Cody's Right To Travel

[Codee]

This is a good collection of cites found at http://www.helpigotaticket.com/cases/


CALIFORNIA
TRAFFIC LAW CASES

While far from a complete collection of California traffic law cases, these have been very useful:
People v Ausen - the court held that they do not regard traffic signals as, "an absolute rule under all circumstances".

People v Behjat - In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that she drove at a speed that was unreasonable for the driving conditions.

People v Beltran - We accept the settled statement as correct, because the trial judge is the final arbiter of that issue. (regarding appeals)
In any case where a county seat is an incorporated city, it includes all territory heretofore or hereafter annexed thereto. (regarding change of venue)

People v Carlucci - ...the trial court at a traffic infraction hearing may call and question witnesses in the absence of a prosecutor. Such actions constitute neither a per se denial of due process nor transmute the judge into prosecutor.

People v Difiore - We conclude that defendant was entitled to rely on the anti-speed-trap laws even though the evidence showed that defendant was driving in excess of 55 miles per hour.
People v Earnest - Because the People did not produce either the original engineering and traffic survey or a certified copy of it demonstrating that the posted speed limits on the pertinent segments of roadway were justified by current engineering and traffic surveys, none of their evidence as to the defendants' speeds was - admissible...

Esteybar v Municipal Court - The prosecution of a case by the district attorney involves an exercise of executive power...

People v Flaxman - whenever radar is used in conjunction with a prima facie speed limit it is always relevant to determine whether or not the prima facie speed limit has been justified as required by the statute, regardless of the fact that the violation has no relation to any prima facie speed limit.

People v Goulet This is the definitive case on speed traps. Read it.
You might also want to read Chapter 8 of the CalTrans Traffic Manual.
NOTE:The CalTrans Traffic manual has been replaced by the Manual on Uniform Traffic Control Devices (MUTCD) 2003 as amended by the MUTCD 2003 California Supplement. (see Chapter 2B: Regulatory Signs; pages 51 - 54)
The CalTrans Manual and the MUTCD require the Adobe Acrobat Reader (it's free).

People v Halopoff - [W]e declare the obligation of the prosecutor to establish that a speed trap was not involved in those cases where radar is used to apprehend a defendant.

People v Huffman - If the court finds the survey does justify the speed limit, then the burden shifts to the defendant to prove his speed was nevertheless safe under the circumstances. (Veh. Code, § 22351, subd.(b).)

People ex rel. Kottmeier v. Municipal Court - The municipal court may properly require the District Attorney to supply a list of witnesses for each case, for example; the court should then permit the witnesses to give a narrative recital. The court has no obligation, however, to assist the People's witnesses in presenting the case, and we recognize its continuing discretion to request the presence of a prosecutor in the unusual case.

People v Marcroft - Whether or not the People provide a prosecuting attorney, the citing officer who testifies as to the circumstances of the citation is a witness, no more, no less.
Smith v Municipal Court - We hold therefore, that the arresting officer was upon the demand of petitioner required to specify the municipal court at the county seat as the place where petitioner should appear.

People v Studley - This case presents the following question: where a motorist is cited, by the use of radar, for speed in excess of the state maximum speed limit on a nonlocal road with a prima facie speed limit of 50 miles per hour, and where a traffic and engineering survey is not proved at trial, do California's speed trap laws apply to compel exclusion of all evidence of speed? We hold the answer is "yes."

People v Tuck - Section 40800 appears in chapter 3 under the title "Illegal Evidence," and is followed by sections 40801, 40802 and 40803 relating to speed traps and prohibiting use of speed trap evidence, and section 40804 making an officer not in uniform and driving an unmarked vehicle who has arrested a driver for a speed violation incompetent to testify as a witness in a prosecution of the charge.

