Bill of Rights – Lest We Forget

Remember way back in elementary school learning about the Founding Fathers and the Bill of Rights? Well, here it is as a reminder. Enjoy!

 

The Bill of Rights: The First Ten Amendments to the Constitution of the United States of America

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Attorney on Your Side

Sometimes the way to enjoy life is to allow the professionals to do their job. Getting pulled over by a police officer is an interesting experience, to say the least. Dealing with the traffic ticket once it is in your hands is especially challenging. Concerns arise about insurance, money, DMV record, court appearances, and even how you define yourself as a person, a driver, a friend, a reliable family member, and so on. Because “nobody walks in LA” we seem to define oursevles by our driving in some manner. However, to put things in perspective, a traffic ticket should not be a devestating, life-altering event.

This is why you need an attorney, such as the Law Office of David Dastrup. We understand the challenge that even the most stable and confident person experiences when, for example, you get a speeding ticket. In fact, there are many issues that our attorney will use to defend your interests. You have Constitutional Rights under the United States of America and the State of California that protect you in regards to your traffic ticket. Many of the same rights that we protect our clients with criminal cases also apply to our clients with traffic ticket cases.

You have the right to a speedy trial, the right to confront your accuser, the right to not have excessive bail, to not be subject to unlawful police searches, . . . and so on.

Because you are a person of integrity, you may wonder why you should fight your ticket even though you were, for example, caught speeding. When you hire the Law Office of David Dastrup, we fight for you based entirely on integrity that comes from “One Nation Under God,” using the Constitutional rights your Founding Fathers established, and later, congresspersons preserved, for you. These several rights you hold are kept alive today only when people like you put them to use. We will represent you and your rights in seeking to have your case dismissed.

When your case is dismissed, that essentially means that you have won in that there is no conviction, no fine, no state or court costs or fees, no traffic school, and, most importantly, no point on your DMV record.

In the alternative, if you case is not dismissed, there is a high probability that it will be reduced to a non-point violation, meaning no points on your DMV record, no need to take traffic school, no insurance rate hikes.

In the lesser likely alternative, a minority of case that we have handled in past have resulted in traffic school, sometimes with a reduced fine, sometimes the full fine. Sometimes the fine is reduced based on a guilty plea or guilty at trial. Sometimes there is no reduction.

There are no guaranteed results. The best that any attorney can do is to give you historical data of other case results, but there is no guarantee that your case will result in any particular way.

Regardless, other benefits of hiring an attorney is that you get access to the law that you would not have on your own. This is true especially when dealing with an attorney that answers your questions, explains the law, and takes the time to converse with you about your needs and concerns.

Hiring an attorney to represent you in court frees up your time. Going to court on your case can take several hours on several different days. For example, when you appear at arraignment–the first hearing–you will have to wait your turn in a courtroom full of people. Some courts,  in Orange County, for example, hold over two hundred people. In Los Angeles, one courthouse in particular handles hundreds of ticket every day. What these means for you is that you may be in court all day. On misdemeanors, it is extremely common that you are in court from 8:30 to sometime in the afternoon.

It is your choice. It can only help to ask an attorney directly at 310-210-2212.

Represent Yourself vs. Attorney Represents You

Having the right tools can make all of the difference.

Going to court yourself may seem as foreign as what you are called, “propria persona.” The courtroom can feel like a foreign country, with its own language (legalese), its own army (bailiffs), and its own rules and procedures, not to mention the added ambiguity of the law.

In contrast, a trial attorney feels at home in the courtroom because he or she is in court everyday representing people like you. An attorney has bag full of legal tools and experience that created confidence and comfort in court.

In the alternative, you could hire an attorney to help you learn about the things you need to know and what you need to do to protect yourself. Unfortunately, the cost of this advice is probably more than having the attorney go to court with you. This is because there are so many variables which, by the very nature of being variable, are not known until the case unfolds. Great attorneys are prepared and able to deal with what is thrown at them at the last second. There is no way you could be as prepared with a little legal advice as an experienced attorney.

Remember, you are defending your driving privilege. This may not be something you want to risk to your own devices. That is why an attorney can be so valuable. On the other hand, just because an attorney represent you, does not mean you will win. The public judges an attorney by the ultimate result, regardless of whether or not the attorney did everything right and then some.

Side note: Yes, driving is only a privilege but it sure feels like it should be a right. You should protect that privilege like it is a right. However, the courts and the DMV clearly treat it like a privilege.

 

Judges with Attitude – Ugh!

The worst part about appearing in court is dealing with judges with attitudes. Unfortunately, it is the sad disposition of man that anytime anyone gets a little bit of power, they abuse that power. Make no mistake about it, a judge is in power. More often then it should be, some judges are sarcastic, inappropriately critical, and condescending from the bench. This is an abuse of power. They were not put there for this. They were put there to judge, to make rulings, to keep order in the judicial system.

Once a judge starts passively or actively insulting or attacking anyone standing before them, they are acting outside their given authority and power. Unfortunately, there is no realistic way to combat this. It is like dealing with a road-raged driver. You can either ignore them and keep driving or give them attention and their rage will increase. Same with a judge. If you respond to their abuse of power actions, they get more irate, more sarcastic, more insulting, from the bench.

How to behave when before a judge giving attitude:

Courtroom decorum is all about keeping an even keel, win or lose. A professional cool response to all situations. Be flexible while staying focus on what you planned to do before you entered the courtroom. Remember, the judge is not always right and you have the right to be heard. Whether or not what you say makes a difference in ultimate resolution of your case, rest assured that your demeanor always makes a difference in how you are respected but the court and the court staff. Having a good reputation under fire is like gold. It opens doors that you may not have known existed.

On the other hand, if you are only going to be in court one time for your traffic ticket, then, how you act does not really matter, except for your personal integrity, and who you represent, and what kind of society you want, and what kind of example you set. Hopefully the idea is clear.

Kindness begins with you. Your example affects society. Let me explain. If the first person heard in court misbehaves, is rude or boisterous, it can be contagious. This is similar to when someone yawns. The person that observes the yawn will then yawn. So your behavior matters.

Next, you want to keep your integrity. Once I observed a man threaten to kill a police officer in court. The judge and bailiff (guy with the gun) stood by and listened. They were allowing the situation to de-escalate. It didn’t. (However, it usually does so it is worth the attempt.) The man was the defendant. The reason the man threatened the police officer with foul language, yelling, and “If I see you on the street, I’m going to kill you” was because the police officer used racial slurs against the defendant at the time the traffic ticket was issued. The police officer told the man to “Go back to where you came from. You do not belong in this town. Take all of your [race/national origin] family with you.”

This situation shows a judge without attitude. It goes both way. Here, the man had attitude. He should have first considered his own integrity, his own self-respect, and the family and God he represented. No matter how upsetting a situation, the courtroom is not the place to threaten someone. The ultimate resolution of this man’s case was not affected by his behavior only because the judge in this courtroom was good, able to sift through what mattered for the original charge. However, the man did have to deal with a few bailiffs before leaving that day.

In summary, not matter what someone else does, even a judge, it is best to keep your cool, follow your plan, and demonstrate self-restraint.

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.