Pleading and Arraignment in Traffic Court

Before you show up in traffic court for your trial, there are some things you must do, and more you should do.

Contacting the Court for Information

The date by which you must pay the fine or ask to appear in court should be printed on your ticket. For obvious reasons, paying up is usually made very easy. But if you want to fight, you may need to call the court to find out exactly what you need to do. Be prepared for frustration. Many courts have automatic phone systems from hell (that is, designed not to answer even one of your sensible questions). Persevere—or stop by the court clerk's office before the drop-dead date—and you should find a live person who can help.

If you do speak to a live clerk, either by phone or by trekking to the courthouse, you'll want to have your ticket in hand to ask for the following information:

• Does the date on my ticket indicate my court date, or just the date by which I have to say whether I plan to contest my ticket?
• What additional steps must I take to fight my ticket?
• Is it possible to obtain an extension of time in which to decide whether I want to contest the ticket or schedule a trial date?
• Am I eligible for traffic school?

Deciding How to Plead

After you get basic information about your ticket and your options, you'll have to decide on a course of action. In most states, if for any reason you won't go to traffic school, you'll normally have four options:

• Pay the fine (called "forfeiting bail" in many places, the equivalent of pleading guilty).
• Plead guilty with an explanation.
• Plead nolo contendere.
• Plead not guilty (often this can be done at the clerk's office without entering a formal plea).

Do your homework. Before going to the court clerk's office or a court kiosk, you'll want to do the research necessary to decide whether you'll contest your ticket. Often this will save you a return trip to the courthouse.

Now let's look at each of these options in more detail.

Paying the Fine (Forfeiting Bail)

If you decide to pay the fine (equivalent to entering a guilty plea), this fact will appear on your driving record. If your record is otherwise spotless, a single violation should not affect your driving privileges or insurance premiums. But it's also true that you never know if you'll get another moving violation a week after (unless, of course, you switch to public transit, your bike, feet, or stay at home). Then, of course, you would be in greater jeopardy of an insurance premium increase and—if you get several more tickets—a possible license suspension. That's why we believe, if you aren't eligible for traffic school (see Traffic School Basics) but have a decent defense, it often makes sense to assert it.

Courts make it easy to pay the fine in most cases. They almost universally allow you to do so by mail or through the court clerk's office. Rarely will you be required to appear in court and admit your guilt. Traffic offenses where a formal guilty plea may be required in some states include driving more than 20 mph over the speed limit, reckless driving, and alcohol-related violations, like driving with an open alcoholic beverage container. If you have been in an accident related to the ticket, read the sidebar "If You Were Involved in an Accident," below.

What Is Reasonable Doubt?

To be convicted of a traffic violation in most states, you must be found guilty beyond a "reasonable doubt." The legal definition goes like this: "Reasonable doubt is not a mere possible or imaginary doubt, but that state of the evidence where you do not have an abiding conviction, to a certainty, of the truth of the charge."

Now that's as clear as mud, isn't it? Here is a real-life example of reasonable doubt that may help: John is tried for murder, and all the jurors vote "guilty" except Jake, who holds out for a not guilty verdict. The jury is hung. A local citizen later confronts Jake, saying, "How could you say John didn't do it?" "I didn't say John didn't do it; I'm just not sure that he did," Jake replies.

Plead Guilty With an Explanation

If you did it and have no decent defense, there is no need to go to court and plead guilty, as was common in times past. Just pay the fine (forfeit bail) and the deed is done. But one exception to this rule occurs in areas where you are allowed to enter a "guilty with an explanation" plea. As the name suggests, this involves pleading guilty but telling the judge a good enough story that he or she may reduce or even suspend the fine. Even where allowed, this is rarely a good approach. Even if a sympathetic judge reduces or "suspends" the fine, the offense still goes on your driving record and your insurance rates may rise. People who do not want to go to the trouble of preparing a good defense but who want to take a shot at tugging at the judge's heartstrings sometimes try this approach. It's far better to plead not guilty and take your best shot at trying to convince the judge you are not guilty. Also, the officer may not show up in court, which often results in the case against you being dismissed.