People v Wozniak - both the present language of Vehicle Code section 42005 and People v. Enochs... require trial courts to consider the merits of a defendant's request for traffic violator school whether that request is made before or after conviction.
Access California Case Law 1934-Present at FindLaw. (requires registration - free) [/quote]

[Codee]

Originally Posted by People ex rel. Kottmeier v. Municipal Court(1990) 220 Cal.App.3d 602 , 269 Cal.Rptr. 542
[No. E007729. Court of Appeals of California, Fourth Appellate District, Division Two. Apr 20, 1990.

]
Although the language of Government Code section 26500 is certainly not free from doubt, we agree with the result reached in People v. Daggett. The phrase "attend the courts" is too vague to be of much use in interpretation; what courts? When? [3] On its face the statute then appears to grant the district attorney discretion both to initiate and conduct the prosecutions. This is undoubtedly the intention of the statute, insofar as it means that it is the district attorney's prerogative to determine whether to file charges and whether to continue a prosecution. (See People v. Adams (1974) 43 Cal.App.3d 697, 707-708 [117 Cal.Rptr. 905].) It is less clear that the statute was intended to permit the district attorney to choose when to appear for trial, or what the result of his absence should be.

It seems as though the coice to file the ticket is not up to the cop nor the clerk... so there must be proceedural error here somewhere if the prosecutor has not decided to file the case.

California Government Code
26500. The district attorney is the public prosecutor, except as
otherwise provided by law.
The public prosecutor shall attend the courts, and within his or
her discretion shall initiate and conduct on behalf of the people all
prosecutions for public offenses.

However the DA could skate it by claiming that the infraction was not a public offense. It is not. However there is no authority to prosecute non public offenses.

Furhter if the district attorney does not call any witnesses then after that one may be able to move for acquital under

CPC
1118. In a case tried by the court without a jury, a jury having been waived, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.

[Codee]

First off this is procedural. Some people have a problem with “procedure” and think it is the work of the government and only sell outs use it. “Procedure” is the ways and means of “due process.” If you do not use or hate “process” and “procedure” then you surely will have handicapped yourself in the arena known as court and are depriving yourself of the benefits of due process.

In my latest stand against the traffic enforcement system I do believe I learned of at least one “effective” tool. Discovery!

In my case I objected to the “surprise” appearance of the officer. It was a surprise in that I received no discovery in the case which I thought was mandatory. I have made discovery requests in the past and received dismissals due to no shown and such. I do not know how big of a role the discovery request was in those cases however I am beginning to think that it played a major role.

I was not prepared to argue the discovery issue as it just sort of came to me in court while I was awaiting my trial. I did not have these essential codes to relate to the judge… however next time I will and do think that the argument will be more successful. Below is code which I feel makes criminal discovery MANDATORY on the district attorney’s office. It will require first that I send an “informal” request to the district attorney’s office. When the DA fails to provide any “statements of the officer” or and “Real evidence” then I will move for dismissal in a probable cause hearing. I will also go after sanctions if that happens to appear to be the best avenue.

CALIFORNIA CODES
PENAL CODE
SECTION 1054-1054.10

1054. This chapter shall be interpreted to give effect to all of
the following purposes:
(a) To promote the ascertainment of truth in trials by requiring
timely pretrial discovery.
(b) To save court time by requiring that discovery be conducted
informally between and among the parties before judicial enforcement
is requested.
(c) To save court time in trial and avoid the necessity for
frequent interruptions and postponements.
(d) To protect victims and witnesses from danger, harassment, and
undue delay of the proceedings.
(e) To provide that no discovery shall occur in criminal cases
except as provided by this chapter, other express statutory
provisions, or as mandated by the Constitution of the United States.



1054.1. The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,
if it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the
investigating agencies:
(a) The names and addresses of persons the prosecutor intends to
call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part of the
investigation of the offenses charged.
(d) The existence of a felony conviction of any material witness
whose credibility is likely to be critical to the outcome of the
trial.
(e) Any exculpatory evidence.
(f) Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor intends to
call at the trial, including any reports or statements of experts
made in conjunction with the case, including the results of physical
or mental examinations, scientific tests, experiments, or comparisons
which the prosecutor intends to offer in evidence at the trial.


