San Diego County DUI Law Center’s attorney Rick Mueller does not handle traffic tickets but he generally tells people to fight them as each one is a point.
Continue the arraignment (i.e. get an extension of the court date) as many times as you can. Set it for trial.
If cop doesn’t show, you win. (Yes, if the camera cop.)
If cop shows, ask him if he has independent recollection or a copy of citation with notes. If not, you win.
If he does, ask him if he cares if you can do traffic school (to keep point off on your record and off insurance).
If you’ve done traffic school in past 18 months, you can still do Level II traffic school (to keep point off record but not insurance co. which can still see the dismissal).
Practice Tips for Fighting Traffic Infractions
Here’s some general advice about handling traffic infractions.
Try good old fashion politics. Talk to the cop and get a sense of whether or not he’s out to get your client, and if he isn’t, ask him if he would be opposed to a particular disposition. You will be surprised at how much easier it becomes to get a judge to do something when you can tell him that the cop is okay with it (prosecutors are the same way). If the cop’s not on board, try and work out a plea bargain outside of his presence (though commissioners and pro tem judges are often reluctant to talk to you about an infraction case without a prosecutor or cop present, remind him that the People are not represented and the cop is just a witness and not a party to the action).
Plea bargaining may include creative leveraging. For instance, conviction of a failure to appear (CVC §40508(a)) is a no-point offense. Ask for a jury trial on the charge to make your point. And note that three or more infractions within a year, if alleged and proved, create a misdemeanor (CVC §40000.28). You may be able to demand a jury trial on third offense within a year. See §2:11.19 regarding pros and cons of elevating infraction to misdemeanor.
Object to the officer reading the complaint. Evid. C. §702 requires personal knowledge. Personal knowledge is a preliminary fact (Evid. C. §403), on which the proponent has the burden. It must be proved prior to testimony if there is an objection. Voir dire on the cop’s personal knowledge, without reference to what’s written on the citation. If the cop has no personal recollection, he has no recollection to be refreshed, and the citation cannot be used. Otherwise the officer would just be reading the citation into evidence and your right to cross examine would be violated. See People v. St. Andrew (1980) 101 Cal.App.3d 450; see also, U.S. v. Owens (1988) 484 U.S. 584. On the topic of cross-examination, do not let a police officer cross-examine the accused — it is barred because the officer is a witness, not a lawyer for the People! People v. Dragomir (2005) 136 Cal.App.4th Supp. 1.
Use the Pen. C. §1118 motion if the cop leaves something out, such as the date of the offense (required by statute of limitations), or identity of the defendant. Be sure the prosecution has rested. Don’t state the ground if the judge is known to permit re-opening. [See People v. James (1943) 59 Cal.App.2d 121; People v. Belton (1979) 23 Cal.3d 516; and People v. Clark (1965) 62 Cal.2d 870.]
If the client can’t be there, try a trial by declaration under CVC §40902(a). Note that your client will have to deposit the full bail amount with the declaration (subject to refund if he is found not guilty), CVC §40902(b), but he is entitled to a trial de novo if he is found guilty. CVC §40902(d). In fact, he must timely request a trial de novo before he is entitled to appeal the matter to the Superior Court Appellate Division. People v. Kennedy (2008) ___ Cal.App.4th ___ (Fourth Dist. COP, Div. 2, Docket No. E046145). Note that Rule of Court 4.210(b)(7) states that a defendant must be brought to trial within 45 days of his request for a new trial, but this time limitation does not mandate a dismissal. People v. Benhoor (2009) 177 Cal.App.4th 1308.
Ask for a court reporter.
Stipulate to a pro-tem, who is frequently a defense attorney.
Finally, be mindful of the fact that a traffic court judge may constitutionally call and question witnesses (including the accused if he elects to testify), so long as the questioning is “fair and properly limited in scope.” People v. Carlucci (1979) 23 Cal.3d 249, 255.
§2:11.7 Traffic Violator School and Diversion
Traffic Violator School (TVS) keeps a traffic violation confidential, and off the driving record available to the public and insurance companies. According to popular belief, record confidentiality is available only for the “first proceeding and dismissal under §1803.5 in any 18-month period” (CVC §1808.7).
But Santa Rosa Attorney Charles J. Tarr makes a convincing argument to his local traffic commissioner: A concurrent reading of CVC §§1803.5, 1808.7, 41501, 42005, Pen. C. §1001.40, and Cal. Rules of Court, Rule 851, means that referral and completion of Traffic Violator School (TVS) not only requires dismissal of the charge and prevents that fact from appearing on the driver’s license record as often as every 18 months, but also allows dismissal of the charges more often than that, and prevents a conviction and the accompanying point count.
Although, the TVS dismissal will appear on the driver’s license record. In addition, if the defendant has attended TVS within the past 12 months, he or she must attend a longer 12-hour program.
Pen. C. §1001.40 authorizes counties to authorize courts in the county to refer traffic violators to licensed traffic violator schools authorized by the Vehicle Code (CVC §42005 is the Vehicle Code section which authorizes referral to traffic schools).
Note that CVC §42005 excludes from traffic school eligibility (for offenses committed on or after September 20, 2005) the following:
• Commercial license holders (even if they were driving a non-commercial vehicle at the time);
• Any person who was driving a commercial vehicle (even if they do not, and did not at the time, have a commercial license). A commercial vehicle is defined in CVC §15210(b)(1), and includes those vehicles that require a Class A or B license, or a Class C license with an endorsement issued pursuant to §15278.
