So you’re considering fighting your citation by means of Trial by Written Declaration. You know that you must have favorable facts and argue that you did not violate the statute as written. But what will the officer say? What is his/her response going to be and what will it look like? Take a look at CA Form TR-235 (below). This is the standardized form that the officer will use to submit his/her side of the argument. You’ll notice that it has the officer’s declaration, the method used to determine the vehicle’s speed, the facts, and any other evidence or diagram that the officer wishes to submit. By seeing what the officer is submitting…or better yet, the format of the officer’s submission, you can better prepare your own declaration.
How Do I Appeal if I am Found Guilty
Judicial Council Form CR-141 has instructions on how to appeal infractions (including parking tickets) and Form CR-142 is used for a notice of appeal for infraction cases.
NOTE: It is important to understand that an appeal is NOT a new trial. The appellate judge will not consider new evidence, such as the testimony of new witnesses or new exhibits. The appellate judge’s job is to review a record of what happened in the trial court (or parking agency) to see if certain kinds of legal errors were made in the case; For example Prejudicial Error (things like errors made by the judge about the law, or errors or misconduct by the lawyers that harmed the appellant) or No Substantial Evidence (asks the appellate judge to determine if there was substantial evidence to support the judgment, order, or other decision being appealed).
You do not have to have a lawyer; you are allowed to represent yourself in an appeal in an infraction case. But appeals can be complicated, and you will have to follow the same rules that lawyers have to follow. Depending on your situation, you may be very well served by spending the money to either consult with an attorney if not fully retain an attorney.
Deciding on whether or not to hire an attorney for an infraction in traffic court
Since hiring an attorney to handle your traffic citations typically costs more than paying the citation outright, sometimes it’s just not the best option.
For example, you certainly don’t need an attorney to appear in court on your behalf to show proof of correction on a “fix-it” ticket. Unless, that is, your time is considerably valuable and it makes sense to pay someone else $200-$400 per hour to appear as your representative.
However, any infraction that runs the risk of placing points on your driving record with the DMV and increasing your long-term rates on your automobile insurance is certainly worth considering retaining an attorney’s services. More often than not, an attorney will be able to research the charge and surrounding facts to be certain the citation was a validly issued charge against the CA Vehicle Code. If successful, your attorney will be able to keep your driving record clean and help you maintain low insurance rates.
You should consider retaining the services of an attorney for an infraction by using a cost-benefit analysis; Is your investment of hiring an attorney going to keep your long-term costs down if you win and what is the likelihood of success on this issue? This will help you decide.
But be careful that your citation is actually an infraction and not a misdemeanor. (NOTE: You will see either an “I” or “M” circled on your citation notifying you what type of citation you’ve been issued) Because a misdemeanor carries the extra risk of jail time and leaving a criminal conviction on your record that is publicly searchable, it is almost always a good idea to retain the services of an attorney.
What do I do with my traffic ticket?
Read the “Notice to Appear” that is on your ticket. You will find:
- The law you have been accused of breaking;
- The deadline to pay the ticket or go to court;
- The name of the court that will decide your case, and
- What you must do to respond to the ticket.
TIP: DO NOT ignore a traffic ticket! Fees and other penalties will be added if you miss your deadlines. Read my other posts about traffic tickets and traffic court.
Ways to Clear Up Tickets for an Infraction
People have 2 major decisions to make when faced with an infraction:
(1) Fight the ticket; or
(2) Don’t Fight the ticket.
OPTION ONE: Don’t Fight the Ticket
If you decide to not fight the ticket, you have 3 options to clear up your traffic ticket: (1) Pay the Pay the full amount written on the ticket; (2) Pay the fine amount in installment payments; or (3) Appear in court and plead “guilty” to the citation.
It should be noted that if you have received a ticket that requires proof of vehicle registration or insurance, or proof that an equipment violation has been fixed, you can either provide proof in-person or by mail. If you decide to mail in your proof to the court, it is a really good idea to send your correspondence via ‘certified mail’ so that you have actual proof that you’ve mailed what you said you’ve mailed.
If you are going to pay your fine in installments, you should call the court and ask if installment plans can be set up by court employees in the Clerk’s Office or if you have to have a hearing in a courtroom and have a judicial officer decide.
If you decide to appear in court and plead guilty in-person, your fine and the payment due will be given to you in court. Make sure that, if you decide to do this, you go to court by the deadline written on your citation.
OPTION TWO: Fight the Ticket
If you decide to fight the ticket, you have two options to clear up your traffic ticket: (1) Appear in court and plead “not guilty”; or (2) Request a ‘Trial By Written Declaration’ and plead not guilty.
To plead not guilty in-person, you must go to the Clerk’s Office in the court by the deadline written on your citation and schedule a court trial date. You should be aware that you will likely have to post bond in order to receive a court trial and the bond amount always corresponds to the amount of the citation. If you lose at trial, the court converts your bond and uses it to pay your fine. If you win, however, you will receive a refund of your bond in the mail within 6-8 weeks.
NOTE: You can be found guilty for most traffic offenses even if you did not intend to break the law. For example, if you were driving over the speed limit but do not believe you were driving as fast as the officer said you were driving, you still have violated the law. If, in this example, you were cited for driving 75mph in a 65mph zone but you believe you were only driving 70mph, you were still speeding and will likely be found guilty.
