| First, you must ... absolutely MUST, have a good reason for a Trial by Declaration, such as locality of the court. They'll grant you the Trial by Declaration out of courtesy (tell me a court that has been), but it's on their mind if you are local and don't just show up. I ACTUALLY REQUESTED A CHANGE OF VENUE AS WELL, AND IT WAS DECLINED. Most people who lose the Trial by Declaration, lost because of procedure. I'm not saying that this is why you lost, but there are guidelines for the procedure that have to be followed to the "T". If not, they won't accept your TbyD, and you lose by default. MY TBD WAS ACCEPTED. Once your TbyD makes it past the clerks, the officer gets a notification that there is a TbyD. The officer must send his declaration to the court before the set court date. Most officers don't do this which results in an automatic dismissal. THERE WERE TWO OFFICERS IN MY CASE, THE AIRCOP AND THE OFFICER WHO PULLED ME OVER. BOTH HAD TO RESPOND TO THE TBD, YET ONLY ONE DID (THE CITING OFFICER) IN TIME. THEY KEPT EXTENDING THE DUE DATE TO ALLOW THE AIRCOP TO RESPOND, IT WAS RIDICULOUS. THEY WERE THE ONES THAT DIDN'T FOLLOW THE PROCEDURE, YET IT STILL WENT TO COURT (AFTER I LOST THE TBD). Once the judge receives both declarations, the judge (errr, I mean commissioner -- they're not judges, but that's another story) will review the declarations and make his decision. Sometimes his decision isn't even based on the facts, but on the demeanor of the declaration. So it's important to stay focused on facts and not opinions. AGREED AND FOLLOWED. Some judges will agree with everything you state in your declaration, but if you fail to ask for a dismissal, he'll say to himself, "And what am I supposed to do with these facts?" I WAS CLEAR. I ASKED FOR A DISMISSAL BECAUSE THE AIRCOP NEVER RESPONDED TO MY REQUEST FOR DISCOVERY IN PREPARATION FOR MY TBD. MY FINAL LETTER BELOW:
______________________________________________ re: citation number 27758JQ The Hon. James P. Willett, District Attorney: Thank you for granting a final extension to 3 April 2009 for receipt of my Trial by Declaration Form TR-200. I am writing in regards to my trial by declaration. The bail amount of $161.00 has already been received by San Joaquin County Superior Court, receipt# 364087 on 27 January 2009. I respectfully submit this written declaration to the Court pursuant to CVC 40902. As of the date of this letter, discovery is incomplete. In a letter dated 3 March 2008 from J. E. Dial of the California Highway Patrol, I was redirected to fulfill my Request for Discovery to the arresting officer, Officer Anders (I.D. No 13634) of the Valley Division Air Operations Unit. A Discovery Request was sent to Officer Anders and delivered on 13 March 2009 (proof attached). On 24 March 2009, I called the Lodi Branch and spoke with Kelly about the status of my request for extension. She informed me that my letter was received and to call back on 25 March for a status. On 25 March 2009, I called the Lodi Branch and spoke with Gloria about the status of my request for extension. She informed me that one last extension was given, and that it was only a one (1) week extension. She suggested I contact the Valley Division Air Operations directly, and to prepare this letter with whatever information I had gathered, persistent that I comply with turning in the TR-200 form by the new due date of 3 April 2009. In preparation for this response, I again contacted the Valley Division Air Operations Unit at (530) 823-4535 and spoke with Linda on 25 March 2009, 10am. I requested to speak with Officer Anders about my request for discovery given the 3 April 2009 due date for my Trial by Declaration. I asked about my letter to Officer Anders, and she confirmed that he would have reviewed such a letter written to his attention. Linda informed me that Officer Anders wasn’t scheduled to be in until 1pm on 26 March 2009, and that he would call me back to discuss his intent to comply with my Discovery Request – I left my phone number which has voicemail and call recognition if I was not available. No incoming phone calls were noted and no voicemails were left. I called again at 9:45am on 27 March 2009 to speak with Officer Anders about his intent to comply with my Request for Discovery. I spoke with Officer Marks, who informed me that Officer Anders was on “road facility” then had time off, so would not be available to speak until after 1 April. Your office was copied on The Request for Discovery I sent to Officer Anders, however, here are the items I requested from him that I have not received: ? A list of all witnesses for the prosecution.
? A statement that details the technique used to determine the alleged speed.
? A copy of all records regarding the maintenance and calibration of any electronic item that may have been used in this case to determine the alleged speed.
? A copy of each and every certification issued to Officer Andreas involving the use of said electronic device used to determine the alleged speed.
? A copy of any and all information used in determining the alleged speed reported to Officer Okazaki. The following prose was on the letter as well: Please confirm, in writing to the above address, which of the following you intend to do: 1. Comply with the enclosed Discovery Request; or
2. Exercise your discretion and not initiate and conduct the prosecution of this case, and inform the court that you are making a motion per Penal Code 1385 to have the case dismissed in the interest of justice; or
3. Violate my right to due process (and 42 USC 1983) and refuse to comply with the Discovery Request. I request this case be dismissed in the interest of justice via violation of my right to due process (and 42 USC 1983) by refusing to comply with my Discovery Request. Please see attached letters. Sincerely, Scott Smith
cc:
The Hon. James P. Willett, District Attorney
San Joaquin County
PO Box 990
Stockton, CA 95202
________________________________________________ ss
Originally Posted by solidfish on my350z.com:
"Hey Scott. Thanks for the ride by the way. Your car and driving is sick. Literally, I was sick. It was like riding a mad rollercoaster. The car turns like its on rails. And the braking was unreal. So many times I thought we were going to fly off the track. Absolutely nuts, but it was great fun." |
