Pretrial Motion - has Anyone successfully use Dismissal or Lack of Prosecution?

[avrfan]

Inquiring about California Traffic Infraction cases:

Has Anyone successfully use Dismissal or Lack of Prosecution? How do you use it? Most likely only on appeal right? If this was so easy to use, everyone would be doing it. I am thinking that it can be used as grounds for an appeal and then get overturned at Appeal.

What about PC170.3 Challenge for Cause (to get judge Disqualified)? Anybody successfully used 170.3 Motion to get a judge dismissed?

I already tried a PC170.6 motion and was denied by the judge. I previously did a Trial by Written Declaration and was found guilty by this same judge who is now assigned to preside over the Trial De Novo. For the TBWD I was unaware he would be the judge, I didn't receive anything informing me that it would be in his department or assigned to him for the TBWD. I could have asked but I forgot. The law under PC170 says that you have to make the motion for Peremptory Challenge of a judge at arraignment or before the judge takes any action on the "case". So the judge said that it was too late for PC170.6 because he already made action on the case during TBWD.

It was suggested I try 170.3 Challenge for Cause but I think perhaps its a waste of time since PC170 says the DQ motion has to be made before the judge acts on the case.

Please share your thoughts and knowledge on this.

Thx
Dave

 

[Sloop John D]

Inquiring about California Traffic Infraction cases:

Has Anyone successfully use Dismissal or Lack of Prosecution? How do you use it? Most likely only on appeal right? If this was so easy to use, everyone would be doing it. I am thinking that it can be used as grounds for an appeal and then get overturned at Appeal.

I think a dismissal for lack of prosecution is used when there has been some unnecessary delay in filing or procedural requirements. Without knowing the reason you want to raise it, it's hard to say if it would be applicable to your circumstances.

As for challenging the judge for cause, I don't believe the motion would be successful if the only reason you want him disqualified is because he decided the trial by written declaration. You would need some case law or authority to support this position.

 

[demurringdude]

Inquiring about California Traffic Infraction cases:

Has Anyone successfully use Dismissal or Lack of Prosecution? How do you use it? Most likely only on appeal right.

You would need to make that motion at trial, not on appeal.

So the judge said that it was too late for PC170.6 because he already made action on the case during TBWD.

There is a good argument that since the TBWD outcome was a "de novo" trial, the TBWD should be treated as if it never happened. You judge is effectively arguing that you gave up some of your rights be having a TBWD, and that can't be right. "De novo" means "from new". That's a good argument, but its not a slam dunk. Counter arguments can be made. Its not clear enough in the law.

But having a good argument isn't a whole lot of help. How are you going to get redress? Probably you aren't, unless you want to do a lot of work. An easy path might be to write to the presiding judge and complain that your challenge was incorrectly dismissed. May or may not work. No harm in filing a challenge for cause, with the cause being that the first challenge was incorrectly dismissed. How much do you want annoy this judge? This is probably a fruitless path. Might be fun though.

 

[avrfan]

re: might be fun (to push the judges buttons)

Im trying not to annoy him as he definitely already knows me by name and face, even the bailiffs told me theyve been instructed to kick me out of the courthouse unless i am there on official business

it does seem as I tried harder and get better with fighting my tickets he is acting a little kinder. For example normally he denies Traffic school if you goto trial and lose. He recently allowed me traffic school after trial Conviction Also he did not suspend my license as he usually does when someone fights their Ticket.

I have filed PC170.6 on this judge on about 5-6 cases. First 3-4 were honored and moved to court in next town and i won all those cases, Some officer no shows but even when officer showed up with radar evidence I won using speed trap law. I think they got tired of me beating the system So easily and just decided to deny all motions and force me to do appeals. No more free lunches.

Next time i will do my best to file the PC 170.6 right in the beginning immediately after arraignment or perhaps even as soon as i am cited. I dont fully understand Challenge for cause But i need to learn how to do it.

 

[Zigner]

Some people might consider obeying the law instead of wasting everyone's time