Traffic Ticket Question

[Bailey]

I don't know if I can make it any simpler for TheTreeofKnowing.

- Is there complaint filed by a prosecutor at the time of the stop with the court? No, there is no complaint nor prosecutor at the time of the stop.

- Is the ticket the complaint? Only if you allow it, the cop can't represent the state anymore than he can represent Disney Inc. He is not an attorney, nor can there be law that says he can represent the state and you can't represent Disney Inc.

- Is the ticket a summons? Again, only if you allow it. Only the court can issue a summons. A cop has no power to summon. A summons can only be issued after a complaint has been filed/stamped with the clerk. There is no summons in traffic cases because there is no complaint. They missed the first step.

- Can a cop serve a summons as a processor? Yes, as long the cop is not involved in the case. However, in traffic cases they serve the summons in violation of law. Furthermore, no complaint has been filed and no summons has been issued by the court in traffic cases.

- Can the clerk start a case file without a valid complaint? No, unless you allow it.

- Is the court/clerk acting as the prosecutor in most traffic cases? Yes, in violation of law.

- Can the court prosecute the case? No, the executive branch is responsible for prosecution, not the judicial branch.

- Can a cop prosecute a case? No, he is not an attorney, has no bar license, and in most cases does not have the power to do so.

- Can the legislators pass law to make this system work the way it does now? Not that I can see. You run into "equal protection" problems, basic law problems, and "separation of power" problems. They are basically break fundamental law all in the name of safety, but we all know the real reason.

[redy2fiyt]

Originally Posted by TheTreeOfKnowing

Does it need to be?

I would call it a promise to appear, not a summons.

Can you show the law that requires a summons?

OK gentlemen,

From a MTQ that I wrote recently:

IS THE NOTICE TO APPEAR A SUMMONS?

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CALIFORNIA CODE OF CIVIL PROCEDURE 412.20(a):
Except as otherwise required by statute, a summons shall be directed to the defendant, signed by the clerk and issued under the seal of the court in which the action is pending, and it shall contain:
(1) The title of the court in which the action is pending.
(2) The names of the parties to the action.
(3) A direction that the defendant file with the court a written pleading in response to the complaint.
(4) A notice that, unless the defendant so responds, his or her default will be entered upon application by the plaintiff.
(5) The following statement in boldface type: "You may seek the advice of an attorney in any matter connected with the complaint or this summons.
(6) The following introductory legend at the top of the summons above all other matter, in boldface type, in English and Spanish:
"Notice! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read information below."

-
The notice to appear is fatally defective and cannot qualify as a summons, because it does not comport with the requirements of Code of Civil Procedure 412.20.
-
Therefore the notice to appear is not a summons for the reasons aforementioned.

-
IS THE NOTICE TO APPEAR A COMPLAINT?

¬-
PENAL CODE: 740 states as follows:
Except as otherwise provided by law, all misdemeanors and infractions must be prosecuted by written complaint under oath subscribed by the complainant. Moreover PENAL CODE 949 states as follows: The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law. Moreover PENAL CODE 950: states as follows; The accusatory pleading must contain:
1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties;
2. A statement of the public offense or offenses charged therein.
Moreover PENAL CODE 952 states as follows:
In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.

-
The notice to appear does not qualify as a complaint, because nowhere on the notice does the following appear:
a. Whether this is a criminal or civil action.
b. The name of the plaintiff in this action.
c. The nature of the proceeding.
d. The signature of the District Attorney or Prosecutor (if it is a criminal action).

-
Therefore the notice to appear is not a complaint for the reasons aforementioned.

[redy2fiyt]

Originally Posted by TheTreeOfKnowing

The ticket serves as the complaint in most cases.

From my experience, this is only true if you don't bring up the issues is my previous post.

Can you provide citations or case law that show that the ticket satisfies the requirements of a complaint?

Also, if ANYONE is posting responses that states what they believe is fact, PLEASE include the appropriate citation from the relevant code, any case law, or other documentation that will back up your arguement.

THANKS!!

[Shoonra]

The California Vehicle Code, not the Penal Code, addresses the topics of traffic court and traffic tickets.

Traffic court is not criminal court, traffic cases are not criminal cases, so the various refinements and Constitutional rights applicable to criminal cases are not necessarily available in traffic court.

