Jul
21

How do Penal Codes 738, 739, & 740 help you get your California Traffic or Speeding Ticket dismissed?

By Ronald Cupp PHD

Penal Codes 738, 739, & 740 can help you get your California Traffic Ticket dismissed.  Read on to see how.

Here is the actual code(s) below, I have italic and underlined what is important to us.

738Before an information is filed there must be a preliminary examination of the case against the defendant and an order holding him to answer made under Section 872. The proceeding for a preliminary examination must be commenced by written complaint, as provided elsewhere in this code.

739.  When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.

740.  Except as otherwise provided by law, all misdemeanors and infractions must be prosecuted by written complaint under oath subscribed by the complainant. Such complaint may be verified on information and belief.

(One site we pull our info from findlaw.com)

Back to our recipe, a couple of ingredients here. Remember ‘an information’ is another legal word for type of charge.

So under 738, it is saying that ‘BEFORE’ the charge is filed (filed means filing in court, getting a legal document (charging instrument) stamped, swearing under oath and penalty of perjury by someone (the peace officer?) and before someone who is legally authorized to accept the oath), that there was a PRELIMINARY EXAMINATION (that means there was a hearing or examination) and an ORDER HOLDING HIM TO ANSWER under Section 872 (see video and blog post on PC 872). It also says it must be commenced by WRITTEN COMPLAINT. (written complaint is NOT THE NOTICE TO APPEAR-unless you accept it as such-so don’t!).

So under 739, it is saying that the DISTRICT ATTORNEY must file your charge within 15 DAYS of your COMMITMENT (your arrest or when you got your ticket) and that the accusation against you will be in the NAME OF THE PEOPLE OF THE STATE OF CALIFORNIA. (Don’t forget, they have to have a preliminary examination BEFORE they can file your charge!)

So under 740, it is saying that ‘it’ must be PROSECUTED BY WRITTEN COMPLAINT, under oath by the COMPLAINANT (which should be the DA or the Peace Officer).

That’s a lot of words, but very important. Here we go again. The court wants to use the Notice To Appear (NTA) as the charging instrument because it was approved by the Judicial Council which will streamline the legal process (for their benefit) and if you accept it as such, you waive all the other rights we list in our recipe all of these, as there are several items that the court does to violate your rights and you can get your dismissal from all or any of these. Remember, even one violation means you can get your dismissal. Learn the ingredients, so you can cook with our recipe.

Ask yourself, then verify (don’t take anything for granted!)

  1. Was there a charge filed? Was it a written complaint? (see video and blog for PC 684 & 853.9)
  2. Before it was filed, was there a preliminary examination?
  3. Was it before a Magistrate, did he indorse it per PC 872 or 1382? (see videos and blogs for these).
  4. Was it filed by the DA? In the name of the People of the State of California?
  5. Was it filed within 15 days (remember filing is done after the examination) of your NTA?

If any of these are not here, or out of order, your rights have been violated and you ask for your dismissal.

Again, verify. I have had several courts, when confronted with this, supply a ‘verified complaint’, or it was filed by an assistant DA with the clerk  but in reality it was not indorsed by the Magistrate (remember a commissioner is not a Magistrate-see video and blog for PC 808), or not signed. I have seen filed and not signed ones also. Was it done out of sequence, was it done within 15 days of your NTA? Remember it is a procedural error on their part not to get it done right with the correct sequence, or you get dismissed. Some mistakes they cannot correct, like not following procedure within the 15 days, or filing before it was indorsed by Magistrate!

Again, I buy generic propecia personally have used this on several California red light camera tickets and traffic tickets, namely cell phone tickets, commuter lane tickets, red light tickets, speeding 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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