appealing a red light traffic violation legal error?

[potsnpea]

The sense I am getting is that the whole traffic court experience is pretty much a money making scam to get revenue for the government. It is has found the loopholes and has bypassed giving people their rights. You aren't innocent till proven guilty and often you aren't even dealing with a person. If you are it's a person "who is just doing their job".


demurringdude has probably given me the best advice possible given the cirmcumstances.

"Get an attorney"

What is that going to do for me. It will be prohibitively expensive so much so it will far out weigh the cost of the ticket which is no small potatoes. It will far out weigh even the ticket plus 3 to 5 years inflated insurance.

So the courts know that they can fine you this amount of money because it's really not in your best interest financially to fight a traffic ticket.

If what I turned in doesn't work then it is not because I didn't give it my best attempt. No one else on this board had one word of encouragement. I wouldn't have even thought I stood a chance if it wasn't for demurringdude's input.

I would have lost anyways. At least right now I can cross my fingers and hope for the best. I think the officer should have to follow the technical rules as much as anyone else. Obviously the appeal court doesn't care about any other details once the first judge has had your say.

I am quite thankful for the encouragement and advice that demurringdude has given me.

He actually gave me something to work with rather than letting me just throw in the towel.

If there was better advice I certainly didn't know where to get it at an economical price.

As I said a lawyer would have been wonderful but prohibitively costly.

It seems like traffic court is too low for help but feels very high enough to where you go looking for help. It's a huge slap the fines they charge these days. But the crazy thing is people are going to pay it because what's the alternative?

I am hoping that maybe this will get to a point that it will be a breakdown in the system and that maybe they can return to something better. Meantime it seems bigger than what I got. I did learn something. I will take traffic school next time and I will chaulk it up to a loss. I will consider it like being broken into or having my stereo stolen and windows broken. Something like that.

And now sad as it may seem I understand why officers are looked down upon by even upstanding citizens. When you see a motorcycle cop there sole purpose is to give out tickets. That's their job.

This system is robbing the good from the officer's who are really going out there to do something good like make our cities safe and help our fellow man.

It's really kind of sad.

 

[Zigner]

The sense I am getting is that the whole traffic court experience is pretty much a money making scam to get revenue for the government. It is has found the loopholes and has bypassed giving people their rights. You aren't innocent till proven guilty and often you aren't even dealing with a person. If you are it's a person "who is just doing their job".

You acknowledged running the red.

demurringdude has probably given me the best advice possible given the cirmcumstances.

You are saying that because he's leading you down a path that you think will help you. Unfortunately, as you will find out, the path is a dead end.

"Get an attorney"

What is that going to do for me. It will be prohibitively expensive so much so it will far out weigh the cost of the ticket which is no small potatoes. It will far out weigh even the ticket plus 3 to 5 years inflated insurance.

Did I say "Get an attorney"? If so, then I apologize. My intention was to convince you to CONSULT with an attorney so you could get CORRECT information (since you didn't want to listen to it here).

 

[potsnpea]

Demmuringdude,

I was wondering if you are still around answering questions.

If so I am now having to write a Brief.

I am a little confused as to what this means but I am thinking it is positve that they are asking me to write a Brief.

I also have another court date. The court date is Sept 17 2010 but I have to turn in this Brief within 30 days.

Let me know if you are still around.

 

[demurringdude]

I wouldn't read too much into the fact that you have been asked to submit a brief. All that means is that so far you haven't made any fatal errors in the process of filing your appeal, so you have reached the next expected step. It doesn't say anything about the strength of your case.

The requirement for the brief are mentioned in the CR141INFO document you already have. The details are given in the California Rules of Court 8.297 and 8.298...

Title Eight Rules

and

Title Eight Rules

Your case is very straightforward, so you should aim to get your brief on one page. I can't write it for you, as that would be lawyering and I'm not a lawyer. But I'm happy to comment on your draft. It should be concise, and refer to the relevant statutes we discussed. Don't include anything that is not related to the fact that your citation was changed by a process not compliant with the statute.

Make sure you understand the precise deadline for filing this and serving it. It is set out in CR141INFO

 

[potsnpea]

I am so glad to see you are still here.
By the time this actually goes to court again it will be over a year. It's been a long haul and it still isn't done. What a pain.

Anyways I am determined as heck to follow this through.

So my next step is to write a brief.

I understand you can't write it for me so here it goes.

I have written a few drafts. I have written ones that are long and wordy but make it clear in my mind. And I have one that is much shorter and basically sticks to the stuff I put in my original proposed statement on Appeal.


