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Old 09-11-2020, 08:09 PM   #16
tgrrdr
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someone correct me if I'm wrong but I assume the officer will need to articulate in court why your driving was unsafe and the judge commissioner will need to agree with him.

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Old 09-11-2020, 08:09 PM   #17
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Old 09-11-2020, 08:37 PM   #18
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someone correct me if I'm wrong but I assume the officer will need to articulate in court why your driving was unsafe and the judge will need to agree with him.
Correct. The type of citation the OP got has held up in court but the officer will have to explain traffic conditions, roadway geometry, other factors not readily apparent, etc in order to satisfy the commissioner.
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Old 09-11-2020, 08:52 PM   #19
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Correct. The type of citation the OP got has held up in court but the officer will have to explain traffic conditions, roadway geometry, other factors not readily apparent, etc in order to satisfy the commissioner.
Thanks for your input. It was a straight section of road, no traffic, no pedestrians, broad daylight, vehicle in good operating condition, within 2 miles of home so high degree of familiarity with road, driver with no prior accidents...what other factors would be relevant? How relevant is the type of food that was being eaten?
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Old 09-11-2020, 09:11 PM   #20
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Thanks for your input. It was a straight section of road, no traffic, no pedestrians, broad daylight, vehicle in good operating condition, within 2 miles of home so high degree of familiarity with road, driver with no prior accidents...what other factors would be relevant? How relevant is the type of food that was being eaten?
Your familiarity with the road or proximity to home is irrelevant, but the other things you noted will be. If the type of food you were eating required the use of both hands that might be a relevant factor but otherwise not so much.
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Old 09-11-2020, 09:30 PM   #21
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Your familiarity with the road or proximity to home is irrelevant, but the other things you noted will be. If the type of food you were eating required the use of both hands that might be a relevant factor but otherwise not so much.
Do you consider 22350 to be an appropriate for the circumstances, as described? If not, what other VC would you consider to be a better fit?
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Old 09-11-2020, 09:44 PM   #22
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Do you consider 22350 to be an appropriate for the circumstances, as described? If not, what other VC would you consider to be a better fit?
The officer may have observed something that you are unaware of, which could be why he issued the cite. Iíve written 22350 when the safe speed would have been zero but I canít really speculate on what other CVCís would be appropriate since I wasnít there.
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Old 09-12-2020, 07:11 AM   #23
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Do you consider 22350 to be an appropriate for the circumstances, as described? If not, what other VC would you consider to be a better fit?
From what you've written, the officer believed he was stopping you for a cell phone violation. When he realized that didn't apply, sounds like 22350 CVC might be all he had. Also from what you described, there is a good chance that the officer will not be able to convince a commissioner that the elements of basic speed law were met. The citation notes you were going the speed limit and you describe ideal driving conditions.

While none of us know what the officer observed and what he might testify to, I think you have a pretty good shot at getting a not guilty verdict on this one.

You can also request discovery ahead of time from the police department. This would include any notes the officer made regarding the citation and any video, if they have that. If dash cam video showed the driving conditions you are describing, that should work in your favor.
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Old 09-12-2020, 07:16 AM   #24
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Also, we have this format in here...

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Originally Posted by Brash47 View Post
DISCLAIMER: none of this will be used for court purposes. We are here to help, not get your info and screw you. I expect all the LEO's here to adhere to this disclaimer please.

From now on, and we should have addressed this early on, I would like folks who have questions about tickets to provide minimally the following information.

1. section you were cited for
2. city where you were cited
3. your vehicle info (not required, but helps alot)
4. what the OFFICER TOLD YOU
5. what you TOLD THE OFFICER
6. a brief description of the location (ie...lights, what type of intersection, what type of street, etc.....)

When we have this information it greatly helps us understand the circumstances surrounding your ticket and ways we might help you with it.

brash
But no worries, you posts were fine.
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Old 09-12-2020, 07:52 AM   #25
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From what you've written, the officer believed he was stopping you for a cell phone violation. When he realized that didn't apply, sounds like 22350 CVC might be all he had. Also from what you described, there is a good chance that the officer will not be able to convince a commissioner that the elements of basic speed law were met. The citation notes you were going the speed limit and you describe ideal driving conditions.

While none of us know what the officer observed and what he might testify to, I think yiu have a pretty good shot at getting a not guilty verdict on this one.

You can also request discovery ahead of time from the police department. This would include any notes the officer made regarding the citation and any video, if they have that. If dash cam video showed the driving conditions you are describing, that should work in your favor.
Thanks Dave. I wasn't aware of the ability to request discovery. That would really help me understand the officer's perspective in advance which could help in preparing my defense. The officer was CHP and I didn't specifically observe a body cam and there wasn't the usual audible body cam reminders at any point but will find out during discovery. Same with dash cam.

If the officer's view was limited enough that he mistook food for a cellphone, would that help my defense in that it could demonstrate that he didn't have a clear visual? Or would it be a moot point since I did in fact admit to taking a bite of food when I was trying to clear up the misunderstanding about the cellphone?

The court's website says I can opt for Trial by Written Declaration and if I don't like the TBWD verdict, then I can request a regular trial. This seems like it'd give me two possible chances. Are they any downsides to using the TBWD before a regular court appearance? Can I still request discovery before TBWD?
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Old 09-12-2020, 08:00 AM   #26
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Yeah, you can still request discovery. With a TBWD, you have to pay the fine up front, but if the judge/commissioner finds in you favor, you get refunded.

Some good info regarding TBWD. https://www.courts.ca.gov/34713.htm?rdeLocaleAttr=en
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Old 09-12-2020, 08:24 AM   #27
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Yeah, you can still request discovery. With a TBWD, you have to pay the fine up front, but if the judge/commissioner finds in you favor, you get refunded.

