I went to trial and the judge did not show up. Is there a way I could use this to get my ticket thrown out?
You can file and/or argue a motion to dismiss. Possible grounds: 1) denial of the right to a speedy trial; 2) denial of due process because the delay caused your case some "prejudice" (like a witness was no longer available for a new date); and 3) just plain "in the interests of justice" because of the drastically increased burden on you to defend against a small, but unfair attempted government taking. here is a Sample CA form template. You can probably just make an oral motion when in court. Form not required. You just have to talk the judge into it. You have to show prejudice to your case, and unfairness.
I wish you luck. AttyDort out. Follow up ?s ok.
So as soon as the trial starts, I could say "Your honor, I motion for a dismissal on the grounds that at my previous trial date, I was denied the right to trial and I had to once again drive two hours, miss work and pay, and today specifically, miss a fishing trip that was planned for my father's birthday, who is now 80 years old."Would that be a good or bad idea?
Yes, you are close. But I would say:
1) dont talk about relatives, kids, etc - focus on reasons why it is harder for you to defend your case now.
2) throw in the words: "fundamentally unfair" and "denial of due process" and "interests of justice".
If you do not have a good argument for why it hurt your defense, you will not get a dismissal.
Okay. So perhaps mention that with the increased time, and the full knowledge that I wish to go to trial, the officer has now had time to specially prepare a case against me that he would not have done before?
What jurisdiction are you in? What is the nature of the ticket please? I'm happy to assist you today.SmithEsq41090.0115092245
I understand you are dealing with a traffic matter, however, not all offenses are the same. Can you be more detailed?
The allegation is currently traveling 54 in a 45. The penalty is $81 and 2 pts. The officer said that if I take the ticket to trial, he will up it to 62-64 with a penalty of $130+ and 4pts. He refused to plea bargain. The court was a magistrate court.The location given on the ticket is Darlington county South Carolina Hwy number 52.Please let me know of any other information I could provide that might be informative.
The idea that the officer had more time to prepare and therefore your case was hurt does not make any sense. Focus on why it hurt your defense. If it did not hurt your defense, and you cant think of an argument - then you really dont have an issue. You have to base your argument on prejudice to your case if you can.
Well I am getting the idea that the officer will bring in evidence that he did not bring the first time, and by allow him to have this evidence, it changed the balance of the trial as it would have been on the first day. So I could see it at least reasonable that the judge would suppress all new evidence the officer would bring. Am I not understanding this correctly?
While I am researching Some of the specifics in your jurisdiction I can tell you I've never heard of a judge not showing up, though I have heard of police officers not appearing. Generally, judges do not even preside over traffic matters, rather, administrative law judges or, high ranking non-judge arbitrators do the proceedings. When an flicker fails to appear, they often dismiss the case fr lack of evidence or rule on the paperwork.what does your actual ticket say? Does it allege you were driving 54 in a 45?
Hi,It took a very long time for some reason but I found the basic speeding laws of south Carolina and have just a couple more questions. Was the speed limit they said you violated posted on a sign or was it constructed by the officer based on the circumstances of traffic? Secondly, are you a resident of SC and is this your first offense, how many do you have and how many points are on your license? Sorry to ask so many questions but I'm a stickler for accuracy, even though we aren't giving specific legal advice. Thank you.
In darlington county the magistrate's court has jurisdiction and though the county has chosen to enact its own traffic laws, they ave not yet been codified. Therefore, state law dictates that in a county where a magistrate court rules (over small civil actions and traffic offenses) like a judge, they are in charge. However, rules of due process still apply to you. The laws of South Carolina state and in Darlington County that if a witness is unavailable because of an official duty or capacity, and the magistrate would have to decide that, he may be questioned by mail via what are called "interrogatories" that is, you can cross examine him by mail if the judge finds his absence excusable. If he attempts to alter the evidence from one proceeding to the next, that is called a prior inconsistent statement and is grounds for impeachment, which means it makes him look like a liar. So, it is unlikely an officer could change or amplify the evidence to such an extent that it changes your charge. Your charge of speeding changes depending on how much you were speeding so if he materially alters the evidence it would be grounds for either a)inadmissibility because you are probably entitled to it as discovery prior to trial b) mistrial as it is so egregiously different that it prejudices the defendants ability to know his charges or at the least it c) lessens that officer's credibility as a prior inconsistent statement. If the magistrate has not excused the witness but is giving him one more opportunity to appear the above still apply. The officer is threatening you, it sounds like, but you have a right to confront your accuser. Do you require further info?SmithEsq41092.6966215278
If my answer has helped please rate it positively or tell me how I can be of further assistance.
Yes, the ticket specifically alleges I was traveling 54 in a 45. As stated, the officer said he will remove his reduction that was done on the street(which he never wrote down for me). It was done by a sign posted that I noticed when I traveled the rout a second time. I did not see the sign the first time through.I am a resident of North Carolina and this would be my first time having a ticket with points. My only other time of having a ticket was an allegation of careless operation in North Carolina, which was zero points.If I wanted to point out that the officer was changing the charge, would I do so in a motion for dismissal or at the beginning of the case?I am sure this will be all of my questions. Thank you for your help with all of this situation so far.
I can only be general, but the way i see it, procedurally speaking, if the case is recalandered, you object to the addition of new evidence on the grounds above that I discussed. Then, if he is allowed to testify, you move to dismiss based on the various grounds other than those the judge has already ruled on. So, object to his testimony first and get a ruling. Then, If he testifies, move to dismiss afterwords, based on grounds stated above (credibility, failure to make out prima face case, etc). Then if it is not dismissed you get to make your own case, so if you ave a ticket or correspondence that conflicts with his testimony, you can use it in his questioning and your direct case, if it actually gets that far. All drivers in that state, btw, can get a 4 point reduction by taking a simple driving class, Abe a couple f hours long, FYI. Good luck!
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