Jul
12

How can you use Penal Code 853.6 in your defense to get your California Traffic Ticket dismissed?

By Ronald Cupp PHD

Lets continue with the Mother of all evils. This is the requirement fall back on PC 853.9 and others, which states that the other codes must comply with this PC 853.6 for the other codes to be enforceable.

This is a long Penal Code, almost 2500 words, but a few of the portions of the paragraphs are important. I did the work for you. I will highlight the important ones and we can discuss them below after the code.

The actual title of the code is a long one, to me it appears to be a ‘catch all’ for a lot of details that pertain all over the board. I italicized and underlined what is important to us. In the code book, the title is:

Misdemeanors; release procedures; notice to appear; contents; procedure upon violation of domestic violence protective order; evidence of identification; bail and forfeiture; booking or fingerprinting; grounds for nonrelease; alteration or destruction of citation; recommendation of dismissal; procedure where charged person claims not to be person issued notice to appear.

Penal Code 853.6 (One of the sites we pull info from findlaw.com)

(a)In any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court.

In any case in which a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, or arrested pursuant to a policy, as described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.

Nothing in this subdivision shall be construed to affect a defendant’s ability to be released on bail or on his or her own recognizance.

(b)Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.

(c)The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.

(d)The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give his or her written promise to appear in court as specified in the notice by signing the duplicate notice which shall be retained by the officer, and the officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.

(e)The officer shall, as soon as practicable, file the duplicate notice, as follows:

(1)It shall be filed with the magistrate if the offense charged is an infraction.

(2)It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.

(3)The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).

If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.

Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in his or her judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by him or her in the form set forth in Section 815a. The defendant may, prior to the date upon which he or she promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in his or her discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and he or she has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case.

Upon the making of the order that no further proceedings be had, all sums deposited buy propecia generic as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.

(f)No warrant shall be issued for the arrest of a person who has given a written promise to appear in court, unless and until he or she has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.

(g)The officer may book the arrested person prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the person’s court appearance, the arresting agency at the time of booking or fingerprinting shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that he or she was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.

(h)A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.

(i)Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease:

(1)The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others.

(2)The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety.

(3)The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.

(4)There were one or more outstanding arrest warrants for the person.

(5)The person could not provide satisfactory evidence of personal identification.

(6)The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.

(7)There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.

(8)The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.

(9)There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.

The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release him or her from custody before trial.

(j)Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).

Any person, including the arresting officer and any member of the officer’s department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.

If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.

If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.

Under no circumstances shall a personal relationship with any officer, public official, or law enforcement agency be grounds for dismissal.

(k)(1)A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through his or her local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.

(2)Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.

(3)Upon receipt of the issuing agency’s or prosecuting attorney’s response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person’s driving privilege, the department shall immediately set aside the action.

(4)If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.

(5)The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee who received the citation or notice to appear be found.

(l)For purposes of this section, the term “arresting agency” includes any other agency designated by the arresting agency to provide booking or fingerprinting services.

END OF CODE

Now let’s review some of the details. The devil is in the details!

   (b) Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.

Again, with that pesky filing of the NTA with the magistrate.

(e) The officer shall, as soon as practicable, file the duplicate notice, as follows:

   (1) It shall be filed with the magistrate if the offense charged is an infraction.

Here we go again, with that pesky filing of the NTA with the magistrate. Also I’m trying to lock down the ‘as soon as practicable’.

3. Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in his or her judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by him or her in the form set forth in Section 815a.

*** CaTicketBusters Blog PC 815a  June 29, – again it’s good! *** 

(j) Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).

Here we go again, with that pesky paragraph (e). Go back up and reread it!

This is a continuation of the same paragraph (j), but it is important to know how to use it, so I separated it out.

   Any person, including the arresting officer and any member of the officer’s department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.

Why did I separate it out, because most peace officers write so many tickets they can’t remember what the circumstances (pesky details again)of the arrest or NTA, so they write the particular notes on the NTA itself so they can recall them if they have to go to court. (your remarks, speed, etc. We don’t care what they wrote) If he wrote on it after giving you your ticket and before he provided it to the magistrate (we all know it never makes it to the magistrate but they file it with the court)they he is guilty as outlined above and you should request your dismissal on this separate issue

Again, another good study session, see how they are tying together. It happens a lot, in this instance on the NTA it states PC 853.9, in 853.9 it refers to 853.6, in 853.6 it refers to 815a.

Again, I personally have used this on several California traffic tickets and speeding tickets, namely 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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Comments

  1. Hey There. I found your weblog using msn. This is a very neatly written article. I?ll make sure to bookmark it and return to learn more of your helpful info. Thanks for the post. I will definitely return.

  2. DJ LOCKER says:

    good suff i am having a probem like this for the last 10 years and it suks bad i have tryed meny things to try and fix a fuck up i got in to but they just do not wont me back there and its very odd what the cops will do or go so far as to berak the law they swer to up hold I no they have done this in my caess but may be its for my onn good

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