Plead Nolo Contendere

A plea of nolo contendere (pronounced "no-lo con-tend-er-ray") literally means: "I do not choose to contest the charge." While rarely necessary, this plea makes sense if you have been in an accident and, for some reason, you must enter a formal plea in court (can't just forfeit bail at the clerk's office). Because a nolo contendere plea admits only that you are not contesting the facts stated in the criminal charge (in this case, the ticket), it cannot be used as an admission of guilt in other cases. (But see Can a plea of “no contest” count against you in civil court?) By contrast, a guilty plea can often be used against you in another lawsuit. All of this can be critical if you face the possibility of a civil lawsuit for damages because of a claim that you damaged property or caused injury or death to another person.

What if a judge balks at your nolo plea? Some judges hate nolo contendere pleas. They figure you are either guilty or not guilty. If your judge resists allowing you to enter a nolo contendere plea, tell him or her that there was an auto accident—if true, of course. This should change the judge's mind. If the judge still says no, plead not guilty. This will give you a chance to discuss strategy with your insurance company and, if the situation is serious, a lawyer.

The Not Guilty Plea

Under our legal system, it is always your legal right to plead not guilty. This is true whether you think you are guilty or not. In many places, you can plead not guilty by mail or telephone, or by using a traffic court kiosk. In almost all others, this can be done at the court clerk's window. In either case, you may be required to post a fee—often called bail—which you get returned if you win. In a very few rural areas, to enter a not guilty plea you must appear before a judge at a brief court proceeding called an arraignment (see discussion, below).

Should You Insist on an Arraignment?

Many courts have completely abolished the arraignment procedure by which you enter your plea in front of a judge. But in other courts, you do have the right to insist on entering your plea in court (although you may not be told about it unless you ask). Here are a few reasons why you might want to do this:

• At arraignment you can ask about your right to obtain—or "discover," in legal jargon—the evidence the officer will present against you at trial. (See below for other ways to discover evidence.). This evidence can ultimately be used to test the sufficiency of the complaint and whether probable cause existed.
• This is often when and where you can ask for a jury trial, if your state is one that allows it for ordinary traffic violations. (If you are not allowed arraignment in your state, be sure to ask the court clerk how to ask for a jury trial, if you are allowed one.)
• This is where you can plead nolo contendere to a violation arising out of an accident. (Normally this is necessary only if the accident makes you ineligible to forfeit bail. See sidebar above).

What Happens at Arraignment

If you have decided not to be arraigned, you may skip to the next section, "Using ‘Discovery' to Build Your Case."

Arraignments are used by the court to inform you of what you are charged with, as well as outlining your basic legal rights—including the right to an attorney, to cross-examine the officer, to call witnesses to testify for you, and, in some states, to request a jury trial.

At an arraignment, the judge will usually address traffic defendants in a group, informing them of their rights, which include:

• The right to a trial at which the state has the burden of proving you guilty beyond a reasonable doubt. (If you are charged with exceeding a "presumed" speed limit, the state must show "beyond a reasonable doubt" that you exceeded the speed limit. After that, you have the burden of proving that your speed was safe.)
• The right to see, hear, and cross-examine the prosecution's witnesses (usually just the ticketing officer)
• The right to call or "subpoena" witnesses to testify for you
• If the offense is punishable by a jail sentence—as with drunk or reckless driving—the right to a court-appointed lawyer, and
• The right to a jury trial if your state allows one for traffic offenses.

If you plead guilty or no contest, the judge will probably ask whether you understand your rights. If you say you do, you will not be able to complain later.

Insist on a jury. To save court time a judge may tell you, "I recommend that you choose (or accept) a court trial." In the parlance of lawyers and judges, "court trial" or "bench trial" means a trial before a judge, not a jury. So if a judge tries to push for a court trial in a state where you have a right to a jury, insist you want a jury trial by saying, "No, Your Honor, I want a jury trial."

Entering a Not Guilty Plea at Arraignment

If you request an arraignment, the judge will ask you how you plead. Answer "not guilty." At the same time, you should specifically request the officer's presence at your trial (in some states you may waive this right without knowing it unless you insist on it to the clerk or at arraignment) and demand a jury trial if your state allows them for trafic offenses.

Don't be talked out of your right to a jury trial. Assuming you do the homework necessary to cope with a far more complicated courtroom situation, your chances of winning are almost always better in front of a jury than before a judge, often because jurors feel they have been treated unfairly in traffic court and may side with you.

