Advice on a wierd ticket..CA 21461(a) for no parking

[Zigner]

I was IN THE CAR, IN THE DRIVERS SEAT, ENGINE RUNNING.

Off the shoulder on a deserted on ramp, in mid winter, mid week.

Which is, BY DEFINITION, parked.

 

[ShyCat]

Remember this?

Engine running, grab a diet Coke from the trunk for some caffeine.. just resting my eyes.... CHP arrives within a minute, just about when I get the seat back.

Your car was parked (stopped, gear in the Park or Neutral position, parking brake possibly engaged) when you exited the vehicle to grab a diet Coke from the trunk. It remained parked while you rested your eyes (took a nap) with the seat reclined back. And it was still parked when the CHP officer gave you the citation.

It's assinine to maintain otherwise.

 

[adam_12]

Which is, BY DEFINITION, parked.

Agreed. But I was replying to someone saying the car could have been towed!

Like I said earlier, I am not going to argue stopping/standing/parking.

 

[adam_12]

If the signage was there and prohibited your parking, it would seem a good citation. However, given the weather you might be able to argue some sort of mitigation for safety purposes, but that is up to the judge.

Most definitely 'no parking sign', and on the side of an on-ramp off the county road.
Citation clearly describes 'location' as I-xx yyyy On-Ramp"

But in my research I found a paragraph B under CA VC Section 21461....(I was cited for (a):

(b) Subdivision (a) does not apply to acts constituting violations under Chapter 9 (commencing with Section 22500) of this division or to acts constituting violations of a local traffic ordinance adopted pursuant to Chapter 9 (commencing with Section 22500).

Hmm, so I look up 22500, and find that these are all the regulations on "Parking" and in particular VC 22505 describes the restrictions on parking on highways....

22505. (a) The Department of Transportation with respect to highways under its jurisdiction may place signs or markings prohibiting or restricting the stopping, standing, or parking of vehicles, including, but not limited to, vehicles which are six feet or more in height (including any load thereon), in any of the following areas and under the following conditions:

(1) In areas where, in its opinion, stopping, standing, or parking is dangerous to those using the highway or where the stopping, standing, or parking of vehicles would unduly interfere with the free movement of traffic thereon.

(2) In areas within one-half mile of the boundary of any unit of the state park ......

(3) In areas within one-half mile of the boundary of any unit of the state park system .....

(b) No person shall stop, park, or leave standing any vehicle in violation of the restrictions stated on the signs or markings.

And still a 'good citation'? Hmmm.... I woulda thunk a 22505(b) cite would have been correct. And 21461(b) specifically precludes a 21461(a) for 'parking'....


Thx for the input-

A

 

[CdwJava]

You failed to heed the sign therefore, the officer cited you for the violation he felt fit the situation. If you want to argue that you should have been cited for 22505(b) instead, go ahead. Who knows? Perhaps a court will agree with you.

It all depends on whether the officer argues that you stopped or parked in violation of the sign, or pulled to the curb in violation of a sign prohibiting such a movement. You can always fight it in court and see where it takes you.

 

[Dillon]

My only advice to you is that you need to check the status of your license with the DMV...

with all due respect, you are the one who is confused.

if it, were really my license, police could not take it without a warrant, the license is state property. i cant own a States Driver License, its not my property.

does the magistrate who works for the states have a conflict of interest at traffic court?

yes or no

 

[CdwJava]

if it, were really my license, police could not take it without a warrant, the license is state property. i cant own a state Driver License, its not my property.

There was no issue here with anyone "taking" his license. But, yes, there are specific instances in the California Vehicle Code that can authorize an officer to legally seize the physical license as it IS the state's property. And no warrant would be necessary. A citation for failing to obey a sign is not one of those instances where a license would be seized.

The most common reasons for license seizures are if a driver is operating a motor vehicle at or higher than the per se BAC of .08, if it has been suspended, or if the license belongs to someone else or is fraudulent.

 

[I_Got_Banned]

There was no issue here with anyone "taking" his license. But, yes, there are specific instances in the California Vehicle Code that can authorize an officer to legally seize the physical license as it IS the state's property. And no warrant would be necessary. A citation for failing to obey a sign is not one of those instances where a license would be seized.

The most common reasons for license seizures are if a driver is operating a motor vehicle at or higher than the per se BAC of .08, if it has been suspended, or if the license belongs to someone else or is fraudulent.

My comments about the "status" of the license and checking it with the DMV, (see post 11) were in response to Dillon's post wherein he gave the impression that he failed to appear for HIS citation (and instead sent a letter to the court -and cc'd the governor- LOL).... Though he (Dillon) refuses to address the issue at hand and instead chooses to utilize his whacked out and twisted interpretations of statutes that are not in any way related to the underlying offense with which a defendant is/was charged with or cited for.

 

[I_Got_Banned]

does the magistrate who works for the states have a conflict of interest at traffic court?

yes or no

Unequivocally, NO!

 

[demurringdude]

Unequivocally, NO!

Everyone who works at the sausage factory has an interest in seeing that sausages continue to be made. Otherwise they'd be out of work.

 

[CdwJava]

Everyone who works at the sausage factory has an interest in seeing that sausages continue to be made. Otherwise they'd be out of work.

Anyone who works has an interest in doing their job, but that does not mean it is a conflict of interest.

