposed to but is it an actual error?

 

[potsnpea]

What constitutes a hearing. A hearing on a motion. It asks if there was a hearing on the motion. Since I am not sure what constitutes a hearing I am having a hard time determining the correct answer.

 

[potsnpea]

Your driving record is irrelevant.

Why is it irrelevant. I had always been told and I think I read in the nolo book that judges do often time take your past record into consideration.

I would think it would be relevant somewhat.

 

[potsnpea]

I did mention the officer making the motion in the section where they do ask about a prosecutor.

I think I addressed it well in that section.

 

[I_Got_Banned]

The police officer did precisely the thing prohibited by that code section. He set forth on any notice filed with a magistrate ... allegations which have not been delivered to the person receiving the notice to appear

How do YOU know that the officer changed it? Is it possible that the clerk read it and/or entered it as 21453(a) instead of the officer "secretly" changing it? After all, if he DID "secretly" change it, in an attempt to pull a fast one on the defendant, then why would he stand in court and make a motion to amend?

And show me where in VC 40505, or any supporting statute, does it say the words "criminal act"!

Furthermore, if you're so convinced that the officer committed a "criminal act", then why not advise the OP to report it to the DA or to the officer's superior? Why let it slide?

I know it's a long sentence.

Its not really that long.... If you think it is, maybe you should read it slower. That might work for you!

it's not that complicated.

The more reason why you shouldn't embellish upon it by throwing in your own twisted and highly inaccurate interpretation.

 

[Zigner]

Why is it irrelevant.

First, it has no bearing on whether or not you committed THIS violation.

Second, another way of saying "I have a clean record" is "I've never been caught doing anything illegal". In that light, you can see why it's irrelevant.

Now, if you're trying to say that it might have an effect on the sentence handed down...fine. But it has nothing to do with your current violation.

 

[I_Got_Banned]

I would never endanger him by carelessly going through a red light.

And yet the facts of the case, (i.e. the officer's testimony, as well as your own statements made here as well as in court (your claim that you the light was red and yet "you didn't see it")) support the fact that you DID in fact run a red light! Whether you did that carefully or carelessly is irrelevant.

In my opinion, and before you take the step of filing your appeal, you need to establish the single most important element of your claim. That being "when, where and by whom" the alleged error was committed. The appeals court is NOT going to go chasing rabbits trying to make your case for you! And to simply submit a copy of your citation + a copy of the final judgment (as has been suggested) is not going to prove the irregularity that your claiming, nor does it substantiate a claim of "judicial error".

And by the way, speaking of the "error", it has been established that you were arraigned on the correct charge -21453(a)-... So you appeared for your arraignment, the judge called your name, read you the charge (something to the effect of: "you are being charged with violating section 21453(a)VC - Red light violation"...), and rather than making a timely objection and explaining to the court that your citation showed a different code section, you simply entered a plea of "not guilty to a violation of CVC 21453(a)", you trial for a violation of 21453(a) was scheduled and the case was adjudicated accordingly.Did you object or even bring up the fact that your citation shows a different code section???

I realize that the following statement will raise some eyebrows, BUT, it is highly likely that your failure to make a timely objection to this discrepancy (and Zigner has already eluded to this fact) may constitute your implied consent to the correction regardless of who it was made by or when, and whether you were notified of it or not. But that's not for me on anyone here to decide.... Only the judge(s) reading your appeal can make that determination.

I will say is that you've got your work cut out for you. You've already surmised how difficult "filing an appeal" is... And this is only the beginning. It is easy for anyone to sit behind their monitor and type "appeal"... When it comes down to it, you're looking at a sizable amount of paperwork to file/serve, multiple court appearances, deadlines to meet, legal and procedural arguments to make... None of which has been discussed or even eluded to here! And while all that should not by any means suggest that you should hold off, it would be wise to weigh the entire process before you even begin your quest.

While I think that this thread has run its due course, with quite a few people questioning the legitimacy of your grounds for appeal, you are still convinced that you've got a so called "solid case"... Go for it, best of luck and please... Let us know how it all works out!

Why is it irrelevant. I had always been told and I think I read in the nolo book that judges do often time take your past record into consideration.

I would think it would be relevant somewhat.

Think about it this way... We all start out with a CLEAN RECORD. And if every time we got cited we can claim that our clear record should result in the charge being dismissed, then no one would ever have to pay a fine or get convicted of ANY traffic violation or any other crime for that matter!!!!

I did mention the officer making the motion in the section where they do ask about a prosecutor.

I think I addressed it well in that section.

And again, considering the fact that you did not object to any of the officer's statements DURING the trial, deems that matter as irrelevant when it comes to an appeal.

Like I said before, you have one issue and ONLY one issue here. You were arraigned on a 21453(a) charge while your citation shows a 21463(a) charge. But even then, your failure to raise a timely objection before the court AT THAT TIME may suggest that you so called appeal is without merit!!!

 

[demurringdude]

How do YOU know that the officer changed it?

Potsnpea went and looked at the court's copy of the citation, and the officer had initialled his alteration. Post #45 I believe.

And show me where in VC 40505, or any supporting statute, does it say the words "criminal act"!

