Demurrer – Objecting in the Beginning

A demurrer in an Orange County or Los Angeles County, Superior Court of California, traffic ticket or criminal case is basically telling the prosecution, and the court, for that matter, that the prosecution cannot proceed against the defendant from the start. It tells the court that they do not have jurisdiction over the case, that a plea — “not guilty,” “no contest” (formally known as “nolo contendere”), or, guilty — cannot be entered, because the criminal complaint fails on its face. It is a technical matter, a matter of law, not fact. It tells the court that, based on the ticket, or complaint, that the defendant is not held to answer (to plead). Thus, the court must dismiss the case.

Not that simple, because the prosecution could properly and timely amend. However, they usually do not on infraction cases. This is a big win for the defendant (or, in my case, the client). On criminal cases, they will virtually always amend.

Not a Motion, but is an Objection

A demurrer is kind of a reverse motion. It happens in the opposite order of a regular motion. It must be heard immediately by the court. It must be in writing, and it must be served upon the prosecution. So, it gets served on the prosecution, usually the Orange County District Attorney or Los Angeles District Attorney. However, some cities handle their own case, like the Anaheim City Attorney’s Office, in which case you would serve the demurrer at the Anaheim prosecutor’s office. Then, the prosecutor does not get notice before the arraignment, as the prosecutor set up the arraignment in the first place, inchoates with the court. But the prosecutor does get leave to amend of ten days to fix the complaint afterwards, assuming the court sustains the demurrer. Thus, we have a reverse notice issue. The court sustains the demurrer but the ultimate action of dismissing the case, or charge(s), does not happen until after the prosecution has notice of the ruling and a chance to amend. (We could also philosophize about how it differs from a motion in that motions often attach facts or constitutional issues and virtually always require advance notice before the court will hear, plus many motion do not have to written, etc.; but let it just stand that a demurrer is not a motion.

Constitutional Issue – Due Process

Notwithstanding, a demurrer does have a significant constitutional issue of due process. The government starts taking things from you, or at least threatens to take things — like your drivers license and money — unless you act on the defective complaint. To explain further, a traffic ticket is a notice to appear, not just a complaint. So when you sign a notice to appear, even if the complaint is defective, you still promised the court you would appear. If you do not appear, the court will tell the DMV to hold your drivers license. The court also charges you late fees, regardless of the rest of the case. They get away with this by calling it a civil assessment (translation: punishment for not showing up).

On the issue of making a timely appearance in court, the reason the law allows a demurrer to be heard right away is because the complaint is defective. A defective complaint stops the process from advancing. An example would be a speeding ticket that does not state the speed. Or, maybe the ticket was filled out improperly in some other way.

Not Factual, Not a Trial

No not be fooled, a demurrer does not contest the credibility of the police officer. Many people get very excited because the officer wrote their name down wrong, or the wrong color of their car. They think, “Well, this officer did not get it right so the ticket must be bogus.” Unfortunately, those issues go to the facts, whether or not the officer cited the right person, whether or not the officer could testify in court of the correct things, etc. Usually, the officer will simply state that they recognize the person or did so at the time according to their drivers license. That the ticket has a typo, not an issue as to whether a violation occurred. If you want to fight what the officer said, then you need to go to trial. Trial is well past the demurrer. A demurrer is the first thing a defendant does on his case.

Arraignment, Demurrer Right Away

Many lawyers feel that a demurrer is lost if not done right out of the gate. However, this is not necessarily true. If the attorney is newly hired on a case, even if a plea was already entered, there is some case law that still allows for a demurrer. This situation is rare but a good example of how a demurrer is not automatically and categorically lost if not raised. Nevertheless, the proper way to bring a demurrer is at the first arraignment hearing, but if not, it should be said on the record that the right to demurrer is reserved at the continued arraignment date, to be safe. I have never had a court deny this request. Then time is waived, which raises other issues not discussed in this article. (Notwithstanding, waiving time rarely hurts a defendant on a traffic ticket, but it could.) It is worth it to waive time so that the attorney has a chance to file a written — remember, an oral demurrer is not allowed, it must be written — when there was no chance before the arraignment. This situation often occurs when the attorney did not have the complaint until the arraignment, either because client hired attorney the night before or needed a copy of the official filed complaint from the court, i.e., formally filed copy of speeding ticket.

You and a Demurrer

Many people want to handle their own traffic ticket. Please, by all means do so if it is your passion. …And, keep in mind that your passion may be difficult. I read an article once for young college students pursuing careers of passion. One particular student loved animals and got a job at the zoo with the elephants. Feeding was part of the job, so was cleaning up. A cute elephant is a lot of work. Hopefully the passion kept this student going. Do you get the idea? You could go down to the local library and learn all about the law and doing a demurrer to get your ticket dismissed, but it might take you longer than you expected, and the court might reject your written document on a technicality. The court would not be wrong to do so, especially considering the demurrer you are is seeking a dismissal in your favor based on a technicality. I hope the irony is not wasted. This is why you may want to hire an attorney to fight your case. A professional attorney, even for a traffic ticket sees many angles and knows the process and can hit the mark without all of the sweat of taking care of an elephant, for example.