California V. C. Section 14601.3

[zudnic]

I'll give an arguement, despite not being a lawyer, its good. Most lawyers are very lazy. Check it over and I'm sure an attorney will like this same arguement for California:

Cops, court clerks, and DMV can all make mistakes. Cops especially cause they cover their mistakes with sworn to the best of their recollection written statements, that probable cause existed that an offense may have occured! Cops and lawyers, society would be better off if they only dealt with "real" crime.

The importance of a driver's license to an
individual's well-being cannot be overstated in today's mobile society.
Few people live proximately to their place of business or to other
essential venues, rendering them dependent on private transportation.
The second factor is the risk of erroneous deprivation and the value of
additional safeguards. Mathews, 424 U.S. at 335. The risk here is
substantial. The majority distinguishes Moore by emphasizing that
conviction and sentencing procedures adequately protect against errors.
Majority at 5-7. While the defendant may be required to surrender his
license to the court, notice must still be sent to the Department of
Licensing (DOL). See RCW 46.20.285, .291, .265(1). It is here that errors
may occur. Judge David S. Admire convincingly reasoned errors would occur:
The court is going to indicate that what I have to continue to look at is
in this court in Northeast Division we had 35,000 cases filed, over 35,000
another over 35,000 this year. The numbers alone with the staff that we
have, there are going to be mistakes found. There are going to be mistakes
in how it was transmitted to DOL. There's going to be mistakes due to the
sheer number of cases transmitted to DOL that DOL's going to make mistakes
in inputting . . . . The potential harm that can come to an individual
without giving him the opportunity to say look it {sic} 1) you have the
wrong person, 2) I wasn't convicted of that, 3) you're suspending me for
the wrong amount of time, whatever, the potential is there to those
individuals that can be disastrous.

Verbatim Report of Proceedings (Nov. 5, 2001) at 31-32. Mistakes in the
notice sent to DOL could result in a person's driver's license being
wrongfully suspended, or DOL could make its own mistakes. Nevertheless,
that person has no opportunity to challenge the suspension in a hearing.
The risk of erroneous deprivation of this important property interest is
significant.2

 

[CdwJava]

Your making the assumption California is giving a fair and impartial trial.

The legal presumption is that they do.

All cops are lying scumbags when they write their reports.

That is absolutely false.

The actual fact, that you are not required to appear for a traffic infraction, unless its a Misdemeanor traffic ticket.

Also patently false in California.

A traffic infraction you also have to ask the court for a "trial".

In WA state, perhaps, but that's not the case in CA. And, since we are talking about a CA statute, WA's perspective is not relevant.

Washington had a simular system. Both laws and court decisions from other are admissible in every court in The United States.

They can be brought up in support of a claim but they are non-binding on any other state. The ruling you stated is not binding in CA as it refers to a system that does not exist here and specific RCW statutes.

- Carl

 

[I_Got_Banned]

Did the DMV give opportunity for a hearing before they suspended the license in the first place?

Typically, when the DMV decides that a driver’s license will be suspended, they mail the driver a notice to his last known address notifying him/her that his/her license will be suspended (typically in approximately 30 days or so from the date of the notice). The notice will also spell out the reason for the suspension and it also notifies the driver of his/her right to a hearing. The request for this hearing must be made prior to the date that the suspension is scheduled to go into effect.

If the driver does in fact request a hearing, it will also be held prior to the date that suspension is scheduled to go into effect. Otherwise, the suspension start date is postponed accordingly.

Once the hearing is held, a decision can be made at its conclusion or it may take the hearing officer a day or two to evaluate the reason that the driver cited in his attempt to have the decision reversed. Either way, the driver will be notified of the result of the hearing (typically) within a couple of days.

If the DMV does not give a hearing before making someone a habitual traffic offender. Id argue the habitual offender statute is contrary to the guaranty of due process because they do not provide adequate procedural safeguards to ensure against the erroneous deprivation of a driver's interest in the continued use and possession of his orher driver's license." per SCOTUS . Just need to find the right case to cite. Since the other citations have not been calculated by the DMV, they also have not been given due process. More time and I'll have this making sense

Like Carl mentioned, the determination to designate someone as a Habitual Offender is detailed in CVC Section 14601.3(a). Considering the fact that the driver is responsible for keeping his mailing address current and up to date with the DMV, the assumption can be made that he/she did in fact receive the Notice OF Suspension. It should be clear to anyone that when his/her driving privilege is “suspended”, then he/she is NOT supposed to be driving… But if he continues to drive while suspended and if he does in fact receive enough citations that would give him enough points to be deemed a Habitual Offender, I don’t see the reason why not offering him a hearing to argue the legitimacy of his Habitual Offender status (which is clearly spelled out/not vague in any way) is in any way depriving him of due process.

