Sacramento:
Some members who have received red-light camera tickets in Sacramento have notified the Ticket Assassin that the Sacramento court sent them a special notice. The notice claimed that, in order to submit a trial by written declaration, they were first required to sign a document, “Red Light Camera Statement Regarding Identification” which reads:
“I am not contesting the allegation that I was the driver of the vehicle pictured in the automated enforcement photograph.”
San Mateo:
Members who received red-light camera tickets in San Mateo got a similar notice, saying,
“If you were NOT driving the vehicle at the time of the violation: Select one:
a. Identity Driver in Affidavit of Non-Liability
b. If you deny that you are the driver depicted in the citation, and cannot or will not reveal the identity of the driver, you must come in person to the court by the response date and request an arraignment date and sign a Promise to Appear, or post full bail and set a trial date.
Los Angeles:
Some members who have received red-light camera tickets in Los Angeles have notified the Ticket Assassin that the Los Angeles court sent them a notice starting with:
Your correspondence dated [date] was submitted for judicial consideration. The following decision was made.
This is followed by several checkboxes, the last one of which is checked:
Other: The Judge has scheduled your citation for Arraignment on [date] at [time] in Dept 001. The Judge will be comparing your original drivers license to the original photo in the Court’s computer.
San Francisco:
Some members have been told by judges that since there is a sign posted as you drive into the city that warns motorists of automated enforcement (red light cameras) throughout the city, and that because of this,the city need not comply with the signage requirements of 21455.5. (a) (1):
(1) Identifies the system by signs posted within 200 feet of an intersection where a system is operating that clearly indicate the system’s presence and are visible to traffic approaching from all directions in which the automated traffic enforcement system is being utilized to issue citations.
This is a wonderful example of a court adopting a local rule or policy in contravention of state law (keep reading). Be armed with the following information if you are going into court to argue in San Francisco that your ticket had improper signage.
But here’s the real deal:
California Vehicle Code 40902 is the law giving all citizens the right to challenge their California traffic tickets via trial by written declaration.
40902 is quite clear. Nowhere in this code is any mention that a defendant must give up their right to a trial by written declaration if they want to use the identity defense (or any other particular defense) against a CVC 21453 violation. Your right to a trial by written declaration is not dependent nor conditional upon you self-incriminating in such a manner.
Obviously, such a proposition is absurd. What would be next? Perhaps the Court could require a defendant against a speeding violation who wants a trial by written declaration, to first sign a form declaring that they were speeding before the court deigns to send them their TR-205 form in the mail.
These three (and possibly more) courts are not following state law by making these requirements. As a defendant of a CVC 21453 violation, you are absolutely entitled to submit a Trial by Written Declaration under section 40902 of the vehicle code. There’s no requirement in section 40902 that you admit to anything in order to be allowed to submit a Trial by Written Declaration (just like there is no requirement under 40902 that you rat out the person who was driving your car, if it was your car but not you behind the wheel – though most courts will imply that you have to tell them). You are absolutely entitled to a Trial by Written Declaration for a 21453 red-light violation citation and you are allowed to make any defense you want. This has been the law in California since the sixties.
The bottom line is that these courts have adopted a local rule in contravention of state law. That is seriously NOT ALLOWED. This has already been decided under Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1352: “Local courts may not create their own rules of evidence and procedure in conflict with statewide statutes.” and Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 982 “Local court policies and procedures, as well as local court rules, ‘are only valid to the extent they do not conflict with existing law.”
Even though they are not allowed to do this, doing it they are, and they will continue to do so until someone appeals. Until that day comes, you, as the defendant, have two choices as I see it on how you can use the identity defense against a camera ticket from the Sacramento or San Mateo court:
1. Go to court on your court date, plead not guilty in person and say it is not you in the photo.
2. Go to court and demand that they accept your trial by written declaration.
I don’t like the first one, even though it’s the easiest one. I don’t like it because if you even vaguely resemble the driver in the photograph, you’re screwed.
I like the second one much better, even though it is hard. It is hard because you’re basically going to be looking the judge in the face and telling him or her that they are breaking the law. I can’t even promise you that you are more likely to win. (And if you do it disrespectfully then you risk contempt of court – which means the judge could fine you and/or throw you in jail for a few hours. But #2 might work, and I feel that it is the right thing to do, regardless. If it were my ticket, I absolutely would go with the second option.
If you go with the second option, do it respectfully. Here’s how you do it:
Print out the following. You should commit it to memory as best you can. Look up any words you don’t understand. Practice it in front of a mirror. You can read it in court, but the more you have memorized, the better you will sound. The better you sound, the better your chances.