To request a trial by written declaration, you should write to the court listed on your citation to make this request. You must submit a bond (the amount of your fine) to the court in order to receive a trial by written declaration. Then, you essentially present your case to the court in writing and the officer will do the same and the judge will make a ruling. You will be notified by mail of the court’s decision.
*****FAILURE TO APPEAR*****
Whatever you do, do NOT fail to appear before the date listed on your citation. A failure to appear (“FTA”) is a serious charge and, most importantly, exponentially more expensive than whatever the underlying citation was. Moreover, you will almost never be found “not guilty” on a FTA because the only way you could possibly be not guilty is if you were actually in court by the deadline on your citation. Since the judge, clerk, and bailiff are all present – it’s highly unlikely you would wrongly be issued a FTA.
|There are 3 kinds of citations where the police can give you a ticket:
1. Parking tickets
Parking tickets are not filed with the court. A parking ticket shows the amount you must pay to the parking agency where the violation occurred. The parking agency may also fine you for broken equipment (like your car’s headlight). If it does, you pay that agency the amount shown on the ticket.
2. Infraction traffic tickets
An infraction is a relatively minor violation of a law and cannot be punished by time in prison. And often, you do not need to go to court — if you take care of your ticket right away.
Your ticket should say what law you have been accused of breaking. Generally, it will be one of four (4) types:
(1) – Moving Violations; driving too fast or running a red light for example.
If you are stopped by a police officer for driving too fast or running a red light, you may be given a ticket. If you have proper identification and promise to go to court by signing a “Notice to Appear” ticket, you probably won’t have to go to jail.
If you get a photo-red-light or photo/railroad-grade crossing ticket, you will get a notice in the mail about how to handle the ticket.
If you don’t want to go to court, you can ask the court if you can:
NOTE: If you plead guilty and pay the fine, you will get points on your driving record and your car insurance may cost more.
If you don’t go to court or pay the fine, your license can be suspended and the court can charge you with a misdemeanor and issue a warrant for your arrest.
(2) – Driving without proof of insurance for your vehicle.
In California, you must have car insurance that covers you when you are driving any car. If a police officer stops you, you must show proof of insurance.
If you have insurance but don’t have proof to show the officer, you will be charged with an infraction for driving without proof of insurance. In court, you will have to provide proof that you had insurance on the day that you got the ticket and then pay a fine.
(3) – Car Registration or driver’s license violations.
You can handle this problem by going to your local DMV office and asking a clerk to help you. After you correct the problem, the DMV will sign the “Certificate of Correction” portion of your ticket.
Take or mail the signed ticket with proof of correction to the court, along with your dismissal fee (typically $25), before the deadline shown on your ticket. The court will then dismiss your case and it won’t go on your record.
(4) – Having broken equipment that you need to fix.
If a police officer gives you a “fix-it” ticket on a “Notice to Appear,” the “YES” box will be checked below the heading “Correctable Violation” on the front of the ticket.
First, you have to have the mechanical problem corrected. Once you have fixed the problem, take your ticket to a police station and ask a police officer to sign the “Certificate of Correction” on your ticket.
Then return the signed-off copy to the court with the fees shown on your courtesy notice before the deadline. You can check your ticket or contact the court to see if the court accepts proof of correction by mail. The court will then dismiss your case and it won’t go on your record.
NOTE: If you no longer own the vehicle, it is still your responsibility to clear the citation by either paying the bail or appearing in court. If you have junked the car, and appear in court, a receipt from the wrecking yard may be acceptable to clear this citation.
3. Misdemeanor traffic tickets
A misdemeanor is a crime that can be punished by up to one year in jail. If you received a misdemeanor ticket, you must go to court.
If the charges don’t involve alcohol or drugs, the police officer can ask you to sign the ticket, also called the “Notice to Appear” (in court). Signing doesn’t mean that you admit you’re guilty. It just means that you promise to appear in court.
NOTE: If the police officer thinks that you’re driving under the influence of alcohol and/or drugs, you’ll be taken into custody. Then you’ll have to go to court.
In California, a traffic case gets started when a traffic ticket (a citation1) is delivered to the court by a law enforcement agency, such as a local police department or the California Highway Patrol.
When the court receives the original citation, it opens a file for the case and generates and mails a courtesy notice to the person who was cited2. This courtesy notice will usually give information about:
- The amount of money due to the court for this ticket (called the “bail”);
- The deadline to respond to the court without additional penalties;
- Notice that the individual must appear in court in person (“Mandatory Appearance”), or that the citation can be resolved without ever appearing in court;
- Information regarding traffic violator school eligibility;
- Information regarding the requirements for clearing a correctible citation (sometimes called a “fix it” ticket).
NOTE: If you got a traffic ticket, it is your responsibility to get this information about deadlines or amounts due — whether or not you receive a courtesy notice in the mail. If you do not receive a courtesy notice, contact the court by the “promise to appear” date on your citation, and ask a clerk to let you know what you need to do.
1Citation: A court order or summons that tells a defendant what the charges are. Also tells the defendant to go to court and/or post bail.
2Cited: When a defendant is not in custody but has signed a ticket promising to go to court on a certain day; can be used for any infraction, city or county ordinance, or misdemeanor.