I can show you both but here is the shorter version first. I am thinking you will think I should shorten it up even more. The first part is in my language and the second part is in the more legal language. I have to admit I don't have much of a legal sounding mind. Every time I get paperwork with anything written on it from the court I think to myself could they just be more clear or could they just say it in a way that I can understand. It seems like legal jargain just goes over my head. I am giving it my best shot regardless.

Well here it is.




APPELLANT’s OPENING BRIEF




On September 1, 2009 I was given a citation. The citation I received stated I had violated two codes 12951a VC (DL not in Poss) and violation code 12463a VC (red light vio).

I am going to address the second infraction code 12463a VC (red light vio).

When I went to court the violation code was changed from 12463a VC to 12453a VC because the officer had made an error when he wrote the ticket. The officer had originally written 12463a VC and that was what is on my copy of the citation. The courts have a copy of the citation that reflects that same code but it is crossed out and the number 12453a is written underneath with an arrow pointing up to the original 12462 a VC code with the initials JM next to it. The officer’s name being J. Miller. The discovery of this change was made only while I was making my appeal. While I was trying to determine what my actual charges were in filling out my CR-142 paperwork.

The officer brought the matter up to the judge at the beginning of my trial on February 5, 2010 and asked if he could amend the error. He did not testify that he already attempted to fix it prior to turning the ticket in and that he had done nothing to notifiy me of this change. Since I was unaware of the change I had no way of including this in my argument. Also the presiding Judge had no way of knowing this either to ask any questions or consider such evidence in deciding the case.

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 a trial unaware of the charges against me.

Further more I had no legal counsel in the court room to advise me.

Specifially:

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 oridiance of a city or country 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/Non Traffic Notice to Appear (form TR-130), and must comply with the requirements in the current version the Judicial Council’s instructions, Notice to Appear and Related Forms (form TR-INST).

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

Judicial Council Form TR-100

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

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 there to 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

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.

The Damages

As a result I was not able to properly defend myself


Relief I am Asking For


I am asking that my charges be dropped.

I am asking that my DMV driving record does not reflect this violation.

I am asking that I be paid back the money I have had to pay in fines.

I am asking that I be granted anything else that is customary in a case like this.

 

[potsnpea]

Here is my longer more wordy version.

I imagine I am saying too much in this version but it is how I understand my case in my own words.






APPELLANT’s OPENING BRIEF




On September 1, 2009 I was given a citation. The citation I received stated I had violated two codes 12951a VC (DL not in Poss) and violation code 12463a VC (red light vio).

I am going to address the second infraction code 12463a VC (red light vio).

When I went to court the violation code was changed from 12463a VC to 12453a VC because the officer had made an error when he wrote the ticket. The officer had originally written 12463a VC and that was what is on my copy of the citation. The courts have a copy of the citation that reflects that same code but it is crossed out and the number 12453a is written underneath with an arrow pointing up to the original 12462 a VC code with the initials JM next to it. The officer’s name being J. Miller. The discovery of this change was made only while I was making my appeal. While I was trying to determine what my actual charges were in filling out my CR-142 paperwork.

The officer brought the matter up to the judge at the beginning of my trial on February 5, 2010 and asked if he could amend the error. He did not testify that he already attempted to fix it prior to turning the ticket in and that he had done nothing to notifiy me of this change. Since I was unaware of the change I had no way of including this in my argument. Also the presiding Judge had no way of knowing this either to ask any questions or consider such evidence in deciding the case.

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 a trial unaware of the charges against me.

Further more I had no legal counsel in the court room to advise me.

Specifially:

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 oridiance of a city or country 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/Non Traffic Notice to Appear (form TR-130), and must comply with the requirements in the current version the Judicial Council’s instructions, Notice to Appear and Related Forms (form TR-INST).

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

Judicial Council Form TR-100

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

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 there to 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

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.

The Damages

As a result I was not able to properly defend myself


Relief I am Asking For


I am asking that my charges be dropped.

I am asking that my DMV driving record does not reflect this violation.

I am asking that I be paid back the money I have had to pay in fines.

I am asking that I be granted anything else that is customary in a case like this.

 

[demurringdude]

That's a pretty good draft. I would suggest some modifications as follows:

Contra Costa Superior Court
Appeals Division


Appeals Court No: 27182818
Superior Court Citation No: 31415926


Appeal From a Judgement of the Superior Court, County of Contra Costa
Herbert T. Lawless, Judge.

