If you are charged with an infraction violation and you want to dispute your ticket, Vehicle Code section 40902 allows an individual to challenge traffic infraction citations in writing without having to appear in person at court. This procedure is called a trial by written declaration.
While our first option is to go to court for you and represent you in person if it is a court we do not appear personally we will use the trial by declaration process to fight your case.
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What is a trial by declaration?
A Trial by Written Declaration is simply that, a trial. It’s just a trial in written form rather than in person. A moving violation ticket is considered an “infraction” (as opposed to a misdemeanor). With an infraction, the accused does not have the right to a jury trial but does have the right to face the allegations against him/her through a bench trial (i.e. no jury). In these cases, a judge will review all the evidence that we put forth and make a decision/verdict. A written declaration is a trial by way of written defense, rather than oral, and after the judge reaches a verdict, the court will mail it back to you.
Advantages of a Trial by Written Declaration
- Convenience and Cost. The cost of a TBD is usually half the price of an attorney representing you in court, yet with the TBD you still get the benefit of a licensed attorney putting together your whole defense. And further, you never have to go to court or even go to a lawyer’s office.
- No Officer. In a written declaration defense, the officer that gave the ticket will not be there in court to fight against you. With TBD, the officer is given a small window of time to send in his/her notes in response, and if they fail to do so or do so in time, you win automatically! Officers are not paid to fill out this extra paperwork, so the incentive to do it is much lower than it is for them to actually show up in court. Furthermore, if the officer can’t see you in court, he will have a much more difficult time remembering the circumstances of the incident. Finally, there’s no worry about the officer intimidating you as happens at times in court.
- Your Case Fully Presented. Traffic court moves fast, and judges like to move people along quickly. The result is often that you are unable to fully lay out your case. A TBD is advantageous in that we can present a complete defense where the judge is assigned a time/date that he/she must review the whole case fairly and separate from the busy court.
- New Trial. One of the main advantages of beginning with a TBD is that if we happen to lose, we can actually set up a new trial, called a Trial De Novo, which gives you a clean slate and a second chance to fight your ticket. There are several new advantages at this stage. First, if the officer fails to show up, you win! Second, you may get a new judge who is more careful than the first one. Third, since this will be a few month out from when you got the ticket, the officer will have a harder time remembering anything from the incident. There is nowhere else in the court system that you can have a new trial simply because you did not like the outcome of the first trial. It is only possible when you use a trial by written declaration.
- Traffic School. As long as you are eligible for traffic school (i.e. have not attended in last 18 months), then you have the right to attend. Commercial drivers who get tickets in their commercial vehicle are not eligible for traffic school. However, if a CDL driver gets a ticket in his personal vehicle, he may attend traffic school. Speeding tickets 25 mph over the limit are not eligible for traffic school. If you contest your ticket with a written declaration and happen to lose, the court will inform you at that time about how to attend traffic school. In some very rare cases, a judge will withhold traffic school from someone who was previously eligible. This should not happen according to VC 42005 and California Rule of Court 4.104(c)(z). Also see People v. Wozniak. And even in these rare cases, we can almost always get traffic school re-granted in a trial de novo.