I get paid as a peace officer. Does that mean I have a conflict of interest investigating crimes and pursuing criminals? Doing what I am paid to do is not a conflict of interest. If I (or, as in the question) the traffic court judge got a percentage of the take or a fee for the arrest or conviction, then there would certainly be a conflict of interest.

My waitress and Denny's tonight had a similar conflict of interest, I guess. She gets paid if I continue to go in and eat there, and she gets a tip if she does a good job. Should she cease doing her job because she gets compensated for doing it? Heck, she gets a direct financial award for doing it well! Hers is far more of a "conflict" than mine or the judge's could ever be.

 

[DRTDEVL]

463. "Park or parking" shall mean the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers.[/INDENT][/FONT][/I]

I have been up for 30 hours now (24 hour shift at work), but I am surprised nobody has caught this...

Could it not be argued that he was temporarily stopped to "unload" a Diet Coke ("merchandise") from his trunk?

 

[CdwJava]

I have been up for 30 hours now (24 hour shift at work), but I am surprised nobody has caught this...

Could it not be argued that he was temporarily stopped to "unload" a Diet Coke ("merchandise") from his trunk?

Of course it could ... and the judge just might appreciate the levity and the originality of the defense! I know that I tend to cut a break to people with a very novel (and humorous) if not entirely believable excuse.

 

[Jim_bo]

I think the issue that is being missed is that adam_12 has done his homework. In post #19, he clearly shows how the citation for 21461(a) is NOT appropriate. The cop should have cited him for 22505. There is a reason why 21461(b) says that (a) is not applicable for situations covered elsewhere under the code.... if it didn't say that then 21461(a) could be written for EVERY violation!!! That would certainly negate the legislature's intent on many issues. For example, speed trap laws would become irrelevant if the cop was allowed to cite under 21461(a).

The bottom line is, the cop was lazy. Instead of looking up the the appropriate code to cite the OP with, he took the easy way out and cited for what he believed was a "catch all" section. Furthermore, If the cop was truly interested in safety, he would see that the OP was being responsible enough to take himself off the road when fatigue had made him a hazard.

It frustrates me to see experienced posters (especially the self proclaimed LEOs here) that simply are satisfied with telling the OP he is ridiculous in his defenses without offering a more appropriate defense. Carl even goes so far as to say the OP's possible defense is a joke:

Of course it could ... and the judge just might appreciate the levity and the originality of the defense! I know that I tend to cut a break to people with a very novel (and humorous) if not entirely believable excuse.

Carl seems to "poo poo" the issue of conflict of interest. However, it has been my observation that he typically gravitates towards telling the OPs that they are just guilty (although he will throw in something like "but you can decide to make any defense you like"). His bias is obviously towards the state and his MO is to use his knowledge and experience (and therefore his credibility) as a LEO to discourage the OPs from using a defense. I do admit that he is skillful in this endeavor as he always leaves himself a bit of "plausible deniability", but his message is consistent and clear. Given that he is a LEO and his responses are continuously in favor of the state, I think that presents a CLEAR conflict of interest. This was made clear after the OPs revelation of the inappropriateness of the citation and Carl immediately posted:

You failed to heed the sign therefore, the officer cited you for the violation he felt fit the situation. If you want to argue that you should have been cited for 22505(b) instead, go ahead. Who knows? Perhaps a court will agree with you.

While not terribly overt, the message is clear: "You failed to heed the sign and therefore you are guilty... but if you want to try some BS defense, go right ahead..." I think the OP presented a VERY solid defense and Carl just let all the air out of it with the intent of persuading the OP NOT to defend himself.

Additionally, Carl's first post in this thread was right after the OP describe the situation:

You are fortunate that your vehicle was not towed. If it was in a position that could have rendered it a hazard to traffic, you could have been both cited and towed.

In this quote, Carl points out the irresponsibility of the OP in that he was creating a hazard to traffic, yet he totally ignored the point that the OP pulled over BECAUSE he was a hazard to traffic. Instead of recognizing the obvious point that the cop used poor judgement in issuing the citation, Carl tells the OP that he was a menace and that he should feel grateful to the kind and merciful cop for not towing his car. Then, in the second half of his post he tells the OP of the futility of his seeking a defense:

You can always try the TBD first then a new trial when/if you lose.

To me, the bias is clear... Carl is NOT here to help provide a defense to the OPs... he is here to provide a defense to the LEOs and the state!!!!

 

[CdwJava]

Wow, Jim, you jumped in here solely to slam me. Perhaps you should have chimed in earlier and on the merits rather than wait for the chance to jump me. But, I suppose you could not resist the desire to slam me for some reason.

I know that there is only one take on things, and that is the gospel according to Jim, but if the law were that clear and simple we would not need attorneys, would we?

The incident CAN be seen two ways depending on the placement and nature of the signage, and what the officer observed. I am sorry you do not see that pulling to the curb in violation of the signage can be a violation of 21461. 22505 is a valid argument. I suppose I should have leapt into the air, done a spin, and cheered that he found the golden ring. But, we don't know he has. Every defense is a gamble and nothing I have written said he did not have the right to make a defense of it. Who knows? He might prevail. If the officer cannot sufficiently articulate the elements of the offense, the OP will prevail. Had the officer rolled up on the scene after the car was already parked and not seen the OP pull to the curb, the 22505 argument would have greater strength.

Ultimately, he will have to go to court and ask a judge to agree with him. But, wait, I think I said that already ...huh.