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MC 10 - Ch 3 Your Rights

Your RIGHT(s)SummaryDescriptionLaw
Right # 1Remain SilentYou still have to response to the Officer, but you don't have to admit anything.
Just say, "I was driving safely."
Fifth Amendment
Right # 2Speedy TrialAfter you have entered your plea, you must be tried within forty-five (45) days. However, if you have been granted a Continuance or have previously submited a written plea, your right for a speedy trial(a.k.a. waive time) is wavied.
You may enter your plea in Trial By Written Declaration, or at an arraignment.
Sixth Amendment
Right # 3Informal Discovery Request (IDR)Through the Informal DiscoveryRequest,
you may request for Officer's evidence which will be used to proof you guilty.
Sixth Amendment

California Penal Code Section 1054.5(b)

California Penal Code Section 19.7

Right # 4Cross-examine Any WitnessesYou as the Defendant may cross-examine any witnesses.
In this case, the witness is usually the Officer(s).
Sixth Amendment

California Evidence Code Section 1291 (a)(2)

Right # 5Attend Traffic SchoolFor the first and second ticket within the past eighteen (18) months,
you may request to attend traffic school.
However, you waive this right if you contest your ticket.
California Vehicle Code Section 1803.5

California Vehicle Code Section 1808.7

Differences between traffic school Level One and Level Two

Right # 6Request for County SeatYou must request it two times:
The first time when the Officer issue you a ticket.
The second time is during Arraignment.
California Vehicle Code Section 40502(b)
Right # 7Request for ContinuanceRequest for Continuance means that you are requesting
the courthouse to extend your ticket due date.
For most cases, the clerk will extend your due date for one more month.
You may try to request Continuance more than once, but you may be asked
to write to the Judge, and you need a good reason for this request.
When you request for Continuance, you waived the right for a speedy trial.
California Vehicle Code Section 40506.5
Right # 8Trial By Written Declaration (TBWD)Fight or contest your ticket by writings of letter.
California Vehicle Code Section 40902 (a)(1)
Right # 9Trial de Novo (a.k.a. New Trial)If you were to be found guilty at your Trial By Written Declaration,
you may request for a new trial or trial de novo, and you will have to present at the courthouse
in person.
California Vehicle Code Section 40902 (d)
Right # 10AppealSay, you were found guilty at the Trial de Novo, or any trial,
if there were any procedural errors or reasons (a.k.a. grounds), you may appeal at
the Appeal Court.
This is a complicated matter, you will have to consult an attorney for this.
Or, ask for help at our forum.
N/A
Right # 11Bail RefundIf you win at the trial, the court has to refund
your bail payment within sixty (60) work days.
They will refund your money for sure, but the timing is not gurrantee.
N/A
Right # 12Disqualifying a JudgeThere are three ways to disqualify or challenge a Judge:
  • Peremptory Challenge - You may disqualify a Judge by filing a Peremptory Challenge based on one or more of the following reasons without any proof:
    • You heard from someone (or based on your observation at the trial) that the Judge is unfair, biased, ...etc about any cases
    • You heard from someone (or based on your observation at the trial) that the Judge has prejudice against you, or your case

    Every Defendant in California has one chance per trial to file this. The most important thing here is the timing. If you miss just one day, your request will be denied.

    TIMEWISE - In general, there are three timings:
    • File within ten (10) days from the issue date of a slip, notice, or phone call that a Judge (with name printed or informed) has been assigned for your trial "for all purposes".
    • File at least five (5) days before the trial date if the term "for all purposes" is NOT shown anyway on your slip, notice, or phone call. And, the Judge (with name printed), and the Department Number has been assigned for your trial.
    • File verbally or with a form immediately before the trial begin. Usually, it has to be requested before anyone sworn in, before any witnesses have been called, or before a testimony is given. Anyway, do it ASAP!!!


  • Challenge for Cause - For this challenge, you have to proof or show that the Judge is of one or more of the following:
    • biased, unfair, or etc about any cases
    • prejudice against particular case
    You may repectedly file this challenge.


    TIMEWISE - You may file this at the last minute.


  • Pro Tem Judge - A Pro Tem Judge is an attorney to fill-in for the day.

    TIMEWISE - You may immediately refuse a Pro Tem Judge from hearing your case by not signing the waiver form that is being passed along, or if you have already done so, withdraw your waiver form. By doing this, you will not lose your chance for Peremptory Challenge.

    If a Pro Tem Judge is assigned for trials at a particular court room, a notice should be verbally announced, or/and displayed right outside the court room notice board as follow:
    An example from the Santa Clara Courthouse:
    
    NOTICE
     
    All matters conducted in this court room today will be heard by a temporary Judge who is a
    qualified member of the state bar of California.
     
    You have the right to have your matter heard of a duly elected or appointed Judge or
    Commissioner of the court. If you object to having your matter heard by a temporary Judge,
    notify the clerk or bailift immediately.
    
Still not understand ?
Plesae refer to highwayrobbery.net (link at the right) which has done a great job to explain in details.
highwayrobbery.net - Challenging (Disqualifying) the Judge

California Code Of Civil Procedure Section 116.240

California Code Of Civil Procedure Section 170.3(c)

California Code Of Civil Procedure Section 170.6



PossibilitiesSummaryDescriptionLaw
Possibility # 1Request for traffic school for more than once within the past eighteen (18) months.At your arraignment, after your plea (usually say "Traffic School!" instead of "GUILTY"), you may request the Judge to attend traffic school for more than once, twice, or more within the past eighteen (18) months. You may also write to the Judge, and request for it. But, the best way is at an arraignment.N/A
Possibility # 2Request for traffic school other than at an arraignmentYou may request for traffic school at one or all of the followings:
  • In your Trial by Written Declaration (TBWD), include a paragraph in your TBWD that if you are to find guilty, please allow you to take Traffic School Level One, or Level Two.
  • At your Trial de Novo (TDN), at the beginning of TDN, if the Officer shows up, ask the Judge if you can have Traffic School Level One (or, Level Two).
  • You may combine this with Possibility # 1 above.
N/A
Possibility # 3Request for fine reductionYou may request for fine reduction at one or all of the followings:
  • At your arraignment, after entering your pleading of "Traffic School" or "Guilty", you may request the Judge to lower the fine.
  • In your Trial by Written Declaration (TBWD), include a paragraph in your TBWD that if you are to find guilty, please reduce the fine.
  • At your Trial de Novo (TDN), at the end of TDN, if you are to find guilty, ask if you can have your fine reduced.
N/A
Possibility # 4Request for County Seat other than when you were cited, or at an arraignmentEven if you did not request for County Seat at the time you signed your ticket, you may still request for it.
The Judge may deny your request, but it does not hurt to request. Just don't lie that you did request for it when you signed the ticket.
You must do all of the followings:
  • In your Trial by Written Declaration (TBWD), request for it.
  • And, at your Trial de Novo (TDN), at the beginning of TDN, if the Officer shows up, ask the Judge if you can have your trial to be held at the County Seat, and mention that you had requested for it in your TBWD.
N/A