Red Light Camera Demurrer Totally Ignored by Judge

[I_Got_Banned]

When your case is called at trial, immediately speak up and say "Your Honor, I move to dismiss on the grounds that the complaint does not comply with the Vehicle Code Section 40518(a), since it was delivered late."
….
Then argue your motion, using the evidence of late delivery you presumably have.

Late “delivery” has nothing to do with anything here. The statute is clear that the notice must be “MAILED” within 15 days... It does not address when or how late the notice is “delivered”. And arguing that it was “delivered” late, will most likely prove to be unsuccessful Your wording must be concise and it must meet those requirements as set by the statute.

If you were so inclined, you could certainly have a higher court force him to do that.
….
In the unlikely event that your motion is denied, immediately ask for a continuance so that you can appeal that particular ruling. If you let the trial proceed to the facts and evidence stage, you are probably sunk.

There is no mechanism in traffic court to present an alleged judicial error to the appellate for review under the premise of an “emergency appeal” and one that must be reviewed by the appellate before the trial's conclusion. Furthermore, and since a traffic case carries with it a “low priority rating”, such an appeal can and most likely will take 2 to 3 months to be heard. So what's to stop a defendant from coming back and arguing that his/her right to a speedy trial were violated by such a delay? Unless you're suggesting that by filing such an appeal, a defendant must then waive their right to a speedy trial. But that might get sticky from a number of different perspectives.

I have never heard of a traffic court appeal being filed let alone heard by the appellate before the conclusion of that trial. For a traffic case, a defendant can appeal the “final judgment” OR appeal the “sentence”. PERIOD!

If you let the trial proceed to the facts and evidence stage, you are probably sunk.

Not true... If that were to happen, then basing the OP's appeal upon a procedural error during the arraignment or during the trial should provide him with sufficient grounds for what might quite possibly be a successful appeal.

--------------

Happywanderer, you make some good points. The difficulty is that Traffic Court generally is not competent to deal with complicated issues such as demurrers

A demurrer is a complicated issue???

While I cannot and will not shed any light on why Denied's demurer was not even considered by the court, I hardly believe that it was due to the court's incompetence or that it presented too complicated an issue for the court to handle at that time.

and things won't turn out the way they would in a real court.

And traffic court is a “fake court”?

According to the statute, the remedy for a late ticket is that you don't need to answer to it.

I think HappyWanderer asked for a citation.... And I will second that! The statute says nothing about whether you need to respond to it or not. It simply states that the notice of violation must be mailed within 15 days of the date the violation was allegedly committed. It does NOT address the situation that if the notice to appear is not mailed within that 15 day period not does it state anywhere what remedy the defendant can seek in that case. THEREFORE, regardless of when that notice of violation was mailed, you are still required to answer to it by either demurring or by moving for a dismissal based on the grounds that the notice was not mailed within the 15 day statutory period.

So the correct analogy here is that you MUST “answer to the notice of violation” but by doing so, you can in fact notify the court that it cannot hold you responsible to answering to or defending yourself against the underlying charge (the violation itself) by virtue of the fact that the notice was mailed after the 15 days.

BIG difference between answering to the notice to appear and answering to the underlying charge contain therewith!

Again, your wording is very inaccurate and I am not sure whether that is due to the fact that you lack the understanding or that you think you can just blurt things out incoherently. You keep arguing that the most ideal way to deal with this situation is to show up in court and demur, and yet in the same breath you are saying that you need not respond, suggesting that you can just ignore it and it will go away!

Case in point:

Of course, you shouldn't have to go to court to explain why you don't need to go to court.

Yes you do! And the reason for that being (the next sentence that you typed):

there doesn't appear to be any other way to stop such a complaint from proceeding.

Exactly... So why would you say that the defendant need not respond?
If you think that the notice of violation is in any way defective, then it is YOUR responsibility to make such an argument before the court and to request that the underlying charge shall be dismissed.

There ways around that, but you will be doing a lot of work, which is presumably not quite what the legislature intended when they said you need not even respond.

Again, where did the legislature say that you “need not respond”? The legislature simply set the requirement for the notice to appear to be valid. The burden to prove that it was not, by virtue of it being mailed late, is upon the defendant and it is not the responsibility of the court. And while the judge does in fact have the discretion to dismiss the pending action based on a defective notice, he is under no obligation to make that decision without you being in court to argue your point.

A fourth remedy is to wait until the verdict, and then before sentencing make a Motion in Arrest of Judgement.

Unless you can cite a specific statute that states you can do that in a traffic case, then that too is inaccurate and/or incorrect. You can request that the court delay sentencing for what I believe is a period of 6 hours (again, I am not sure of the specific period), but to suggest that you can request that sentencing be delayed until you file an appeal (wait until it is heard and a decision rendered by the appellate) then that is not true. In fact, and the California Rules of Court specifically state that the act of filing the notice of appeal does not delay the deadline for the defendant to have to comply with any part of the sentence ordered by the court.

