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Page 2 . Golden Empire Review . Volume Six, Number Twelve

Our Rights under 40519

by Pat Riot

Sometime between getting 44 tickets I bought "FIGHT YOUR TICKET" by Attorney David W. Brown. One thing I learned from this book was that any person subject to the Vehicle code can bypass the arraignment and go directly to trial.

The "FIGHT YOUR TICKET" book says "You can go to the court clerk and say that you're pleading ‘not guilty’ and that you want your next appearance to be a formal trial with the officer present". The book also says "if you don't want to go to the courthouse and wait in line" then you can plead "not guilty" by mail. This ability that we have is given to us in Vehicle Code section 40519. Part (a) tells us we can go to the clerk and that the case will be set for arraignment and trial on the same date. Part (b) tells us we can mail in our "not guilty" and then just show up for the trial.

I decided to try this for a speeding ticket I received in April 1995. I was going 80 in a 55 in an area of very little traffic. On the day I went to the window to try this procedure I brought a copy of the vehicle code with me to show the clerk (just in case). I went to the clerk and told her that I wanted to post bail and for her to set a trial date under 40519(a) of the Vehicle code. She said I couldn't do this. I asked to speak to someone else and a man came to the counter. When he refused to do this also, I began asking why and tried to show him the Vehicle code section. He completely ignored the Vehicle Code! I thought maybe he wasn't THE clerk, maybe he was of a lower position than THE clerk. I then asked to speak to THE clerk of the court so I could have my trial date set. I did not know what to do at this point. Pointing to the section of the Vehicle Code I was feeling frustrated while the clerk not even acknowledging that I was even holding anything! After a couple of minutes the clerk (who is supposed to be our servant) got tired of me so he called the Sheriff to escort me out of the building.

The Sheriff officer came up to the window where I was still trying to get my court date and told me it was time to leave. It wasn't until this officer poked me with his fingers that I moved away from the window. I felt insulted that he touched me like that, after all I was doing nothing wrong. When he told me I had to leave the building, I asked "Isn't this a public building?" I said "I have a right to be here." When I tried to explain the situation to the officer, he would not listen either. At about this time someone told me that the commissioner wanted to see me.

The court room was empty except me and the court personnel. The commissioner said that I had all the time in the world to say what I wanted to say. I quoted the code section to him and he told me 2 contradictory things back. His ruling that the word "may" is permissive and not mandatory. I did not think at that time to ask "Who does the ‘may’ in that code section apply to?" It is clearly us not the clerk. The commissioner also said "We don't do that here. Other courts may do that, but it is not our policy." He said I could appeal his decision for this hearing. Not knowing how to appeal and feeling stupid for trying, I decided to just plead "not guilty" and then he set a date for trial. The commissioner was very polite to me and said "We'll make a lawyer out of you yet" and "Next time you should read the cases that are listed after the code section in the law library version of the Vehicle Code."

There has been only one decision based on V.C. 40519 and that is People vs. Prince 55 C.A.3d Supp. 19; 127 Cal.Rptr.296. I read this case. This 1976 case is about whether or not the reading of rights (mainly assistance of counsel) was of Constitutional significance since a person mailing in a "not guilty" plea would miss the arraignment and go straight to trial.

People vs. Prince does mention some background information related to this right:

(3a) In 1968 the California Legislature implemented the concept of "convenience" in infraction cases by authorizing a person charged with an infraction to enter a not guilty plea my mail, thus avoiding the necessity of appearance by defendant or his counsel for arraignment.

In 1975 the privilege was further extended by authorizing a person cited for an infraction to give notice of intention to plead not guilty, thereby causing the case to be set for arraignment and trial on the same day.

The California Legislature gave us this right for our convenience!