California Vehicle Code 40000.1. Except as otherwise provided in this article, it is unlawful and constitutes an infraction for any person to violate, or fail to comply with any provision of this code, or any local ordinance adopted pursuant to this code.

And more specifically, the table in Appendix B of the Vehicle Code, Division 17, specifically states that violations of 40505 are categorized as infractions. See for yourself:

Vehicle Code - Appendix B (List of Violations) - Division 17 - Offenses and Prosecution

And finally,

California Penal Code 16.
Crimes and public offenses include:
1. Felonies;
2. Misdemeanors; and
3. Infractions.

Is that sufficient?

Furthermore, if you're so convinced that the officer committed a "criminal act", then why not advise the OP to report it to the DA or to the officer's superior? Why let it slide?

If this is an argument as to why I am wrong, it's not very strong.

The more reason why you shouldn't embellish upon it by throwing in your own twisted and highly inaccurate interpretation.

I've clearly got this right, and you are once again annoyed to be conclusively shown to be talking rubbish.

 

[potsnpea]

And show me where in VC 40505, or any supporting statute, does it say the words "criminal act"!

Furthermore, if you're so convinced that the officer committed a "criminal act", then why not advise the OP to report it to the DA or to the officer's superior? Why let it slide?

I.

I know when I have to fill out online fillable forms the traffic forms are found under criminal forms. There are non fillable forms under a heading called traffic but the fillable are in the criminal section.


I never did say I saw the red light. I really did not remember the details of the light when the officer pulled me over. Had I known it was going to be such a monumental event at the time I would have taken better notes for memory. I do so much driving and after I make a turn and stop and after I go through an intersection I kind of dump the information. I do remember really paying attention when I went through the light. My eyes may have been diverted to the left hand side given that there were signals over on the left. Signals in fact that were intended for people in my lane because there was a bend in the road and people probably missed the light because of the bend. I would have been able to note that the light was for me if I could have seen the light that had a huge tree blocking it until you got up to about three car links in front of it.
So if my eyes were diverted to the left trying to figure out what was going on I would have had even less time to notice the state of the light when I went through it. Who knows maybe I did go through it while it was red but maybe going through it while it was red was a safer move than plowing on my breaks. I have noticed since I got pulled over that it takes a significant amount of time to stop safely which is why lights have a yellow. Maybe the light was yellow and then turned red as I went through giving me the sense I was alright for passing through. I do know I was watching for the cross traffic which I testified that I always do. I took a class many many many years ago in defensive driving. They tell you even if there is a light to watch the side streets for cars that do run a red light. I was in the downtown area and any time I am down town I always watch the sides as I enter an intersection because it does happen that people get side swiped.

If I had blatantly run that red light it would have stayed in my memory. If I were to accidently run a red light I would remember that. I also remember vaguely but I also dumped this information as to the specifics but there were sirens as I was traveling down that street. I didn't remember where exactly I had heard the sirens but I remember I had heard sirens. When I was being cited a pedestrian commented that he noticed we were in a speed trap. Maybe the sirens I heard was someone else being pulled over right before me. There were multiple officers working the area at the time.

Since I didn't remember going through a light I had to go back and check the intersection out later. When I went back later I realized I had forgotten some of the details of what had happened right before he pulled me over.

I do know I had no idea why he was pulling me over. I knew I wasn't speeding and I was really paying attention. I was surprised I had ran a red light. I used the defense of the tree because it might have played a role in why the officer thought I ran a red light but I did not admit I ran a red light. I can see how easy though it would be to assume as I try to defend myself because in defending myself I am almost saying I ran the red light even though I am not.

Because the officer said I ran it, I must have ran it.

He was sitting there watching specifically for drivers to run this light. This on hindsight tells me there was more to this story than meets the eye. It's not like he was just out and about and he saw me run this red light. He was watching this light for this particular infraction. Why? I never was able to ask the question because I had a sense early on that the whole trial was pretty much a sham. The officer has an agenda even though he says he doesn't, the judge has an agenda even though he says he doesn't. It's there job.

It's no loss to the judge and the officer because they get paid to do this. This is a complete loss to me because as I spend time on this other things that I need to desperately tend to are not getting tended to.

For me the fine is a more than significant gouge. If I had the money to pay the fine I could hire an attorney but I don't. Figuring this out on my own is like going to school or something. I can only chaulk it up to a learning experience. A learning experience so far that has taught me about how our system is indeed becoming corrupt in certain areas. It is no wonder that people are so mistrusting of police. It is no wonder that police officers are no longer given the kind of respect they should deserve for putting there lives on the line.

Stuff like this is wrong.

Off the subject entirely. Did you see the movie Law Abiding Citizen? It is a highly fictious action movie but it is about how a man feels super screwed by the legal system and takes ultimate revenge himself violating all laws. It was a pretty good movie. I don't like violent movies but this one at least had an interesting story line.


I too am becoming quite cynical about the system and police officers.

At the same time I can see the value in it and I can see why some are very interested in justice.
It's a major core value.