Another reason to press for a jury trial is that it may cause the prosecutor to dismiss it (especially likely if the prosecution's case really is weak). Another possibility is that the prosecutor may offer you an opportunity to plead to a reduced charge or attend traffic school, if it is otherwise not an option. In short, even if the judge tries to dissuade you from trying your case in front of a jury, there can be good reasons to insist on it.

In some states you may be asked at your arraignment whether you have been convicted previously of any traffic offenses. Occasionally, higher fines are imposed on repeat traffic law offenders. Never lie. If you do have prior offenses (sometimes shortened to the term "priors"), it is best to fess up or, if they are in other states or might be hard to find, say, "I deny the validity of any prior convictions." This is acceptable language in the court system even if, in fact, you have forfeited bail or been convicted of one or more prior traffic offenses. All you are saying is that it is up to the prosecution to find and present evidence of any prior traffic offenses.

Understand Speedy Trial Rules

The Sixth Amendment to the U.S. Constitution guarantees "a speedy and public trial" in all criminal cases but fails to say exactly what "speedy" means. Many states have laws defining that last term. For example, California requires that a case be dismissed if not brought to trial within 45 days of entering a not guilty plea before a judge.

Especially where your state's speedy-trial deadline is short, harried traffic court judges are likely to ask you to waive your right to a speedy trial. Often this is done at an arraignment or if you make a motion to discover the officer's notes. Typically, the judge will say something like, "Do you waive time for trial?" or even just "Do you waive time?"

If you enter a not guilty plea at a clerk's office in California and some other states, the clerk will insist that you sign a form giving up your right to a speedy trial in exchange for the convenience of skipping a formal arraignment (where you would go to court and plead not guilty). In other places, you may have a choice as to whether you wish to waive time. So if you are asked to "waive time," politely ask the clerk if you have the option of refusing without having to go through with an arraignment. If so, you will almost always want to say "no." Here's why. In busy courthouses, your trial will probably be scheduled toward the end of the time allowed by the law. This means if the officer does not appear for the trial and the judge does not dismiss the ticket (something the judge may, but is not required, to do), he or she will have to reschedule your trial with the officer present before the "speedy trial" deadline. This may be impossible. In that case, you win.

Consider Delaying the Arraignment and/or Trial

Be prepared to negotiate for a convenient trial date. If the judge proposes a date on which you have a conflict, speak right up and say why it is inconvenient. The judge will very likely set a later date. But be careful not to accept a date that is past the number of days allowed in your state to conduct a speedy trial, because by doing so you would probably give up ("waive") your right to a speedy trial.

Sometimes it pays to delay. Instead of proceeding right to trial—or even entering a guilty plea, if that's what you eventually plan to do—you may want to put things off for several weeks or months. For example, you may be able to delay the trial date until after a time when any new points from a conviction would cause the state to suspend your license. This would be a good idea if you have points on your record that would expire during the delay. Often it's possible to get a delay by going to the court clerk a few days before the appearance deadline listed on your ticket and asking for an extension. In many courts, the clerk will give you at least one delay without much coaxing.

Trial by Declaration or Affidavit

In a few states, you have the option of presenting your defense in writing, rather than personally appearing at a trial. Typically, you make your testimony in a "declaration," which is a written statement you type up and sign, swearing you are telling the truth. You do this by adding this phrase at the end of your signed statement: "I declare under penalty of perjury that the foregoing is true and correct. Executed on [date] at [city and state])." Some courts may require you to have your statement notarized instead of, or in addition to, swearing it is true (precise rules will be available from the court clerk).

This procedure is called "trial by declaration" or "trial by affidavit." Even in states that don't have laws allowing this procedure, some courts will permit it anyway. Check with your court clerk if you think you might want to use this option.

One obvious advantage of opting for a trial by declaration is that you don't have to appear in court for a trial—a big help if you got your ticket far from home and don't relish driving a hundred or more miles to testify. Another advantage is that you can take time to draft a convincing, well-thought-out defense, which may convince a judge better than the oral testimony of an inexperienced, nervous defendant.

But there is a big downside of not appearing in front of the judge: You give up your right to present your defense in person, to get the case dismissed if the officer doesn't show at trial, and to cross-examine the officer if he or she does show up. For example, you'll never hear what the officer says and won't have a chance to poke holes in a weak presentation. Many courts also require the officer to present specific written testimony when you opt for this procedure—without giving you the opportunity to see the officer's statement before you prepare yours. But in some states you do have a right to request a copy of the officer's notes before you submit your written statement to the court.