Some good info regarding TBWD. https://www.courts.ca.gov/34713.htm?rdeLocaleAttr=en
Thank you again, much appreciated.
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Old 09-22-2020, 02:12 PM   #28
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What's the going rate for that kind of representation?
Usually costs me between $250-600 depending upon whether they have to go to court.

As standard procedure, attourney will file continuance to put off case for as long as possible to prepare. One of discovery info is officer's vacation times. Rescheduling appearance in middle of vacation is typical tactic.

Even if you are doing TBWD, you should still hire attourney to help you prepare it. Increases chances much, much more.

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Old 10-07-2020, 08:50 PM   #29
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Has always seemed like TBWC was a pretty low probability of success.

If you end up going the route of the court appearance, make sure you don't waive your right to a speedy trial. When I got a ticket last, they assign you a hearing date at the first visit. EVERY SINGLE PERSON before me waived their right to a speedy trial even though the next available court date was more than 30 days out. When asked I explicitly refused to waive my right to a speedy trial, was assigned a court date 35 days away... ticket subsequently thrown out.
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Old 10-07-2020, 09:15 PM   #30
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Has always seemed like TBWC was a pretty low probability of success.

If you end up going the route of the court appearance, make sure you don't waive your right to a speedy trial. When I got a ticket last, they assign you a hearing date at the first visit. EVERY SINGLE PERSON before me waived their right to a speedy trial even though the next available court date was more than 30 days out. When asked I explicitly refused to waive my right to a speedy trial, was assigned a court date 35 days away... ticket subsequently thrown out.
Hmmm, doesn't exactly sound right.

Unless you were in custody, it would be within 45 days, not 30.

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1382 PC
(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases:

(1) When a person has been held to answer for a public offense and an information is not filed against that person within 15 days.

(2) In a felony case, when a defendant is not brought to trial within 60 days of the defendantís arraignment on an indictment or information, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after the mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court, or after the issuance of a writ or order which, in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney, or within 90 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney in any case where the district attorney chooses to resubmit the case for a preliminary examination after an appeal or the issuance of a writ reversing a judgment of conviction upon a plea of guilty prior to a preliminary hearing. However, an action shall not be dismissed under this paragraph if either of the following circumstances exists:

(A) The defendant enters a general waiver of the 60-day trial requirement. A general waiver of the 60-day trial requirement entitles the superior court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. If the defendant, after proper notice to all parties, later withdraws, in open court, his or her waiver in the superior court, the defendant shall be brought to trial within 60 days of the date of that withdrawal. Upon the withdrawal of a general time waiver in open court, a trial date shall be set and all parties shall be properly notified of that date. If a general time waiver is not expressly entered, subparagraph (B) shall apply.

(B) The defendant requests or consents to the setting of a trial date beyond the 60-day period. In the absence of an express general time waiver from the defendant, or upon the withdrawal of a general time waiver, the court shall set a trial date. Whenever a case is set for trial beyond the 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.

Whenever a case is set for trial after a defendant enters either a general waiver as to the 60-day trial requirement or requests or consents, expressed or implied, to the setting of a trial date beyond the 60-day period pursuant to this paragraph, the court may not grant a motion of the defendant to vacate the date set for trial and to set an earlier trial date unless all parties are properly noticed and the court finds good cause for granting that motion.

(3) Regardless of when the complaint is filed, when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, whichever occurs later, or in all other cases, within 45 days after the defendantís arraignment or entry of the plea, whichever occurs later, or in case the cause is to be tried again following a mistrial, an order granting a new trial from which no appeal is taken, or an appeal from a judgment in a misdemeanor or infraction case, within 30 days after the mistrial has been declared, after entry of the order granting the new trial, or after the remittitur is filed in the trial court, or within 30 days after the date of the reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367). However, an action shall not be dismissed under this subdivision if any of the following circumstances exists:

(A) The defendant enters a general waiver of the 30-day or 45-day trial requirement. A general waiver of the 30-day or 45-day trial requirement entitles the court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. If the defendant, after proper notice to all parties, later withdraws, in open court, his or her waiver in the superior court, the defendant shall be brought to trial within 30 days of the date of that withdrawal. Upon the withdrawal of a general time waiver in open court, a trial date shall be set and all parties shall be properly notified of that date. If a general time waiver is not expressly entered, subparagraph (B) shall apply.

(B) The defendant requests or consents to the setting of a trial date beyond the 30-day or 45-day period. In the absence of an express general time waiver from the defendant, or upon the withdrawal of a general time waiver the court shall set a trial date. Whenever a case is set for trial beyond the 30-day or 45-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.

(C) The defendant in a misdemeanor case has been ordered to appear on a case set for hearing prior to trial, but the defendant fails to appear on that date and a bench warrant is issued, or the case is not tried on the date set for trial because of the defendantís neglect or failure to appear, in which case the defendant shall be deemed to have been arraigned within the meaning of this subdivision on the date of his or her subsequent arraignment on a bench warrant or his or her submission to the court.

(b) Whenever a defendant has been ordered to appear in superior court on a felony case set for trial or set for a hearing prior to trial after being held to answer, if the defendant fails to appear on that date and a bench warrant is issued, the defendant shall be brought to trial within 60 days after the defendant next appears in the superior court unless a trial date previously had been set which is beyond that 60-day period.

(c) If the defendant is not represented by counsel, the defendant shall not be deemed under this section to have consented to the date for the defendantís trial unless the court has explained to the defendant his or her rights under this section and the effect of his or her consent.
https://leginfo.legislature.ca.gov/f...ectionNum=1382.
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