Sep
23

Fight your California Traffic Ticket Using Penal Codes 1002-1006

By Ronald Cupp PHD

OK, now lets have some fun!  This another big step in beating your California Traffic Ticket. You know from my previous video blog post that there are six (6) types of pleas only (see video and blog post PC 1016). But did you know about a ‘demurrer’? A demurrer is a challenge to the sufficiency of something like a ‘complaint’, cause of action, or defense; in this case the NTA or the supposedly ‘Verified Complaint’. So, as an example, when you demurrer you are not challenging the ‘facts’ per say of the case, but that there is something that lacks one or more of the legal requirements for them to prosecute you or some legal requirement is missing in the prosecution’s case.

Wikipedia states: A demurrer  is a pleading in a lawsuit that objects to an earlier pleading filed by an opposing party. The word demur means “to object”; a demurrer is the document that makes the objection. Typically, the defendant will demur to the complaint, but it is also possible for plaintiff to demur to an answer. The demurrer challenges the “legal sufficiency” of a claim, cause of action, or defense. If a cause of action in a complaint does not state a cognizable claim or if it does not state all the required elements, then the complaint can propecia merck be knocked out with a demurrer. A demurrer is filed near the beginning of a case during the pleading phase.

At common law, a demurrer was the most common pleading by which a defendant would challenge legal sufficiency in criminal or civil cases, but today the pleading is abolished in many jurisdictions, including the federal court system (though some jurisdictions, including California and Virginia, retain it). In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead “not guilty”, or make any other pleading in response, without having to admit or deny any of the facts alleged.

A demurrer is not a challenge to the ultimate merits of a case or claim. When ruling on a demurrer, a judge is required by law to assume as true facts alleged in the complaint, even if those facts would later be challenged. Historically, however, a party filing a demurrer often had to admit the facts in the complaint and waive the right to later challenge those facts. . . . .

Ok, here is the specific Penal Codes that we can use to effect your challenge!

1002.  The only pleading on the part of the defendant is either a demurrer or a plea.

1003.  Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

1004.  The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:

   1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if any information or complaint that the court has no jurisdiction of the offense charged therein;

   2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information;

   3. That more than one offense is charged, except as provided in Section 954;

   4. That the facts stated do not constitute a public offense;

   5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

1005.  The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the accusatory pleading or it must be disregarded.

1006.  Upon the demurrer being filed, the argument upon the objections presented thereby must be heard immediately, unless for exceptional cause shown, the court shall grant a continuance. Such continuance shall be for no longer time than the ends of justice require, and the court shall enter in its minutes the facts requiring it.

So, what does all this mean? In plain English – by the numbers:

PC 1002 states that you can only Demurrer or Plea,

PC 1003 states that both the demurrer and plea must be put in, in open court, at your arraignment. (I have had Commissioners state that I should have filed it previous and served the DA, but again they were wrong).

PC 1004 states you can demurrer at any time PRIOR to the entry of a plea under #2(and in our case when we challenge the sufficiency of the Notice To Appear) because it does not comply with Penal Code Sections 950-952 and #5 constitutes legal justification or legal bar to the prosecution. Remember we are still attempting NOT TO PLEA and this is just another step that really throws them off.

PC 1005 states it must be in writing (signed of course!), and must specify the grounds for the objection (we have an awesome set of demurrer’s on our site!).

PC 1006 states (a) it must be filed, and it must be heard immediately!!!!! (I have never had one heard immediately, I have had them accepted over the bench and scheduled for hearing, or scheduled for contected traffic court, or given the DA 10 days to respond-but never heard. I have never even seen them look at our demurrer. Procedural error on their part).  And (b) If the court determines that it needs time (grants a continuance) it must state in it’s minutes the facts requiring the continuance. (Have never seen that also, so another procedural error, two at one time).

A Commissioner can overrule or deny your demurrer but you need to challenge them. Our demurrer has won us many, many, many cases, as it is very detailed and they are supposed to read and rule on it.

Again, I personally have used this on several Traffic tickets in California including speeding tickets, cell phone tickets, commuter lane tickets, red light 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!

I have included the video below, so you can hear the reading of the code itself.

Ronald Cupp PhD

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Categories : Legal, Penal Code

Comments

  1. Brian G says:

    Hello,

    Hope all is well! This looks like a great website and I’ve seen highwayrobbery.net to be informative as well (any thoughts/experience with them)?…So, I haven’t had a ticket in 5+ years, but sure enough, last month (Sep. 23) late at night, was in a neighborhood I didn’t know and went through a red-light stop camera…Got the ticket in the mail on Sept. 30, BUT see that it has my dad’s name (the registered owner) on it and sent to the wrong address as he’s never lived where I’ve lived..I hear then it should be “demurred” since CVC 40518(a) demands it be mailed to the violator within 15 days or be dismissed and in this case it will be as I have not yet responded or anything to the ticket?…I’m thinking of mailing back and just putting a question mark next to my dad’s name and write “nobody by that name lives at this address” and see if they won’t bother sending it to him since it will be past that deadline and won’t have to go through the hassle of court..Any thoughts greatly appreciated!

  2. Marc Ruth says:

    Very informative on PC 1002-1006. You state in PC 1003 that Commissioners require notice to the DA but that they are wrong. I filed a demurrer today in traffic court and the Commissioner said the same thing. What is your authority for the notice requirement that it can be filed that day with the Court without notice to the DA or City Attorney and still be effective?

  3. Its not our authority, it is the actual penal code itself.
    Penal Code 1003. Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

  4. Jane says:

    sooo much information=) Everyone who lives in CA needs to take note!!

  5. Very cool article, bye.

  6. WONDERFUL Post.thanks for shareing

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