In this instance, the DMV had NOT made the decision to designate the driver as a Habitual Offender. In spite of the fact that the driver’s license was in fact suspended, the Habitual Offender designation had not been bestowed (as Carl put it) upon the driver by the DMV.

So he did get the opportunity to request a hearing prior to his license getting suspended. Yet he opted to forgo appearing at such a hearing. So there was no deprivation of due process or anything else for that matter.

Now, come the day he was pulled over for speeding, officer runs his license, it comes back suspended… After digging a little deeper, the officer noticed that the driver had had two failure to appears for citations that he had received during the period of the current suspension.

This is where my question comes in… I am assuming that the officer saw the two FTA’s, and in addition to a 3rd violation that was on the driver’s record during the period of the suspension, he made the determination that the driver and because of 3 citations (which equal 3 points that this driver accumulated during a period of a suspension, that he can be deemed a Habitual Offender and therefore cited him for a violation of CVC 14601.3…. All despite the possibility that one can possibly establish/argue that an officer cannot make that determination.

zudnic… I really do appreciate your insight and the enthusiasm with which you are arguing your points… I also realize that you are just as entitled to your opinions as anyone else that has the ability to post in this, or in any other thread on this forum or elsewhere.

But I also know that you will agree with me when I say that it might benefit us all so much more if we can keep this, as well as other discussions civil, respectful, insult free and as open minded as possible.

As you can see, this is a fairly gray and clouded issue and there could be a lot more that can be discussed… So let’s keep it cool, let’s keep this thread from being locked by the Moderators.

Ultimately, one Judge will get his say so… Whether that Judge is in fact fair and impartial, or cruel and dictatorial, there’s an appeals court that can fix his mistakes if he makes any… But let’s hope it get’s resolved before it gets that far.

Once again, I appreciate you input and your opinion…

And it goes without saying but the same goes to you too Carl…

 

[CdwJava]

This is where my question comes in… I am assuming that the officer saw the two FTA’s, and in addition to a 3rd violation that was on the driver’s record during the period of the suspension, he made the determination that the driver and because of 3 citations (which equal 3 points that this driver accumulated during a period of a suspension, that he can be deemed a Habitual Offender and therefore cited him for a violation of CVC 14601.3…. All despite the possibility that one can possibly establish/argue that an officer cannot make that determination.

Since the matter is likely to be filtered through the DA's office prior to court, chances are the DA can either accept or amend the citation as appropriate.

- Carl

 

[zudnic]

I was going on the information from a Northern Californian alledged cop. That the DMV suspended and then the habitual ticket receiver had the option for hearing to seek removal of the suspension after discovering they are suspended. So California, is following what took; Washington, Colorado, Ohio and a few other state supreme courts to decide and change department of licensing rules on manditory suspensions.

Still Id try challenge the state's DMV due process when they determine your a habitual traffic offender. The fact is when Police write their sworn affidavit, they will support the reason they had probable cause for the stop and writting the ticket(s) given. They are trained to twist events to fit in why their action was justified. Lawyer's do not like fighting traffic infraction's before they are turned into a "criminal" offense. The second fact, misd. driving while suspended, is good money for all involved. Police, make some money, lawyers make money defending people and the state with its court and related state agents generate more money with their just as lousy advice from Cops.

The fact, in California, like almost all states. A ticket is a "notice to appear" failing to do so in most (all) cases leads to license suspension. Its not you must appear, its optional, because your not really appearing for court. Even if you go in person to the courts, its court clerks dealing with the disposition of traffic tickets. Criminal traffic you are signing a "promise to appear". California has 3 types of tickets, the first two are clouded by the last most serious as in criminal.

I like Texas not just their gun laws:

FAILURE TO APPEAR IN COURT Failure to appear or failure to pay fines may result in (1) Denial of renewal of your Driver’s License (2) Denial of your renewal of your vehicle registration (3) The filing of an additional charge of Failure to appear and the issuance of a warrant for your arrest.

I like state's that just refuse renewal. They are not as greedy. Truth is the system is geared towards people admitting they received a ticket. From the courts courtesy notice all the way down the line. In California you must submit in writing your request for a Court Trial. You can write does not mean you'll get a trial, a hearing (more like a readiness) is more likely to determine if the state has enough to win is normally what happens. Putting in writting you received the ticket. finding your license suspended, you enquire why and most times people admit they received a ticket.

I like waiting until stopped again and being discovered driving while suspended by Police. Then plead not guilty at arraignment. Then demand for discovery. Wait for it to arrive.. Subpoena the DMV person who certified that their record's of driver's abstract is correct and then the alledged PAST ticket(s) that your license was alledgedly suspended for being found "guilty" on. The "information" the court notified the DMV with that says you committed an infraction. In most cases the actual paper ticket was thrown out as garbage after being entered as computer data. Then question how do we know beyond a reasonable doubt that ticket existed written and given to me.

