Archive for January, 2011

Here we go again, short and sweet.

Every once and awhile we get a reminder that we also help with parking ticket dismissals in California.

This was sent in from a student, and she got her parking ticket dismissed using our system of letters.

Although this said it is a ‘one time warning’, we always take our victories anyway we can get them.

Ronald Cupp PhD

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Click on the link below to view her parking ticket dismissal

Kimberly parking ticket dismissed

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Daily TWiP – The first speeding ticket is issued today in 1899

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First Speeding Ticket!

“Slow down, buddy, what’s the rush?” Today (May 20th) in 1899, the first speeding ticket was issued to Jacob German, a cab driver for the Electric Vehicle Company in Manhattan. No surprises there, right?

What is surprising is how fast German was driving when he was pulled over by a bicycle patrolman by the name of Schueller. In order to be pulled over by a bicycle cop, you can’t be going very fast, at least not by modern standards. According to Schueller’s report, German was tearing down Lexington Avenue at the hair-raising speed of 12 miles per hour.

All things considered, we can understand how 12 miles per hour could be a dangerous speed. Automobiles had yet to become the dominant means of transportation and were sharing the roads with large numbers of horses, bicyclists, and pedestrians, most of whom had no concept of yielding to vehicular traffic.

Cars and other vehicles have since completely taken over the roadways and speed limits have increased, but one thing remains the same. If you try to drive 12 miles per hour down Manhattan’s Lexington Avenue today, you’ll still get a ticket. It’ll just be for obstructing traffic instead of speeding.

Daily TWiP appears Monday through Saturday courtesy of The Week in Preview. Read more of both at www.nashuatelegraph.com/columnists/weekinpreview.

- Teresa Santoski

First Speeding Ticket

I love finding history stuff like this, thanks Teresa for your informative article.

Ronald Cupp PhD

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ps:

We always love to hear about your victories and overcoming your problems in the process, and want you to share for the benefit of others.

We always protect your privacy or rights so we block out part of your phone number or email.

Please share this with friend or loved ones who need help and please comment on the blog or youtube channel!

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September 8, 2010 Traffic Court appearance. On my second appearance, I waited till my turn, my name and case was called, then I approached the ‘Bar’, and said

“Excuse me Commissioner; I have a couple of motions to file.” As I spoke I raised my motions up and handed them to the bailiff to give to the commissioner, and then I continued on

Applied Cop Wisdom

“On my last appearance I demurred to the complaint. I am filing a motion for dismissal on procedural error as my demur was not heard or answered as it was presented in open court, also I am filing a motion for dismissal on procedural error as the reason for the extension of time to answer the demur was not placed in the court minutes (if there was one ‘in the interest of justice’). Per Penal codes 1002-1006 are very clear and are part of my demur.

I am also filing a motion for dismissal for non prosecution by the State. I requested discovery from the DA and have received none. I have not received any charging instrument by the People or from the People of the State of California. I asked you if my charges were civil or criminal, and you stated criminal. Per government code 100 and penal code 684, if the charges are of a criminal nature, I am supposed to be prosecuted by the DA and by the People of the State of Ca.

I am also filing a motion for dismissal for violation of my speedy trial rights. I was arraigned on June 22, 2010 by Commissioner Hochmann. In People v Charrtuck, the Ca Supreme court decided that arraignment was when I was read my charges and asked how I plea. The actual plea is an entirely separate act. If you look at my court minutes from my first appearance, it clearly shows that I was arraigned on that day-June 22.  August 5th would by my 45 day speedy trial deadline.

My request for a Verified Complaint was denied by Commissioner Hochmann as he stated that the NTA was ‘Verified’, and that I did not show that the NTA was defective. When I appeared before you, I stated that my Due Process Rights entitled me to the presumption of innocence. The State must show the NTA was proper. I have challenged it as improper and the proper charging instrument, and I challenge the ‘Verification’ by the officer as proper.  And as such, I also challenge it as I have not been shown that it was filed timely to a Magistrate, who read it and indorsed it, that I be held to answer. Per Penal Codes 853.9, 853.6 or 815a. (if we follow PC 853.9, then you must follow PC 738, 739, 740, 872 & 1382)

I am filing a motion for dismissal as the proceedings were prejudicial to me and my due process rights. Prejudice because Commissioner Hochmann stated he would deny my written motion for a Verified Complaint before he even received it into evidence or read it. If prejudice, it is my understanding that you are to stop these proceedings and have a hearing BEFORE you proceed with this hearing.

