Suspended License, Need Help.

Hello everyone,

I went to traffic court on 12/2 after summiting the motion to dismiss using the Administrative Procedures Act as detailed by Black Truth. They didn't rule on the motion and strangly I was never called before the judge. I did meet with two public defenders because the judge had assigned me to the public defenders office. By this time it was nearly 3pm and I had been waiting in court since 8am. They rescheduled my arraignment and decision on motion to dismiss for 1/27.

By this time I was so tired of waiting that I was just glad to go home. I found a demurrer for driving with a suspended license on the lawyerdude.com website. It is nearly 40 pgs long and with a little modification I think I can use it against the complaint, however, I am unclear when it is appropriate to submit a demurrer. I also was thinking of a defendant's brief based on the right to travel. I am trying to overwhelm them with as many things as possible. I did find out the indicated sentence of 60 days in jail or work release plus a $1500.00 fine since I have 2 prior conviction of driving while suspended. What do any of you suggest? I learned my lesson regarding getting your motions filed 10 days before a appearance.

Also, I am looking for some case laws that support that the prosecuting attorney cannot sign the complaint. What authority if any does the prosecutor have to sign the complaint, he is not the injured party, and the police officer can't because he is the witness for the state.

The problem I am realizing is that traffic courts are Nisi Prious (I hope I spelled that correctly) courts that only deal with facts and not law.

Also, I did find a way to challenge constitutional validity of prior convictions in the Calif Vehicle Code section 41403.

Prior Conviction: Constitutional Validity

41403. (a) In any proceedings to have a judgment of conviction of a violation of Section 14601, 14601.1, 14601.2, 23152, or 23153, or Section 23103 as specified in Section 23103.5, which was entered in a separate proceeding, declared invalid on constitutional grounds, the defendant shall state in writing and with specificity wherein the defendant was deprived of the defendant's constitutional rights, which statement shall be filed with the clerk of the court and a copy served on the court that rendered that judgment and on the prosecuting attorney in the present proceedings at least five court days prior to the hearing thereon.

(b) Except as provided in subdivision (c), the court shall, prior to the trial of any pending criminal action against the defendant wherein the separate conviction is charged as such, hold a hearing, outside of the presence of the jury, in order to determine the constitutional validity of the charged separate conviction issue. At the hearing the procedure, the burden of proof, and the burden of producing evidence shall be as follows:

(1) The prosecution shall initially have the burden of producing evidence of the separate conviction sufficient to justify a finding that the defendant has suffered that separate conviction.

(2) After the production of evidence required by paragraph (1), the defendant then has the burden of proof by a preponderance of the evidence that the defendant's constitutional rights were infringed in the separate proceeding at issue. If the separate conviction sought to be invalidated is based upon a plea of guilty or nolo contendere, the defendant shall provide the court with evidence of the prior plea, including the court docket, written waivers of constitutional rights executed by the defendant, and transcripts of the relevant court proceedings at the time of the entry of the defendant's plea. These records shall be provided to the defendant without cost to him or her, when the defendant is represented by the public defender or counsel appointed pursuant to Section 987.2 of the Penal Code.

(3) If the defendant bears this burden successfully, the prosecution shall have the right to produce evidence in rebuttal.

(4) The court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any separate conviction found to be constitutionally invalid.

I am not sure how to use this to my advantage when I plead guilty to the charge due to not having knowledge of the right to travel. I have been so busy lately that I have not had a chance to respond to all of you that have posted advise, but I again want to express my thanks.

[TheBlackTruth]

hey, tlynum

What state are you in? I'm having some interesting things happen with my motions as well. I'm currently doing a complete revising of the motion including case cites and whatnot. I invite you to join the yahoo group NO-DRIVERS-LICENSE at http://groups.yahoo.com/group/No-Drivers-License/. There we are working on revamping the motion collectively.