I lost the trial, paid $194, went to traffic school and mailed in one of those "Customer Service Survey" as a final protest (see picture). I photocopied the section of the vehicle code and pasted it to the back of the card and circled the appropriate words so that any clerk would be able to understand it. The survey says "If you would like a response to any of your concerns, please PRINT your name," etc..... So I did. I also put my REAL phone number because I REALLY wanted to know why I was not allowed to do this. I NEVER have received a response!

A couple of years later I decided to try again. My plan was to keep asking for the supervisor, commissioner whatever and appeal all the way to the California Supreme court. I'll do anything to get out of paying a fine, plus I’ll learn a few things about exercising my rights along the way.

I got a ticket November 1997 for doing 85 in a 65 by RADAR. I always get my one month extension per V.C. 40506.5. This was extended to January 29th, 1998.

On January 28th I typed up a PEREMPTORY CHALLENGE for cause (CCP 170.6) just in case that same commissioner was there, I could have a hearing with a different commissioner (if it went that far). That afternoon I waited in line, hit record and play on my micro cassette recorder that was in my pocket and went to the window with my checkbook in my hand. I said to the first clerk exactly "I wanna post bail and set my case for trial and arraignment on the same date." She told me I could not do that! I wasn't even that shocked. I guess I kind of expected that response, however I thought that maybe they read my "Customer Service Survey" that I mailed in and now they know the Vehicle Code after 2 ½ Years. I didn't argue. I said "Can I talk to your supervisor?"

The man who was her supervisor was the same man who called the sheriff to escort me out of our taxpayer paid for building in 1995! I would have rather talk to someone else, but I was going to stand for this right while being as polite as possible. He said I could not do this, I had to see the commissioner. "I said I want to talk to YOUR supervisor." He shook his head no, and called security again.

Three Sheriff officers responded to "a disturbance". They listened to me tell them that I wanted to post bail and get a trial date set. All 3 Sheriff were ignorant of this code section and proceded to explain to me the way "it is". They ignored looking at my copy of the Vehicle Code. I was wondering why the Sheriffs didn't enforce the Vehicle Code on the clerk or at least be the middleman if the clerk doesn't want to listen to me directly. If the Sheriffs would have just tried to understand the lowly Citizen instead of protecting the lawbreaker protected by the glass window, I would not have had to make a dozen more court trips, driven around 100 miles, taken 1 day 1/2 off from work and been under all that stress thinking about this damn case for our right of "convenience"!

One Sheriff officer did write down my name and the date for me and was very nice. He said he would testify that I went to the window, but not in front of ‘the judge’ if I went to trial on a failure to appear charge.

I made a promise. That promise was that I appear before January 29th, 1998 to the Municipal Court 1215 Truxtun Ave Bakersfield 93301. I fulfilled that promise on January 28th. I did my part. It is not my fault that they broke the code.

I didn’t want to go again to see the commissioner because nothing would change. I had to have a trial by jury on a failure to appear charge and then maybe the Bakersfield Municipal Court would honor the Vehicle Code and the people who have to go there.

I received a courtesy notice saying that I have failed to settle this case.

I wrote a letter to the District Attorneys Office asking for help stating "The clerks at the Municipal Court at 1215 Truxtun denied me my right under Vehicle Code 40519(a)". I got a response that stated we can not be of assistance to you and that you should retain counsel if you need legal advice.

I got a yellow notice in the mail stating that I had a certified letter at the post office (which in 10 miles away from my house). I already knew it was from the DEPARTMENT OF MOTOR VEHICLES. It was an order of suspension effective May 6th.

Now I had to see the commissioner to get this cleared up. I would object if he tried to dismiss the failure to appear because I wanted to stand for this right.

I tried to go in the very next day thinking that 1:30 would be a good time. I was wrong. I went again the next morning arriving at the window at 8:17 and was told that 8:15 was the deadline and I couldn't be let in to see the commissioner. Isn't it ironic how many times I have gone to court for this failure to appear?