I still have not plead nor am I under contract or jurisdiction with this court. Until you properly file the charges, follow your own Penal Codes or letter of the law, you do not have subject matter jurisdiction or jurisdiction over me in this proceeding.

If you continue, I request a Probable Cause Hearing.”

These were my notes to ask:  IF THE COPS SHOW UP AND TRIAL:

Have you seen me? How many tickets did you write that day before mine? How many after? What did you do with them? What is your normal procedure? When did you file it with the court? Do you have the stamped filed copy to show when it was done? did it meet the time frame of PC872 & PC1382? When did you submit it to the Magistrate,  who did the verification, and was it filed and indorsed my the Magistrate?

Note to myself: Look at the original NTA, is it changed or marked up in any way (PC 853.6), especially look at the back for notes or changes.

Ronald Cupp PhD

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How to do an Appeal of your Infraction case. When you are in traffic court, it is about the facts. When you appeal your traffic court loss, it is about the law! Don’t forget that.

You lost your traffic ticket case in court, you were railroaded, the Commissioner did not listen, the court did not follow its own rules of court,  penal  or vehicle codes. They held you to the letter of the law but then broad jumped over all their own rules and procedures.  It was not fair.

Fight & Beat any traffic or speeding ticket in California

So what can you do now? You can appeal; an appeal is a request to a higher court to review a ruling or decision made by a lower court. If you are appealing, you are called the ‘appellant’. In an infraction case, the court hearing the appeal is the appellate division of the superior court, and the lower court-called the ‘trial court’ is the superior court. This means that we can get 3 separate Judges to overlook any procedural error the trial court made against you, if you (or they) were prejudiced against you.

It is not a new trial, you cannot introduce any new evidence or testimony now for this hearing, (that is why we instruct you to always get your information, questions, objections, requests for dismissal, etc, everything in the record, during your regular court hearings). If you did, then we can show the trial court erred and it is our job now to show where.

So it’s a lot of stuff, but easy to do. Let’s bullet point the steps. Only 9 items to do to win.

  1. Decide if you are going to appeal. This is to the Appellate Division of your same superior court.
    1. If so, send notice of appeal within 30 days after trial court renders judgment.
    2. Ask for stay so you do not have to pay fine or complete punishment until appeal is done.
  2. Decide if you want record of Oral proceedings.
    1. Decide Statement on appeal or Electronic Recording (if available)(Court reporter too expensive).
    2. You must serve & file proposed statement within 20 days after you file notice of appeal.
    3. State has 10 days to review and make modifications
    4. Trial judge then review both proposed statements. Judge can make modifications.
    5. You review judge’s modifications and then you can modify again within 10 days.
    6. Trial judge certifies Oral proceedings (settled statement) for Appellate Division.
  3. Court clerk sends statement & transcript to appellate division with other documents & exhibits.
  4. Appellate Division will notify you of when you must serve & file ‘appellant brief’.
  5. Respondent (State) must serve & file ‘respondent brief’ within 30 days.
  6. If respondent file a brief, you will have 20 days to serve & file ‘reply brief’.
  7. Appellant Division will notify you of date for Oral arguments.
  8. After Oral arguments, Appellant division has 90 days to decide appeal.
  9. If you lose appeal, you can do the same thing to the APPELLATE COURT, a new higher court!

Again the cast of characters are (4),

a.       you/defendant/appellant

b.      plaintiff/respondent/People of the state represented by DA or City Attorney (even if they were not at your trial).

c.       The lower court/trial court which you are appealing

d.      The higher court/Appellate Division of the Superior Court

Some say the post office is the 5th party as it can all be done by mail (except settled statement).

Staying on point will help you establish credibility with the Judges. Stating the facts honestly will help when you lay out your case. Keep emotion and storytelling out. This is what you did, this is what the trial court did, this is how they harmed you.  Page and paragraph is proof of what you are saying.

THE KEY: When the facts are on your side, argue the facts. When the facts are against you, argue the law. We have found that if you are arguing the facts (it is the cop’s word against yours) you normally lose. That is why we use the legal system against itself; they make mistakes all the time! Arguing the law will involve either paperwork or procedure. A mistake in either can be fatal to the prosecution’s case against you. Again, it is your job to get everything in the record.

Also, I highly recommend spending a couple of hours in Appeals court to see what happens and how things are run. I have done this several times and it was not as formal as I thought it would be. But be prepared for formal and follow their rules so they cannot find against you on technicalities.

