10.08.030 LBMC "Failure to obey posted sign"

[BubblyBrunette]

When did you submit your request for the Trial De Novo? What date?


You are not asking for a copy of a transcript. Instead, you are asking for a copy of the "Officer's Declaration" which is otherwise known (to the court) as form TR-235. If your TBD case has already been adjudicated, then there should be no doubt that the officer's declaration is in your case file at the court.


I am not preview to a particular City of Long beach ordinance that addresses sign placement (it doesn't mean it doesn't exist). But you can read through the California Manual on Uniform Traffic Control Devices (particularly Chapter 2A) which should include the standard requirements for sign placement and visibility. here's a link where you can scroll through the manual for more information: California - FHWA MUTCD

I filed on 10/30/09. When I went down to court to file the clerk told me that the officer's declaration wasn't in the system yet and that she could make me a copy of his notes that were on the back of my ticket which would probably be what he used to write up his declaration.

One thing I noticed on his notes is that he states I was going approx. 40 mph yet on the ticket he wrote that I was going approx. 30 mph this was in a 45 mph zone. He states that my lane change was unsafe due to the 6 cars to my right.

I will look up the links you provided. Thanks!!

 

[I_Got_Banned]

I filed on 10/30/09.

Cool... So by “filed” you mean you went to the traffic window, gave the clerk your form TR-220, and you received a copy of the same which has the court stamp dated 10/30/2009. Correct?

If that is the case, then you've got a pretty solid argument for a dismissal in that your right to a speedy trial (45 days from your request date) were violated and that the case should be dismissed. Your trial is scheduled 48 days from the date you filed your Trial De Novo request on 10/30/09.

See California Penal Code Section 1382, 1387 and California Rule of Court Section 4.210(b)(7).

CRC 4.210(b)(7) If the defendant files a Request for New Trial (Trial de Novo) (form TR-220) within 20 calendar days after the date of delivery or mailing of the Decision and Notice of Decision (form TR-215), the clerk must set a trial date within 45 calendar days of receipt of the defendant’s written request for a new trial. The clerk must deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to Defendant of New Trial (Trial de Novo) (form TR-225). If the defendant’s request is not timely received, no new trial may be held and the case must be closed.​

When I went down to court to file the clerk told me that the officer's declaration wasn't in the system yet and that she could make me a copy of his notes that were on the back of my ticket which would probably be what he used to write up his declaration.

Pretty generous of that clerk, however, you'd be better off getting a copy of the officer's declaration.

One thing I noticed on his notes is that he states I was going approx. 40 mph yet on the ticket he wrote that I was going approx. 30 mph this was in a 45 mph zone.

A slight discrepancy that might suggest that he was inattentive at the time... By itself, it might not prove much. But if you can build on that then you might have a decent argument.

He states that my lane change was unsafe due to the 6 cars to my right.

On your RIGHT or on your LEFT????

I mean if you were in the rightmost lane (the right turn lane) then how could you have 6 cars on to your right?

 

[BubblyBrunette]

Cool... So by “filed” you mean you went to the traffic window, gave the clerk your form TR-220, and you received a copy of the same which has the court stamp dated 10/30/2009. Correct?

Correct! I filed at the window my TR-220 and it's stamped with the date by the court.

If that is the case, then you've got a pretty solid argument for a dismissal in that your right to a speedy trial (45 days from your request date) were violated and that the case should be dismissed. Your trial is scheduled 48 days from the date you filed your Trial De Novo request on 10/30/09.

See California Penal Code Section 1382, 1387 and California Rule of Court Section 4.210(b)(7).

CRC 4.210(b)(7) If the defendant files a Request for New Trial (Trial de Novo) (form TR-220) within 20 calendar days after the date of delivery or mailing of the Decision and Notice of Decision (form TR-215), the clerk must set a trial date within 45 calendar days of receipt of the defendant’s written request for a new trial. The clerk must deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to Defendant of New Trial (Trial de Novo) (form TR-225). If the defendant’s request is not timely received, no new trial may be held and the case must be closed.​

I would bring the above argument up at the trial on the 17th right? Or am I supposed to do something about it before?