I went in later that afternoon. I brought another PEREMPTORY CHALLENGE with me (just in case). When I walked up to the front of the court room, the commissioner read a document, and then he commented "It says here you went to window on the 29th and were abusive to the clerk". Although that statement is completely untrue, that document is proof the court knew I was at the window. Why then, didn’t they mail me a letter with my trial date?! I told the commissioner I wanted to plead "not guilty" to the failure to appear (this time I really wasn't guilty!). I told him I wanted a trial by jury. He said you can't have a trial by jury for an infraction. I said "Failure to appear is a misdemeanor". He said, "OK, we’ll set this for pre-trial hearing on April 24th in Division K".

At the Pre-trial Hearing they offered to drop the failure to appear if I paid $100 for the original ticket. I demanded a trial by jury and they set it for trial May 11th.

Meanwhile I was going to challenge another ticket from January 30th. I had slowed to 93mph by the time the CHP got a RADAR lock on me. I was being bold because I had a new RADAR detector that I just bought. I found out the detector worked, but it did not give me enough time to slow down!

I decided to use procedure V.C. 40519(b). Pleading "not guilty" by mail would avoid all the hassles. I sent it registered mail, return receipt, and insured. It cost me $5.72 for the letter to go about 2 blocks distance! Here is a tip: a) On your letter put REGISTERED MAIL number: b) do not seal your envelope until after you find out what the post office registered number is going to be c) hand write the number on your letter d) photocopy your letter on the post office's copy machine e) seal the envelope f) go back to the window and have them send your letter. I was very happy when I received a letter of my trial date for this January ticket!

Now, in preparing for my trial by jury I needed to subpena witnesses that could prove that I did appear. Also, an expert witness to say that I could go to the clerk would be vital. I had the letter with a Deputy clerks name on it that understood what V.C. 40519 was. I politely asked the clerk at the counter if I could talk to this Deputy clerk as I had to prepare for my trial and she could straighten everything out.

The Deputy clerk was very nice and helpful. She was willing to read my copy of the Vehicle Code. Thank You! I asked her, "This letter you sent me is because V.C. 40519(b) lets me mail my plea in, now why can't I just hand deliver this same letter directly to you instead of going though the post office?" After a couple of excuses she went to her supervisor and came back and said "Well if you would have shown up before January 29th, before it turned into a failure to appear we could have done it." I asked if she would be a witness and she replied "I will only testify if I am subpenaed".

The next day I got an answering machine message from the supervisor of the Deputy clerk woman who sent me the letter. I called this supervisor woman back and we also discussed V.C. 40519 and she agreed that the clerk must set a trial date. She said she was the first clerk’s boss also, the man who had me escorted out twice. She said she would tell him that he has to set trial dates. Now, it is interesting this supervisor woman was able call me at home because every time I go to court I always give them 396-3510 which is the computer dial up number for Internet Galaxy. I suspect she had my "Customer Service Survey" card from 1995!

Anyways, I am happy that these two supervisors will allow us to exercise this right of "convenience" and that the other clerk(s) have been notified because now all of us are going to start using it. I'll be in there myself after my 1 month extension (for another ticket).

On May 11th, my trial date the D.A. and the judge offered to dismiss the failure to appear. I accepted after basically having gained the right by talking to the Deputy and supervisor clerks. The Sheriff officer showed up on the subpena he was served and he was on vacation! The 2 clerks I subpoenaed did not show up to the court room, however I am sure the judge would have dragged their asses up there had it gone to trial.

I want to thank a couple of people for helping me serve the subpoenas twice (We did it wrong the first time). I would like to thank the subpena coordinator for the Sheriff Department. Although I had to do research on witness fees, she worked with me both times I had to have it served. Thanks also to Mike Hodges who made sure I had a copy of the subpena that was served to the Deputy clerk who refused to be served by us.

I ended up paying $173 dollars for losing that speeding ticket trial. Even though I have been a regular customer of the court paying over $2100 through the years, they wouldn’t take a check because of the failure to appear.