Help me stick it to my arrogant ex-lawyer stepdad!

[the_awakening_one]

I'm arguing with my stepdad in email about the move I read about here of beating the simple traffic stop by signing the ticket with the demand for jury trial and protest of detention w/o consent. He sounds exactly like some of the laywers on here, but even worse---he thinks a traffic infraction is a criminal matter!

Here was his response:

My advice? I wouldn't waste my time if I were you. A law enforcement officer has the right to stop you and ask for (and see) your license and registration. He must have a valid reason for stopping you, e.g., an apparent violation of the Vehicle Code or in connection with a criminal investigation (erratic driving, broken equipment, speeding, your car looks like the bank robber's getaway car, etc.). Stopping you, and writing a citation and giving it to you is simply a traffic stop, not a detention under California law.

Here's one very basic and simple example of the myriad problems with this script: there's no such thing (at least in California) as a "common law" misdemeanor. Also: DETENTION CONSENT DENIED - JURY TRIAL DEMANDED, is meaningless. Just looking at the latter part of it, there is no right to a jury trial for an infraction in California. Your case isn't going to be dismissed by the DA, and it's likely the judge before whom you appear will decide you're a smart ass who needs to be taught a lesson.

And, since the officer has a statutory right to ask for and see your license and registration, if you begin this schpeal without handing them to him once he's asked for them (whether you spoke over his words or not) you're in trouble.

About the only thing I'd agree with is to refuse to allow your car to be searched. However, if you do that, they may require you to wait while they bring in a canine unit. Then, if the dog scents anything in your car, that'll be probable cause and the search will commence without your permission or a search warrant.

The guy who wrote this isn't going to be there to bail you out and the Public Defender who may be appointed to represent you might even agree to a sanity hearing for you.

Nice try, but a long, long way from a cigar.[END]

Is he right that you can't demand a jury trial for an infraction in California? If you can't, then why is it a matter where I would be put in front of a judge at all? Did the Sui Juris post I forwarded him make me look like a dummy also? (for his part, my stepdad already looks confused to me by confusing an "infraction investigation" with a "criminal investigation")

The legal reasoning (of the SJ post) sounded sound to me. I mean I feel sure that you can't be detained w/o consent for anything less than a misdemeanor, but if he's right about the no jury trial for an infraction thing, it shoots down the whole tactic.

And is the "common law misdemeanor" thing really impotent as he suggests?

Who is right? If he's wrong, can you help me prove it? We can already tell he has the "conform, obey, cops and judges are god" mindset, which infuriates me sometimes.

TAO

[netwrkranger]

1. It is my understanding that a ticket is a citation or infraction.

Infraction as a general term means a violation of a rule or local ordinance or regulation, promise or obligation. An Infraction in legal sense (minor offense, minor violation, petty offense, or frequently citation, sometimes used as synonymous with violation, regulatory offense, welfare offense, or contravention) is a "petty" violation of the law less serious than a misdemeanor.

Typically, an infraction is a violation of a rule or local ordinance or regulation.

Some refer to an infraction as quasi-criminal, because conviction for an infraction is generally not associated with the loss of liberty, or even social stigma. Infractions are often considered civil cases, in which case an infraction is not even considered a crime. Nonetheless, most infractions are indeed violations of statutory law, but in differing with criminal law where the burden of proof is Beyond a Reasonable Doubt, the standard for the civil infraction is a Preponderance of Evidence.

2. This "right" police have to stop you, could he site it in law or statute?

3. This one tickles me: 7th Amendment of the Constitution: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Soooooo, where is my trial by jury in a traffic citation case? Is the suit even brought before a common law court (of course not!!)? Perhaps, it is an equity or even an admiralty court? Is it an administrative or judicial court (administrative)?

Although.... you did register for a driver's license..... soooo....

Misdemeanor
A misdemeanor, or misdemeanour, in many common law legal systems, is a "lesser" criminal act. Misdemeanors are generally punished less severely than felonies, but theoretically more so than administrative infractions (also known as regulatory offenses). Many misdemeanors are punished with monetary fines. Usually only repeat misdemeanor offenders are punished by actual jail time.

Misdemeanors usually do not result in the loss of civil rights, but may result in loss of privileges, such as professional licenses, public offices, or public employment. Such effects are known as the collateral consequences of criminal charges. This is more common when the misdemeanor is related to the privilege in question (such as the loss of a taxi driver's license after a conviction for reckless driving), or when the misdemeanor involves moral turpitude -- and in general is evaluated on a case-by-case basis. One prominent example of this is found in the United States Constitution, which provides that the President may be impeached by Congress for "high crimes and misdemeanors" and removed from office accordingly. The definition of a "high" misdemeanor is left to the judgment of Congress.

Remember, this is all color of law too =).

- netwrkranger

[Shoonra]

First, I think his advice to you was correct.

Second, I think you've sufficiently "stuck it to" him simply by being a member of his family.

[netwrkranger]

Okay, Shoonra.....

Where is the substance for your first statement to support your claim?

How does your second statement contribute to this thread in anyway?

[the_awakening_one]

Shoonra, I knew we'd meet eventually in a thread. Nice to meet you too (not). Worry not, my stepdad is glad to have me in the family. He actually gets off on our legal arguments. But why am I explaining this to you? How about you just go away now. Thanks. (By the way, you have my sympathies for being such a mean, small-minded "US person" who enjoys casting random insults at people for no better reason than your own amusement.)

Now then, if I hauled off and got excited prematurely about a legal tactic that actually doesn't wash, then I can admit that easily. I can also admit that I probably shouldn't read SJ and then send emails after the third late night snifter of Irish Mist. But no one in the thread where I saw it saw any major flaws.

But back to the issue. If jury trials for infractions are "not allowed" by state law, then doesn't that conflict with the 7th, as you point out netwrkranger? A $125 seat belt ticket is most definitely an amount exceeding $20, and is a form of civil suit. If the real problem is that courts have been surreptitiously converted to admiralty or something else, and common law is no longer accessible, then we have a much larger problem, don't we? At least it's a problem for honest people who don't benefit from such a conversion.

The other point my stepdad makes is that there is "no such thing as a common law misdemeanor." Is that to say there is no such thing as common law jurisdiction at all anymore, period? Hmmm....

[the_awakening_one]

(deleted for not being strictly on topic)

[the_awakening_one]

(same reason...)

[the_awakening_one]

(Sorry, same reason for editing... we are having debates on multiple subjects, and the original post is one subject; I started to share the whole right-to-travel debate we're having, which is actually a different topic than the one in the original post. I want to stay on-topic.)

Anyway, I concede on this one. He stuck it to me instead. There is no right to jury trial for infraction in California (even though the Constitution seems to say something different). I became overly euphoric and enthusiastic in the moment and forgot to confirm fundamentals. I can admit when I'm wrong.

If the state the guy who wrote about the tactic lives in allows jury trials for infractions, he's lucky I guess.

[mrg]

Originally Posted by the_awakening_one

Shoonra,
we have a much larger problem, don't we?

We sure do.

[Shoonra]

Traffic tickets lead to traffic court, which operates more as an administrative tribunal than a conventional court. For that reason, it usually has no provision for jury trials. If you insist on a jury trial, that normally requires appealing the traffic court decision to a trial court. This is handled according to state, not federal, law so I am not at all familiar with this. But this process uses up time and money, and you would be at a distinct disadvantage without a lawyer, and the cost of hiring a lawyer is probably worse than the cost of the traffic fine.