Appeals are slightly different for Misdemeanors than they are for Infractions, so we are focusing on the infractions as that is what most ‘traffic tickets’ are. If you have a misdemeanor case, they  will be slightly different procedures on the same links we are providing. (see form CR-131-info)

We start with the basics, the court supplied information packet.

http://www.courtinfo.ca.gov/forms/documents/cr141info.pdf

The appellate division’s job is to review the record of what happened in the trial court and the trial court’s decision to see if certain kinds of legal errors were made in the case:

1.       Prejudicial error: if an error was made about law or court procedures, and it caused you substantial harm, it is prejudicial error. (errors made by the judge). When Appeals Division conducts its review, it presumes that the judgment, order, or other decision was correct. It is our job to show an error and that it was harmful to us.

2.       No Substantial Evidence: You may also ask them to rule there was not substantial evidence supporting the judgment, order, or decision.

The appellant division generally will not overturn the judgment, order, or decision being appealed unless the record clearly shows that one of these legal errors was made.

You DON’T need a lawyer to appeal.

Everything we learned or we show you we got off www.courtinfo.ca.gov, and we link to the specific item when we think you need direction.  Feel free to scan and review what you need to learn.

Who can appeal?

Only a party in the trial court case can appeal a decision in that case. You are called the Appellant. The other party (the People of the State of California) is called the Respondent.

Can I appeal any decision the trial court made?

NO, you may appeal only a final judgment of the trial court-the decision at the end that decides the whole case. Other rulings made by the trial court before final judgment cannot be separately appealed, but can be reviewed only later as part of an appeal of the final judgment.

How do I start my appeal?

First, you must file a notice of appeal. The notice of appeal tells the trial court that you are appealing the trial court’s decision. Use http://www.courtinfo.ca.gov/forms/documents/cr142.pdf

Is there a deadline for filing my notice of appeal?

YES. You must file your notice of appeal within 30 DAYS after the trial court renders its judgment. This deadline cannot be extended. If you are late, you cannot appeal.

How do I file my notice of appeal?

You must bring or mail the original notice of appeal to the clerk of the trial court, it’s a good idea to bring or mail an extra copy and ask the clerk to stamp it to show that the original has been filed. After you file your notice of appeal, the clerk will send a copy of your notice to the office of the prosecuting attorney (DA, county counsel, city attorney, or state Attorney General).

Do I still have to pay my fine or complete other parts of my punishment?

Filing a notice of appeal does NOT postpone  your  fine or sentence. You must first ask the trial court for a ‘stay’ of the judgment. Even if you ask the Appellate Division for a stay, you must show you asked the trial court for a stay first.

What else do I need to do when I file my notice of appeal?

You must tell the trial court whether you want a record of what was said in the trial court (called a record of ‘oral proceedings’) sent to the appellate division, and, if so, what form of record you want to use. In the form  http://www.courtinfo.ca.gov/forms/documents/cr142.pdf it includes boxes to check whether and how you want to provide this record.

You do not have to send the appellate division a record, but if you want to raise any issue that would require them understanding what was ‘said’, you will need a record of these proceedings.  If the appellate division does not receive the record, it will not be able to consider what was said in the trial court in deciding whether a legal error was made.

Remember, the appellate judges were not in your trial and only know from the record of what was done.

What are the different forms of the record?

There are 3, only two viable.

1.       Statement on appeal. This is a summary of the proceedings approved by the trial court judge. You have to prepare it from your records or best of your memory of what was said, by whom, and what happened.

2.       Officially electronically recorded (some Counties do this-Yea!!! If you are in one). They may even want you to have the recording transcribed by a court reporter, by most of them will use the actual recording if you give them the actual spots of the recording to listen to. (you can say that in 12 minutes 10 seconds of the recording is when the Commissioner violated by due process rights).

3.       Court reporter-too expensive.

A Statement on appeal will take some of your time to prepare. It must include a summary of the oral proceedings that you believe necessary. It also must include points you are raising on appeal (see rule 8.916 CRC http://www.courtinfo.ca.gov/rules/index.cfm?title=eight&linkid=rule8_916).

You will want to use simple form CR-143 for this http://www.courtinfo.ca.gov/forms/documents/cr143.pdf

How to Serve and File a proposed statement:

You must serve and file your proposed statement within 20 days after you file your notice of appeal. (important-you should calendar this so you don’t miss it!).

