Red Light Camera Demurrer Totally Ignored by Judge

[demurringdude]

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.

You don't get to see any judges at all when you petition for a writ - they do it all in private, from the documents you submit. But it is an interesting and educational experience nonetheless.

I am all in favor of people taking advantage of their rights like this. But I will caution you that there is a fair bit of work involved in a petition. You have to do it in writing at the Appellate Division for the court you appeared at. Most courts require you to do it on a form APP-151 which you can download on the internet. You fill that out, assemble it in a binder with all your other documents and rulings, and make copies in a certain format with correct tabs etc etc. It's a pain. One problem you will have right away is that you will need a written ruling from the lower court showing that your request to be heard on a demurrer was denied. You will have a problem getting that, since that is not what they recorded. I don't know how you would get around that.

What you will be claiming is that the judge did not hear your demurrer. You will be asking the Appellate Division to instruct the judge to hear your demurrer. If you are successful (which is likely), the judge will be so instructed, and you will be back in front of him for a demurrer hearing. That kind of puts you back where you started, because the judge may well hear your demurrer and deny it. Then you will be going to trial anyway (unless you fancy another petition).

The demurrer hearing that you get would be very similar to the hearing you would get at trial on a motion to dismiss. You would be introducing evidence that the ticket was late, and arguing points of law. The outcome is likely to be similar in either setting - I don't think the judge cares too much whether you call it a demurrer hearing or a motion to dismiss hearing, to him it's pretty much the same issue - is the ticket valid or not.

For that reason, I think the smarter move is to just go to trial. It's pretty much the same conversation with the same judge, but it's way less work. The petition is really time-consuming, whereas at trial you just have to show up and start talking.

If I have not talked you out of the petition, I would be happy to help you with it. I can send you copies of mine, which would give you an idea what is involved.

 

[demurringdude]

Tomorrow I'm going to try requesting the written proceedings of the arraignment,

You probably have that already. The carbon-copy form that they handed you on the way out - that is likely the only written proceedings. I bet it does not say that you demurred and were denied a hearing. I bet it just has some boxes checked indicating that the court entered a plea of not guilty on your behalf.

 

[DemurrerDenied]

ok, so you don't think i can find a record of the oral proceedings? because that is one of the things requested by APP151:

"Identify where in the supporting documents (the record of what was said in the trial court and the documents from the trial court) it shows that the court did not do or refused to do this:"

A copy of your APA151 would be great. As I said, I'd like as many opportunities to argue this as possible, because I am finding that the judge makes a big difference. My arraignment judge told me there was no such thing as a demurrer... I don't want to wait for a trial judge who will tell me there is no such thing as a motion to dismiss.

If you could also tell me what other documents need to be included with the writ, and how they need to be organized, that'd be great.

Thank you so much,
Denied

 

[demurringdude]

Yep, you put your finger right on it. From what you said, it seems unlikely that you can get a written ruling from the court that says they denied you a hearing on your demurrer. But check just in case.

If your court routinely makes audio recordings of all the proceedings, you will need a copy of that. You will probably have to be very insistent before they give it to you. You also could try using that record in lieu of the written ruling, but I suspect it won't fly.

You could also just write to the judge and say that you are petitioning for a writ, and you need an accurate written record of the proceedings, including his ruling not to hear your demurrer, because the carbon-copy that was handed to you does not reflect what actually happened, as will be shown by the audio recording you are submitting to the Appellate Division. That ought to get his attention. If he doesn't reply, submit your letter and the audio file in lieu of his ruling.

PM me your email address.

 

[DemurrerDenied]

i sent you a friend invitation. if there's a special private message feature for friends I'll use that to send you my email.

 

[I_Got_Banned]

Where is the backpedalling? (note correct spelling, which I know is important on this forum)

You're one to talk about correct spelling. But since now YOU brought up your own "peripheral stuff", I'll oblige you with a response. Here you go demurringdude:

The first judge should have allowed you to demurr

The next-best remedy is to go to court and affirmatively demurr.

make a Motion in Arrest of Judgement.

you couldn't be re-charged with the same offence anyway.

Technically speaking, you did demurr.

A judge can't allow or disallow you to demurr.

As soon as you said "I demurr"

for example if motions you make to dismiss, or to arrest judgement

I suggest you look up what a Motion In Arrest of Judgement

At least you're being consistently WRONG. And I am not only talking about your spelling.

 

[demurringdude]

Boring. Pedantic. Irrelevant. It is is impolite to correct an Irishman's correct British spellings when he is making a decent effort to speak a foreign language. But thanks for wasting a whole page. And for all that awesome cutting-and-pasting work. And in what language is "rediculous" a word?