Although the traffic ticket serves the purpose of a summons to traffic court, it is not a conventional summons and does not need to comply with criteria for a conventional summons.

[redy2fiyt]

Thanks, Shoonra!

I was just about to chime in on that. TheTreeOfKnowing (hereinafter, "TTOK"), and everyone else, the Penal Code sections, namely 950 and 952, that you are referencing are specifically for criminal offenses. I have included the pertinent sections of the code below:

948. All the forms of pleading in criminal actions, and the rules
by which the sufficiency of pleadings is to be determined, are those
prescribed by this Code.

See my additional commentary below for more evidence that traffic violations are of a civil nature


949. The first pleading on the part of the people in the superior
court in a felony case is the indictment, information, or the
complaint in any case certified to the superior court under Section
859a. The first pleading on the part of the people in a misdemeanor
or infraction case is the complaint except as otherwise provided by
law. The first pleading on the part of the people in a proceeding
pursuant to Section 3060 of the Government Code is an accusation.


950. The accusatory pleading must contain:
1. The title of the action, specifying the name of the court to
which the same is presented, and the names of the parties;
2. A statement of the public offense or offenses charged therein.




951. An indictment or information may be in substantially the
following form: The people of the State of California against A. B.
In the superior court of the State of California, in and for the
county of ____. The grand jury (or the district attorney) of the
county of ____ hereby accuses A. B. of a felony (or misdemeanor), to
wit: (giving the name of the crime, as murder, burglary, etc.), in
that on or about the ____ day of ____, 19__, in the county of ____,
State of California, he (here insert statement of act or omission, as
for example, "murdered C. D.").



952. In charging an offense, each count shall contain, and shall be
sufficient if it contains in substance, a statement that the accused
has committed some public offense therein specified. Such statement
may be made in ordinary and concise language without any technical
averments or any allegations of matter not essential to be proved.
It may be in the words of the enactment describing the offense or
declaring the matter to be a public offense, or in any words
sufficient to give the accused notice of the offense of which he is
accused. In charging theft it shall be sufficient to allege that the
defendant unlawfully took the labor or property of another.

_________________________________________

Now remember that California Penal Code Section 16 says:

16. Crimes and public offenses include:
1. Felonies;
2. Misdemeanors; and
3. Infractions.

COMMENTS: This section does not clearly state whether infractions are crimes or whether they are public offenses.


Now also note:

CALIFORNIA GOVERNMENT CODE:

200. The State has the rights prescribed in this article over
persons within its limits, to be exercised in the cases and in the
manner provided by law.


201. The State may punish for crime.

So the State has no power to punish for anything less than a crime. Now look below.

Case Law:

People vs. Battle 50 Cal app. 3rd supp.1 AND People v. Sava 190 Cal App. 3rd 935 state that infractions are non-criminal

COMMENTS: Case law at the appellate level supports that infractions are non-criminal.

IF THE STATE CAN ONLY PUNISH FOR A CRIME, AND CASE LAW STATES THAT INFRACTIONS ARE NOT CRIMES, THE STATE CANNOT PUNISH FOR INFRACTIONS.

Now, this goes beyond our discussion of whether or not the ticket is a complaint, but I was illustrating that traffic violations are non-criminal, and therefore TTOK's referenced code sections (CA Penal Code 950 & 952) do not apply.

Also, TTOK, please show us where the "except as otherwise provided by law" clause states that a traffic ticket qualifies as a valid complaint. This would be helpful for my future arguements (or lack thereof, if you are right).

[redy2fiyt]

Originally Posted by Shoonra

Although the traffic ticket serves the purpose of a summons to traffic court, it is not a conventional summons and does not need to comply with criteria for a conventional summons.

Just curious - why not? Can you please provide code sections to back this up?

[David Merrill]

Originally Posted by redy2fiyt

Just curious - why not? Can you please provide code sections to back this up?

It is a contract agreement. With the Uniform Summons, Complaint and Penalty Assessment it simply specifies everything the defendant is signing on for in the title. However there is the entire agreement inside the signature box.

So just look at what is inside the box with your signature if you want to know what you agreed to.


Regards,

David Merrill.


P.S. Which of course has us wondering who was TheTreeofKnowing?