1.       Have somebody over 18, serve it to the prosecuting attorney (DA or Commissioner)

2.       Fill out a proof of service-

for info http://www.courtinfo.ca.gov/forms/documents/app009info.pdf

for the actual form http://www.courtinfo.ca.gov/forms/documents/app009.pdf

3.       File the original proposed statement and proof of service with the trial court.

Now the dance. The DA and any other party have 10 days from date you serve your proposed statement to serve and file their proposed changes (called ‘amendments’). The trial judge then reviews both your proposed statements and amendments and makes any corrections himself that are needed to make sure the statement provides a complete and accurate summary of the trial court proceedings.

Here’s where it gets tricky, you must keep impeccable records since the Commissioner will be amending your statements to reflect what he believes happened, and if he has violated your due process rights, his version may be different than yours. You can’t refute it unless you have a record or diary of what happened and what was said, step by step.

If the judge makes any corrections and you disagree with anything in the judge’s statement, you will have 10 days from the date the statement is sent to you to serve and file objections to the statement. You then have to send it back to the judge for another round of reviews and corrections, and then the statement is certified;  a complete and accurate summary of the trial court proceedings.

When the trial judge certifies the statement on appeal, the trial court clerk sends the statement to the appellate division with the clerk’s transcript.

Is there any other part of the record that needs to be sent to the appellate division?

Yes, two other parts of the official record need to be sent.  (Documents and Exhibits).

Documents filed with the court the clerk is responsible for preparing a record of the written documents filed in your case (and this includes the transcript we just talked about). This is the most important-that is why we file motions and documents in court – for the record.  Let your papers do the talking!

Ie: If you only asked orally for a Verified Complaint and the judge just denied your oral request, that is the end of it. The record only shows oral request for Verified Complaint and Commissioner denies your request. But if you filed a written request for the Verified Complaint with all the backup, penal code citations, etc, we have set the stage for several reasons for overturning his decision and showing procedural error and prejudice against you.

Exhibits submitted during trial  (Photos, maps, etc).

You must ask the trial court clerk to send the original exhibit to the appellate division with 10 days after the last respondent’s brief is filed.  http://www.courtinfo.ca.gov/rules/index.cfm?title=eight&linkid=rule8_921

So all of the above is just preparing the record for the Appellate Division to review. What happens now that the record is prepared?

As soon as the Appellate Division receives the record(s) from the trial clerk, the Appellate Division will send you a notice telling you when you must file your brief.

What is a brief?

A brief is a party’s written description of the facts in the case, the law that applies, and the party’s argument about the issues being appealed.

You should read rules 8.927 & 8.928 CRC first

http://www.courtinfo.ca.gov/rules/index.cfm?title=eight&linkid=rule8_927

http://www.courtinfo.ca.gov/rules/index.cfm?title=eight&linkid=rule8_928

If you are appealing, you are the appellant, and your brief is called the ‘appellant’s opening brief’, and must clearly lay out what you believe are legal errors made in your trial. Your brief must refer to the exact places in the clerk’s transcript and the statement on appeal that support your argument. See why the record is so important!

Serve and File your Brief

You must serve and file your brief (the court will tell you when-normally 30 days after the record is filed in Appellate Division), using the same format stated above (page 3). If you do not file your brief by the deadline, the court may dismiss your appeal.

What Happens After I File by Brief?

Within 30 days (after you serve and file your brief), the Prosecuting agency (The People-State) may, but is not required to, respond by serving and filing a ‘respondents brief’. If they do not file, you do not automatically win. The Appellate Court will decide the appeal on the record, the appellant’s brief and any oral argument by the appellant.

If respondent (The People-State) serves and files a brief, within 20 days after you are served, you may, but are not required to, serve and file another brief replying to the respondent’s brief. This is called a ‘reply brief’.

Once all briefs have been served and filed, or time to do so has passed, the court will notify you of the date for oral arguments.

What is oral argument?

This is your chance to explain your arguments to the appellate division judges in person. You do not have to participate if you do not want to, you can ‘waive’ oral arguments. They will rule based on the record submitted, which is the briefs and any oral arguments submitted. If you choose to do oral argument, you will have up to 5 minutes for your argument (unless court wants more).

The judges will have already read the briefs, so you do not need to go over this. It is more helpful to tell the judges what you think is most important or ask the judges if there are any questions they may have concerning your appeal.

After oral argument (or scheduled dates for oral arguments), the judges have up to 90 days to decide what happens in your case and render their decision.

Ronald Cupp PhD

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END

Rev Jan-2011

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