 

[zudnic]

Id say the state pros is assuming the DMV made the habitual traffic decision based on the license being suspended and the new not yet determined "guilty" traffic citations. The DMV is the source of your due process when it come's to your license and certain suspension area's like being habitual and failing to "appear, pay, respond" to past tickets******************************************...

 

[CdwJava]

I was going on the information from a Northern Californian alledged cop.

The term is "alleged" ... and you can believe it or not - no skin off my nose.

That the DMV suspended and then the habitual ticket receiver had the option for hearing to seek removal of the suspension after discovering they are suspended.

Yes, after notice of the suspension, the driver may seek a hearing. Most don't. In fact, the VAST majority do not do so because it is a waste of their time and they know it. Whether the suspension is stayed until the hearing date, I cannot say. I do not believe it is stayed until the hearing, but I could be mistaken. When i read a DMV printout it typically indicates that the date of the notice of suspension is only a few days prior to the effective date of the suspension.

CVC section 13353.2 spells out the process.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=13001-14000&file=13350-13392

Still Id try challenge the state's DMV due process when they determine your a habitual traffic offender.

That's what the Admin. Hearing is for.

13558. (a) Any person, who has received a notice of an order of
suspension or revocation of the person's privilege to operate a motor
vehicle pursuant to Section 13353, 13353.1, 13353.2, 13388, 23612,
or 13382 or a notice pursuant to Section 13557, may request a
hearing on the matter pursuant to Article 3 (commencing with Section
14100) of Chapter 3, except as otherwise provided in this section.
(b) If the person wishes to have a hearing before the effective
date of the order of suspension or revocation, the request for a
hearing shall be made within 10 days of the receipt of the notice of
the order of suspension or revocation. The hearing shall be held at
a place designated by the department as close as practicable to the
place where the arrest occurred, unless the parties agree to a
different location. Any evidence at the hearing shall not be limited
to the evidence presented at an administrative review pursuant to
Section 13557.​

The fact is when Police write their sworn affidavit, they will support the reason they had probable cause for the stop and writting the ticket(s) given.

Most traffic tickets do not require a report or "sworn affidavit".

They are trained to twist events to fit in why their action was justified.

To clarify, they are trained to articulate the probable cause to believe the offense was committed.

Lawyer's do not like fighting traffic infraction's before they are turned into a "criminal" offense.

In CA they ARE a public (criminal) offense.

The second fact, misd. driving while suspended, is good money for all involved. Police, make some money, lawyers make money defending people and the state with its court and related state agents generate more money with their just as lousy advice from Cops.

Someone might make money, but it ain't the cops. A typical traffic citation brings in approximately $4.75 to the city's general fund if the officer is not on overtime and does not have to go to court. Additionally, the amount of money that can be reimbursed is capped by statute and most larger agencies max out on their reimbursement (in those years that the state actually DOES reimburse local government) about 3/4 of the way through the fiscal year.

The fact, in California, like almost all states. A ticket is a "notice to appear" failing to do so in most (all) cases leads to license suspension. Its not you must appear, its optional, because your not really appearing for court.

What?? Sure, appearance is usually optional ... but you have to take care of the citation in some way prior to the court appearance, or you are required to appear. That's what the notice IS. It is a signed promise to appear in court. The alternative is to demand to be taken before a magistrate. Most people don't do that because it usually means being remanded into custody and having their vehicle impounded.

California has 3 types of tickets, the first two are clouded by the last most serious as in criminal.

Please enlighten us.

In most cases the actual paper ticket was thrown out as garbage after being entered as computer data. Then question how do we know beyond a reasonable doubt that ticket existed written and given to me.

The DMV does not use the original citation, they use a record of the court abstract. The original issuing agency and even the court might still hold onto their copies of the citation for at least one year. Every agency I know of holds onto their copy for at least one year - mine holds onto them for five.

Your method of challenging a suspension would be unique, but I doubt a court would buy it.

- Carl

 

[zudnic]

Yes, unique and knowing the actual paper ticket is thrown out once the court creates an abstract. Knowing the information on most abstracts and info given to the DMV. I use the thing I say are true to the best of my previous information, knowledge, and belief.
If I did receive a ticket, it would have been likely paid. Some court clerk made mistake or the DMV must be in error. I've done this during a traffic stop and they gave me a warning to look into why my license is suspended, find your receipt! Cops and state can twist the system to bottom feed for revenue, so too can I!

