Using a demand for a verified complaint?

[Cheaterslick67]

What is the name of your state (only U.S. law)? California

I got a speeding ticket and have chosen to fight it. The advice I have been given by a knowledgeable layman is to use the 853.9 cpc and the 740 cpc to demand a verified complaint. The judge figures the notice to appear is valid enough, reading the codes it says I can ask for one, and the court cannot proceed without one.. Anyone have knowledge about this? Thanks in advance!

 

[CdwJava]

Were you issued a citation? Does the court have a copy of that citation?

If so, read PC 853.6 and the section pasted below (PC 853.9) and you will find out why this is a non-starter.

853.9. (a) Whenever written notice to appear has been prepared,
delivered, and filed by an officer or the prosecuting attorney with
the court pursuant to the provisions of Section 853.6 of this code,
an exact and legible duplicate copy of the notice when filed with the
magistrate, in lieu of a verified complaint, shall constitute a
complaint to which the defendant may plead "guilty" or "nolo
contendere."
If, however, the defendant violates his or her promise to appear
in court, or does not deposit lawful bail, or pleads other than
"guilty" or "nolo contendere" to the offense charged, a complaint
shall be filed which shall conform to the provisions of this code and
which shall be deemed to be an original complaint; and thereafter
proceedings shall be had as provided by law, except that a defendant
may, by an agreement in writing, subscribed by him or her and filed
with the court, waive the filing of a verified complaint and elect
that the prosecution may proceed upon a written notice to appear.
(b) Notwithstanding the provisions of subdivision (a) of this
section, whenever the written notice to appear has been prepared on a
form approved by the Judicial Council, 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 and,
if the notice to appear is verified, upon which a warrant may be
issued. If the notice to appear is not verified, the defendant may,
at the time of arraignment, request that a verified complaint be
filed.​

And for the answers as they relate to TRAFFIC offenses, go here:

http://www2.courtinfo.ca.gov/protem/courses/traffic/04_403.htm



- Carl

 

[Cheaterslick67]

At the roadside I was issued a notice to appear. The 853.9 only says that the NTA is valid as a complaint if I plead guilty or Nolo Contendere. Which leaves the not guilty plea?. Then cpc 740
"Except as otherwise provided by law, all misdemeanors and
infractions must be prosecuted by written complaint under oath
subscribed by the complainant. Such complaint may be verified on
information and belief."

Thank you for your words. I am asking as I have someone telling me info in this direction. I am feeling like it is not the way I wish to go. I cannot afford a ticket right now, and was not going faster than 75 on a Los ANgeles freeway, the traffic flow was faster. I was behind an officer after our freeway merged with another, I was nervous stressed following him, so i pulled out of the fast (left) lane and into the next lane, a short time later he pulled me over. I mean shortly, as in short. I took some time to pull over only because i had two young children and my wife in the car on a busy freeway at night. I wasn't going to pull over just anywhere, for his sake too, and I had 3 lanes to enter and exit to get to the shoulder, all the while negotiating la freeway traffic. he then scolded me for taking so long to pull over, which was only about 20 seconds longer due to me searching for a safe enough shoulder space. He then accused me of trying to embarrass him on the freeway by not staying behind him. Anyhow I have no tickets, and have no experience with the courts.

 

[CdwJava]

The key is in PC 853.6 ... and, you have to understand that most traffic offenses are NOT "misdemeanors" as referenced by PC 853.6, and are, instead, infractions.

Further, it is CVC 40513(b) that covers traffic cites.

Note in the Rules of court 4.03:

There is no right to a verified complaint when the citation is issued on an approved form. [See People v Barron (1995) 37 CA4th Supp 1, 3–5.] A defendant who contends that the notice to appear is defective must raise the issue before trial by filing a demurrer. [See PC §§1004(2), 1012; People v Gompper (1984) 160 CA3d Supp 1, 8–9.]​

The notice to appear should be sufficient absent the demurrer.

This is a long way to go to test the court's patience. If you know what you are doing and are prepared to carry the matter as far as you can, give it a whirl. I have never known one to succeed, but that doesn't mean that they haven't - only that I have never known of one to do so.

Here is more info ...

http://www.courtinfo.ca.gov/forms/documents/trinst.pdf


- Carl

 

[vstrinski]

I have a question regarding the "verified complaint" topic:
According to California PC 853.9 :

(b) Notwithstanding the provisions of subdivision (a) of this section, whenever the written notice to appear has been prepared on a form approved by the Judicial Council, 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 and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed.

Two questions actually:
1) Can I still request a verified complaint:
- CPC says "the defendant may ... request that a verified complaint be filed"
- Court rules say "There is no right to a verified complaint when the citation is issued on an approved form"

2) It has to do with the term "approved form" - CPC also refers to it as "notice to appear has been prepared on a form approved by the Judicial Council".
The exact approved form is on the link you posted:
http://www.courtinfo.ca.gov/forms/documents/trinst.pdf

However I've never seen a police agency use this exact form. Theirs are always slightly different - have a few more fields, etc.

I'd like to think that those are "not approved by the Judicial Council" since they don't match the variations allowed on the "approved form" (see trinst.pdf). That would be unless the agency requested and received such an approval for their form.

Can, should and when do I rise this issue? In a demurrer?

thanks

 

[Zigner]

Start your own thread - it's improper on this forum to "hijack" another thread.

I have a question regarding the "verified complaint" topic:
According to California PC 853.9 :



Two questions actually:
1) Can I still request a verified complaint:
- CPC says "the defendant may ... request that a verified complaint be filed"
- Court rules say "There is no right to a verified complaint when the citation is issued on an approved form"

2) It has to do with the term "approved form" - CPC also refers to it as "notice to appear has been prepared on a form approved by the Judicial Council".
The exact approved form is on the link you posted:
http://www.courtinfo.ca.gov/forms/documents/trinst.pdf

However I've never seen a police agency use this exact form. Theirs are always slightly different - have a few more fields, etc.

I'd like to think that those are "not approved by the Judicial Council" since they don't match the variations allowed on the "approved form" (see trinst.pdf). That would be unless the agency requested and received such an approval for their form.

Can, should and when do I rise this issue? In a demurrer?

thanks

 

[vstrinski]

Start your own thread - it's improper on this forum to "hijack" another thread.

Zinger, this was not my intent. I think the questions are relevant to this topic since they are about the same main question - "Using a demand for a verified complaint"

From the posts above it seems controversial whether a defendant can demand a verified complaint or not.

The other issue with demanding a verified complaint is whether the NTA is such and why is it or why not.

 

[Zigner]

Zinger, this was not my intent. I think the questions are relevant to this topic since they are about the same main question - "Using a demand for a verified complaint"

From the posts above it seems controversial whether a defendant can demand a verified complaint or not.

The other issue with demanding a verified complaint is whether the NTA is such and why is it or why not.

Ok, don't start your own thread. However, don't expect answers