Traffic Ticket Question

[Bailey]

Usually the person serving the summons can't be a party/witness to the suit/case. You remedy should be dismissal on the no summons, or the witness is precluded from the testifying. Of course, there is no case, where did the summons even come from?

[Shoonra]

Bailey, you are squeezing the two decisions for more than they actually say.

People v. Municipal Court for Ventura Judicial District (1972_) 27 Cal.App.3d 193, 103 Cal.Rptr 645, 66 ALR3d 717, did not deal with a traffic violation and held that an ordinary civilian could not commence and prosecute a criminal case. In some jurisdictions, the rules of the traffic court may allow the policeman to dive right in as the complaining witness without the presence of a prosecutor.

Cedar Rapids v. Atsinger (Iowa Supreme 2000_) 617 NW2d 672, dealt with a traffic ticket which should have been but was not signed by the cop. The court reviewed how these complaints should be signed under oath -- and it was the practice of traffic cops to bring their copies of the tickets they had handed out to an appropriate court officer and swear to them, after the event of handing out the tickets but before the court date. In this instance it appears that the cop skipped signing the tickets and swearing to them altogether, so the court dismissed the case against the motorist. Believe me, the practice of handing out traffic tickets continued in the State of Iowa, but now the cops made sure that at the end of the day they finished all the paperwork.

[Bailey]

You failed to read my posts or failed to read them correctly.

- There is no complaint
- There is no proper summons
- There is no prosecutor
- The court is actually prosecuting the case, violation of the constitution on a number of grounds.

The cop is acting as the clerk, clerk is deciding to prosecute the case with no complaint. All violations of "due process" and "equal protection".

Who cares if they sign the ticket or not, it's not a complaint and there is no valid summons.

For there to be a case:
1.) There must be complaint submitted to the clerk.
2.) Only then can a summons be issued.
3.) Summons must be processed by non-involved third party.
4.) A clerk can never be a prosecutor but it really doesn't matter because there is no complaint and no valid summons.
5.) A cop can't be the prosecutor,clerk,witness and process server all at once... many violations of the constitution in all the 50 states and basic law.

Of course, if one does not make them follow the rules than they won't follow them. It's not a silver bullet. You don't hear about this on Court TV because there is no big S. Ct. ruling that comes down, they usually just drop the case. Hope this helps.

No complaint + no summons + no prosecutor = no case
No case = No jurisdiction

Easy as pie.

Originally Posted by Shoonra

Bailey, you are squeezing the two decisions for more than they actually say.

People v. Municipal Court for Ventura Judicial District (1972_) 27 Cal.App.3d 193, 103 Cal.Rptr 645, 66 ALR3d 717, did not deal with a traffic violation and held that an ordinary civilian could not commence and prosecute a criminal case. In some jurisdictions, the rules of the traffic court may allow the policeman to dive right in as the complaining witness without the presence of a prosecutor.

Cedar Rapids v. Atsinger (Iowa Supreme 2000_) 617 NW2d 672, dealt with a traffic ticket which should have been but was not signed by the cop. The court reviewed how these complaints should be signed under oath -- and it was the practice of traffic cops to bring their copies of the tickets they had handed out to an appropriate court officer and swear to them, after the event of handing out the tickets but before the court date. In this instance it appears that the cop skipped signing the tickets and swearing to them altogether, so the court dismissed the case against the motorist. Believe me, the practice of handing out traffic tickets continued in the State of Iowa, but now the cops made sure that at the end of the day they finished all the paperwork.

[Bailey]

The prosecutor could potential file a complaint, but they usually don't. I believe they have up to a year in most places. However, you want to make sure they don't issue a summons when you go to court to get the ticket dismiss. They should not benefit from their wrong doing.

If they were just interested in public safety they would just issue a real complaint, but we all know this is about greed.

Originally Posted by steve762

I am curious.

[Shoonra]

(1) Yes, the ticket is the complaint. But (2) no, there can be discovery. I have heard on speeding cases that involved serious inquiries about the equipment used to measure the speed, how accurately it was tuned and how well trained was the cop using it. Some DUI cases have turned on the accuracy of the breathalyzer. Stuff like that.

On a slightly different note, when I was young, a Very long time ago, the story going around my circle was that, in traffic court, if someone denied speeding then the prosecutor would cross-examine him and the first question was something like "What numbers are on your speedometer?" (Back then, before the speedometers got digital, there were digits only for every ten MPH.) Many people remembered or guessed wrong, and the prosecutor would grin that he had undermined their testimony with this not-very-relevant question.

[Bailey]

It's only a complaint if you agree to it or don't stand up for yourself. If someone throws a piece of paper on the ground with jargon on it... is a complaint, well if all parties agree that it is, it is. If you write on a piece of paper, I owe you $100 and write the date on it... is that complaint. Well, if all parties agree to it is.