 

[demurringdude]

it is highly likely that your failure to make a timely objection to this discrepancy (and Zigner has already eluded to this fact) may constitute your implied consent to the correction regardless of who it was made by or when, and whether you were notified of it or not.

IGB's long post makes this same point several times. There is no such thing as "implied consent to the correction" despite it being in bold text. If the court does something outside it's competence, then the fact that the defendant didn't say anything at the time does not miraculously cure that. Courts cannot change citations. Even if the defendant gives his explicit consent, never mind "implicit". It simply cannot be done. It is a power the court does not possess. A defendant does not confer that power on the court by his silence. When a court does something it does not have the power to do, it is appealable. The statutes are clear that there is only one way to amend this citation, and that is by the officer filling out a TR-100 and serving it correctly. The court is powerless to do that for him, and it doesn't acquire that power because the defendant failed to object.

There are some things that have to be objected to at the time, and it's a very long list. But there are many things that don't. This is one such thing.

 

[potsnpea]

And yet the facts of the case, (i.e. the officer's testimony, as well as your own statements made here as well as in court (your claim that you the light was red and yet "you didn't see it")) support the fact that you DID in fact run a red light! Whether you did that carefully or carelessly is irrelevant.


And by the way, speaking of the "error", it has been established that you were arraigned on the correct charge -21453(a)-... So you appeared for your arraignment, the judge called your name, read you the charge (something to the effect of: "you are being charged with violating section 21453(a)VC - Red light violation"...), and rather than making a timely objection and explaining to the court that your citation showed a different code section, you simply entered a plea of "not guilty to a violation of CVC 21453(a)", you trial for a violation of 21453(a) was scheduled and the case was adjudicated accordingly.Did you object or even bring up the fact that your citation shows a different code section???

I realize that the following statement will raise some eyebrows, BUT, it is highly likely that your failure to make a timely objection to this discrepancy (and Zigner has already eluded to this fact) may constitute your implied consent to the correction regardless of who it was made by or when, and whether you were notified of it or not. But that's not for me on anyone here to decide.... Only the judge(s) reading your appeal can make that determination.

I will say is that you've got your work cut out for you. You've already surmised how difficult "filing an appeal" is... And this is only the beginning. It is easy for anyone to sit behind their monitor and type "appeal"... When it comes down to it, you're looking at a sizable amount of paperwork to file/serve, multiple court appearances, deadlines to meet, legal and procedural arguments to make... None of which has been discussed or even eluded to here! And while all that should not by any means suggest that you should hold off, it would be wise to weigh the entire process before you even begin your quest.

While I think that this thread has run its due course, with quite a few people questioning the legitimacy of your grounds for appeal, you are still convinced that you've got a so called "solid case"... Go for it, best of luck and please... Let us know how it all works out!

I may have been arraigned on the right charge but if I it was not pointed out to me that there was a change made maybe I didn't notice it was changed. While the arrainging judge did speak it out and while it may have been on that paperwork they mailed me I might not have noted that there was a change and assumed they were saying what was on my ticket.

Maybe it's shame on me for assuming or not noticing like shame on the officer for writing the wrong number. None the less maybe that is why the law is written that you have to give notice of a change being made so that the defendant realizes a change was made.

I have been also wondering as I fill in my appeal paperwork as to wether or not the officer making the correction without following procedures is not also out of integrity in other areas.

I know that in court attorney's can discredit a witness when a witness makes a provable error in one area even though the error can't be proved in another.

I really don't know but I do know my gut. It says something is not right.

I think it goes back to the true motives of the court, the judge and the officer. I have heard officers are known to try and get there quota. I have heard that the courts are feeling the power of how much money they can get. Everyone who works for the court is getting paid. It's their job and they are going to be more eager to go with what keeps the system going and what keeps them in their job.

Again I don't know, but there is something going on that doesn't meet the eye.


If I don't do this appeal right I am sure the courts will ding me. I can't believe how much I have to know and learn just to file this appeal. And you are very right. It is going to take a staggering amount of time and effort for me. All the more reason why no one fights for their right in traffic court. And all the more reason the traffic court probably keeps flexing their muscles more and more because simply they can. It is set up this way.


Next time round God forbid there would be a next time. I probably will just chaulk it up to highway robbery and take traffic school.


Actually next time I may hire one of those traffic companies that will help you in the beginning. I would have done that myself but I didn't have an extra $500 sitting around to post the "bail" so I could take that route.

I thought if I went to court and showed the photos that the judge would be reasonable. It wasn't as reasonable as I thought.

 

[demurringdude]

Would it be considered an error if the officer acted as a prosecutor. I know he is not supposed to but is it an actual error?

I'm not sure what you mean by "error". I don't think it has a specific meaning at court, other than the common meaning we all understand.

The judge makes an error if he permits it. It is something you can object to.

 

[demurringdude]

What constitutes a hearing. A hearing on a motion. It asks if there was a hearing on the motion. Since I am not sure what constitutes a hearing I am having a hard time determining the correct answer.

A "hearing on a motion" is when the court schedules a time for both parties to argue for and against a motion in front of a judge. A judge can also "hear" a motion during a trial, but "a hearing" usually means a separate event.