回复：如何利用法律赋予你的权利打掉超速告票

来源: apt 于 2012-06-04 11:44:05 [档案] [博客] [旧帖] [给我悄悄话] 本文已被阅读：次 (2376 bytes)

回答: 如何利用法律赋予你的权利打掉超速告票由 jingxi02 于 2012-06-03 02:37:20

First of all, you are not an attorney. Regardless of whether you take money from others or not, what you are sharing is beyond your own experience but a general discussion of a trial practice in a court room, which is, of course, defined by the California Supreme Court in 1970, an unauthorized practice of law.

An unauthorized practice of law in the state of California is a misdemeanor with a penalty of up to one year of jail time imposed.

Let alone, not every state recognize speedy trial right to an infraction case such as a speeding ticket. NY and CA do, among a few others. Whether California Penal Code 1382, which you referred to the 45 day rule, applies to a traffic case is still debatable, although due to the overwhelming of the traffic court, if you raise a motion in court and your trial cannot be set within 45 days, generally the case will be dismissed. Lately, however, at least the Los Angeles county courts are doing various things to make sure they do not violate this rule.

The speedy trial right is guaranteed by both the US Contitution and California Consitution, Article I, section 15. There is nothing written in the Constitution that this right attaches to a traffic ticket, although typically we argue through Penal Code 17 and Penal Code 19.7, along with VC 40901 that it does. But I emphasize here, nothing is written black and white about this right in a traffic case. That is why I said it is still debatable. But there is more. The US Supreme Court held in Barker that a speedy trial right attaches at arrest. In a traffic case, arrest happens when you are stopped on a highway, not at arraignment. So literally this right should attach at traffic stop. This is what the California Supreme Court ruled in Serna. This is the basis for a serna motion. PC 1382 is only the legilature's interpretation of this right after arraignment.

There are many ways to waive this right. For example, if you do a telephone arraignment, unless you specifically mention speedy trial right, it would be considered waived. If you do trial by written declaration, this right is waived.

Lastly, it is misleading to think that you get an out of jail for free card when you can raise this right to get a ticket dismissed. It is for your own safety as well as the safety of others that you do not speed on the road.