[Shoonra]

Originally Posted by steve762

Enter Edward C. Lawson of Kholander v. Lawson fame (a you gotta identify yourself case) with his Motion that I believe was successful can be seen at
http:www.circuitlawyer.8m.com.html. Was going to post it but my computer will not do it.

(1) URL appears not to work; the closest I got was a very dead blog.

(2) It really helps to check spelling, or maybe provide an adequate citation. The case was Kolender
v. Lawson (1983) 461 U.S. 352, 75 L.Ed.2d 903, 103 S.Ct 1855. And it wasn't a motorist case, it was a police harassment case making use of a loitering law to intimidate a black civil rights attorney.

However, police demand for identification where the situation justifies it, was upheld in [b]Hiibel v. Sixth Judicial District of Nevada (2004) 542 U.S. 177, 159 L.Ed.2d 292, 124 S.Ct 2451.

The laws of most (probably all) states expressly require motorists to have their DL (and car registration and sometimes proof of insurance) with them when they are operating a vehicle on the public roads, and show them when requested by a policeman. These laws have been upheld consistently wherever challenged. See B. Finberg, Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator's license or the vehicle registration certificate, 6 ALR3d 506 (1966 & supplement). The application of this legal requirement has been upheld even in situations where the police did not stop the motorist for a suspected violation. See, G.L. Blum, Lawfulness of demand for driver's license, vehicle registration, or proof of insurance pursuant to police stop to assist motorist, 19 ALR5th 884 (1994 & supplement).

The failure or refusal to present the DL when asked in such situations is a separate offense, for which a motorist may be penalized even if the original reason for the traffic stop does not, itself, result in a penalty.

[Bailey]

I don't see how this gets so sidetracked. There is no complaint, there is no summons, and there is no prosecutor. They like to play games as to where or not it's criminal or civil, it really is just a joke. In most traffic cases there are no crime, however the cop pulls you over arrest you... if you do not sign the ticket you go to jail, it is a criminal case... they can call it whatever they want... it is criminal.

In the end, who cares what they call it. You have to have a prosecutor, you have to have a complaint, and you have to have a valid summons from a court. If you waive all of the above that is ok too, but why would you.

The legislators have no power to make it so, but you can waive all the above by remaining silent on the issues.

I love these people out here that reinvent the law to their own liking, that is basically what the government has done but you just have to hold them to the fire. You don't have arraignments in a civil case, it is a criminal case.

[Dillon Hunt]

However, police demand for identification where the situation justifies it, was upheld in [b]Hiibel v. Sixth Judicial District of Nevada (2004) 542 U.S. 177, 159 L.Ed.2d 292, 124 S.Ct 2451.

The laws of most (probably all) states expressly require motorists to have their DL (and car registration and sometimes proof of insurance) with them when they are operating a vehicle on the public roads, and show them when requested by a policeman. These laws have been upheld consistently wherever challenged. See B. Finberg, Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator's license or the vehicle registration certificate, 6 ALR3d 506 (1966 & supplement). The application of this legal requirement has been upheld even in situations where the police did not stop the motorist for a suspected violation. See, G.L. Blum, Lawfulness of demand for driver's license, vehicle registration, or proof of insurance pursuant to police stop to assist motorist, 19 ALR5th 884 (1994 & supplement).

The failure or refusal to present the DL when asked in such situations is a separate offense, for which a motorist may be penalized even if the original reason for the traffic stop does not, itself, result in a penalty.[/quote]



Most importantly, any States driver’s license and motor vehicle codes violate by prior restraint, (if not involved in commerce) the First Amendment of the Constitution for the united States of America and the State Constitution against freedom of assembly, association and to travel anonymously per, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) ("Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as the Surpreme Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."). See also Shelton v. Tucker, 364 U.S. 479, 485 (1960). To the extent that the collection of personally identifying information would enhance the government's ability to track the movements and associations of Citizens, it would clearly implicate individuals' right to travel internationally and to associate anonymously.

Not to mention every Magistrate or Jury Member that has a DL or motor vehicle registration or Marriage License (might take the kids) has a Conflict of Interest in any traffic cases.

Maybe if stopped for traffic infractions or going to court we need to ask the Officer, Magistrate, Judge and all the Jury Members if they know and understands our Rights.


Sorry, I did mention it !!!



Dillon