TRIALS BY WRITTEN DECLARATION:
ARE THEY THE BARGAIN OF THE CENTURY FOR A TRAFFIC DEFENDANT?
A Trial By Written Declaration (California Vehicle Code Section 40902) procedure allows an individual defendant cited for a traffic infraction (i.e. - commercial speeding; out of designated lane; log book violation, etc.), that does not require a mandatory appearance in court, to prepare and submit a sworn declaration to the court in his/her own defense. The citing police officer will also be allowed to submit his/her own declaration to the court, in response to the defendant.
As an experienced attorney having represented hundreds of defendants in California courts of law, I do not recommend the use of a Trial By Written Declaration. Despite the fact that some organizations claim favorable results from a Trial By Written Declaration, here are the primary reasons you should avoid relying upon this procedure:
1. Upon conviction (which happens in the majority of cases), the violation is reported to the DMV immediately, given today's technology; even if a request for Trial de Novo (a New Trial) is granted by the court, the conviction will remain in place until the final outcome of your new trial. This may mean adverse consequences for you with an employer, insurance carrier, or the DMV itself.
2. Many citing officers may be hesitant to allow for any concessions or optional dispositions at a subsequent Court Trial proceeding, once you have actually challenged them through a Trial By Written Declaration process.
3. You must pay the full amount of your bail to the court, prior to your Trial By Written Declaration being heard and considered by the Judge - For Example: If you are cited for CVC 22406(a) - Speeding in a Commercial Motor Vehicle (69 mph / 55 mph zone), your bail amount would be $489.00. This is not the case if you enter a plea of Not Guilty, and then request a formal Court Trial proceeding.
4. If found Guilty (which occurs a majority of the time), you only have twenty (20) calendar days after the date the court's decision is mailed to you to request a Trial De Novo, or New Trial, or else your conviction will remain in place.
5. Any information an individual defendant puts into a Trial By Written Declaration becomes admissible evidence, and can and will be used against them in all future related court proceedings!
6. You are waiving or giving up your Right to Remain Silent and your right against Self Incrimination. A right codified in the Fifth Amendment of our U.S. Constitution, and further solidified in the famous case of Miranda v. Arizona (1966) 384 US 436. A person's "Miranda Rights", include the requirement that law enforcement must inform a person of their Right to Remain Silent (among other rights) whenever the person is the subject of a "custodial interrogation." (“Interrogation” includes not only express questioning, but also words or actions that police officers should know are reasonably likely to provoke an incriminating response. “Custody” describes a situation in which a reasonable person in the suspect’s shoes would not feel free to leave).
In addition, you are also waiving other constitutional rights such as your Right to Appear, Right to Testify in Person, and just as importantly, your Right to Confront Adverse Witnesses (such as the law enforcement officer involved in your particular case). You will not have the benefit of seeing the Officer's Declaration and statements he/she is making against you - and vice versa - prior to submitting your own Declaration!
Special Note: There are a number of companies in California whom advertise Trial by Declaration processing services. You should be aware that many of these are owned and operated by non-attorneys, and are simply legal document assistants which cannot provide you with any legal advice, and cannot represent you in a court of law. They cannot engage in the practice of law - this includes providing you with any advice, opinion, recommendation about possible legal rights, remedies, defenses, and strategies. You will be a Pro Per defendant, and will be representing yourself in front of the Court. If your Trial By Declaration is decided against you - which occurs in the majority of the cases - you will have to submit a Trial de Novo (New Trial) request, and be prepared to either represent yourself at the Court Trial, or, hire a licensed California attorney.
My office may be able to obtain favorable results for you ! I have been in practice for over 35 years, and have a very high success rate ! Please contact our office today for a FREE case evaluation at (760) 326-LAWS (5297) or (702) 817-4661 - Call Anytime !
Attorney at Law
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