Denied, what you need to do here is to document in detail what has transpired thus far (in the unlikely event that you might have to escelate this case to the appellate level after its concluded) and to continue to do so until the final word is said. In the meantime, you must show up in court on the date of your trial, make a motion to dismiss pursuant to CVC 40518, by showing valid proof to the court that the notice of violation was not mailed in a timely manner and therefore this case must be dismissed.

If the motion is granted then you are done. If the motion is denied then you have no other option but to proceed accordingly. If you are found guilty, then you must abide by the sentence that it is issued by the court, whatever that may be (chances are you have already posted bail (in an amount equal to your fine amount) on the day of your arraignment). Furthermore, if you are found guilty, and assuming you are intent on pursuing this further, then you must file a notice of appeal with the court within the 30 days following the date when the court rendered the final judgment in your case.

Just pray that your motion to dismiss is granted by the court. I'm not saying that you have weak grounds for an appeal. Quite the contrary... However, an appeal is a long, drawn out, agonizingly detailed process that I wouldn't wish on anybody.

Best of luck!

 

[demurringdude]

40518(a) defines what a complaint is. Without one of those there can't be be a prosecution. Even if the elements of the crime are still there, a prosecution can only start with a complaint.

I agree that a demurrer may not be the perfect way to respond to a defective complaint, but what other options are there? There isn't any other motion you can make prior to a plea.

One fortunate defect of these tickets is that the proof of service and the citation are the same document. So by successfully challenging the service, the entire ticket is dismissed along with it. If you accomplished that at trial, you couldn't be re-charged with the same offence anyway.

 

[demurringdude]

Late “delivery” has nothing to do with anything here. The statute is clear that the notice must be “MAILED” within 15 days... It does not address when or how late the notice is “delivered”. And arguing that it was “delivered” late, will most likely prove to be unsuccessful Your wording must be concise and it must meet those requirements as set by the statute.

The statute uses the word "delivered", which is why I used it. I don't know why you put "MAILED" in quotation marks, because that word does not even appear in the statute.

There is no mechanism in traffic court to present an alleged judicial error to the appellate for review under the premise of an “emergency appeal” and one that must be reviewed by the appellate before the trial's conclusion. Furthermore, and since a traffic case carries with it a “low priority rating”, such an appeal can and most likely will take 2 to 3 months to be heard. So what's to stop a defendant from coming back and arguing that his/her right to a speedy trial were violated by such a delay? Unless you're suggesting that by filing such an appeal, a defendant must then waive their right to a speedy trial. But that might get sticky from a number of different perspectives.

I have never heard of a traffic court appeal being filed let alone heard by the appellate before the conclusion of that trial. For a traffic case, a defendant can appeal the “final judgment” OR appeal the “sentence”. PERIOD!

Not correct. You can petition the appellate division for a Writ of Mandate at any stage. For example, to have the denial of your demurrer reversed. I did that, and got a reply in three days. Putting period in block caps does not make your incorrect statement correct.

A demurrer is a complicated issue???

While I cannot and will not shed any light on why Denied's demurer was not even considered by the court, I hardly believe that it was due to the court's incompetence or that it presented too complicated an issue for the court to handle at that time.

The code requires that a demurrer be heard. It wasn't.
Demurrer's are complicated enough that I had three judges and an appellate court all disagree with each other about mine.

And traffic court is a “fake court”?

Any similarity between "traffic court" and "court" is merely an elaborate charade for the benefit of the ignorant defendants.

I think HappyWanderer asked for a citation.... And I will second that! The statute says nothing about whether you need to respond to it or not. It simply states that the notice of violation must be mailed within 15 days of the date the violation was allegedly committed. It does NOT address the situation that if the notice to appear is not mailed within that 15 day period not does it state anywhere what remedy the defendant can seek in that case. THEREFORE, regardless of when that notice of violation was mailed, you are still required to answer to it by either demurring or by moving for a dismissal based on the grounds that the notice was not mailed within the 15 day statutory period.

The statute defines what a complaint is. You may be of the opinion that other things are also complaints, but the statute doesn't say that.

Again, your wording is very inaccurate and I am not sure whether that is due to the fact that you lack the understanding or that you think you can just blurt things out incoherently.

I think I understand this issue pretty well, having taken it through the appellate division. I think I expressed it coherently enough. I think you meant to say that you just don't agree.

You keep arguing that the most ideal way to deal with this situation is to show up in court and demur, and yet in the same breath you are saying that you need not respond, suggesting that you can just ignore it and it will go away!

Actually, I don't keep arguing that. In fact I think I posted more than once that it is not ideal. I also said it would be undesirable to ignore the complaint. I said it would not go away.

Yes you do!