 

[CdwJava]

Yes, unique and knowing the actual paper ticket is thrown out once the court creates an abstract. Knowing the information on most abstracts and info given to the DMV. I use the thing I say are true to the best of my previous information, knowledge, and belief.
If I did receive a ticket, it would have been likely paid. Some court clerk made mistake or the DMV must be in error. I've done this during a traffic stop and they gave me a warning to look into why my license is suspended, find your receipt! Cops and state can twist the system to bottom feed for revenue, so too can I!

That is why there is an opportunity for a Hearing - so you can bring in proof to show that it IS an error.

- Carl

 

[zudnic]

That is why there is an opportunity for a Hearing - so you can bring in proof to show that it IS an error.

- Carl

Hence why its better to ignore options that makes it so you admit you received a ticket. Considering the "court" can admend and apply another vehicle code, once you admit you got a ticket.


And further proof following the states wishes is not neccessarily in your best interest. Most people assume the police swore out an affidavit of arresting officer, they don't because traffic citations are not criminal. People assume they are and the state's have built a smoke and mirror show. That in 99% gets people to admit, yeah a cop gave me a ticket and they explain their version, thinking they are arguing against a police "witness" account.

I'll be driving to Scottsdale and route takes me through California. I don't even bother with my radar detectors (yes multiple detection devices) even in Oregon, don't bother worrying about speed traps. I'll average 90mph and a few times expect in attempts to get pictures of the needle maxed out on the speedo! I'll even post pictures so you know what car to look for in Northern California, once posted will just take one of my Porsche's instead.

 

[CdwJava]

Hence why its better to ignore options that makes it so you admit you received a ticket. Considering the "court" can admend and apply another vehicle code, once you admit you got a ticket.

The court does not amend the citation, the prosecutor or the issuing agency does.

Most people assume the police swore out an affidavit of arresting officer, they don't because traffic citations are not criminal.

In CA infractions, misdemeanors and felonies are "public offenses" ... in other words, they are criminal offenses. I could spend a lot of time cutting pasting relevant code sections, but the long and short of it is that a signed promise to appear for an infraction and some misdemeanors serves as the charging document in place of any affidavit.

I'll even post pictures so you know what car to look for in Northern California, once posted will just take one of my Porsche's instead.

Like I'll care that you're zipping along the freeways. I'll leave that to the CHP ... unless I just HAPPEN to be on the freeway at the time!

- Carl

 

[zudnic]

If you receive a notice to appear ticket then that is not criminal, appearance is optional, you are not required to appear. Signed ticket with a promise to appear would be criminal and you break your "promise", would be in contempt of court. On non-criminal civil violations court clerks are the source of disposition.

Bell v Burson
For many years, government considered a driver's license "a privilege — not a right", and thus there were few effective remedies available to a driver who wished to contest a suspension. The U.S. Supreme Court changed that, recognizing that a license's "continued possession may become essential in the pursuit of a livelihood". Because of their value, then, they "are not to be taken away without that procedural due process required by the Fourteenth Amendment". Note: Were it not for Bell, it is doubtful that the California DMV today would provide hearings to contest DUI license suspensions. See also, Mackey v. Montrym (1979) 443 U.S. 1, involving a license suspension for refusing to submit to a DUI breath test.

DUI is criminal, charged and you receive due process directly by the court system. Interesting that the DMV hearings provide a hearing to contest DUI license suspension. So courts are not the source, nor are police, when it comes to due process and driver's license suspension. The DMV is the source of due process. The source of deciding habitual traffic offender suspensions is also the DMV. If the DMV suspends and then offered the hearing after the fact. A good arguement could be made that due process requires a chance to be herd before the suspension, not after the fact:

A determination of what process is due in a particular case requires a balancing of (1) the private interest affected by the government action; (2) the risk of erroneous deprivation of the private interest, including additional procedural safeguards in place; and (3) the governmental interest, including the function involved and the fiscal and administrative burdens that alternative procedural requirements would entail

Originally said "IF" the DMV supends after determination that a person is Habitual and the right to hearing comes after the suspension. That could be argued as a suspension without due process.

 

[CdwJava]

If you receive a notice to appear ticket then that is not criminal, appearance is optional, you are not required to appear. Signed ticket with a promise to appear would be criminal and you break your "promise", would be in contempt of court. On non-criminal civil violations court clerks are the source of disposition.

California has no non-criminal citations to appear related to traffic violations.

A good arguement could be made that due process requires a chance to be herd before the suspension, not after the fact:

But, there IS due process - at least in CA. This process has not been successfully challenged in my lifetime that I am aware of.

Originally said "IF" the DMV supends after determination that a person is Habitual and the right to hearing comes after the suspension. That could be argued as a suspension without due process.

They can argue anything they want ... it doesn't mean they will win.

- Carl