Aug
18

A key ingredient in your California Speeding Ticket or Traffic Ticket Dismissal… Penal Code 1382

By Ronald Cupp PHD

One of the nails in the coffin against the case against you, one of the main reasons for your dismissal. A key ingredient in our recipe for your California Speeding Ticket or any Traffic Ticket dismissal. Ahhh, the ole procedure clause! Those speedy trial rights! 

The actual code is below: Pay attention to what I italic and underline, I will explain after the code.

California Penal Code

1382.  (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 defendant’s 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 buy propecia cheap 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 defendant’s 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 defendant’s 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 defendant’s trial unless the court has explained to the defendant his or her rights under this section and the effect of his or her consent. 

Here we go again, again and again.

Your rights must be protected, and these procedures must be followed. When put together with PC 738-740, 872, this becomes so powerful. These 5 ingredients are the basis of your dismissal.

Paragraph A (1)

held to answer for a public offense and an information is not filed against that person within 15 days. (see video and blog PC 738-740)

   (3) Regardless of when the complaint is filed, when a defendant in a misdemeanor or infraction case is not brought to trial ….., within 45 days after the defendant’s arraignment or entry of the plea  , this is your speedy trial rights. Remember all the procedures of 738-740, 853.9, 853.6 & 815(a), and 872 MUST be completed properly before they can try you. (see all videos and blog posts on these to refresh). As a side note: remember the Discovery? (see video & blog for 1054-that gummed up the works for them)

So, in English, if you are NOT in custody, they have 45 days to start trial from your arraignment, and remember your arraignment is the date you appeared in court, were read your charges, and asked how you plea. Period! The courts always get this wrong. They feel that because it says ‘whichever is later’ that they can continue it on forever.

There is a top ranking court case (you will need to see that video and blog post also- Chartuck v. Municipal Court 50 Cal. App. 3d 931; 123 Cal. Rptr. 816; 1975 Cal. App. LEXIS 1828) that states that the Arraignment is complete when court asks defendant whether he pleads guilty or not guilty, and that the entry of the plea is a separate act, not part  of the arraignment, althought it may or not follow at same session in court.

I’m throwing this in as a (What the Heck?)   (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. You see this a lot, and for the life of me I can’t figure out why. There are several places in the code, where you can give up your rights (speedy trial, time frames, waiver of proper verified complaint, etc, etc) so that they can prosecute you on their terms and on their battlefield. You must pay attention, don’t ever give up any of your rights unless you are getting something very special in return for it!

(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 defendant’s trial unless the court has explained to the defendant his or her rights under this section and the effect of his or her consent. They never do explain your rights under this section, so don’t hesitate to ask for your dismissal for this also. 

Again, I personally have used this on several California red light tickets and traffic tickets, namely cell phone tickets, commuter lane tickets, speeding tickets, red light camera tickets and seat belt tickets to tie them up and use their own rules of court against them. Remember  It  works for all California infractions,  to have them treated for our purposes, to hold them to the Misdemeanor laws and rules of court!

Ronald Cupp PhD

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  8. kevin says:

    I was arrested for a felony (possession marijuana intent to sell). On my arraignment date I was handed a piece of paper that stated; charges not filed. How do I exercise 1382 to get the case dismissed? My lawyer is telling me they have 3 yrs to file. Doesn’t this violate 1382 as well as my right to a speedy trial? Thank you in advance.

  9. Your 1382 speedy trial rights don’t kick in until you are charged.
    Keep fingers crossed and hope they don’t. If they do, you can use
    this site for information and skill set to challenge the crap charges.

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