Remember to talk SLOWLY and CLEARLY. It is NOT a race. Your goal is to be heard and understood. Bonus points if you never even look at your notes.
When you’re ready, record yourself reciting your statement. Even if you just have an audio recording, you’ll hear where you have to improve.
Your honor, I submitted a trial by written declaration on [date]. On [date], the declaration was returned to me. The court said that I must fill out a form that says “I am not contesting the allegation that I was the driver of the vehicle pictured in the automated enforcement photograph.” over my signature. In other words, in order to submit a trial by written declaration, the court is demanding that I incriminate myself. If I am not willing to incriminate myself, the court says I am not allowed my right guaranteed under California Vehicle Code 40902 to submit a trial by written declaration.
You honor, California Vehicle Code 40902 is quite clear. Nowhere in this code is any mention that a defendant must give up their right to a trial by written declaration if they want to use any particular defense against a CVC 21453 violation. The right to a trial by written declaration is not dependent nor conditional upon a defendant self-incriminating.
Your honor, such a proposition is an absurd violation of due process. What would be next? Perhaps the Court could require a defendant against a CVC 22349 speeding violation who wants a trial by written declaration to sign a form declaring that they were, in fact, exceeding the speed limit before the court deigns to send them their TR205 form in the mail?
Your honor, even when acting pursuant to its inherent authority, the court cannot proceed in a manner inconsistent with statute. Elkins v. Superior Court in 2007 said “local courts may not create their own rules of evidence and procedure in conflict with statewide statutes.”. Alvarez v. Superior Court in 2010 said “Local court policies and procedures, as well as local court rules, ‘are only valid to the extent they do not conflict with existing law.”
Your honor, the state laws on trials by written declaration are clear and unambiguous. The court is not allowed to adopt a local rule or policy that contravenes state law. I have the right to a trial by written declaration under state law. State law says I am allowed to use any defense I want in that trial by written declaration, including the defense that I was not the driver photographed in the citation. And state law allows me to do this without making an appearance.
Your honor, I ask that the court honors my right to submit a trial by written declaration. Further, I ask the court to honor state law by allowing me to use the defense of my choice in my declaration.
Once you have this well rehearsed, your next step is to go down to the court. Most courts will allow you to appear before your appearance date, so I would go down there as soon as possible.
Talk to a court clerk. Demand that the court clerk accept your trial by written declaration. She won’t, though, so your next step is demand to see a judge.
If they tell you to come back on your court date to see the judge, that is NO GOOD. Remember – YOU ARE NOT seeing the judge to adjudicate your ticket. You want to see the judge because the court is ignoring your right to submit a trial by written declaration TR-205.
You might not get anywhere, and the clerk STILL might make you come back on your trial date. Them’s the breaks.
When you are before the judge, recite what you have memorized. Have it in your hand, printed out, in case you stumble. That’s OK. You’re not a lawyer and nobody expects you to be eloquent.
The judge still might rule against you (if the rules were clear-cut, we wouldn’t need judges), but at least you will have solid ground to mount an appeal, based on denial of due process, which is just about the only reason appellate courts ever reverse a traffic court decision.
If you do this, please let me know. Contact me through the site.
Sources:
(See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1352 [“[L]ocal courts may not create their own rules of evidence and procedure in conflict with statewide statutes.”]; Alvarez v. Superior Court (2010) 183 Cal.App.4th 969, 982 [“Local court policies and procedures, as well as local court rules, ‘are only valid to the extent they do not conflict with existing law.’ [Citation.]”].)
This is 40902:
40902. (a) (1) The court , pursuant to this section, shall, by rule, provide that the defendant may elect to have a trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of this code or any local ordinance adopted pursuant to this code, other than an infraction cited pursuant to Article 2 (commencing with Section 23152) of Chapter 12 of Division 11.
(2) The Judicial Council may adopt rules and forms governing trials by declaration in accordance with this section. Any rule or form adopted by the Judicial Council pursuant to this paragraph shall supersede any local rule of a court adopted pursuant to paragraph (1).
(b) If the defendant elects to have a trial by written declaration, the defendant shall, at the time of submitting that declaration, submit bail in the amount established in the uniform traffic penalty schedule pursuant to Section 40310. If the defendant is found not guilty or if the charges are otherwise dismissed, the amount of the bail shall be promptly refunded to the defendant.
(c) Notwithstanding Division 10 (commencing with Section 1200) of the Evidence Code, the rules governing trials by written declaration may provide for testimony and other relevant evidence to be introduced in the form of a notice to appear issued pursuant to Section 40500, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant.
(d) If the defendant is dissatisfied with a decision of the court in a proceeding pursuant to this section, the defendant shall be granted a trial de novo.