-Truth

[weishaupt1776]

Originally Posted by tlynum

What authority if any does the prosecutor have to sign the complaint, he is not the injured party, and the police officer can't because he is the witness for the state?

Hold that thought . . .

Originally Posted by tlynum

The problem I am realizing is that traffic courts are Nisi Prious (I hope I spelled that correctly) courts that only deal with facts and not law.

That is not a problem at all my friend. In fact use that for "box them in questions"(BTI?'s).Always start out w/ I'm not a lawyer & I don't understand these proceedings. I will be happy to plead guilty & pay the fine today, but Before we begin, I have a few questions before I can intelligently make that decision.

• Your honor is this a Nisi Prious venue?
• So this venue deals w/ facts & not law, is that correct?
• Your honor is there evidence of a complaining party?
  JUDGE:Yes, it's the STATE OF_______
• Yes, your honor, I understand. However my question is not the name of the party but ,"Is there any evidence or material fact of a complaining party?"

It's a little deeper than that, but see how you can set them up to admit there is no plaintiff?

Originally Posted by tlynum

I am not sure how to use this to my advantage when I plead guilty to the charge due to not having knowledge of the right to travel.

I hope that shed a little more light.

Thanks for the invitation BT, I am in Southern Calif.

Also, Thanks Weis, your post helps a great deal.

[weishaupt1776]

Go to a law library & read Cal Jur 2d under "Action" & "Parties". You will see that the evidence of a complaining party is the action or event that caused the person to suffer damages or a loss of a right. Otherwise, we could sue anybody for anything. This is called the doctrine of "standing". No injury or loss=No standing to sue. If I sue you because I don't like your pink izod shirt, I have to show how I was harmed or how a right of mine was violated as a result to have standing to sue you for wearing a pink izod.
In civil actions, it can ONLY BE from the result of a contract breach or a tort.
In criminal, it can be from a tort, but I don't believe a contract.I'm not sure about criminal proceedings.
Check out this new download HERE

[weishaupt1776]

POLICE CAN NOT CHARGE YOU FOR NDL/DUS TILL A VERIFIED COPY OF LICIENSE IS GOTTEN FROM DOT.

*IE. THE LOCALS KNOW YOU DO NOT HAVE A LICIENSE AND You STILL Are ON THE ROAD. .


*http://www.superior.court.state.pa.u...ons/a54046.pdf

[Avie]

Originally Posted by TheBlackTruth

I commend your bravery. It's never easy to walk into court and defend one's self.

Let me see if I can point out some issues that can be taken to heart for your next go-round':

1) The Judge cannot grant you an administrative ANYTHING as he is a Judicial officer. It is the AGENCY that owes you the determination.

2) Your motion to dismiss needed to be filed at least 10 days before any scheduled appearance. Preferrably, you would file it far before then so you can have a completely separate date exclusively for hearing your motion. With this in place, you cannot be forced to enter a plea, per F.R.Civ.P 12.

3) All is not lost. You can still file your motion to dismiss and get a hearing on that motion prior to your arraignment and still be under the protection of F.R.Civ.P 12. You will then be able to appeal a ruling on that motion through a Writ of Review and request a stay of proceedings pending the ruling on the appeal. I myself haven't gotten passed this part, so i'll let you know what I find out in a few weeks.

-BT

I have suspension via sherriff seized license. But no court filiing anywhere. The corundum is a stopper. What to file to demand what I defend. FOIA? DMV Summary request. All I get is a printout saying "suspended".
VA

Hey guys I found this post by Paul Bell, his site just got shutdown, I believe he passed away in november 2005, and I don't think the case got heard but the argument is right on the money

Hey guys I was wondering if this attachment would help you, at least to those in California

[idknow]

Originally Posted by Gmail

Hey guys I found this post by Paul Bell, his site just got shutdown, I believe he passed away in november 2005, and I don't think the case got heard but the argument is right on the money

post the former url to his site?

maybe I can find the files