Pretty generous of that clerk, however, you'd be better off getting a copy of the officer's declaration.


A slight discrepancy that might suggest that he was inattentive at the time... By itself, it might not prove much. But if you can build on that then you might have a decent argument.


On your RIGHT or on your LEFT????

I mean if you were in the rightmost lane (the right turn lane) then how could you have 6 cars on to your right?

Just caught that myself. He typed "There were approx 6 vehs r/o her and it was a dangerous manuever." To me, I took that to mean that r/o meant to the right of me but that couldn't be the case since it would have been to my left.

 

[I_Got_Banned]

Correct! I filed at the window my TR-220 and it's stamped with the date by the court.

Good...

I would bring the above argument up at the trial on the 17th right? Or am I supposed to do something about it before?

Personally, I would prepare a motion to dismiss based on the citations I mentioned above and would file that in court (with the clerk (submit it and request a dated stamp on your copy)) on or about the 46th day from your filing date of 10/30/09 (so on December 15th or so) but definitely before your trial date. On the day of your trial, (and assuming you were sworn in as a group with all the other defendants) I would bring it up to the Judge's attention immediately as soon as your case is called... and request a dismissal at that time.

Just caught that myself. He typed "There were approx 6 vehs r/o her and it was a dangerous manuever." To me, I took that to mean that r/o meant to the right of me but that couldn't be the case since it would have been to my left.

Assuming that the court were to deny your motion to dismiss (on the speedy trial issue), and after the officer is done with his testimony, I would cross examine him about the speed discrepancy you mentioned above as well as the comment in regards to your position relative to other vehicles... (this is in addition to any other arguments/questions you had prepared based on whatever defense strategy you were planning.

Oh, and I would follow up with the court in a few days to see if you could still get a copy of his declaration. Chanes are, you might find a few errors/discrepancies/contradictions in that as well.

Keep us updated.

 

[I_Got_Banned]

On second thought, I would file that motion at minimum, 5 days prior to the trial date. So at the latest, on December 11th... If I do remember correctly, motions have to be filed 5 days prior to the hearing date for them to be heard... My initial thoughts were intended to lock them out of the ability to reschedule your trial for an earlier date (and one within the 45 day period), but my guess is they won't be able to do that with the 5 or 6 day leeway.

 

[BubblyBrunette]

On second thought, I would file that motion at minimum, 5 days prior to the trial date. So at the latest, on December 11th... If I do remember correctly, motions have to be filed 5 days prior to the hearing date for them to be heard... My initial thoughts were intended to lock them out of the ability to reschedule your trial for an earlier date (and one within the 45 day period), but my guess is they won't be able to do that with the 5 or 6 day leeway.

Okay. As I've never done this before. When filing a motion is there a certain form that I must use? Would I find it on the Superior Court Website that I found the Trial by Declaration Form on?

I truly appreciate all the advice you are giving me!!!

 

[BubblyBrunette]

I am not preview to a particular City of Long beach ordinance that addresses sign placement (it doesn't mean it doesn't exist). But you can read through the California Manual on Uniform Traffic Control Devices (particularly Chapter 2A) which should include the standard requirements for sign placement and visibility. here's a link where you can scroll through the manual for more information: California - FHWA MUTCD

In viewing the above manual I came across this section that I think I can use:

Section 2A.16 Standardization of Location
Support:
Standardization of position cannot always be attained in practice. Examples of heights and lateral locations
of signs for typical installations are illustrated in Figure 2A-1, and examples of locations for some typical signs
at intersections are illustrated in Figure 2A-2.
Standard:
Signs requiring different decisions by the road user shall be spaced sufficiently far apart for the
required decisions to be made reasonably safely. One of the factors considered when determining the
appropriate spacing shall be the posted or 85th-percentile speed.
Guidance:
Signs should be located on the right side of the roadway where they are easily recognized and understood by
road users. Signs in other locations should be considered only as supplementary to signs in the normal locations,
except as otherwise indicated.
Signs should be individually installed on separate posts or mountings except where:
A. One sign supplements another, or
B. Route or directional signs are grouped to clarify information to motorists, or
C. Regulatory signs that do not conflict with each other are grouped, such as turn prohibition signs posted
with one-way signs, street name signs posted with a stop or yield sign, or a parking regulation sign
posted with a speed limit sign.
Signs should be located so that they:
A. Are outside the clear zone unless placed on a breakaway or yielding support (see Section 2A.19);
B. Optimize nighttime visibility;
C. Minimize the effects of mud splatter and debris;
D. Do not obscure each other; and
E. Are not hidden from view.
Support:
The clear zone is the total roadside border area, starting at the edge of the traveled way, available for use by
errant vehicles. The width of the clear zone is dependent upon traffic volumes, speeds, and roadside geometry.
Additional information can be found in the “AASHTO Roadside Design Guide” (see Page i for AASHTO’s
address).
Guidance:
With the increase in traffic volumes and the desire to provide road users regulatory, warning, and guidance
information, an order of priority for sign installation should be established.

Then there is this also:
Section 2A.22 Maintenance
Guidance:
All traffic signs should be kept properly positioned, clean, and legible, and should have adequate
retroreflectivity. Damaged or deteriorated signs should be replaced.
To assure adequate maintenance, a schedule for inspecting (both day and night), cleaning, and replacing
signs should be established. Employees of highway, law enforcement, and other public agencies whose duties
require that they travel on the roadways should be encouraged to report any damaged, deteriorated, or obscured
signs at the first opportunity.
Steps should be taken to see that weeds, trees, shrubbery, and construction, maintenance, and utility materials
and equipment do not obscure the face of any sign.
A regular schedule of replacement of lighting elements for illuminated signs should be maintained.

I really think this is going to be the main object of my defense if I can't get it dismissed based on the lack of a right to a speedy trial. Every time I look at the pictures I took I just don't see how a judge cannot agree that the sign was not visible due to the trees obstructing the view.

 

[I_Got_Banned]

Okay. As I've never done this before. When filing a motion is there a certain form that I must use? Would I find it on the Superior Court Website that I found the Trial by Declaration Form on?

I truly appreciate all the advice you are giving me!!!

There is no specific form to complete... For traffic court hearings, and considering the fact that most people go it alone without representation by an attorney, matters are handled without the formalities that you would see in say, criminal court, for example. So Just simply follow the format of your TBD Declaration for the top 3rd of the form (court address, case number, you name address...etc), and below that, simply write it in a letter format, request that the case be dismissed pursuant to Penal Code Section 1382 and CRC 4.210(b)(7), cite both... Give a brief synopsis of what has transpired documenting dates and events, file it in court and serve a copy on the District Attorney. Most importantly, keep a court conformed (date stamped) copy for your records and present that in court (you will need 3 copies, one for the judge, one for the officer and one for yourself) on the day of your trial when your case is called before the judge.

I'll see if I can find an example of the general format you should follow...

 

[I_Got_Banned]

....
E. Are not hidden from view.
......
Section 2A.22 Maintenance
Guidance:
All traffic signs should be kept properly positioned, clean, and legible, and should have adequate
retroreflectivity. Damaged or deteriorated signs should be replaced.
To assure adequate maintenance, a schedule for inspecting (both day and night), cleaning, and replacing
signs should be established. Employees of highway, law enforcement, and other public agencies whose duties
require that they travel on the roadways should be encouraged to report any damaged, deteriorated, or obscured
signs at the first opportunity.
Steps should be taken to see that weeds, trees, shrubbery, and construction, maintenance, and utility materials
and equipment do not obscure the face of any sign.
A regular schedule of replacement of lighting elements for illuminated signs should be maintained.

Those parts, in additions to pictures ahowing the sign from different vantage points upon approach should get your point across... Of course it might help to see what the officer stated in his declaration in reference to that...

I really think this is going to be the main object of my defense if I can't get it dismissed based on the lack of a right to a speedy trial. Every time I look at the pictures I took I just don't see how a judge cannot agree that the sign was not visible due to the trees obstructing the view.