If trial by declaration is available, and you think you might want to opt for it, contact the court clerk to ask about the procedure. Some courts require that you use their forms to print or type your statement. Courts may also require you to pay the fine in advance, in the event you're convicted. Every court has a policy that your statement be submitted within a certain time period.

Before submitting your defense, consider reviewing the articles below to get an idea of the types of defenses that can work and that won't work. Keep in mind that if you have any witnesses whose testimony you think may be helpful, you can also present their declarations or affidavits, in addition to yours. Below is a sample declaration:

Fight Your Speeding Ticket: What is the Law?

Fight Your Speeding Ticket: Determining Your Speed

Running a Stop Sign

Running a Red Light

Red Light Cameras

Improper Turns

Failing to Provide Right of Way

Driving Too Slow in Left Lane

Tailgating

Unsafe Lane Changes

Improper Passing

Pleading and Arraignment in Traffic Court

Getting Police Evidence to Fight Tickets

Postponing Your Court Date: The Continuance

Gathering the Evidence For Traffic Court

Preparing Diagrams and Photos for Traffic Court

Preparing Your Testimony for Traffic Court

Preparing Your Witnesses for Traffic Court

October 1, 20xx
5227 Anza Street
San Francisco, California 94121

Traffic Court Clerk
Superior Court of Alameda County
Oakland-Piedmont-Emeryville District
661 Washington Street, Second Floor
Oakland, CA 94612

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Re: People v. Lenny D. Leadfoot, Municipal Court No. A036912-B
Traffic Citation - Oakland Police Dept. No. 99-O-12345
Declaration of Defendant Lenny D. Leadfoot in Support of Trial by Written Declaration

Dear Clerk:

As allowed under state law/local practice, I enclose a check for $123 bail, plead not guilty to the above-referenced charge, and submit the following declaration:

On September 20, 20xx, at approximately 10:30 a.m., I was driving my 1996 Honda Civic, License No. 3JXS505, west on Breezy Boulevard, a four-lane divided highway, between Drag Boulevard and Zoom Street. I was in the right-hand lane. The weather was clear and dry. There was no traffic in my direction other than a large panel truck (visible in my side view mirror) in the left lane, several car lengths behind me. The truck overtook and passed my vehicle shortly before I crossed the Zoom Street intersection. As that occurred, I wondered whether I was driving too slowly, and noticed that my speedometer indicated I was going 34 mph. The posted speed limit was 35 mph.

Officer Stickler of the Oakland Police Department stopped me approximately two blocks past Zoom Street. He informed me that he had determined my speed on his hand-held radar unit to be 49 mph. He said that he had read my speed at the Breezy Boulevard–Drag Boulevard intersection from the intersection at Zoom Street, which a street map will show is 500 feet away. Officer Stickler responded to several of my questions by stating that the radar beam width was "about six degrees," and that his unit had been "calibrated recently with this little knob," pointing to the "calibrate" position on the controls of the unit. He said he hadn't used a tuning fork, and that he didn't have one in his possession. He also indicated that his unit was capable of reading speeds of both oncoming and receding traffic. Traffic was heavy in the opposite direction at the time, but not in my direction.

I believe that there exists a reasonable doubt as to the accuracy of Officer Stickler's radar reading. As can be seen from the diagram below, a six-degree beam width at 500 feet will indiscriminately read speeds of vehicles across a width of 55 feet, all four lanes of traffic.

The radar unit may therefore have been reading both speeds of traffic in my direction (including a truck target much larger and more likely to reflect radar beams than my small Honda Civic) and the heavy traffic in the other direction. This being so, it is doubtful that the speed he recorded was mine.

Also enclosed is the declaration of Wilhelmina D. Witness.

I declare under penalty of perjury that the foregoing is true and correct. Executed on October 2, 20xx, at Rough and Ready, California.

Lenny D. Leadfoot

Lenny D. Leadfoot

Attached Declaration of Wilhelmina Witness

Within a few weeks after submitting your written declaration (or affidavit, if required), you should receive a notice in the mail with the judge's verdict. If the notice says you were found not guilty, any fine ("bail") that you prepaid should be refunded to you.