1054.5. (a) No order requiring discovery shall be made in criminal
cases except as provided in this chapter. This chapter shall be the
only means by which the defendant may compel the disclosure or
production of information from prosecuting attorneys, law enforcement
agencies which investigated or prepared the case against the
defendant, or any other persons or agencies which the prosecuting
attorney or investigating agency may have employed to assist them in
performing their duties.
(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to provide
the materials and information requested, the party may seek a court
order. Upon a showing that a party has not complied with Section
1054.1 or 1054.3 and upon a showing that the moving party complied
with the informal discovery procedure provided in this subdivision, a
court may make any order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure,
contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the
matter, or any other lawful order. Further, the court may advise the
jury of any failure or refusal to disclose and of any untimely
disclosure.
(c) The court may prohibit the testimony of a witness pursuant to
subdivision (b) only if all other sanctions have been exhausted. The
court shall not dismiss a charge pursuant to subdivision (b) unless
required to do so by the Constitution of the United States.

This should be prepared as a proper motion and I feel it can be used in a number of California traffic cases.

[Codee]

The APA here it is...

1995 California Law Revision Commisssion Comment.
Subdivision (a) of Section 11415.50 is subject to statutory
specification of the applicable procedure for decisions not governed by
this chapter. See Section 11415.20 (conflicting or inconsistent statute
controls).
Subdivision (b) is drawn in part from 1981 Model State APA § 4-101(a).
The provision lists situations in which an agency may issue a
decision without first conducting an adjudicative proceeding.
For example, a law enforcement OFFICER may,
without first conducting an adjudicative proceeding,
issue a "ticket" that will lead to a proceeding
before an agency or court.
Likewise, an AGENCY may commence an adjudicative proceeding without first
conducting a proceeding to decide whether to issue the pleading.
Nothing in this subdivision implies that this chapter applies in a proceeding in
which a hearing is not statutorily or constitutionally required.
Section 11410.10 (application to constitutionally and statutorily required hearings).

§ 11415.50 When Adjudicative Proceeding Not Required
(a) An agency may provide any appropriate
procedure for a decision for which an adjudicative proceeding
is not required.
(b) An adjudicative proceeding is not required for informal
factfinding or an informal investigatory hearing, or a decision
to initiate or not to initiate an investigation, prosecution, or
other proceeding before the agency, another agency, or a
court, whether in response to an application for an agency
decision or otherwise.

CHAPTER 4.5 ADMINISTRATIVE ADJUDICATION: GENERAL PROVISIONS
ARTICLE 3 APPLICATION OF CHAPTER
§ 11410.10 Application to Constitutionally and Statutorily Required Hearings
This chapter applies to a decision by an agency if, under the federal or state
Constitution or a federal or state statute, an evidentiary hearing for determination
of facts is required for formulation and issuance of the decision.

1995 California Law Revision Commission Comment.
Section 11410.10 limits application of this chapter to constitutionally and statutorily
required hearings of state agencies. See Section 11410.20 (application to state).
The provisions do not govern local agency hearings except to the extent expressly made
applicable byanother statute. Section 11410.30 (application to local agencies).
Section 11410.10 states the general principle that an agency must
conduct an appropriate adjudicative proceeding before issuing a decision
where a statute or the due process clause of the federal or state
constitutions necessitates an evidentiary hearing for determination of facts.
Such a hearing is a process in which a neutral decision maker
makes a decision based exclusively on evidence contained in a record
made at the hearing or on matters officially noticed. The hearing must at
least permit a party to introduce evidence, make an argument to the
presiding officer, and rebut opposing evidence.

[Codee]

Best case site yet for dealing with administrative law.

"The court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the law declares criminal, and none other, and when it undertakes to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction." Such cases, it is evident, must be of rare occurrence. They are the offspring of peculiar circumstances, which happen infrequently. When they do occur, and are presented for adjudication, should not the court be as ready in such emergencies to relieve on habeas corpus as to enforce the legal punishment in case of guilt?" (See People v. Liscomb, 60 N. Y. 559 at 569, 570.)