You have to also keep in mind that the officer most likely testified that you crossed over the white solid line. I am not saying you did, nor am I saying he lied... I'm just saying that his word will typically carry more weight in court... but that's where you should try to make a point of the discrepancies in his notes/statements to suggest a lack of attention... Depepnding on his location at the time and if you present those points properly, you might overcome that advantage that he has over you.

 

[Pugilist]

Another defense argument

I am hoping that this new and rapidly spreading trend - administrative cites for moving violations - does not survive the upcoming legislative session in Sacramento. I would oppose these admin cites even in places where, unlike Long Beach, the admin cites are bargain priced compared to Vehicle Code cites. Why? Because I don't like kangaroo courts, and I also see that these admin cites are ripe for profiling. How? If the cop likes you, or you're part of a favored "local" group, he might issue you the (usually cheaper) admin cite. If he doesn't like you, or you are from out of town, you get the expensive CVC ticket. (Or in LB, vice-versa!)

I concede that local agencies (cities, counties, etc.) are allowed to set up procedures to enforce building and fire codes, animal regulations, etc. - local ordinances covering matters not otherwise covered by State codes. Typical of the type of violation that a city might be expected to enforce via its own ordinances would be park hours, littering, dogs, and parking, to name a few. However, with its general purpose "obey all signs" ordinance LB is seeking to duplicate provisions that are already covered by State code, namely Vehicle Code Section 21461 which states, in part:

"(a) It is unlawful for a driver of a vehicle to fail to obey a sign or signal defined as regulatory...."

LB cannot declare something unlawful when the State Legislature has already declared it unlawful and has provided not only enforcement procedures but also the penalties for such violations. The State Supreme Court:

"Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates, contradicts, or enters an area fully occupied by general [State] law, either expressly or by legislative implication." (Morehart v. County of Santa Barbara (1994), 7 Cal.4th 725, 747.) (Emphasis added.)

Additionally, LB's administrative enforcement of violations of its own ordinance making it illegal to disobey a sign, which the Vehicle Code make a moving violation, would override the comprehensive statutory scheme for punishment of persons who have a history of moving violations. The Vehicle Code prohibits such schemes:

VC 21. Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.

It is abundantly clear that the State Legislature has completely occupied the field of traffic enforcement and left no room for LB to substitute its own enforcement of traffic regulations, save for the enforcement of parking regulations, which the Legislature has delegated to local agencies.

When you ask the judge to dismiss the case because the city's ordinance is illegal, ask him to do it "with prejudice," so that the city cannot re-file against you under the Vehicle Code.

 

[BubblyBrunette]

I_Got_Banned, you are the best!!! Thank you so much for all your advice.

I filed my Motion to Dismiss last Friday 12/11/09 with a copy mailed to the District Attorney's office and today attended my trial.

When my name was called I was advised by the judge that the People of California were not ready to proceed with their case and therefore my case was dismissed.

My bail will be returned in 6-8 weeks by mail However, that is just in time to give it back to the state of CA for my registration bill that just came in the mail yesterday at the new higher rate of $298.00 Oh well, at least now I'll have the money to pay that.

Thank you again for all the advice given here. It was a great learning experience and one I hope to not have to go through in a very long time if ever!!!!

 

[I_Got_Banned]

I_Got_Banned, you are the best!!! Thank you so much for all your advice.

I filed my Motion to Dismiss last Friday 12/11/09 with a copy mailed to the District Attorney's office and today attended my trial.

When my name was called I was advised by the judge that the People of California were not ready to proceed with their case and therefore my case was dismissed.

My bail will be returned in 6-8 weeks by mail However, that is just in time to give it back to the state of CA for my registration bill that just came in the mail yesterday at the new higher rate of $298.00 Oh well, at least now I'll have the money to pay that.

Thank you again for all the advice given here. It was a great learning experience and one I hope to not have to go through in a very long time if ever!!!!

AWESOME! Congratulations and I'm glad I could help!