​

People of the State of California
Plaintiff-Respondent

v

Jane Potsnpea
Defendant-Appellant
Per -pro
​

Initial Brief for Defendant-Appellant Jane Potsnpea​

Jane Potsnpea
21828 Fast Drive
Walnut Creek
CA 95987
Tel xxx xxx xxxx

Dated:



Table of Contents

1.Argument
2.Statement of The Case
3.Points and Authorities

<page break>​

ARGUMENT​

A. Plaintiff altered the complaint against Defendant in a manner not permitted by statute.

B. The Court erred in allowing plaintiff to make this alteration.

C. The verdict should be set aside and the complaint dismissed.&#8232;&#8232;

STATEMENT OF THE CASE​

Defendant was issued a citation on xx/xx/xxxx for violating Vehicle Code 21453(a), and signed a promise to appear. Defendant was arraigned on xx/xx/xxxx by Judge YYYYYYY. Defendant appeared for trial before judge ZZZZ on xx/xx/xxxx. At trial, Officer xxx, present as a witness for the Plaintiff, asked the Judge to change the citation to 21453(c). The judge stated that this change had already been made on the Court&#8217;s copy of the citation. The witness for the Plaintiff then introduced evidence that the Defendant had violated 21453(c). The Court found the Defendant guilty of violating 21453(c). In preparation for this appeal, defendant discovered that the Court&#8217;s copy of the citation had indeed been altered as described by the judge, by means of persons unknown striking out the words &#8220;21453(a), writing in the words &#8220;21453(c), and then initialing the change. The initials are the same as those of the officer who issued the citation. At the commencement of the trial, defendant was unaware of this alteration, and had not been served with any notice of it, contrary to the relevant statute. Plaintiff did not fill out a form TR100. Plaintiff did not obtain or submit to the Court proof of service of the alteration. The Police Officer did not deliver to Defendant the information that had been changed.

POINTS AND AUTHORITIES
​

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

B 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.

C The Vehicle Code requires that a complaint filed with the Court must also be delivered to the person complained against.

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

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.

 

[Zigner]

When the OP objected to the change in the charge at the original hearing, what was the response from the court?

 

[demurringdude]

When the OP objected to the change in the charge at the original hearing, what was the response from the court?

Shall we read the thread for you?

 

[Zigner]

Shall we read the thread for you?

Sure - why not...

 

[demurringdude]

When the OP objected to the change in the charge at the original hearing, what was the response from the court?

The defendant did not object at the time, so your question doesn't even get off the ground.

If you would care to read the thread, you would notice that you already commented on this failure to object, repeatedly. And incorrectly.

 

[Zigner]

The defendant did not object at the time, so your question doesn't even get off the ground.

Exactly

If you would care to read the thread, you would notice that you already commented on this failure to object, repeatedly. And incorrectly.

No, it was correct. Enjoy your day.

 

[potsnpea]

Yes there is definitely a flare to how to word things. I am still continously amazed at how one is able to do that.

Thank You. I have worked with the formatting and the wording.

I couldn't find anywhere in my paperwork as to who the judge was in my arraingment so I just said I was arrainged in Courtroom 81 by the presiding judge at that time.

Another question is in regards to presenting the evidence of the citation I have that is not altered. I am thinking I have to admit that as evidence.

How do I go about doing that?

When I go to turn in my do I have to have it served. Also do I go to a new court to file this paperwork.

My previous paperwork I took into the court and filed it with the clerks. I didn't trust the mail.

It says in the California Rules that I need 3 copies and that I must have it served by someone else.


I am actually getting really close to accomplishing my next step. Your help has been so incredibly wonderful. Thank You very much for taking the time to look at my Brief and helping me make it comply better with the rules and regulations.

 

[demurringdude]

Another question is in regards to presenting the evidence of the citation I have that is not altered. I am thinking I have to admit that as evidence.

Good point. I had overlooked that.

Your citation is not really "evidence", so you don't need to worry too much about how exactly you work it into your brief. But I think it is a good idea of yours to put it in so that the appellate judges can see it without having to search for it. You could add to the Table of Contents - "4. Original Citation". Then attach the original citation to the brief filed at court. Keep a copy for yourself.

 

[potsnpea]

So I give them the original with my Brief. I would have thought I should give them a copy of the original. I guess I will need to have copies of the original to attach to the three extra copies I have to send off to who knows where.

Do I have to bind this brief on the side?
Do I have to have a cover sheet?

I am still trying to figure out where I am supposed to go to file or send this stuff.
I am not sure if I go downtown now instead of the traffic court I was going to.