I said you shouldn't have to go to court to argue that you don't need to go to court. The unfortunate fact that you do have to is agreed. Traffic court makes you do all kinds of things you shouldn't have to do.

Exactly... So why would you say that the defendant need not respond?
If you think that the notice of violation is in any way defective, then it is YOUR responsibility to make such an argument before the court and to request that the underlying charge shall be dismissed.

I didn't say that. I advised against that. Although I don't see why it is your responsibility under the law to respond to things that don't need responding to.

Again, where did the legislature say that you “need not respond”? The legislature simply set the requirement for the notice to appear to be valid. The burden to prove that it was not, by virtue of it being mailed late, is upon the defendant and it is not the responsibility of the court. And while the judge does in fact have the discretion to dismiss the pending action based on a defective notice, he is under no obligation to make that decision without you being in court to argue your point.

The statute defines a complaint that you may respond to. It doesn't go on to define all the things that you should not respond to. You don't have to respond to someone phoning you up and telling you to go to court. You don't have to respond to an email. You don't have to respond to a snitch ticket. The statutes do not list all the things you need not respond to. They tell what you may respond to, and by pretty clear implication you don't have to respond to any other thing. You seem to think that not responding means going to court and filing a bunch of papers. I think it means not responding. However, I still don't recommend it, for purely practical reasons.

Unless you can cite a specific statute that states you can do that in a traffic case, then that too is inaccurate and/or incorrect. You can request that the court delay sentencing for what I believe is a period of 6 hours (again, I am not sure of the specific period), but to suggest that you can request that sentencing be delayed until you file an appeal (wait until it is heard and a decision rendered by the appellate) then that is not true. In fact, and the California Rules of Court specifically state that the act of filing the notice of appeal does not delay the deadline for the defendant to have to comply with any part of the sentence ordered by the court.

I suggest you look up what a Motion In Arrest of Judgement actually is before lecturing me about it. For one thing, it is not an appeal, it is a motion before the lower court.

Denied, what you need to do here is to document in detail what has transpired thus far (in the unlikely event that you might have to escelate this case to the appellate level after its concluded) and to continue to do so until the final word is said. In the meantime, you must show up in court on the date of your trial, make a motion to dismiss pursuant to CVC 40518, by showing valid proof to the court that the notice of violation was not mailed in a timely manner and therefore this case must be dismissed.

Hey, I said all that first. Why are you even arguing with me, you agree with what I said?

If the motion is granted then you are done. If the motion is denied then you have no other option but to proceed accordingly.

Not so. You can petition for a Writ of Mandate.

 

[I_Got_Banned]

Still waiting for a cite that explains this:

According to the statute, the remedy for a late ticket is that you don't need to answer to it.

Got one???

 

[demurringdude]

Still waiting for a cite that explains this:
Got one???

Yes.

40518. (a) Whenever a written notice to appear has been issued ... based on an alleged violation of Section 21453, 21455, or 22101 recorded by an automated enforcement system pursuant to Section 21455.5 or 22451, and delivered by mail within 15 days of the alleged violation to the current address of the registered owner of the vehicle on file with the department, with a certificate of mailing obtained as evidence of service, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea.

That defines a complaint to which you "may enter a plea". There are no other types of complaint defined for these violations. Therefore you do not need to enter a plea if this section is not complied with.

I'm not saying that's a good idea, I'm just saying that it is one of several remedies that are possible under the law.

 

[demurringdude]

How can you "appeal or say it was a mistrial" if you have not had your trial yet?.

Well, he was asking a question, so there's not much point in just asking it back at him.

In fact, you are wrong. He can appeal. He can petition the appellate division for a Writ of Mandate to order the judge to hear the demurrer. It would certainly be granted, since that is his absolute right under the code.

This may not be his best option, but it is an option.

 

[I_Got_Banned]

It doesn't matter how many times you post CVC 40518, it still does not change the fact that it includes nothing that would even come close to suggesting that you need not respond to the notice to appear. Meaning, it says nothing that would lead a reasonable person to conclude that he/she can simply ignore the notice to appear just because it was mailed late.

Therefore you do not need to enter a plea if this section is not complied with.

I'm not saying that's a good idea, I'm just saying that it is one of several remedies that are possible under the law.

So you're saying that "Denied" could have simply walked up, said "I demur", turned around and walked out and that would have taken care of the whole entire problem. Right?

If you say yes then you are wrong and I don't need to explain to you why you are incorrect.

If you say no, then... hey, your original statement of "According to the statute, the remedy for a late ticket is that you don't need to answer to it." is still incorrect in that the defendant does have to answer to the notice by appearing in court. And whether he had to enter a plea or not simply depends on whether the judge were to accept his demurer as sufficient cause to dismiss the complaint or whether the judge denied that motion and ordered the defendant to enter a plea.