A cop can't represent the state in court anymore than mickey mouse can represent Disney Inc. in court, unless you allow it. Actually, if I remember correctly some state constitutions even say who the prosecutor can be. Of course, if the cop can represent the state, why can't you, why can't the cop just become an attorney. It's basically back to "equal protection", if they can represent an entity why can't anyone? What's good for the goose is.... the legislative branch can never make law without "equal protection". If they don't need to give discovery neither do you.

1.) If the cop can represent the state, why can't you represent me? "Equal protection"
2.) There is no complaint until it is filed with the clerk.
3.) There is no valid summons until a complaint is filed by the prosecutor.
4.) Summons must be served by someone not involved in the case.

If all of the above is not completed correctly, there is no case which mean no jurisdiction.

I have helped a few people, to be honest I haven't gotten a ticket in 12+ years. Basically, if you don't stand up for yourself, everything is valid. In the few cases I have been involved in, it was just got dismissed. Sometimes they use excuses and such... like cop is not available.

I looked up that Lawyerguy after you posted, looks like he is suggesting the same thing. Another thing I heard someone do was just let it all go until the trial... when the cop shows up to testify... just disqualify him based on him serving you the summon? if you want to call it that.... I have no personal experience with that bullet.

Hope that helps, I don't have any greater insight than that... I would say that Lawyer is saying the same thing... but the disqualification is nice little bullet to use too. None of it is a silver bullet, make them follow their rules... it is possible they could give you a real complaint... it does happen. I like his idea about Motion to Quash, interesting little twist. The problem with the whole thing is there is no case and the judge wants to act like there is one.

Your remaining silent idea takes some guts. I love traffic ticket case, very little pressure... it an easy way of messing with the system. The reason why it's so funny is those guys know what they are doing is wrong, they usually look like kids caught in the cookie jar.

Originally Posted by steve762

Though a deception, I have heard city prosecutor say, "This is the complaint, and there will be no discovery", happened sometime back was in a case I was attempting to help someone and we were asking questions in court of the prosecutor who was there.

Bailey, have you had any kills with the no complaint / usurpation approach? Palaschak (Lawyerdude) has had some success and am going to call the court to authenticate one of his citation kills.

I have not done it yet and look forward to employing a method that will not require arrest in order to effectivly attack a citation.

I use right to remain silent. It is still effective in spite of Hibble v. Nevada in combating citations.

Unfortunatly they will arrest you for remaining silent

[Bailey]

Be careful. They could always file a real complaint and go get you. I just don't see away around the service processor being the only witness. Like I said, I have no experience in that matter but I thought I would run it by you.

[gldskr]

steve

As to the suspension question. The license and the vehicle are related or unrelated depending on the circumstance. The license relates to motor vehicles only. So your suspension can be eleviated by not operating motor vehicles. Unless the vehicle you are operating has been registered in a taxing system that applies only to motor vehicles you should be safe. That, of course, doesn't preclude harassment, but that goes with the territory.

There are multiple classifications of drivers license for each classification of motor vehicle. Make sure your vehicle does not fall within one of these classifications.

gldskr

[Bailey]

You haven't been around the block that long than. Go look at the Federal Court Procedures, rule 4. Most states have similar rules, even local rules usually say that.

It doesn't matter though, there is no complaint yet.... they have the cart before the horse. When was the complaint submitted to the court and fixed with the seal of the court, there can only a summons after a complaint has been started. What case are the issuing you a summons for? There is no pending case.

I don't understand why this is so difficult.

- There is no complaint
- There is no summons
- There is no prosecutor
- There is no case
- There is no jurisdiction
- Dismissal is the remedy or the court opens itself up for liability
- A cop is not an attorney
- A cop is not a prosecutor
- A cop can never prosecute on the part of state
- The court is not a prosecutor
- The clerk is not a prosecutor
- The legislators have no power to make it so

From wiki:
"Personal service is service of process directly to the (or a) party named on the summons, complaint or petition. In most lawsuits, personal service is required to prove service. In most Anglo-American legal systems the service of process is effectuated by a process server who must be an adult and (in most jurisdictions) not a party to the litigation."

Of course, if you do not stand up and say something than you accept the service. There is only a problem with their service if you demand they follow the rules. What's good for the goose....

Go service your lawsuit on the cop and see what happens.

Originally Posted by TheTreeOfKnowing

If he is an interested party then he cannot serve process. There is nothing about a witness not being able to serve process that I have found in the law.

Please share what you have.

[Bailey]

This has already been answered in this thread. You are making this more difficult than what it is, I assure what I say is correct... go contact your local court for their rules. There is no summons until a complaint/petition is submitted/filed to the clerk of the court.

If you accept the ticket as the complaint, of course it is a complaint than. If you do not make them follow the rules/law, it is a complaint. If you don't want a legal complaint, than the ticket is the complaint.

This is not hard to understand.

Originally Posted by TheTreeOfKnowing

The ticket serves as the complaint in most cases.