We need to develope a case that the state can only punish for crime and in that contect it can create no court to punish for non-criminal violations.

[Notorial dissent]

The court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the law declares

The problem is that it comes back to this part of the statement. The law gives the court its jurisdiction and extends it where the law directs, and then the law specifies what the punishment is or can be.

[Codee]

Originally Posted by Notorial dissent

The problem is that it comes back to this part of the statement. The law gives the court its jurisdiction and extends it where the law directs, and then the law specifies what the punishment is or can be.

That ain't the problem with it at all. That is exactly what I rely on in this argument.

I rely on Cal. Gov. Code sec 200-204 which clearly gives the state the power to punish for crimes and nothing else.

People v. Battle 50 Cal App3rd Supp1. declares infractions non-criminal.

End of story. No common law. No theory.

[palani]

Originally Posted by Codee

That ain't the problem with it at all. That is exactly what I rely on in this argument....End of story. No common law. No theory.

JURISDICTION, Practice. A power constitutionally conferred upon a judge or magistrate, to take cognizance of, and decide causes according to law, and to carry his sentence into execution.

jurat noun
Etymology:
short for Latin juratum (est) it has been sworn, 3d singular perfect passive of jurare to swear

diction noun
Etymology:
Latin diction-, dictio speaking, style, from dicere to say; akin to Old English tēon to accuse, Latin dicare to proclaim, dedicate, Greek deiknynai to show, dikē judgment, right

Why its' so clear even a Californian should be able to see it --- jurisdiction = oath spoken period, nothing else, end of story ...

If there is no OATH SPOKEN there is no jurisdiction.

If there is no constitutional connection there is no power transfered to the court.

[Codee]

So back on to the track of what this thread is about...


So readers of this thread will remember sections 200-204 of the Government Code which gave the state power over persons for the commission of CRIMES.

But does this just mean that the state can "Seize" my body as “punishment” for crime? Does that mean that the state can still fine me for non-crimes? It is not really clear from the above that the state has no power to punish me at all for non-crimes.

So then we now look at…

27. (a) The following persons are liable to punishment under the
laws of this state:
(1) All persons who commit, in whole or in part, any crime within
this state.
(2) All who commit any offense without this state which, if
committed within this state, would be larceny, carjacking, robbery,
or embezzlement under the laws of this state, and bring the property
stolen or embezzled, or any part of it, or are found with it, or any
part of it, within this state.
(3) All who, being without this state, cause or aid, advise or
encourage, another person to commit a crime within this state, and
are afterwards found therein.
(b) Perjury, in violation of Section 118, is punishable also when
committed outside of California to the extent provided in Section
118.

Ahhh so the state has no power to punish me at all for non-crimes.

It is right there.

[farmer_giles_of_ham]

The thing is all driving IS commercial anyway (apparently) There is no such thing as non commercial driving. Any use of an automobile on the public ways means commerce.

There is no way to avoid it- we have to NEGOTIATE TRAFFIC out there on the public road, and that's the govt jurisdiction. Water is wet, cats meow, and driving is boat law, under the flag of residence, registered vessel, etc. There is police power over this all over the world 'round.

This is because what we are doing involves other people, in motorized motion, on what are essentially navigable rivers. It's just the way it is.

The word in latin languages for cars moving around is "circulation" (just like currency).

The growth of licensure in leagl history is just that- an evolving process. It always was commercial however.

I wish to point out that the state "vehicle codes" include regulation of foot traffic as well!

C'mon, if sexual intercourse counts as commerce then surely motoring will as well!
----------------------------------

However the loophole is in the diversity of states (hats off to D Merrill there)- we all ALREADY HAVE a license-the Int'l permit!

The real challenge is to overcome certain false presumptions, like "a DL " is something that must conform to a popular image, rather than the legal definition.

My favorite question those in public employment make, when confronted with the (relative) absence of some expectation (like no 'official' id), is when they ask "where is it?"

Like WTF is the difference?

I have been answering, "it's locked up in my safe". They seem to accept that.