Furthermore... Let us compare both statements that you've made:

First you said:

According to the statute, the remedy for a late ticket is that you don't need to answer to it.

Which is wrong because you do have to appear in court to “answer to it”. And now, you are backpeddling and saying:

Therefore you do not need to enter a plea if this section is not complied with.

… which is still wrong because “Denied” could not simply walk out of court after his demurer was denied.

So the question still stands... Where in the statute does it say that if the notice to appear is mailed late, the defendant does not have to answer to it????

I am not asking for your own interpretation or guess as to what the legislature intended or had in mind. I am asking for a specific code section that says that a defendant need not answer to the notice to appear if it is mailed late.

 

[demurringdude]

The burden to prove that it was not, by virtue of it being mailed late, is upon the defendant

The defendant does not have that burden under the law, even though the courts might act like he does.

If I wrote out a complaint about you running a red light in crayon on a piece of toilet paper in French and delivered it to the court by affixing it to the back of a tortoise, would anyone argue you had a burden to answer it? No. Why? Because it does not comply with 40518, and no other reason. A late ticket is in the same group as that - complaints that do not comply with 40518, and therefore have no force under the law.

 

[I_Got_Banned]

In fact, you are wrong. He can appeal. He can petition the appellate division for a Writ of Mandate to order the judge to hear the demurrer.

A Writ of mandate is NOT an APPEAL... I don't care how you twist it!

 

[I_Got_Banned]

If I wrote out a complaint about you running a red light in crayon on a piece of toilet paper in French and delivered it to the court by affixing it to the back of a tortoise, would anyone argue you had a burden to answer it? No. Why? Because it does not comply with 40518, and no other reason. A late ticket is in the same group as that - complaints that do not comply with 40518, and therefore have no force under the law.

Now you're being rediculous. If that is a civil complaint then it need not comply with 40518. If it is a criminal complaint then you couldn't even file it (therefore I wouldn't have to respond). You can complain to the DA and it is his responsibility to file such a complaint against me.

I think I am done trying to reason with you. You can sit here all night picking at straws but the fact still remains, you still have not proven your BIG claim that a defendant need not respond to a notice to appear simply because it was mailed late.

 

[demurringdude]

So you're saying that "Denied" could have simply walked up, said "I demur", turned around and walked out and that would have taken care of the whole entire problem. Right?

No I didn't say that. You said that.

So the question still stands... Where in the statute does it say that if the notice to appear is mailed late, the defendant does not have to answer to it????

I am not asking for your own interpretation or guess as to what the legislature intended or had in mind. I am asking for a specific code section that says that a defendant need not answer to the notice to appear if it is mailed late.

Well, all I can tell is that when I made that argument to an actual judge, he agreed with me and tore up the ticket. I didn't even pay a dismissal fee. The fact that you aren't convinced isn't nearly as important to me. Unless you make the bench.

If the statute goes to the trouble of identifying 15 days as the limit for a complaint to which you may enter a plea, then it's an easy argument that 16 days is not a complaint to which you may enter a plea. Otherwise there would be no point to the statute. The statute might as well say "mailed within 15 days, or whenever you can get around to it, man, don't sweat the small stuff, just do your best, whatever". I think the judge is more likely to assume that there is a point to the statute. Mine did, anyway.

 

[demurringdude]

A Writ of mandate is NOT an APPEAL... I don't care how you twist it!

He gets the Appellate Division to issue a ruling that overturns the lower court. Call it whatever you like, I don't mind. Seems like an appeal to me. That's why they get to be called the Apellate Division.

 

[demurringdude]

Originally Posted by demurringdude
According to the statute, the remedy for a late ticket is that you don't need to answer to it.

Originally posted by I_GOT_BANNED
Which is wrong because you do have to appear in court to “answer to it”. And now, you are backpeddling and saying:

Originally Posted by demurringdude
Therefore you do not need to enter a plea if this section is not complied with.

I must be missing something. Both of those statements I made seem to be making the same point. Where is the backpedalling? (note correct spelling, which I know is important on this forum)

Also, I am not "wrong", you just have a different opinion from me.

 

[DemurrerDenied]

Tomorrow I'm going to try requesting the written proceedings of the arraignment, and then file for a... writ of mandate... right?

How do I ask for the writ of mandate? In writing or orally? In court or with the clerk or DA?

If that doesn't work I'll move to dismiss when my trial comes in late January, but I wanna try this first--I wanna see as many judges as possible.

 

[demurringdude]

you still have not proven your BIG claim that a defendant need not respond to a notice to appear simply because it was mailed late.

Actually, that is not my BIG claim. I made that point in passing, and pointed out myself that it was not a very practical option. I don't know why you are getting so steamed about it, since it is irrelevant to the actual advice I gave, which was to go to trial and move to dismiss. You seem to enjoy arguing with peripheral stuff just for the sake of it. I am happy to indulge your strange passion.