The following are some examples of how the §42005 exclusion applies (according to DMV officials in Sacramento ):
• Example #1: Taxi driver who has a For Hire Endorsement of his Class C license is eligible for traffic school even though he got a citation while driving the cab (because he carries less than 10 people in his car; see CVC §15278(a)(2)).
• Example # 2: Taxi driver with a Commercial Driver’s License is ineligible for traffic school, even though he got cited while driving his kids to school in the family van.
• Example # 3: Truck driver with a special endorsement on her Class C license is ineligible for traffic school because she got cited while driving a 16-passenger, airport bus. See CVC §15278(a)(2).
Pursuant to §42005, Cal. Rule of Court 851, was adopted by the Judicial Council to establish uniform statewide criteria for pretrial diversion into traffic violator school. It now reads as follows:
Rule 851. Procedures and eligibility criteria for attending traffic violator school.
(a) [Purpose.] The purpose of this rule is to establish uniform statewide procedures and criteria for eligibility to attend traffic violator school.
(b) [Authority of a court clerk to grant pretrial diversion.]
(1) (Eligible offenses) Except as provided in subdivision (2), a court clerk is authorized to grant a request to attend traffic violator school when a defendant with a valid driver’s license requests to attend an 8-hour traffic violator school as pretrial diversion under Vehicle Code sections 41501(b) and 42005 for any infraction under divisions 11 and 12 (rules of the road and equipment violations) of the Vehicle Code if the violation is reportable to the Department of Motor Vehicles.
(2) (Ineligible offenses) A court clerk is not authorized to grant a request to attend traffic violator school for a misdemeanor or any of the following infractions:
(A) A violation that carries a negligent operator point count of more than one point under Vehicle Code section 12810 or more than one and one-half points under Vehicle Code section 12810.5(b)(2);
(B) A violation that occurs within 18 months after the date of a previous violation and the defendant either attended or elected to attend a traffic violator school for the previous violation (Veh. Code, §1808.7);
(C) A violation of Vehicle Code section 22406.5 (tank vehicles);
(D) A violation related to alcohol use or possession or drug use or possession;
(E) A violation on which the defendant failed to appear under Vehicle Code section 40508(a) unless the failure-to-appear charge has been adjudicated and any fine imposed has been paid;
(F) A violation on which the defendant has failed to appear under Penal Code section 1214.1 unless the civil monetary assessment has been paid;
(G) A speeding violation in which the speed alleged is more than 25 miles over a speed limit as set forth in Chapter 7 (commencing with section 22348) of Division 11 of the Vehicle Code;
(H) A violation that occurs in a commercial vehicle as defined in Vehicle Code section 15210(b); and
(I) A violation by a defendant having a class A, class B, or commercial class C driver’s license.
(c) [Judicial discretion.]
(1) A judicial officer may in his or her discretion order attendance at a traffic violator school in an individual case for diversion under Vehicle Code section 41501(a), 41501(b), or 42005; sentencing; or any other purpose permitted by law. A violation by a defendant having a class A, class B, or commercial class C driver’s license or that occurs in a commercial vehicle, as defined in Vehicle Code section 15210(b), is not eligible for diversion pursuant to Vehicle Code sections 41501 or 42005.
(2) If a violation occurs within 18 months of a previous violation, a judicial officer may order a continuance and dismissal in consideration for completion of a licensed program as specified in Vehicle Code section 41501(a). The program must consist of at least 12 hours of instruction as specified in section 41501(a). Pursuant to Vehicle Code section 1808.7, a dismissal for completion of the 12-hour program under this subdivision is not confidential.
Many judges are hostile to the idea of traffic violator schools, or they improperly use them as a carrot to coerce guilty pleas. Judges using the school referral to induce guilty pleas will sometimes state on the record that Traffic Violator School is not available if the defendant pleads not guilty and asserts his constitutional right to a trial. However, People v. Schindler (1993) 20 Cal.App.4th 431, holds that traffic school may not be denied for the mere assertion of the constitutional right to plead not guilty and demand a trial. The opening paragraph of the “DISCUSSION” section of Schindler says:
…the court may not arbitrarily refuse to entertain a request for traffic school merely because a defendant elects to plead not guilty (People v. Wozniak (1987) 187 Cal.App.3d Supp. 43; People v. Enochs (1976) 62 Cal.App.3d Supp. 42)….
Thus, it’s clear that Traffic Violator School is available without regard to whether or not the defendant pleads guilty or not guilty.
But that’s not the end of the matter. Schindler went on to hold that if traffic school is denied after a trial, the court need not state reasons why. So if you plan to ask for the school after trial, if found guilty, try to find out prior to the trial what the Court’s guidelines are for granting traffic violator school (get it on the record, if possible).
For more information:
Chapter K, “Miscellaneous,” in Abstract Reporting Manual (ARM), 1998 ed. (Sacramento, CA: DMV).
Title 13, Cal. C. of Regs., Article 4.7—Schools for Traffic Violators, §§345.02 et seq.
www.onlinetraffic.com—Traffic school via the Internet, approved by Los Angeles County courts.
CVC §11216.2— Traffic Violator School license can be suspended for 30 days for violation of Federal Americans With Disabilities Act (A.D.A.—42 U.S.C. §§12101 et seq.).